Diahn v. Blanche: Expanded Statutory Duty of Immigration Judges to Develop the Record for Pro Se, Detained Respondents—Including Clear Notice on Evidence Submission and Witness Procedures

I. Introduction

In Trokon Diahn v. Todd Blanche, the Fourth Circuit reviewed a Board of Immigration Appeals (“Board”) decision affirming an Immigration Judge’s (“IJ”) denial of multiple forms of relief to Trokon Morris Diahn, a 20-year-old man brought to the United States as a refugee at age two, who remained without lawful permanent status and later faced removal following criminal convictions.

Diahn appeared pro se before the IJ while incarcerated and participated in remote proceedings administered through shifting “administrative court” arrangements (Baltimore vs. Philadelphia). He sought (1) a refugee adjustment-related waiver under 8 U.S.C. § 1159(c), (2) asylum, (3) withholding of removal, and (4) Convention Against Torture (CAT) protection. He alleged fear of harm in Liberia based on his bisexual identity and other family-related risks, despite having no meaningful connection to Liberia.

The central issue became whether the IJ and Board proceedings were fundamentally and statutorily inadequate because the IJs failed to ensure Diahn understood what evidence and testimony were needed, how and where to submit it, and what legal standards governed his claims—particularly after Diahn mailed corroborating documents to the “wrong” court due to confusing instructions and lack of written notice.

II. Summary of the Opinion

The Fourth Circuit (Judge Gregory, joined by Judge Benjamin) granted the petition for review, vacated the Board’s decision, and remanded with instructions for further fact-finding. The court held that Diahn received a statutorily inadequate hearing because the immigration judges failed to fulfill their affirmative statutory duty to develop the record under 8 U.S.C. § 1229a(b)(1), a duty that becomes “especially crucial” for pro se respondents and is treated as presumptively prejudicial when breached in a material way.

Although the majority resolved the case on statutory grounds, it also stated that the same circumstances likely rendered proceedings constitutionally inadequate, emphasizing the conceded absence of written notice of the actual hearing date/location and confusion surrounding documentary submission.

Judge Heytens concurred in the judgment in part and dissented in part, arguing (1) the statutory record-development claim was unexhausted, (2) due process prejudice was not shown, but (3) the agency committed independent legal error regarding whether Diahn’s bank fraud conviction automatically constituted a particularly serious crime for purposes of CAT-withholding.

III. Analysis

A. Precedents Cited

1. Jurisdiction, “Questions of Law,” and Exhaustion

  • Guerrero-Lasprilla v. Barr (589 U.S. 221 (2020)) anchored jurisdiction despite the aggravated-felony bar by confirming courts retain review over “questions of law,” including application of law to settled facts, under 8 U.S.C. § 1252(a)(2)(D).
  • Santos-Zacaria v. Garland (598 U.S. 411 (2023)) reshaped the exhaustion discussion by characterizing 8 U.S.C. § 1252(d)(1) as a claims-processing rule, not jurisdictional—meaning the analysis proceeds through forfeiture/waiver principles rather than subject-matter power.
  • Portillo Flores v. Garland (3 F.4th 615 (4th Cir. 2021) (en banc)) supplied the policy rationale (“protecting administrative agency authority” and “promoting judicial efficiency”) for exhaustion.
  • The court used Ramirez v. Sessions (887 F.3d 693 (4th Cir. 2018)) (citing Gill v. INS, 420 F.3d 82 (2d Cir. 2005)) to distinguish “general issues” (must be raised) from “subsidiary legal arguments” (need not be perfectly articulated below).
  • Atemnkeng v. Barr (948 F.3d 231 (4th Cir. 2020)) provided the “no magic words” standard: a petitioner exhausts if filings alert the Board “in substance.”
  • The majority bolstered its view of exhaustion sufficiency by citing cross-circuit formulations: Higgs v. Atty. Gen. of the U.S., Dale v. Holder (citing Omari v. Holder), and Restrepo v. McElroy.
  • Perez Vasquez v. Garland (4 F.4th 213 (4th Cir. 2021)) was used as a contrast case where a claim was unexhausted because nothing put the Board on notice.
  • Kurfees v. I.N.S. (275 F.3d 332 (4th Cir. 2001)) supported the view that exhaustion is satisfied when the agency had the opportunity to correct the asserted error.

