Briefing on a Threshold Legal Issue Is Not a “Reasonable Opportunity” to Prove Cancellation Hardship—Including Third-Country Removal Hardship

Case: Kadiatou Keita v. Todd Blanche (4th Cir. Aug. 4, 2026) (Harris, J.; Quattlebaum, J., dissenting)

1. Introduction

Kadiatou Keita v. Todd Blanche addresses a recurring procedural problem in removal proceedings: when an immigration judge (IJ) narrows the record to a threshold legal issue and then later denies relief on factual grounds without holding the promised evidentiary hearing.

Petitioner Kadiatou Babila Keita, a Guinean national and single mother of two U.S.-citizen daughters, sought two forms of protection:

• Withholding of removal to Guinea, based on the risk her daughters would face female genital mutilation (FGM) there; and
• Cancellation of removal under 8 U.S.C. § 1229b(b)(1), which—unlike withholding—would prevent removal to any country and provide lawful permanent resident status.

The IJ granted withholding to Guinea (with DHS’s consent) but ultimately denied cancellation, reasoning that Keita’s only hardship theory was FGM in Guinea—a harm rendered “moot” by the withholding grant. On appeal, Keita argued she was denied a meaningful chance to develop a different hardship theory: that she could still be removed to a third country, forcing her children either to accompany her to an unfamiliar country or remain in the U.S. without a caregiver.

The Board of Immigration Appeals (BIA) rejected the procedural claim, concluding the IJ’s request for briefing gave Keita a sufficient opportunity to present her arguments. The Fourth Circuit disagreed and remanded.

2. Summary of the Opinion

Disposition: Petition No. 24-1226 granted; BIA order vacated and remanded. Petition No. 24-2155 (reconsideration) dismissed as moot.

Scope limits: The court did not decide (i) whether withholding categorically bars cancellation (because the agency ultimately did not rely on that theory), (ii) whether revocation of withholding was anything but speculative, or (iii) prejudice—explicitly leaving prejudice for the BIA on remand.

3. Analysis

3.1 Precedents Cited

The opinion draws on four clusters of precedent: (A) the country-specific nature of withholding and “third country removal,” (B) cancellation hardship doctrine, (C) procedural fairness and record-development obligations, and (D) administrative law limits on appellate rationales.

C. Full-and-fair hearing protections; reasonable opportunity; record development

• Matter of R-C-R-, 28 I. & N. Dec. 74 (B.I.A. 2020): Cited for the proposition that noncitizens are entitled, under both the INA and the Fifth Amendment, to a “full and fair hearing.” The majority relies on it to frame statutory and constitutional protections as overlapping but distinct.
• Rusu v. U.S. Immigr. & Naturalization Serv., 296 F.3d 316 (4th Cir. 2002): Anchors the Fourth Circuit’s approach to reviewing fair-hearing claims de novo and recognizing that both INA and due process can be implicated. It also supplies the prejudice requirement (reserved for remand here).
• Diahn v. Blanche, 175 F.4th 291 (4th Cir. 2026): Used repeatedly for the proposition that the INA’s statutory fair-hearing duty is distinct from constitutional due process, and for the standard of review on fair-hearing questions.
• Quintero v. Garland, 998 F.3d 612 (4th Cir. 2021): Cited for the IJ’s “duty to fully develop the record in all cases,” reinforcing the majority’s view that live testimony and IJ questioning are the expected mechanisms for developing hardship facts.
• Arita-Deras v. Wilkinson, 990 F.3d 350 (4th Cir. 2021): Provides the framework for reviewing both BIA and IJ decisions when the BIA adopts and supplements the IJ’s reasoning.
• Ibarra v. Bondi, 136 F.4th 63 (4th Cir. 2025): Cited for standard-of-review principles in cancellation cases post-Wilkinson.

D. Administrative law and appellate constraints

• Sec. & Exch. Comm'n v. Chenery Corp., 318 U.S. 80 (1943): Invoked when the government urged affirmance on a new theory (no constitutional liberty interest in discretionary relief). The majority flags (without deciding) the Chenery concern: courts generally may not uphold agency action on rationales the agency did not adopt.
• Food & Drug Administration v. Wages & White Lion Investments, L.L.C., 604 U.S. 542 (2025): Discussed primarily in the dissent, arguing courts should remand rather than decide on a ground the agency did not reach. The majority distinguishes its approach by focusing on what the BIA actually decided (that briefing was “sufficient”) and why that reason was wrong on this record.

Other cited authorities shaping the procedural posture

• Portillo Flores v. Garland, 3 F.4th 615 (4th Cir. 2021) (en banc): Cited for exhaustion; used to reject review of arguments not presented to the BIA.
• Diahn v. Blanche, 175 F.4th 291 (4th Cir. 2026): Also cited for mootness handling when a later agency order is vacated.

3.2 Legal Reasoning

A. The “missing record” problem was created by the IJ’s procedure

The BIA’s key factual premise was that Keita could have presented “all of her arguments” in the supplemental briefs. The Fourth Circuit reads the hearing transcript differently and treats it as dispositive: the IJ explicitly framed the requested briefs as confined to a “legal issue”—whether withholding made Keita categorically ineligible for cancellation—and repeatedly deferred factual hardship development to a future hearing.

The majority emphasizes three linked facts:

• Scope limitation: the IJ’s briefing order targeted only the threshold question of categorical eligibility (not the factual hardship case, including hardship from third-country removal).
• No testimony allowed: when Keita sought to speak, the IJ denied it because he was addressing only the “legal issue.”
• Promised but never held hearing: the IJ indicated Keita could “go forward” later if she remained eligible; yet the IJ later denied on factual hardship grounds without that hearing.

