Dodaj v. Blanche: Discretionary Reweighing Is Unreviewable and Unappealed Removability Is Waived

I. Introduction

In Leke Dodaj v. Todd W. Blanche, Acting U.S. Attorney General (6th Cir. June 8, 2026), the Sixth Circuit addressed two recurring issues in immigration appellate practice: (1) the narrow scope of judicial review over the discretionary denial of cancellation of removal, and (2) the consequences of failing to appeal an Immigration Judge’s (IJ’s) removability determination.

Parties. Petitioner Leke Dodaj, a lawful permanent resident from Albania, sought review of Board of Immigration Appeals (BIA) decisions. Respondent was the Acting U.S. Attorney General.

Background and issues. After a series of convictions, the Department of Homeland Security charged Dodaj as removable for a firearms offense under 8 U.S.C. § 1227(a)(2)(C) and for two crimes involving moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(ii). The IJ found him removable but granted cancellation of removal based largely on family hardship. The BIA reversed on discretion. Dodaj petitioned for review of that reversal and separately sought review of the BIA’s denial of his motion to reconsider/reopen, which attempted to relitigate removability.

II. Summary of the Opinion

The Sixth Circuit denied both petitions. It held:

  • The court lacked jurisdiction to review the BIA’s discretionary denial of cancellation because Dodaj’s arguments amounted to disagreement with the BIA’s weighing of equities, not a reviewable “constitutional claim[] or question[] of law” under 8 U.S.C. § 1252(a)(2)(D).
  • The BIA did not abuse its discretion in denying reconsideration/reopening because Dodaj had waived challenges to removability by failing to appeal the IJ’s removability determination and, in fact, requesting summary affirmance as to removability.
  • The court rejected the claim that the BIA had a duty to revisit removability de novo, explaining that 8 C.F.R. § 1003.1(d)(3)(ii) is permissive (“may”), not mandatory.

III. Analysis

A. Precedents Cited

  • Sabastian-Andres v. Garland, 96 F.4th 923 (6th Cir. 2024): The court applied the standard principle that when the BIA issues its own decision rather than summarily affirming, appellate review focuses on the BIA’s reasoning, consulting the IJ only to the extent the BIA adopted it. This framed the court’s approach to both the cancellation and reconsideration rulings.
  • Cristales-de Linares v. Bondi, 161 F.4th 401 (6th Cir. 2025): Cited for standards of review—de novo for legal questions and substantial-evidence review for factual findings— reinforcing the line between reviewable legal issues and unreviewable discretionary balancing.
  • Wajda v. Holder, 727 F.3d 457 (6th Cir. 2013), and Sswajje v. Ashcroft, 350 F.3d 528 (6th Cir. 2003): These cases supplied the abuse-of-discretion framework for reviewing denial of reconsideration, including that the BIA abuses discretion when it acts “arbitrarily, irrationally or contrary to law.”
  • Singh v. Rosen, 984 F.3d 1142 (6th Cir. 2021): Central to the jurisdictional holding. The court relied on Singh to distinguish reviewable “questions of law” (including mixed questions) from unreviewable quarrels with discretionary weighing, and to emphasize that jurisdiction turns on substance, not labels. Singh also supported the court’s reading of the BIA’s review authority as discretionary rather than obligatory in this context.
  • Rodriguez v. Lynch, 614 F. App’x 266 (6th Cir. 2015): Used (alongside Singh) to support the interpretation that the BIA’s authority to review certain issues de novo does not impose a duty to do so when the issue is not appealed.
  • Bannister v. Knox Cnty. Bd. of Educ., 49 F.4th 1000 (6th Cir. 2022): Provided the definition of waiver as the intentional abandonment of a known right. The court analogized Dodaj’s conduct—raising removability before the IJ but later requesting summary affirmance on removability—to classic waiver.
  • Hanna v. Holder, 740 F.3d 379 (6th Cir. 2014): Dodaj invoked Hanna to avoid being bound by prior counsel’s choices. The court distinguished Hanna because Dodaj failed to show an intervening change in law that would make enforcing waiver unjust.
  • Adams v. United States, 622 F.3d 608 (6th Cir. 2010): Cited to explain the Michigan Holmes Youthful Trainee Act (HYTA) framework that featured in Dodaj’s removability arguments. Although the merits of HYTA’s immigration consequences were not reached due to waiver, the court referenced Adams for background.

B. Legal Reasoning

1. Jurisdiction: discretionary cancellation versus “questions of law”

The court began from the jurisdiction-stripping rule: federal courts generally lack jurisdiction to review “judgments regarding” discretionary cancellation decisions under 8 U.S.C. § 1252(a)(2)(B)(i). The statutory safety valve, 8 U.S.C. § 1252(a)(2)(D), preserves review only for “constitutional claims or questions of law.”

