Date: Aug 7, 2026

Fourth Circuit: Briefing on a Threshold Legal Issue Is Not a “Reasonable Opportunity” to Prove Cancellation Hardship Under 8 U.S.C. § 1229a(b)(4)(B)

1. Introduction

In Kadiatou Keita v. Todd Blanche (4th Cir. Aug. 4, 2026), petitioner Kadiatou Babila Keita, a Guinean national, sought review of a Board of Immigration Appeals (“BIA”) decision affirming the denial of her application for cancellation of removal under 8 U.S.C. § 1229b(b)(1).

Keita had already been granted withholding of removal to Guinea based on the risk that her U.S.-citizen daughters would face female genital mutilation (FGM) if removed there. But withholding is country-specific and does not prevent third country removal. Keita’s central procedural contention was that the immigration judge (“IJ”) denied her cancellation application without giving her a meaningful chance to present evidence and argument about hardship to her children if the government removed her to a country other than Guinea.

The BIA rejected that claim, reasoning that the IJ’s request for briefing gave Keita a sufficient opportunity to present her cancellation arguments. The Fourth Circuit disagreed and held that the process Keita received did not satisfy the INA’s requirement that a noncitizen have a “reasonable opportunity” to present evidence.

2. Summary of the Opinion

The Fourth Circuit granted the petition for review of the BIA’s merits decision, vacated the BIA order, and remanded.
A second petition (from the denial of reconsideration) was dismissed as moot because vacatur of the underlying order eliminated any live controversy.
The court held the BIA erred in concluding that Keita had a sufficient opportunity to present her cancellation claim: the IJ’s briefing order was limited to a threshold legal issue, Keita was not allowed to testify at the critical juncture, and the IJ never held the promised hearing before denying cancellation on hardship grounds.
The court left open on remand issues the BIA did not reach, including prejudice (required for statutory or constitutional fair-hearing claims) and the government’s constitutional framing arguments.

3. Analysis

3.1 Precedents Cited

Country-specific withholding and third country removal

Tomas-Ramos v. Garland, 24 F.4th 973 (4th Cir. 2022): cited for the proposition that withholding of removal prohibits removal only to the specific country where life or freedom would be threatened. This is foundational to Keita’s argument that even with withholding to Guinea, she could still face removal elsewhere.
Johnson v. Guzman Chavez, 594 U.S. 523 (2021): used to explain statutory authority to remove a person with withholding protection to “any [other] country willing to accept” the noncitizen under 8 U.S.C. § 1231(b)(2).
Dep’t of Homeland Sec. v. D.V.D., 145 S. Ct. 2153 (2025) (Sotomayor, J., dissenting): cited for the label “third country removal,” situating Keita’s concern in a recognized contemporary enforcement practice.

Cancellation of removal and hardship as a reviewable mixed question

Wilkinson v. Garland, 601 U.S. 209 (2024): cited both for the high bar of cancellation eligibility (hardship plus discretionary favorability) and for standards of review, including that hardship applications can be “mixed questions.” The dissent underscores Wilkinson’s jurisdictional consequences and urges reconsideration.
Ibarra v. Bondi, 136 F.4th 63 (4th Cir. 2025): cited on substantial-evidence review for mixed questions in this area.

Full-and-fair hearing protections (statutory and constitutional)

Matter of R-C-R-, 28 I. & N. Dec. 74 (B.I.A. 2020): cited for the proposition that noncitizens are entitled under the INA and the Fifth Amendment to a “full and fair hearing.” The Fourth Circuit relies on it to emphasize overlapping—but distinct—statutory and constitutional protections.
Rusu v. U.S. Immigr. & Naturalization Serv., 296 F.3d 316 (4th Cir. 2002): cited for de novo review of fair-hearing claims and the requirement that a petitioner show prejudice.
Diahn v. Blanche, 175 F.4th 291 (4th Cir. 2026): cited for de novo review of “full and fair hearing” compliance and for distinguishing statutory fair-hearing rights from constitutional due process protections.

Record development and hardship exemplars

Quintero v. Garland, 998 F.3d 612 (4th Cir. 2021): cited for the IJ’s “duty to fully develop the record,” supporting the court’s point that a live hearing is the ordinary mechanism to build the hardship record.
Matter of Recinas, 23 I. & N. Dec. 467 (B.I.A. 2002) (en banc): cited as a concrete hardship scenario—U.S.-citizen children entirely dependent on a single mother—illustrating the kind of evidence Keita sought to present regarding removal to an unfamiliar country or separation without a caregiver.

