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NOT FOR PUBLICATION FEB 08 2013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.
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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.
3