That sequence, in the majority’s view, defeats the BIA’s rationale: a party cannot be said to have had a “reasonable opportunity” to present evidence if the tribunal (i) restricted the only scheduled presentation mechanism, (ii) rejected live testimony at the moment it was requested, and (iii) never held the promised evidentiary hearing before ruling against the applicant on factual insufficiency.

B. Statutory protection: “reasonable opportunity” under 8 U.S.C. § 1229a(b)(4)(B)

The doctrinal fulcrum is 8 U.S.C. § 1229a(b)(4)(B), which guarantees a noncitizen a “reasonable opportunity” to present evidence. The opinion treats that statutory duty as independently enforceable, even where constitutional due process framing is ambiguous.

Importantly, the court does not hold that briefs can never satisfy the statute. Instead, it holds that these briefs—ordered for a narrow legal question, understood as such by both parties, and coupled with the IJ’s refusal to hear testimony and failure to convene a later hearing—did not provide the opportunity required to develop the relevant hardship record (here, third-country removal hardship).

C. Why third-country removal hardship mattered to cancellation eligibility

The IJ and BIA treated Keita’s hardship theory as limited to Guinea-based FGM risk. The Fourth Circuit does not say that third-country removal hardship necessarily meets the “exceptional and extremely unusual hardship” standard; rather, it holds Keita was not given a meaningful chance to try.

The opinion’s invocation of Matter of Recinas is instructive: it shows a recognized hardship pathway where removal would wrench citizen children from stability because they are “entirely dependent” on a single parent lacking any support structure. Keita’s proffered third-country removal theory tracks that template (children accompany mother to an unfamiliar country with no support, or remain in the U.S. without a caregiver), making the foreclosed factual development potentially outcome-relevant.

D. Remedy and limits: remand, and prejudice left open

The court vacates and remands because the BIA’s sole stated basis for rejecting the procedural claim was erroneous. But the court flags two major issues for remand:

• Prejudice: Citing Rusu v. U.S. Immigr. & Naturalization Serv., the opinion notes the government argued lack of prejudice and confirms prejudice is required for statutory or constitutional fair-hearing claims, leaving that determination to the BIA.
• Government’s alternative constitutional theory: the government argued Keita cannot assert a due process claim without a protected liberty interest in discretionary cancellation relief. The majority does not decide whether that theory is properly considered under Chenery principles and notes the constitutional framing may not have been clearly presented or understood at the agency level; it leaves room for the BIA to address the argument if it deems it relevant.

3.3 Impact

The decision’s practical significance lies in its procedural rule for cancellation proceedings when withholding has been granted:

• No “papering over” a missing hardship record: If an IJ confines the proceedings to a threshold legal question (and restricts testimony accordingly), the agency cannot later deny cancellation on factual hardship grounds while asserting the applicant had a sufficient opportunity to develop the record through that limited briefing.
• Third-country removal must be treated as a litigable hardship theory: Where withholding is country-specific, cancellation applicants may attempt to prove that removal to some other country would create exceptional hardship to qualifying relatives. IJs must provide a reasonable procedural path—typically an evidentiary hearing—to develop such claims if they are potentially material.
• Incentives for clearer IJ case management: The opinion pressures IJs to specify (on the record) whether a briefing order is limited or whether it substitutes for a merits hearing, and to avoid promising a future hearing that never occurs before an adverse factual ruling.

The dissent underscores likely future litigation pressure points: preservation/forfeiture, the proper application of Food & Drug Administration v. Wages & White Lion Investments, L.L.C. to appellate review of agency reasoning, and whether the court should resolve the case under statutory vs. constitutional frameworks.

4. Complex Concepts Simplified

• Withholding of removal: A protection that stops removal to a specific country where the person’s life or freedom would be threatened (8 U.S.C. § 1231(b)(3)(A)). It does not necessarily give a path to permanent status and does not bar removal to other countries.
• Third country removal: Removing a person to a country other than the one originally designated, including “any country willing to accept” the person (8 U.S.C. § 1231(b)(2); discussed via Johnson v. Guzman Chavez and Dep't of Homeland Sec. v. D.V.D.).
• Cancellation of removal: A discretionary remedy that, if granted, cancels removal entirely and adjusts the person to lawful permanent resident status (8 U.S.C. § 1229b(b)(1)), but requires (among other things) “exceptional and extremely unusual hardship” to a qualifying relative.
• “Exceptional and extremely unusual hardship”: A demanding hardship threshold. The Fourth Circuit did not decide whether Keita could meet it; it held she had to be given a fair chance to present evidence relevant to it.
• “Full and fair hearing” / “reasonable opportunity”: Under 8 U.S.C. § 1229a(b)(4)(B), a noncitizen must have a reasonable chance to present evidence. The court held that limited legal-issue briefing plus no evidentiary hearing did not satisfy this requirement on the facts here.
• Mootness (in appellate procedure): The second petition (challenging denial of reconsideration) became moot once the underlying removal-related order was vacated, so there was no live dispute to resolve.
• Exhaustion: Courts generally cannot review claims not first presented to the BIA (citing Portillo Flores v. Garland).

5. Conclusion

Kadiatou Keita v. Todd Blanche establishes a concrete procedural safeguard in cancellation-of-removal adjudication: when an IJ limits proceedings to a threshold legal question and defers factual development, the agency may not later deny cancellation on factual hardship grounds without providing the applicant a reasonable opportunity—typically through a merits hearing—to present evidence and argument, including hardship arising from third-country removal. The Fourth Circuit vacated and remanded because the BIA’s sole rationale for rejecting Keita’s procedural challenge—that briefing alone was a sufficient opportunity—was inconsistent with what the IJ actually ordered and did.