Diahn v. Blanche: Immigration Judges Must Actively Develop the Record for Pro Se, Detained Respondents—Including Clear Guidance on Corroboration, Witnesses, and Where/When to File Evidence

1. Introduction

In Trokon Diahn v. Todd Blanche, the Fourth Circuit reviewed a final order of removal entered against Trokon Morris Diahn, a 20-year-old man who entered the United States as a refugee at age two and later faced removal to Liberia—a country he has never visited and with which he has little to no connection. Diahn appeared pro se before the Immigration Judge (IJ) and remained incarcerated during key stages of his proceedings. He sought multiple forms of relief: a refugee adjustment/waiver under 8 U.S.C. § 1159(c), asylum, statutory withholding, and protection under the Convention Against Torture (CAT).

The central appellate issue became procedural: whether the immigration court process provided Diahn a “full and fair” opportunity to present his claims—particularly where confusing venue/filing instructions and the lack of meaningful guidance caused critical corroborating evidence (and potential witnesses) not to be presented at the merits hearing.

2. Summary of the Opinion

The Fourth Circuit granted Diahn’s lead petition for review, vacated the Board of Immigration Appeals’ (BIA/Board) decision, and remanded with instructions for further proceedings. The court held that the IJs failed their statutory duty to develop the record—a duty that is especially important where the respondent is detained and pro se. These failures included: not ensuring Diahn understood how to corroborate his claims, not meaningfully advising him about witness presentation, and not ensuring his documentary evidence was properly directed into the record amid confusing administrative-court changes.

Because the lead petition was granted and the underlying order vacated, Diahn’s two other petitions (seeking review of denials of motions to reopen/reconsider) were dismissed as moot.

3. Analysis

3.1. Precedents Cited

A. Jurisdiction and the “questions of law” pathway despite aggravated felony limits

  • Guerrero-Lasprilla v. Barr, 589 U.S. 221 (2020): The court relied on this decision for the proposition that it retains jurisdiction over “questions of law,” including application of law to settled facts, under 8 U.S.C. § 1252(a)(2)(D), even when 8 U.S.C. § 1252(a)(2)(C) restricts review due to aggravated felony convictions.

B. Exhaustion after Santos-Zacaria and what it means to “raise” an issue

  • Santos-Zacaria v. Garland, 598 U.S. 411 (2023): The court treated exhaustion under 8 U.S.C. § 1252(d)(1) as a claims-processing rule, not a jurisdictional bar, meaning it is governed by waiver/forfeiture principles.
  • Portillo Flores v. Garland, 3 F.4th 615 (4th Cir. 2021) (en banc): Quoted for the “twin purposes” of exhaustion—protecting agency authority and promoting judicial efficiency.
  • Ramirez v. Sessions, 887 F.3d 693 (4th Cir. 2018) (citing Gill v. INS, 420 F.3d 82 (2d Cir. 2005)): Used 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): Key to the court’s exhaustion holding—petitioners need only alert the Board “in substance,” and no “magic words” are required.
  • Persuasive authorities reinforcing “substance over form”: Higgs v. Atty. Gen. of the U.S., 655 F.3d 333 (3d Cir. 2011); Dale v. Holder, 610 F.3d 294 (5th Cir. 2010) (citing Omari v. Holder, 562 F.3d 314 (5th Cir. 2009), abrogated on other grounds by Santos-Zacaria v. Garland); Restrepo v. McElroy, 369 F.3d 627 (2d Cir. 2004).
  • Perez Vasquez v. Garland, 4 F.4th 213 (4th Cir. 2021): Contrasted as an example where a claim was unexhausted because the petitioner gave the Board no notice of the CAT issue at all.
  • Kurfees v. I.N.S., 275 F.3d 332 (4th Cir. 2001): Cited for the principle that exhaustion is satisfied when the Board had a fair opportunity to correct the alleged error.

C. The statutory duty to develop the record (core doctrinal engine)

  • Quintero v. Garland, 998 F.3d 612 (4th Cir. 2021): The controlling Fourth Circuit precedent. The court applied Quintero’s framework to hold that IJs must actively develop the record, especially for pro se respondents, including explaining procedures and legal requirements in plain language and guiding respondents on what evidence is needed and how it can be presented.
  • Yang v. McElroy, 277 F.3d 158 (2d Cir. 2002): Quoted to underscore that an IJ is not merely an adjudicator but has an obligation to establish the record under 8 U.S.C. § 1229a(b)(1).
  • S-M-J-, 21 I. & N. Dec. 722 (B.I.A 1997): Cited (via Quintero) for the “cooperative approach” in immigration court and the IJ’s role in introducing relevant evidence.
  • Rusu v. INS, 296 F.3d 316 (4th Cir. 2002): Used (via Quintero and later in due process discussion) for the “meaningful hearing” principle and procedural protection needs.
  • Agyeman v. I.N.S., 296 F.3d 871 (9th Cir. 2002): A major source for Quintero’s requirements: plain-language explanations, guidance on evidence and proof, and the need to “scrupulously and conscientiously probe” relevant facts.
  • United States v. Copeland, 376 F.3d 61 (2d Cir. 2004) (abrogation recognized by United States v. Mejia, No. 24-3086-cr, 2026 WL 958828 (2d Cir. 2026)): Quoted for the practical reality that uncounseled respondents need IJs to explain what information is relevant.
  • Mendoza-Garcia v. Barr, 918 F.3d 498 (6th Cir. 2019) and Al Khouri v. Ashcroft, 362 F.3d 461 (8th Cir. 2004): Cited (via Quintero) for the proposition that superficial questioning and cutting off elaboration can undermine a full and fair hearing.

