Diahn v. Blanche: Fourth Circuit Requires Immigration Judges to Actively Develop the Record and Provide Clear, Practical Notice for Pro Se Detained Respondents

I. Introduction

Trokon Diahn v. Todd Blanche (4th Cir. May 5, 2026) is a published immigration decision in which the Fourth Circuit granted a petition for review, vacated the Board of Immigration Appeals’ (“Board”) removal order, and remanded with instructions. The case centers on whether a detained, unrepresented (“pro se”) respondent received the kind of hearing Congress requires in removal proceedings—particularly where confusing venue/filing instructions and limited procedural guidance resulted in a thin administrative record.

Diahn, a 20-year-old who entered the United States as a refugee at age two, faced removal to Liberia based on criminal convictions. He sought multiple forms of relief, including an adjustment-of-status-related waiver under 8 U.S.C. § 1159(c), asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). The key issues were (1) whether Diahn adequately exhausted a claim that the Immigration Judges (“IJs”) failed to develop the record as required by statute; and (2) whether the conduct of the proceedings—especially given Diahn’s pro se, detained status and the virtual/administrative-court setup—was legally adequate.

II. Summary of the Opinion

Judge Gregory (joined by Judge Benjamin) held that:

  • Diahn exhausted his “failure-to-develop-the-record” claim because his Board briefing, “in substance,” asserted he was denied a fundamentally fair hearing and the opportunity to corroborate his claims—enough to alert the Board under Fourth Circuit exhaustion principles.
  • The IJs violated their statutory duty under 8 U.S.C. § 1229a(b)(1) (and related provisions) to develop the record—especially critical for a pro se detained respondent—by failing both to ensure relevant evidence entered the record and to explain procedures and legal requirements in plain terms.
  • These failures were presumptively prejudicial under Quintero v. Garland, because the missing record itself made ordinary prejudice analysis ill-suited.
  • The court also stated that the same procedural defects likely rendered the proceedings constitutionally inadequate, highlighting the conceded absence of written notice about the merits hearing date/location and the practical confusion over where to submit documents.

The court granted the lead petition, vacated the Board’s order, and remanded to the Board with instructions to remand to the IJ for further fact-finding.

III. Analysis

A. Precedents Cited

1. Jurisdiction and “questions of law” review

The court relied on Guerrero-Lasprilla v. Barr to confirm jurisdiction under 8 U.S.C. § 1252(a)(2)(D) despite aggravated-felony-related limits, because the petition presented “questions of law,” including applying law to settled facts.

2. Exhaustion after Santos-Zacaria

The opinion treated exhaustion as a claims-processing rule (not jurisdictional) under Santos-Zacaria v. Garland, while still enforcing it where properly invoked by the Government. The court framed exhaustion functionally, invoking:

  • Portillo Flores v. Garland (purposes of exhaustion: agency authority and judicial efficiency);
  • Ramirez v. Sessions and Gill v. INS (exhaustion bars new “general issues,” not necessarily “subsidiary legal arguments”);
  • Atemnkeng v. Barr (“in substance” notice; no “magic words”);
  • Persuasive out-of-circuit support: Higgs v. Atty. Gen. of the U.S., Dale v. Holder, Omari v. Holder, and Restrepo v. McElroy.

Applying those principles, the court distinguished Perez Vasquez v. Garland (where a claim was unexhausted because the petitioner provided no substantive notice) and cited Kurfees v. I.N.S. for the idea that exhaustion is satisfied when the Board has an opportunity to correct the error.

3. The statutory duty to develop the record

The doctrinal engine of the majority opinion is Quintero v. Garland, which held that 8 U.S.C. § 1229a(b)(1) imposes an affirmative duty on IJs to develop the record—“paramount” when the respondent is pro se. The court further supported Quintero’s framework with:

  • Yang v. McElroy (IJ is not merely adjudicator but must help “establish the record”);
  • S-M-J-, 21 I. & N. Dec. 722 (B.I.A 1997) (a “cooperative approach” and the IJ role in introducing relevant evidence);
  • Rusu v. INS (pro se protections; meaningful hearing);
  • Agyeman v. I.N.S. (duty to “scrupulously and conscientiously probe” and provide guidance on how to prove claims);
  • United States v. Copeland (need to explain law to uncounseled respondents) and its noted abrogation recognition in United States v. Mejia (cited to situate Copeland’s continuing relevance as quoted authority in Quintero’s line);
  • Mendoza-Garcia v. Barr (superficial questioning can deny a fair hearing);
  • Al Khouri v. Ashcroft (IJ cannot unduly restrict elaboration by insisting only on answering narrow questions).

