                                                                           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                            NOT FOR PUBLICATION                             OCT 14 2011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


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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.




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