D. Substantive standards the court used to evaluate what the IJs failed to explain

  • In Re Jean, 23 I&N Dec. 373 (A.G. 2002): The IJ relied on this framework in evaluating hardship for waiver/adjustment; the Fourth Circuit highlighted how failure to explain the heightened hardship standard impaired Diahn’s ability to present his case.
  • Marynenka v. Holder, 592 F.3d 594 (4th Cir. 2010): Cited for the asylum requirement of both subjective and objective components and the need for “specific, concrete facts” supporting an objective fear of persecution.
  • Gomis v. Holder, 571 F.3d 353 (4th Cir. 2009): Cited for the “more likely than not” burden for statutory withholding of removal.
  • Moreno-Osorio v. Garland, 2 F.4th 245 (4th Cir. 2021): Cited for CAT standards, including torture and government acquiescence principles.
  • Wilkinson v. Garland, 601 U.S. 209 (2024): Cited for the meaning of “exceptional and extremely unusual hardship,” emphasizing hardship beyond what ordinarily results from removal.
  • Tepas v. Garland, 73 F.4th 208 (4th Cir. 2023): Distinguished; in Tepas the IJ adequately probed a generalized fear claim, whereas Diahn presented multiple potentially cognizable bases triggering a stronger development duty.

E. Due process notice and prejudice cases (discussed as an “independent” concern)

  • Mathews v. Eldridge, 424 U.S. 319 (1976): Cited (through Rusu) for the “meaningful time and meaningful manner” due process principle.
  • United States v. El Shami, 434 F.3d 659 (4th Cir. 2005): Cited for the fundamental unfairness of failure to provide written notice of a hearing.
  • Huang v. Gonzales, 157 F. App'x 608 (4th Cir. 2005): Used as a contrast where no due process violation existed because the respondent declined an offered continuance to present a witness.
  • United States v. Fernandez Sanchez, 46 F.4th 211 (4th Cir. 2022): Cited for the prejudice standard in removal-related due process errors—reasonable probability of a different outcome absent error.

F. The concurrence’s alternative ground (CAT-withholding / particularly serious crime analysis)

  • Lopez‑Benitez v. Garland, 91 F.4th 763 (4th Cir. 2024): Cited in the concurrence on exhaustion—filings must at least “launch” the argument.
  • Annor v. Garland, 95 F.4th 820 (4th Cir. 2024): Cited for the rule that the per se particularly-serious-crime bar applies only where the aggravated felony sentence is at least five years, and otherwise the agency must conduct a two-step analysis per Board precedent.
  • Orellana v. Bondi, 141 F.4th 560 (4th Cir. 2025): Cited for the principle that agency action is generally invalid when the agency fails to follow its own procedures/regulations.
  • Hernandez-Avalos v. Lynch, 784 F.3d 944 (4th Cir. 2015): Cited for the review principle that when the Board issues its own opinion without adopting the IJ’s reasoning, courts review only the Board’s final order.

3.2. Legal Reasoning

A. Exhaustion: “in substance” presentation suffices for record-development claims

A key doctrinal move in the majority opinion is its exhaustion holding. The Government argued Diahn failed to exhaust the “record development” issue because he did not explicitly frame it as a Quintero/§ 1229a(b)(1) claim to the Board. The Fourth Circuit rejected that approach, emphasizing (i) Santos-Zacaria v. Garland (exhaustion is claims-processing), and (ii) the court’s long-standing “no magic words” standard from Atemnkeng v. Barr. Diahn’s Board brief alleged he was denied a “fundamentally fair hearing” and “denied the right to corroborate his claim,” which, under the majority, sufficiently alerted the Board to the statutory record-development defect.

This portion of the decision matters because it prevents agencies from prevailing on hyper-technical exhaustion objections where a pro se respondent’s appellate presentation, though imperfect, squarely conveys the procedural wrong.