4. Substantive standards for relief (as context for what the IJs needed to explain)

The court referenced the governing standards for each form of relief to show what was at stake and what a pro se litigant would struggle to navigate:

  • Waiver tied to adjustment of status: heightened “violent or dangerous” discretionary regime under In Re Jean, 23 I&N Dec. 373, (A.G. 2002) and 8 C.F.R. § 1212.7(d), including “exceptional and extremely unusual hardship.” The court cited Wilkinson v. Garland to describe that hardship as “substantially different from, or beyond,” ordinary removal hardship.
  • Asylum/withholding: the subjective/objective fear structure from Marynenka v. Holder; withholding’s “more likely than not” standard from Gomis v. Holder.
  • CAT: the “more likely than not” torture standard and government acquiescence requirement, with Moreno-Osorio v. Garland.

5. Distinguishing Tepas

The Government invoked Tepas v. Garland to argue the IJs’ questioning sufficed. The court distinguished Tepas as a case involving generalized fear where the IJ “probed further” and reasonably found no cognizable claim. Here, Diahn alleged multiple potentially cognizable theories (including LGBTQ-based harm and family-based targeting) that demanded more robust record development and procedural guidance.

6. Due process notice and prejudice framework

Although the majority did not rest its holding on due process, it highlighted constitutional concerns using:

  • Rusu v. INS and Mathews v. Eldridge (meaningful opportunity to be heard);
  • United States v. El Shami (fundamental unfairness where government failed to provide written notice of hearing);
  • United States v. Fernandez Sanchez (prejudice standard: “reasonable probability” of a different outcome);
  • Huang v. Gonzales (no due process violation where a continuance was offered and declined—used as a contrast because no continuance was offered here when witness confusion surfaced).

7. The partial dissent’s alternative ground

Judge Heytens would have granted relief on a different basis, focusing on the “particularly serious crime” analysis for CAT withholding and citing:

  • Lopez‑Benitez v. Garland (exhaustion requires at least “launch[ing]” the argument);
  • Annor v. Garland (per se particularly serious crime bar for CAT withholding applies only when aggregate sentence is at least five years; otherwise a two-step analysis is required);
  • Orellana v. Bondi (agency must follow its own procedures/regulations);
  • Hernandez-Avalos v. Lynch (reviewing only the Board’s final order when it issues its own opinion without adopting the IJ’s reasoning).

B. Legal Reasoning

1. Exhaustion: substance-over-form notice to the Board

The majority’s most practically important procedural move is its exhaustion holding: Diahn’s Board brief statements that he was denied a “fundamentally fair hearing” and the “right to corroborate” were deemed sufficient to preserve a statutory record-development claim, even without explicit citation to 8 U.S.C. § 1229a(b)(1) or Quintero v. Garland. This reflects a continuity with Atemnkeng v. Barr—that immigration exhaustion turns on whether the Board was alerted “in substance.”

The dissent’s competing view—requiring the respondent to “launch the appropriate argument” with clearer framing—highlights a live tension in Fourth Circuit exhaustion doctrine after Santos-Zacaria v. Garland: how forgiving courts should be when pro se or poorly lawyering briefing partially, but not explicitly, maps onto a later-framed legal theory.

2. Statutory duty to develop the record: two categories of failure

Building directly on Quintero v. Garland, the court categorized the IJs’ errors into two buckets:

  • Failure to ensure relevant evidence entered the record: confusing and incomplete direction about where to file documents after an administrative “transfer,” no written notice of the submission location, and inadequate notice about witnesses—culminating in the IJ conducting a merits hearing without documents the respondent had timely mailed to the only court address repeatedly provided to him.
  • Failure to elicit relevant facts and explain legal standards: minimal explanation of the heightened hardship standard for the waiver; inadequate explanation of asylum’s legal framework (including “particular social group”); and an underdeveloped CAT inquiry despite the respondent’s attempt to describe missing letters and country conditions evidence.

