Cancellation of Removal: Factual Hardship Findings Are Unreviewable, but the Legal Hardship Standard Remains Reviewable

Patience Fofo Allotey v. Todd Blanche | U.S. Court of Appeals for the Sixth Circuit | September 21, 2026 | Not recommended for publication

Introduction

Patience Fofo Allotey, a citizen of Ghana, conceded that she was removable but sought cancellation of removal based on the hardship her departure would cause her three U.S.-citizen children. An immigration judge (IJ) denied relief, finding that their father could assume more responsibility for them and that Allotey’s adult son could help support his younger siblings. The Board of Immigration Appeals affirmed. It also denied Allotey’s motion to remand for consideration of an adjustment-of-status application because she had not supplied the application and supporting documentation.

The petition presented two distinct issues: whether the Sixth Circuit could revisit the hardship findings, and whether it should remand the case on the basis of alleged ineffective assistance by Allotey’s former counsel.

Summary of the Opinion

The court dismissed the challenge to the cancellation decision because Allotey disputed only factual findings, which it lacked jurisdiction to review. It emphasized that a properly presented question about whether established facts satisfy the statutory hardship standard would be reviewable, but Allotey had not made that argument.

The court denied the remainder of the petition. Allotey did not argue that the Board abused its discretion when it denied her motion to remand. Instead, she asked the court to address an ineffective-assistance claim that had not been litigated before the agency. Her pending motion to reopen before the Board, rather than an original request to the appellate court, was the appropriate vehicle for that claim.

Analysis

Precedents Cited

Scope of review. Dodaj v. Blanche supplied the framework for reviewing the Board’s own decision while consulting the IJ’s reasoning to the extent the Board adopted it. It also supplied the standards for reviewing legal questions and for identifying an abuse of discretion. Patel v. Garland, 596 U.S. 328 (2022), controlled the central jurisdictional issue: factual findings underlying a denial of discretionary relief are not reviewable under 8 U.S.C. § 1252(a)(2)(B)(i). Hernandez v. Garland applied that rule to cancellation of removal. The later Sixth Circuit decision also titled Patel v. Garland, 116 F.4th 617 (6th Cir. 2024), reinforced the court’s reading that the jurisdictional bar extends to such factual findings even when they are strongly disputed.

The boundary between fact and law. Singh v. Rosen supported review of genuine legal and mixed questions, while cautioning that a party cannot obtain review merely by relabeling a factual disagreement. Nwosu v. Blanche identified the reviewable mixed question that remained available here: whether the circumstances, taking the underlying facts as found, met the statutory hardship threshold. Allotey relied on Navarro v. Holder to argue that serious mischaracterization of material facts could be treated as a legal question. The court concluded that this approach could not survive the Supreme Court’s subsequent decision in Patel v. Garland.

Remand and ineffective assistance. Abu-Khaliel v. Gonzales established abuse-of-discretion review for the Board’s denial of a motion to remand, but Allotey did not advance a claim of error under that standard. Dia v. Garland helped explain the limited effect of her approved I-130 family petition: it permitted her to seek adjustment of status but did not itself change her status. Buetenmiller v. Macomb Cnty. Jail informed the court’s concern that her opening argument was perfunctory, and Overstreet v. Lexington-Fayette Urb. Cnty. Gov't supported treating an argument first clarified in a reply brief as forfeited. Finally, Sswajje v. Ashcroft identified a motion to reopen before the Board as the proper avenue for an ineffective-assistance claim, while Byrd v. Haas underscored that an appellate court is a court of review, not of first view. The court also cited the Sixth Circuit’s 2024 Patel v. Garland decision when explaining why it was poorly placed to decide the new claim itself.

Legal Reasoning

Cancellation of removal required Allotey to show, among other things, that removal would cause “exceptional and extremely unusual hardship” to a qualifying relative. Only that hardship requirement was in dispute. Under 8 U.S.C. § 1252(a)(2)(D), the court retained authority to consider constitutional claims and questions of law, including whether facts as found meet the legal hardship standard. But Allotey’s arguments attacked the findings that the children’s father could provide care and that her adult son could contribute financially. The court held that these were factual challenges, not applications of the hardship standard to accepted facts. It therefore could not review them—even on the theory that the findings were seriously mistaken.

On remand, the court distinguished the motion Allotey had made to the Board from the request she appeared to make in the court of appeals. The Board had denied her motion because she had not submitted an adjustment application with appropriate documentation. Rather than explain why that ruling was an abuse of discretion, she sought appellate intervention based on former counsel’s alleged failure to submit the application. The ineffective-assistance issue had not been developed before the agency, and Allotey acknowledged that the existing appellate record could not establish her claim. The court declined to consider it in the first instance; it did not decide whether counsel had been ineffective or how the Board should rule on the pending motion to reopen.

Impact

The opinion illustrates a consequential distinction for future cancellation petitions: a challenge to what happened or what support relatives can provide is a factual challenge, while a challenge to whether the facts found satisfy the statutory hardship test can present a reviewable mixed question. Framing matters, but a legal label will not transform a dispute over evidence into a legal issue. The decision also underscores the importance of submitting a complete adjustment-of-status application with a motion seeking agency consideration and presenting an ineffective-assistance claim to the Board on an adequate record. Because the opinion is not recommended for publication, its significance is chiefly as an application of the cited jurisdictional and procedural authorities, not as a newly announced binding rule.

Complex Concepts Simplified

• Cancellation of removal: Discretionary relief that may allow an otherwise removable person to remain in the United States if statutory conditions are met. Having U.S.-citizen children alone does not establish the required degree of hardship.
• Factual finding versus mixed question: Whether a parent can provide childcare is a question of fact. Whether the family’s circumstances, on the facts found, meet the statutory hardship threshold combines fact and law.
• Jurisdictional dismissal versus denial: The court dismissed the factual hardship challenge because it lacked authority to decide it. It denied the separate remand request rather than granting the relief sought.
• I-130 approval: Approval recognizes a qualifying family relationship; it does not itself grant lawful status or approve an adjustment-of-status application.
• Motion to reopen: A request that the agency revisit proceedings, potentially on a developed claim that prior counsel’s ineffective assistance affected the case.

Conclusion

Allotey shows both the limit and the remaining scope of appellate review in cancellation-of-removal cases: courts cannot reexamine the underlying hardship facts, but they can consider a properly raised challenge to the legal significance of those facts. It also directs fact-dependent ineffective-assistance claims to the Board in the first instance, rather than treating an appellate petition as an original motion for relief.