NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 4 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT RAFAGAD ALI, No. 19-72273 Petitioner, Agency No. A215-814-646 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted October 5, 2020 Portland, Oregon Before: PAEZ and RAWLINSON, Circuit Judges, and PREGERSON,** District Judge. Petitioner Rafagad Ali, a native and citizen of Pakistan, petitions for review of the Board of Immigration Appeals’ (BIA) order dismissing his appeal of an immigration judge’s (IJ) decision denying his asylum, withholding of removal, and Convention Against Torture (CAT) claims and rejecting his due process claim. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Dean D. Pregerson, United States District Judge for the Central District of California, sitting by designation. We have jurisdiction under 8 U.S.C. § 1252(a). We review for substantial evidence factual findings by the IJ. Ren v. Holder, 648 F.3d 1079, 1083 (9th Cir. 2011) (citing Khan v. Holder, 584 F.3d 773, 776 (9th Cir. 2009)). The findings “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We review de novo claims of due process violations in immigration proceedings. Lianhua Jiang v. Holder, 754 F.3d 733, 738 (9th Cir. 2014) (citing Lopez-Urenda v. Ashcroft, 345 F.3d 788, 791 (9th Cir. 2003)). We grant the petition for review and remand for further proceedings. 1. The BIA erred by concluding that Ali could not demonstrate prejudice. To establish a due process violation, a petitioner must explain that (1) the proceeding was fundamentally unfair and (2) he was prejudiced such “that the outcome of the proceeding may have been affected by the alleged violation.” Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000) (citations omitted) (emphasis added). “Our review is limited to those grounds explicitly relied upon by the [BIA].” Budiono v. Lynch, 837 F.3d 1042, 1046 (9th Cir. 2016) (citing Najmabadi v. Holder, 597 F.3d 983, 986-87 (9th Cir. 2010)). Because the BIA did not analyze whether Ali’s proceeding was fundamentally unfair, we review only its determination that Ali did not show prejudice. See id. To show prejudice, a petitioner “need not explain exactly what evidence he would have presented in support of his application, and we may infer prejudice in 2 the absence of any specific allegation as to what evidence [petitioner] would have presented . . . had he been provided the opportunity to present that evidence.” Tawadrus v. Ashcroft, 364 F.3d 1099, 1105 (9th Cir. 2004) (quoting Cano-Merida v. INS, 311 F.3d 960, 965 (9th Cir. 2002)) (alteration and omission in original); see also Zolotukhin v. Gonzales, 417 F.3d 1073, 1077 (9th Cir. 2005) (“We may infer prejudice even absent any allegations as to what the petitioner or his witnesses might have said if the IJ had not cut ...
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