2. The Immigration Judge’s Statutory Duty to Develop the Record

  • Quintero v. Garland (998 F.3d 612 (4th Cir. 2021)) is the decision’s cornerstone. The majority treats Quintero not as a general aspiration but as an enforceable statutory mandate requiring IJs—especially with pro se respondents—to explain procedures and legal requirements plainly, help identify relevant evidence, and avoid “superficial” questioning that prevents full presentation.
  • Yang v. McElroy (277 F.3d 158 (2d Cir. 2002)) reinforced that an IJ is not merely a neutral adjudicator but must help “establish the record” under 8 U.S.C. § 1229a(b)(1).
  • S-M-J-, 21 I. & N. Dec. 722 (B.I.A 1997) was cited for a “cooperative approach” in immigration court and the IJ’s role in introducing relevant evidence.
  • Rusu v. INS (296 F.3d 316 (4th Cir. 2002)) supported the need for meaningful hearings and highlighted the heightened vulnerability of pro se litigants.
  • Agyeman v. I.N.S. (296 F.3d 871 (9th Cir. 2002)) supplied the oft-quoted duty to “scrupulously and conscientiously probe,” including practical guidance about what evidence is needed and how it can be presented.
  • United States v. Copeland (376 F.3d 61 (2d Cir. 2004)) (with “abrogation recognized by” United States v. Mejia) was used to justify why IJs must explain the law: otherwise pro se respondents cannot know what matters and are “practically foreclosed” from resisting removal.
  • Mendoza- Garcia v. Barr (918 F.3d 498 (6th Cir. 2019)) and Al Khouri v. Ashcroft (362 F.3d 461 (8th Cir. 2004)) supported the point that merely asking questions, or restricting a respondent to “only answer the questions asked,” can still violate the duty.

3. Substantive Immigration Standards Referenced

  • Marynenka v. Holder (592 F.3d 594 (4th Cir. 2010)) supplied the “subjective” vs. “objective” components of a well-founded fear for asylum.
  • Wilkinson v. Garland (601 U.S. 209 (2024)) informed the court’s description of “exceptional and extremely unusual hardship” as beyond what ordinarily follows removal.
  • Gomis v. Holder (571 F.3d 353 (4th Cir. 2009)) framed the “more likely than not” standard for statutory withholding.
  • Moreno-Osorio v. Garland (2 F.4th 245 (4th Cir. 2021)) was cited regarding CAT’s “more likely than not” torture standard and the “acquiescence” requirement.

4. Fourth Circuit Comparator on Duty-to-Develop

  • Tepas v. Garland (73 F.4th 208 (4th Cir. 2023)) was distinguished. The majority held Tepas involved generalized fear where the IJ probed and correctly found no cognizable asylum claim; Diahn, by contrast, presented multiple potentially relief-supporting facts that triggered robust record development, and the failures here were systemic (notice, evidence routing, witnesses, legal standards).

5. Due Process Notice and Prejudice Principles

  • Mathews v. Eldridge (424 U.S. 319 (1976)) (quoted through Rusu v. INS) provided the baseline “meaningful time and manner” hearing requirement.
  • United States v. El Shami (434 F.3d 659 (4th Cir. 2005)) supported the proposition that failure to provide written notice of a hearing can render proceedings fundamentally unfair.
  • United States v. Fernandez Sanchez (46 F.4th 211 (4th Cir. 2022)) supplied the prejudice standard: a “reasonable probability” that absent the errors, deportation would not have occurred.
  • Huang v. Gonzales (157 F. App'x 608 (4th Cir. 2005)) was cited by analogy for the significance of offering (and declining) a continuance to secure witnesses—here, no such continuance was offered after Diahn expressed he did not know witnesses could “join” remotely.

