Dodaj v. Blanche (6th Cir. 2026): No Duty for the BIA to Revisit Unappealed Removability, and No Judicial Review of Pure Discretionary Reweighing in Cancellation

Introduction

In Leke Dodaj v. Todd W. Blanche, Acting U.S. Attorney General, the Sixth Circuit addressed two common fault lines in removal litigation: (1) the narrow scope of judicial review over the discretionary denial of cancellation of removal, and (2) the consequences of failing to appeal (and even affirmatively accepting) an Immigration Judge’s removability determination before later attempting to relitigate removability through a motion to reconsider/reopen.

Dodaj, a lawful permanent resident who entered the United States as a child, was found removable based on a firearms offense and two crimes involving moral turpitude. The Immigration Judge (IJ) granted cancellation of removal as a matter of discretion due largely to family hardship, but the Board of Immigration Appeals (BIA) reversed. Dodaj then petitioned for review of the BIA’s reversal and separately petitioned from the BIA’s denial of his motion to reconsider and reopen, in which he tried to revive challenges to removability.

The core issues were jurisdictional and procedural: whether the Sixth Circuit could review the BIA’s discretionary reweighing of equities in cancellation, and whether Dodaj could contest removability after not appealing it and requesting summary affirmance of the IJ’s removability ruling.

Summary of the Opinion

  • Cancellation petition: The court held it lacked jurisdiction to review the BIA’s denial of cancellation because Dodaj’s arguments amounted to disagreement with the BIA’s discretionary balancing, not a “constitutional claim or question of law” under 8 U.S.C. § 1252(a)(2)(D).
  • Fact-finding argument rejected: The court concluded the BIA did not engage in impermissible fact-finding; it permissibly weighed the same record differently than the IJ and could rely on incorporated criminal-history materials.
  • Reconsider/reopen petition: The court upheld the BIA’s denial because Dodaj waived challenges to removability by not appealing the IJ’s removability determination and by requesting summary affirmance of it; the BIA had no duty to sua sponte review removability de novo on an appeal limited to discretionary cancellation.
  • Disposition: Both petitions were DENIED.

Analysis

Precedents Cited

1. Scope and standards of review

  • Sabastian-Andres v. Garland, 96 F.4th 923, 929 (6th Cir. 2024): The court relied on this framework to review the BIA’s decision as the operative decision when the BIA issues its own reasoning, consulting the IJ only to the extent the BIA adopted it.
  • Cristales-de Linares v. Bondi, 161 F.4th 401, 407 (6th Cir. 2025): Cited for the de novo review of legal questions and substantial-evidence review of factual findings in immigration petitions.
  • Wajda v. Holder, 727 F.3d 457, 462 (6th Cir. 2013), and Sswajje v. Ashcroft, 350 F.3d 528, 532 (6th Cir. 2003): These cases supplied the abuse-of-discretion standard for denial of reconsideration and the definition that the BIA abuses discretion when it acts “arbitrarily, irrationally or contrary to law.”

2. Jurisdiction over cancellation denials and what counts as a “question of law”

  • Singh v. Rosen, 984 F.3d 1142, 1148–49 (6th Cir. 2021): This was the court’s main authority for the jurisdictional divide: discretionary cancellation decisions are generally unreviewable under 8 U.S.C. § 1252(a)(2)(B)(i), but “constitutional claims or questions of law” remain reviewable under 8 U.S.C. § 1252(a)(2)(D), including mixed questions. The opinion used Singh to stress that labeling an argument “legal” does not make it so; courts examine the substance.

3. BIA review authority is discretionary, not mandatory

  • Rodriguez v. Lynch, 614 F. App’x 266, 271 (6th Cir. 2015), and again Singh v. Rosen, 984 F.3d at 1150–51: These supported the court’s reading of 8 C.F.R. § 1003.1(d)(3)(ii)—the BIA may review questions of law de novo, but that regulation does not impose a duty to do so on issues not presented on appeal.

4. Waiver principles and limits on excusing counsel’s choices

  • Bannister v. Knox Cnty. Bd. of Educ., 49 F.4th 1000, 1011 (6th Cir. 2022): Used for the concept of waiver as intentional abandonment of a known right; the court found Dodaj waived removability challenges by requesting summary affirmance of the IJ’s removability decision after earlier contesting removability.
  • Hanna v. Holder, 740 F.3d 379 (6th Cir. 2014): Dodaj invoked Hanna to avoid being bound by prior counsel’s decision, but the court distinguished Hanna because Dodaj did not show an intervening change in law making adherence unjust.

5. Background authority on HYTA (context for removability arguments)

  • Adams v. United States, 622 F.3d 608, 611–12 (6th Cir. 2010): Cited to explain the Holmes Youthful Trainee Act (HYTA) as a Michigan scheme that can result in records being wiped if conditions are met. Dodaj argued HYTA matters for whether he had “convictions” for immigration purposes; the Sixth Circuit did not reach the merits due to waiver.

Legal Reasoning

1. Cancellation of removal: jurisdictional bar and the “fact-finding” reframing

The Sixth Circuit treated the cancellation dispute as a textbook application of 8 U.S.C. § 1252(a)(2)(B)(i): courts cannot review “judgments regarding” discretionary cancellation under 8 U.S.C. § 1229b. The only path to review is 8 U.S.C. § 1252(a)(2)(D)—a genuine constitutional claim or question of law.

