                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 08 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT

TATAYANA TABATCHIKOVA, AKA                       No. 08-72085
Tatiana Tabatchnikova,
                                                 Agency No. A079-139-878
             Petitioner,

  v.                                             MEMORANDUM *

MICHAEL B. MUKASEY, Attorney
General,

             Respondent.



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

                           Submitted February 6, 2013 **
                              Pasadena, California

Before: CALLAHAN, IKUTA, and HURWITZ, Circuit Judges.

       Tatiana Tabatchnikova petitions for review of the decision by the Bureau of

Immigration Appeals (“BIA”) denying her withholding of removal. We have

jurisdiction under 8 U.S.C. § 1252, and we deny the petition for


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
review in part and dismiss it in part.1

      1.      Substantial evidence supports the immigration judge’s (“IJ’s”)

conclusion that Tabatchnikova is not entitled to withholding of removal.

Tabatchnikova did not establish past persecution because she failed to show that

the incidents she cites were committed “by government officials or by individuals

that the government is unable or unwilling to control.” Donchev v. Mukasey, 553

F.3d 1206, 1213 (9th Cir. 2009). Furthermore, these incidents do not rise to the

level of persecution under our case law. See, e.g., Halim v. Holder, 590 F.3d 971,

975-76, 980 (9th Cir. 2009); Wakkary v. Holder, 558 F.3d 1049, 1059-60 (9th Cir.

2009); Nagoulko v. INS, 333 F.3d 1012, 1016-18 (9th Cir. 2003); Hoxha v.

Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003); see also Donchev, 553 F.3d at 1213

(“‘Persecution is an extreme concept’ that means something considerably more

than discrimination or harassment.” (citation omitted)). Finally, the government

reports on religious freedom and ethnic relations in the record belie

Tabatchnikova’s claim that she is likely to suffer persecution if she returns to

Kazakhstan.




      1
         Because the parties are familiar with the facts and procedural history, we
restate them here only as necessary to explain our decision.

                                           2
      2.     We lack jurisdiction to consider Tabatchnikova’s due process

challenge to the adequacy of the hearing transcripts because she did not first raise

that claim to the BIA. See Singh v. Ashcroft, 367 F.3d 1139, 1146 n.1 (9th Cir.

2004); Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004). Although some

constitutional due process challenges need not be exhausted, procedural errors that

the BIA is capable of remedying, like the one alleged here, must be raised to the

BIA. See Rashtabadi v. INS, 23 F.3d 1562, 1567 (9th Cir. 1994). Even if we had

jurisdiction, we would deny Tabatchnikova’s claim because she fails to show that

the omissions in the hearing transcript prejudiced her. See Gutierrez v. Holder,

662 F.3d 1083, 1091 (9th Cir. 2011); Singh, 367 F.3d at 1143-44.

      DENIED in part; DISMISSED in part.




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