6. The Separate-Opinion CAT “Particularly Serious Crime” Line

  • Judge Heytens relied on Annor v. Garland (95 F.4th 820 (4th Cir. 2024)) for the rule that the per se particularly-serious-crime bar for certain aggravated felonies hinges on an aggregate sentence of at least five years, requiring a two-step analysis when that threshold is not met.
  • He invoked Orellana v. Bondi (141 F.4th 560 (4th Cir. 2025)) for the administrative-law principle that agency failure to follow its own procedures/regulations is generally invalid.
  • Hernandez-Avalos v. Lynch (784 F.3d 944 (4th Cir. 2015)) was cited regarding the scope of review when the Board issues its own opinion.
  • On exhaustion rigor, the dissent cited Lopez‑Benitez v. Garland (91 F.4th 763 (4th Cir. 2024)) to argue an appellant must “launch the appropriate argument.”

B. Legal Reasoning

1. Exhaustion: “Fundamentally Fair Hearing” as Sufficient Notice of a Record-Development Claim

The majority held Diahn exhausted his statutory record-development argument because his Board brief asserted he was “denied the right to corroborate his claim” and deprived of a “fundamentally fair hearing,” which, under Quintero v. Garland, maps directly onto the IJ’s statutory obligation to develop the record. Applying Atemnkeng v. Barr, the court emphasized substance over labels: Diahn’s filings need only put the Board on notice, not cite 8 U.S.C. § 1229a(b)(1) or use “magic words.”

Judge Heytens disagreed, viewing Diahn’s Board briefing as a narrower “failure to consider certain evidence” argument that did not “launch” the broader statutory-duty claim, and would have treated the government’s timely invocation of exhaustion as dispositive.

2. The Core Holding: IJs Must Actively Ensure Pro Se Respondents Can Build a Record—Procedurally and Substantively

The majority applied Quintero v. Garland to find two categories of statutory failure:

  1. Failure to ensure relevant evidence entered the record. Confusing oral instructions about transferring the case from Baltimore to Philadelphia, combined with a year of written notices referencing Baltimore and no written submission instructions for Philadelphia, plausibly caused Diahn to mail corroboration to the wrong court. The missing evidence (country conditions, letters about bisexuality and hardship) was material to the waiver hardship analysis and the objective prongs of asylum/CAT. Under Quintero, such failures are “presumptively prejudicial” because a petitioner cannot “produce a record that does not exist.”
  2. Failure to explain legal standards and elicit key facts. The IJs did not adequately explain (in plain language) what evidence and testimony were required to satisfy each form of relief. The opinion highlights the failure to:
    • Clarify the heightened “exceptional and extremely unusual hardship” standard tied to the “violent or dangerous” finding for the waiver.
    • Explain asylum’s protected grounds and the “particular social group” framework, notwithstanding Quintero’s explicit requirements.
    • Explain the objective/subjective fear distinction from Marynenka v. Holder or help Diahn understand corroboration needs.
    • Address procedural basics in a remote detained context—especially witness participation—where Diahn stated, “I didn’t even know you bring witnesses.”
    • Offer a continuance when the lack of witnesses and missing documents became evident, despite regulatory authority under 8 C.F.R. § 1240.6.

3. The “Likely” Due Process Defect: Written Notice and Meaningful Opportunity to Be Heard

Although not necessary to the holding, the majority signaled that due process concerns were serious: the government conceded Diahn did not receive written notice of the actual hearing date/location (written notice said October 6 in Baltimore; the hearing occurred October 12 with Philadelphia as the adjudicating court). Citing Rusu v. INS and United States v. El Shami, the court viewed the notice failures—combined with evidence submission confusion and witness misunderstandings—as undermining Diahn’s meaningful opportunity to present his case.