Dodaj attempted to characterize the BIA’s reversal as impermissible fact-finding. The court rejected that characterization, explaining that the BIA’s discussion of the “nature” and “seriousness” of the criminal record, the DUI as a significant adverse factor, and the timing of his “fall into criminality” were not new factual findings but rather a different discretionary weighting of facts already in the record or incorporated by the IJ (including criminal-history summaries counsel had submitted and the IJ expressly incorporated).

In short, the petition challenged how the BIA exercised discretion, not the application of a legal standard in a way that presented a reviewable legal question. That meant no jurisdiction.

2. Removability: no appeal, no obligation for the BIA to revisit, and waiver bars later relitigation

Dodaj’s motion to reconsider/reopen attempted to shift the dispute to the IJ’s removability determinations—arguing, among other things, that HYTA dispositions should not count as “convictions” under the immigration statute and that the agency failed to independently determine removability.

The court’s reasoning proceeded in three steps:

  1. The IJ did make an independent removability determination. The IJ found removability sustained by clear and convincing evidence after a hearing where Dodaj could (and did) argue the HYTA point. The court rejected the premise that removability was “conceded” rather than adjudicated.
  2. The BIA had no duty to decide removability de novo. The court read 8 C.F.R. § 1003.1(d)(3)(ii) as permissive: the Board may review legal questions de novo, but nothing required it to reach out and decide removability when the Government’s appeal concerned discretionary cancellation and Dodaj did not cross-appeal removability.
  3. Dodaj waived removability challenges. Applying Bannister v. Knox Cnty. Bd. of Educ., the court found intentional abandonment because Dodaj not only failed to appeal removability but requested summary affirmance of the IJ’s removability decision—making the later attempt to undo removability via reconsideration/reopening untenable.

With cancellation review barred and removability challenges waived, there was no basis to conclude the BIA abused its discretion in denying reconsideration/reopening.

Impact

  • Reinforces the cancellation “no-review” rule: Petitioners in the Sixth Circuit should expect dismissal for lack of jurisdiction when they challenge the BIA’s discretionary reweighing, even if framed as “fact-finding,” unless they can identify a true legal error (e.g., use of an incorrect legal standard or reliance on facts outside the record).
  • Clarifies that 8 C.F.R. § 1003.1(d)(3)(ii) creates discretion, not an obligation: The opinion underscores that the BIA’s de novo authority over legal questions on appeal does not compel it to reach issues not presented—especially removability where no appeal was taken.
  • Elevates the practical consequences of waiver in immigration appeals: The decision signals that strategic choices—like requesting summary affirmance of a removability ruling while litigating only discretionary relief—can foreclose later attempts to revive removability arguments via motions.
  • Limits “second bite” motions: Motions to reconsider/reopen cannot easily be used to resurrect unappealed removability arguments, particularly where waiver is clear and no intervening change in law is shown (distinguishing Hanna v. Holder).

Complex Concepts Simplified

Cancellation of removal (8 U.S.C. § 1229b)
A form of discretionary relief that can allow an otherwise removable noncitizen to remain in the United States. Even if legally eligible, the IJ/BIA can deny it after balancing positive equities (family ties, hardship, rehabilitation) against negative factors (criminal record, misconduct).
Jurisdictional bar (8 U.S.C. § 1252(a)(2)(B)(i))
A statute limiting federal courts’ ability to review certain discretionary immigration decisions. Courts can still review “constitutional claims or questions of law” under 8 U.S.C. § 1252(a)(2)(D), but not mere disputes over how the agency weighed the facts.
“Impermissible fact-finding” by the BIA
The BIA generally cannot make new factual findings on appeal. But it can assess the significance of facts found by the IJ and reweigh equities when deciding discretionary relief. This opinion treats that reweighing as non-reviewable discretion, not unlawful fact-finding.
Motion to reconsider vs. motion to reopen
Reconsideration argues the agency made a legal or factual error based on the existing record. Reopening seeks a new hearing based on new, previously unavailable evidence. Here, the BIA denied relief in part because Dodaj did not properly preserve removability issues and did not meet reopening requirements.
Waiver
The intentional abandonment of an argument or right. The court found waiver where Dodaj asked for summary affirmance of the IJ’s removability ruling, preventing later challenges to that ruling.
HYTA (Holmes Youthful Trainee Act)
A Michigan youthful-offender program under which a person may be assigned trainee status and later have the record “wiped” upon successful completion. Dodaj argued this should affect whether he had a “conviction” for immigration purposes, but the Sixth Circuit did not reach the merits because the removability challenge was waived.

Conclusion

Dodaj v. Blanche primarily operates as a procedural and jurisdictional decision with meaningful practice effects: (1) disagreements with the BIA’s discretionary weighing in cancellation of removal are not reviewable absent a genuine legal or constitutional issue, and (2) removability challenges must be preserved through proper appeal; the BIA is not required to revisit removability de novo when it is not before it, and an affirmative waiver (such as requesting summary affirmance) can foreclose later efforts to relitigate removability through motions to reconsider or reopen.