B. Statutory duty: IJs must do more than hold a hearing—they must make it usable for an uncounseled detainee

Applying Quintero v. Garland, the court framed the IJ’s role as affirmatively “cooperative” under 8 U.S.C. § 1229a(b)(1): receiving evidence, examining the respondent, and ensuring the record is developed—especially when the respondent is pro se. The majority identified two interlocking failures:

  1. Failure to ensure relevant evidence entered the record. The first IJ’s confusing directions about where to submit filings, combined with the lack of written clarification and the longstanding stream of notices pointing to Baltimore, predictably led Diahn to mail crucial corroboration to the wrong court. The second IJ then proceeded without that evidence—while faulting Diahn for lack of corroboration.
  2. Failure to elicit key facts and explain legal standards in plain language. The second IJ did not meaningfully explain the legal elements of the forms of relief (including what “particular social group” entails), nor did he adequately guide Diahn on what kinds of testimony and corroboration could satisfy those elements. The court stressed that asking some questions is not enough; the questioning cannot be superficial, and pro se respondents must be allowed to elaborate.

C. Prejudice: failure to develop the record is “presumptively prejudicial”

The court emphasized Quintero’s prejudice principle: when an IJ fails to develop the record on a material issue, that failure is presumptively prejudicial because the noncitizen cannot “produce a record that does not exist.” This is especially salient here because the IJ’s merits findings turned repeatedly on lack of corroboration—yet the process failures are what prevented corroboration from being included or meaningfully presented.

D. Due process (flagged as independently problematic)

Although the court granted relief on statutory grounds, it also underscored constitutional deficiencies: the Government conceded Diahn received no written notice of the actual merits hearing date/location, and the hearing occurred in a different court and on a different date than the written notice indicated. Citing Rusu v. INS and United States v. El Shami, the court characterized these defects as likely denying a meaningful opportunity to be heard. It also highlighted the absence of written instruction on where to file evidence and the lack of a continuance when Diahn learned—during the hearing—that witnesses could have participated.

3.3. Impact

  • Operationalizing Quintero in the remote-detention era. This opinion applies Quintero’s “duty to develop” to common modern failure points: virtual hearings, administrative-control court assignments, and confusion over where filings must be sent. It signals that IJs must actively manage these logistics so that a pro se detainee’s record is not gutted by forum/filing ambiguity.
  • Stronger protection against “corroboration traps.” The decision warns against denying relief for missing corroboration when the IJ did not clearly explain what corroboration is needed, how to obtain it, how to submit it, and how to present witnesses—especially where the respondent is detained and unrepresented.
  • Exhaustion doctrine becomes less formalistic. By finding exhaustion where the Board brief asserted “fundamental unfairness” and inability to corroborate, the decision lowers the risk that pro se (or poorly represented) litigants lose statutory procedural claims through imperfect labeling.
  • Potential downstream effects on motions to reopen and ineffective assistance claims. While not resolved on those grounds, the opinion’s procedural focus may encourage litigants and the agency to treat record-development failures as direct-remand errors, rather than pushing all remediation into reopening practice.
  • Internal tension highlighted by the concurrence. Judge Heytens’s separate opinion stresses stricter exhaustion and prejudice requirements and would have resolved the case on a “particularly serious crime” error for CAT-withholding. That split may shape how the Fourth Circuit (and the Board) litigate exhaustion framing and prejudice showings going forward.

4. Complex Concepts Simplified

  • “Duty to develop the record” (statutory). In immigration court, the judge is not a passive referee. Under 8 U.S.C. § 1229a(b)(1), the judge must actively ensure the relevant facts and evidence are brought into the record—especially when the person facing removal has no lawyer.
  • “Corroboration” and “objective evidence.” Even credible testimony may not be enough. For claims like asylum, the law often expects documents, affidavits, witness testimony, or country reports that support the story. The key point here is that a pro se detainee must be told—clearly—what kinds of corroboration are relevant and how to submit it.
  • “Particular social group.” A protected category for asylum/withholding. It is a technical legal concept; Quintero v. Garland requires IJs to explain it in plain language and help a pro se applicant identify potentially cognizable groups supported by the facts (e.g., LGBTQ identity).
  • “Presumptively prejudicial.” If the judge’s failure prevents creation of the record needed to evaluate relief, courts treat that as inherently harmful because it is impossible to prove exactly what the missing record would have shown.
  • “Exhaustion.” Normally, you must raise an issue to the agency (the Board) before asking a federal court to review it. This case holds that raising the issue “in substance” (even without technical labels) can be enough.

5. Conclusion

The Fourth Circuit’s decision in Diahn v. Blanche strengthens procedural protections for detained, pro se respondents by insisting that immigration judges must make the hearing process practically navigable—through clear guidance on legal standards, corroboration, witnesses, and filing logistics—and must ensure that relevant evidence actually enters the record. Building on Quintero v. Garland, the court treated record-development failures as structural and “presumptively prejudicial,” warranting vacatur and remand. The opinion also signals serious constitutional concerns where hearing notices and filing instructions are inconsistent or not provided in writing, particularly in a virtual and administratively fragmented court system.