The dissent would have rejected the due process claim on prejudice grounds, reasoning that Diahn testified about missing documents and the record included government evidence of LGBTQ risks, but the majority stressed that the cumulative procedural missteps materially impaired the presentation and evaluation of corroboration.

C. Impact

1. Practical Expansion of Quintero in Remote/Administrative-Control Cases

This decision operationalizes Quintero in a modern procedural setting: remote hearings, administrative-control courts, and detained pro se litigants. It signals that IJs must do more than recite generic rights; they must ensure a respondent can realistically exercise them—especially where court location changes affect filing addresses and where remote participation affects witness logistics.

2. Litigation Consequences: Easier Vacatur Where Missing Record Is Attributable to IJ Process Failures

By emphasizing presumptive prejudice when record-development fails on material issues, the court lowers the practical barrier to relief for pro se petitioners whose inability to corroborate stems from procedural confusion rather than substantive weakness. Future petitioners will likely cite this case to argue that missing corroboration cannot be held against them when IJs did not clearly explain (or facilitate) how corroboration should be produced.

3. Administrative Notice Discipline

The opinion strongly incentivizes DHS/IJs/EOIR to create reliable written notice practices when dates, venues, or submission addresses change. Even if the court ultimately rests on statutory grounds, the due process discussion puts agencies on notice that “oral-only” corrections to written hearing information may not withstand review.

4. Continued Intra-Circuit Tension on Exhaustion Specificity

Judge Heytens’s partial dissent highlights an ongoing fault line: how specifically a noncitizen must frame issues before the Board. The majority’s “substance” approach (fundamental fairness/corroboration suffices) contrasts with the dissent’s “launch the argument” approach. That tension may shape future Fourth Circuit exhaustion disputes, especially where pro se respondents later obtain counsel and refine claims.

IV. Complex Concepts Simplified

  • Duty to develop the record: Unlike many judges, immigration judges must actively help build the factual record—especially when a person is unrepresented—by explaining legal requirements, eliciting relevant facts, and ensuring the person has a fair chance to submit evidence and witnesses.
  • Exhaustion (8 U.S.C. § 1252(d)(1)): Typically, a person must raise an issue to the Board before a federal court reviews it. After Santos-Zacaria v. Garland, this is a claims-processing rule (waivable/forfeitable), not a jurisdictional bar.
  • Asylum’s “objective” vs. “subjective” fear: Under Marynenka v. Holder, subjective fear is credible personal testimony; objective fear requires corroborating facts showing a reasonable person would fear persecution.
  • “Particular social group”: A protected asylum category that can include LGBTQ status, but it must be explained and developed; the IJ cannot assume a pro se person knows how to plead and prove it.
  • CAT withholding vs. CAT deferral: Both require showing it is “more likely than not” the applicant will be tortured with government involvement/acquiescence, but eligibility bars (including certain criminal bars) differ; CAT deferral is generally available even when withholding is barred.
  • Presumptive prejudice: If the IJ’s process failure prevents creation of a record on a material issue, courts treat that failure as inherently harmful because the petitioner cannot prove what the missing record would have shown.

V. Conclusion

Diahn v. Blanche reinforces and extends the Fourth Circuit’s Quintero framework: immigration judges have an affirmative statutory duty to develop the record, and that duty has concrete procedural content in pro se detained cases—clear explanations of legal standards, meaningful guidance on corroboration, and reliable instructions about witnesses and evidence submission (especially amid venue/administrative changes and remote hearings).

The court’s remedy—vacatur and remand with instructions—signals that when government and immigration-court miscommunications deprive a pro se respondent of the ability to present corroboration, the resulting order is unlikely to stand. The separate opinion underscores that alternative legal errors (particularly serious crime determinations) and exhaustion disputes remain live battlegrounds, but the majority’s core message is unmistakable: fairness in immigration adjudication requires active, comprehensible, and administratively coherent record-building—especially where liberty and exile are at stake.