Particularly significant is the court’s application of Quintero’s requirement that IJs explain “in plain language” not merely hearing logistics but the legal elements and how to prove them—including what kinds of corroboration are relevant and the forms that corroboration may take.

3. Presumptive prejudice as a structural remedy

The opinion underscores Quintero’s remedial logic: when the IJ’s failure is the reason the record is thin, requiring the respondent to show conventional prejudice is often impossible because the respondent cannot “produce a record that does not exist.” Thus, failure to develop the record on a “material” issue is “presumptively prejudicial,” supporting vacatur and remand for a properly developed proceeding.

4. Due process concerns as reinforcing context

While the majority formally rested on statutory grounds, it emphasized that the same facts “likely” also amounted to constitutional inadequacy: no written notice of the actual merits hearing date or immigration court location; confusion about where filings should be sent; and no continuance offered when it became clear the respondent did not understand witness procedures in a virtual setting. These concerns track United States v. El Shami and the “meaningful opportunity” requirement described in Rusu v. INS and Mathews v. Eldridge.

C. Impact

The decision’s likely influence is practical and procedural rather than doctrinally novel in the abstract:

  • Administrative-court transfers and virtual hearings: The opinion signals that when EOIR’s administrative control/remote setup creates uncertainty about where to file and when to appear, the system’s procedural “friction” cannot be shifted onto detained pro se respondents. IJs must proactively prevent predictable filing and notice failures from hollowing out the record.
  • Record-development as enforceable statutory obligation: The court strengthens the enforceability of Quintero by showing what concrete noncompliance looks like—unclear instructions, lack of witness guidance, and failure to connect legal elements to needed evidence—and by treating missing evidence caused by those failures as presumptively prejudicial.
  • Exhaustion posture for poorly briefed appeals: The majority’s generous reading of what “in substance” preserves a claim may encourage more petitioners to frame procedural fairness issues broadly at the Board stage, while the dissent provides the Government a roadmap to argue non-exhaustion where the Board brief targets only a narrow evidentiary error rather than the IJ’s broader statutory duty.
  • Future CAT/particularly-serious-crime litigation: Although not the majority’s holding, the dissent highlights an additional pressure point: the need for correct “particularly serious crime” analysis for CAT withholding under the five-year per se rule discussed in Annor v. Garland. Litigants can expect increased attention to whether the agency performed the required two-step analysis when the per se bar does not apply.

IV. Complex Concepts Simplified

  • “Duty to develop the record” (8 U.S.C. § 1229a(b)(1)): Unlike typical judges who mostly referee what parties present, IJs must actively help build a complete factual record—especially when the respondent has no lawyer—by explaining what matters legally and by eliciting facts and guiding how proof can be presented.
  • “Exhaustion”: Usually you must raise an issue to the Board before asking a federal court to review it. After Santos-Zacaria v. Garland, exhaustion is not jurisdictional, but courts still enforce it when the Government presses the point. The key question becomes whether the Board was put on notice “in substance.”
  • “Particular social group”: A protected asylum category that can include LGBTQ status, but it has technical requirements. The Fourth Circuit (via Quintero v. Garland) expects IJs to explain this concept in plain terms to pro se applicants and to help identify potentially cognizable groups based on the person’s facts.
  • “Objective evidence” in asylum/CAT: Testimony alone may not be enough; applicants often must provide corroboration (e.g., affidavits, country reports). The court’s point here is not that one specific type of proof is mandatory, but that pro se respondents must be told what kinds of corroboration may matter and how to submit it.
  • CAT withholding vs. CAT deferral: Both protect against removal to torture. CAT withholding can be barred by certain crimes; CAT deferral generally remains available even with serious convictions, but it may be more limited and easier for the Government to revisit.

V. Conclusion

Trokon Diahn v. Todd Blanche operationalizes the Fourth Circuit’s record-development jurisprudence by tying it to concrete, recurring procedural failures in modern removal practice: remote hearings, administrative venue designations, unclear filing instructions, and pro se detention. Applying Quintero v. Garland, the court held that IJs must do more than ask questions—they must ensure that pro se respondents understand the legal standards, know how to corroborate claims, can present witnesses, and can actually get evidence into the correct record. Where the IJ’s failures themselves cause critical evidentiary gaps, the error is presumptively prejudicial and warrants vacatur and remand.