Aqueh Pardae v. Eric Holder, Jr. , 454 F. App'x 547 ( 2011 )


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  •                                                                            FILED
    NOT FOR PUBLICATION                             OCT 14 2011
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS
    FOR THE NINTH CIRCUIT
    AQUEH PARDAE,                                    No. 09-70925
    Petitioner,                        Agency No. A094-676-927
    v.
    MEMORANDUM *
    ERIC H. HOLDER, Jr., Attorney General,
    Respondent.
    AQUEH PARDAE,                                    No. 09-72825
    Petitioner,                        Agency No. A094-676-927
    v.
    ERIC H. HOLDER, Jr., Attorney General,
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Argued and Submitted October 11, 2011
    San Francisco, California
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    Before: B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges.
    Aqueh Pardae, a native and citizen of Liberia, petitions for review of the
    Board of Immigration Appeals’ (“BIA”) decisions affirming the Immigration
    Judge’s (“IJ”) denial of his application for relief under the Convention Against
    Torture (“CAT”) and denying his motion for reconsideration. We have jurisdiction
    under 8 U.S.C. § 1252.
    Pardae argues that the IJ denied him his right to due process by advising him
    of the incorrect legal standard and misleading him as to the proof necessary to
    establish his claim for relief under CAT. The government contends that we lack
    jurisdiction over this claim because petitioner failed to raise it before the BIA. It is
    wrong.
    We recently addressed the exhaustion of procedural due process claims
    raised by pro se petitioners before the BIA in Pagayon v. Holder, 
    642 F.3d 1226
    (9th Cir. 2011). In Pagayon, the petitioner claimed in his notice of appeal to the
    BIA that the IJ “denied [him] of a full and fair hearing in violation of due process
    of law.” 
    Id. at 1232.
    We found that this was sufficient to exhaust a claim that “the
    IJ violated [the petitioner’s] due-process rights by not allowing him time to submit
    a letter recapitulating his oral testimony, and by refusing to take telephonic
    testimony from family members.” 
    Id. 1232, 1235.
    Specifically, we noted that
    2
    under the “forgiving standards” governing exhaustion requirements for pro se
    litigants, “we [were] satisfied that [petitioner’s] notice of appeal gave the Board an
    adequate opportunity to pass on the arguments he present[ed]” in his petition for
    review. 
    Id. 1232. Here,
    Pardae, proceeding pro se, claimed in his notice of appeal to the BIA
    that the IJ “violated [his] right to Due Process at the hearing.” As in Pagayon, we
    are satisfied that this claim in the notice of appeal gave the BIA an adequate
    opportunity to pass on the due process claim Pardae now raises here. The claim is
    therefore exhausted.
    “Claims of due process violations in deportation proceedings are reviewed
    de novo.” Ibarra-Flores v. Gonzales, 
    439 F.3d 614
    , 620 (9th Cir. 2006). “One of
    the components of a full and fair hearing is that the IJ must adequately explain the
    hearing procedures to the alien, including what he must prove to establish his basis
    for relief.” Agyeman v. INS, 
    296 F.3d 871
    , 877 (9th Cir. 2002). Here, the IJ
    repeatedly instructed Pardae that to qualify for relief under CAT he “would have to
    prove . . . that the government of Liberia would be more likely than not to torture
    [him] if [he] were deported there.” However, the IJ was wrong. Pardae “was not
    required to show that the government would torture him; he could satisfy his
    burden by showing that the government acquiesces in torture” of Krahn tribesmen,
    3
    or is aware of, but unwilling or unable to control those inflicting such torture.
    Bromfield v. Mukasey, 
    543 F.3d 1071
    , 1079 (9th Cir. 2008); see also 8 C.F.R.
    § 1208.18(a)(1) (implementing regulations defining “torture” for purposes of CAT
    as severe pain or suffering that “is inflicted by or at the instigation of or with the
    consent or acquiescence of a public official or other person acting in an official
    capacity”). By giving Pardae incorrect instructions on what he was required to
    prove in order to establish his claim for relief under CAT, the IJ deprived Pardae of
    a full and fair hearing. See 
    Agyeman, 296 F.3d at 884
    (“A pro se alien is deprived
    of a full and fair hearing when the IJ mis-informs him about the forms of evidence
    that are permissible to prove his eligibility for relief.”).
    Although prejudice is required, it is inferred in cases of the type before us.
    Pardae “need not explain exactly what evidence he would have presented in
    support of his application[] for relief.” 
    Id. at 885
    (internal quotations and citation
    omitted). “Rather, we may infer prejudice in the absence of any specific allegation
    as to what evidence [Pardae] would have presented had the IJ adequately explained
    what he needed to prove to demonstrate his eligibility for relief and had he been
    provided the opportunity to present that evidence.” Id.; see also 
    Pagayon, 642 F.3d at 1236
    (“Prejudice may be inferred even absent any allegations as to what the
    petitioner or his witnesses might have said.”) (internal quotations and citation
    4
    omitted). Here, because the record reflects that the IJ incorrectly instructed Pardae
    on what he needed to show to establish his claim for relief under CAT, we presume
    prejudice.
    We therefore hold that Pardae was prejudiced by the lack of a full and fair
    hearing. We need not reach the merits of Pardae’s remaining claims.
    The petition for review is GRANTED, and the matter is remanded to the
    BIA with instruction that petitioner be afforded a new hearing.
    PETITION FOR REVIEW GRANTED AND REMANDED.
    5
    

Document Info

Docket Number: 09-70925, 09-72825

Citation Numbers: 454 F. App'x 547

Judges: Fletcher, Reinhardt, Tashima

Filed Date: 10/14/2011

Precedential Status: Non-Precedential

Modified Date: 8/5/2023