Applying Singh v. Rosen, the panel asked whether Dodaj’s arguments truly alleged legal error (e.g., misapplication of a legal standard) or instead challenged the BIA’s discretionary weighing of the same facts. The court concluded the challenge was the latter, making it unreviewable.

2. “Impermissible fact-finding” versus permissible reweighing

Dodaj attempted to fit within § 1252(a)(2)(D) by arguing the BIA engaged in impermissible fact-finding. The court rejected that characterization. It treated the BIA’s discussion of the “nature” and “seriousness” of the record, the significance of the DUI, and the timing of his criminality as evaluative weighting of facts already in the record—i.e., the BIA’s legitimate discretionary role—rather than the creation of new facts.

The court also found no procedural defect in the BIA referencing aspects of Dodaj’s criminal history because the IJ expressly incorporated the submitted criminal-history documents into the factual findings even while declining to detail every offense orally.

3. No de novo duty for unappealed removability issues

On the motion to reconsider/reopen, Dodaj argued the IJ and BIA failed a supposed duty to independently determine removability. The Sixth Circuit found the IJ did determine removability after a hearing and rejected the claim that removability rested merely on concession or stipulation.

As to the BIA, the court squarely held there was no duty to reach removability de novo when the issue was not appealed. The decisive reasoning was textual: 8 C.F.R. § 1003.1(d)(3)(ii) states the Board may review legal questions de novo. “May” confers discretion; it does not impose an obligation.

4. Waiver bars later challenges and supports denial of reconsideration

The court treated Dodaj’s failure to appeal removability—and his affirmative request for summary affirmance on that point—as waiver under Bannister v. Knox Cnty. Bd. of Educ.. That waiver prevented judicial review of removability and, correspondingly, undermined any claim that the BIA abused discretion by refusing reconsideration aimed at resurrecting waived issues.

C. Impact

  • Reinforced jurisdictional boundary. The decision underscores that reframing a disagreement with discretionary balancing as “fact-finding” will not create jurisdiction. Unless a petitioner can identify a genuine legal standard error, cancellation denials remain largely insulated from review.
  • Clarified the “fact-finding” label. The opinion distinguishes impermissible new fact-finding from permissible evaluative characterization (e.g., calling a conviction “significant”) when the underlying facts are already in the record.
  • Heightened importance of issue preservation. The ruling is a cautionary precedent: failing to appeal removability, and especially requesting affirmance, can constitute waiver that forecloses later motions and petitions attempting to re-litigate removability.
  • Limits on using reconsideration/reopening as an end-run. By linking waiver to the abuse-of-discretion analysis, the case discourages using reconsideration/reopening to revive issues not properly appealed in the first instance.

IV. Complex Concepts Simplified

  • Cancellation of removal (8 U.S.C. § 1229b). A discretionary form of relief that can allow a removable noncitizen to remain in the United States if eligibility requirements are met and the adjudicator decides—after balancing positive and negative equities—that relief is warranted.
  • Jurisdiction stripping and the “questions of law” exception (8 U.S.C. § 1252). Congress limited courts’ ability to review certain discretionary immigration decisions. Courts may still review legal and constitutional issues, but not mere disagreement with how the agency balanced facts.
  • “Impermissible fact-finding” by the BIA. The BIA generally cannot create new facts on appeal. But it may assess the seriousness or weight of established facts when exercising discretion. This opinion treats the BIA’s descriptions as weighing, not new fact creation.
  • Waiver. Waiver is the intentional abandonment of an issue. Here, Dodaj’s choice not to appeal removability and to seek summary affirmance on that point was treated as a deliberate relinquishment, blocking later attempts to contest removability.
  • Abuse of discretion (motions to reconsider/reopen). A highly deferential standard: the BIA’s decision stands unless it was arbitrary, irrational, or contrary to law. Waiver and the absence of any legal duty for de novo review made it difficult to show such error.
  • HYTA (Holmes Youthful Trainee Act). A Michigan program that can result in a record being “wiped” upon successful completion. Dodaj argued HYTA outcomes are not “convictions” for immigration purposes, but the court did not reach the merits because the removability issue was waived.

V. Conclusion

Dodaj v. Blanche solidifies two practical rules in Sixth Circuit immigration litigation: (1) courts will not review a cancellation-of-removal denial when the petition simply disputes the BIA’s discretionary weighing of equities, even if framed as “fact-finding,” and (2) an IJ’s removability determination must be timely appealed or it may be treated as waived—leaving motions to reconsider/reopen an ineffective vehicle for resurrecting the issue.