                                                                           FILED
                                                                            NOV 23 2009
                            NOT FOR PUBLICATION
                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

                    UNITED STATES COURT OF APPEALS

                             FOR THE NINTH CIRCUIT



ELENA V. BALDAEVA; et al.,                       No. 07-75099

             Petitioners,                        Agency Nos. A098-522-653
                                                             A098-522-654
  v.

ERIC H. HOLDER Jr., Attorney General,            MEMORANDUM *

             Respondent.



                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                            Submitted November 4, 2009 **
                                Seattle, Washington

Before: FERNANDEZ, KLEINFELD and CLIFTON, Circuit Judges.

       Elena V. Baldaeva, a native of the Buryat Republic and a citizen of the

Russian Federation, petitions for review of the BIA’s order dismissing her appeal

from an IJ’s decision denying her application for asylum. Baldaeva’s co-petitioner


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
is her Romanian husband, Raul Petrisor, whose claim is derivative of his wife’s

application. We deny the petition.

      Substantial evidence supports the BIA’s finding that Baldaeva suffered no

past persecution. The harassment, discrimination, and rudeness that she

experienced, even considered cumulatively, did not rise to the level of persecution.

See Kumar v. Gonzales, 439 F.3d 520, 524 (9th Cir. 2006). Because she suffered

no past persecution, Baldaeva bears the burden of establishing that she has a well-

founded fear of persecution and cannot reasonably relocate within Russia. 8

C.F.R. § 1208.13(b)(3)(i).

      Substantial evidence also supports the BIA’s determination that Baldaeva

does not face a well-founded fear of future persecution. Her evidence of racially

motivated violence was limited to certain metropolitan areas, and Baldaeva did not

meet her burden of establishing the unreasonableness of relocating to another part

of Russia.

      Assuming without deciding that the birth of Baldaeva’s child is material to

her asylum application, the BIA did not abuse its discretion in denying her motion

to reopen. To merit granting a motion to reopen, the movant must make a prima

facie showing of eligibility for asylum. Ordonez v. INS, 345 F.3d 777, 785 (9th

Cir. 2003). Even if all the facts that Baldaeva has pleaded are true, the birth of her


                                           2
child does not establish prima facie eligibility for asylum because it does not

negate the possibility of relocation within Russia. The evidence Baldaeva

presented of the persecution faced by mixed race persons was limited to her native

Buryatia.

      To prevail on her due process claim, Baldaeva must show “error and

substantial prejudice.” Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000). She has

shown neither. The IJ did not err by limiting the testimony of Baldaeva’s lay

witness to facts about which the witness had personal experience. An IJ acts within

his statutory powers when he limits proffered testimony to relevant evidence. See 8

C.F.R. § 1240.1(c). The witness was allowed to provide relevant evidence about

his own persecution and was only prevented from speculating about how Buryatian

people would treat Baldaeva and her family and whether they would be safe

elsewhere in Russia. The exclusion of this evidence did not prejudice Baldaeva

because her witness, who lived in Buryatia and was of African and Buryatian

ancestry rather than Romanian and Buryatian ancestry, was not established to be

qualified to testify to the likelihood that Baldaeva and her family would be

persecuted throughout Russia. The record reveals that Baldaeva received what due

process requires: “a full and fair hearing of [her] claims and a reasonable




                                          3
opportunity to present evidence on [her] behalf.” Robleto-Pastora v. Holder, 567

F.3d 437, 450 (9th Cir. 2009).

      PETITION DENIED.




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