Issue preservation, exhaustion, mootness, and review structure

Portillo Flores v. Garland, 3 F.4th 615 (4th Cir. 2021) (en banc): cited for the exhaustion rule—claims not presented to the BIA generally cannot be reviewed by the court of appeals.
Arita-Deras v. Wilkinson, 990 F.3d 350 (4th Cir. 2021): cited for the principle that where the BIA adopts and supplements the IJ, the court reviews both decisions but focuses on IJ portions incorporated by the BIA.
Sec. & Exch. Comm’n v. Chenery Corp., 318 U.S. 80 (1943): invoked to flag the general constraint against affirming agency action on grounds the agency itself did not adopt.
Diahn v. Blanche, 175 F.4th 291 (4th Cir. 2026): also cited for mootness handling after vacatur (used here to dismiss the reconsideration petition).

Dissent-only authorities (procedural default and remand rule; jurisdiction critique)

Judge Quattlebaum’s dissent relies on additional precedent to argue waiver/forfeiture and limits on judicial review, including Food & Drug Administration v. Wages & White Lion Investments, L.L.C., 604 U.S. 542 (2025) (remand rule), and critiques Wilkinson v. Garland’s jurisdictional holding by reference to Guerrero-Lasprilla v. Barr, 589 U.S. 221 (2020). The majority does not adopt these views, but they frame likely future litigation over preservation and jurisdiction in cancellation cases.

3.2 Legal Reasoning

What the BIA decided—and why it mattered: The BIA rejected Keita’s procedural claim solely because it believed she had a “sufficient opportunity” to present all arguments via the IJ’s requested briefing.
The record contradicted that premise: The Fourth Circuit examined the June 2016 transcript and found the IJ’s order was expressly confined to a “legal issue”—whether the grant of withholding made Keita categorically ineligible to proceed with cancellation. Keita was not allowed to testify at that stage because the IJ treated testimony as irrelevant to that legal question.
The promised merits hearing never happened: The IJ indicated Keita could “go forward” with her cancellation case at a later hearing if the threshold issue were resolved in her favor. The IJ later did not adopt the categorical bar, but nonetheless denied cancellation years later on hardship grounds without holding the contemplated hearing.
Statutory “reasonable opportunity” requirement: The court anchored its holding in 8 U.S.C. § 1229a(b)(4)(B), which requires a “reasonable opportunity” to present evidence. A briefing order cabined to a threshold legal issue, plus the absence of a merits hearing to present hardship evidence—especially about third country removal consequences—did not meet that requirement.
Remedy and what was not decided: Because the BIA’s only rationale for rejecting the procedural claim was erroneous, the court vacated and remanded. It explicitly left prejudice for the BIA to address on remand (as required by Rusu) and noted the government’s constitutional “no liberty interest” argument might or might not matter depending on how the BIA frames the claim (statutory vs. constitutional).

3.3 Impact

Procedural floor in cancellation adjudications: The decision reinforces that cancellation denials cannot rest on hardship findings when the IJ has not provided a meaningful vehicle (typically a hearing) to develop hardship evidence, especially when prior procedural steps were limited to threshold legal briefing.
Third country removal becomes “hardship-relevant”: The opinion effectively instructs that when withholding to a specific country moots a particular feared harm (here, FGM in Guinea), the adjudicator must still allow the applicant to present evidence of hardship tied to the realistic alternative—removal to a third country or family separation—before denying cancellation for lack of hardship.
Agency practice and case management: IJs may continue to use targeted briefing on discrete legal questions, but this decision warns against converting that limited briefing into a substitute for the evidentiary process required to adjudicate fact-intensive statutory elements like “exceptional and extremely unusual hardship.”
Future litigation flashpoints: The dissent previews continued disputes about (a) preservation of statutory vs. constitutional fair-hearing theories, and (b) jurisdiction over hardship determinations after Wilkinson.

4. Complex Concepts Simplified

Withholding of removal: A protection that bars removal to a specific country where the person would face a qualifying threat. It does not give permanent status and does not bar removal to other countries.
Cancellation of removal: A discretionary form of relief that, if granted, cancels removal altogether and adjusts the person to lawful permanent resident status (if statutory criteria are met and discretion is favorable).
Third country removal: Removal to a country other than the country as to which withholding (or similar protection) has been granted—i.e., any other country authorized by the INA and willing to accept the person.
“Exceptional and extremely unusual hardship”: A very high hardship standard focused on qualifying relatives (here, U.S.-citizen children). The case highlights that hardship evidence may differ depending on whether removal is to the home country, a third country, or results in family separation.
“Full and fair hearing” / “reasonable opportunity”: The INA (8 U.S.C. § 1229a(b)(4)(B)) guarantees a meaningful chance to present evidence. This case holds that limited legal briefing does not satisfy that guarantee when the dispositive issue is factual hardship and the applicant was not given the promised merits hearing.
Prejudice requirement: Even if procedure was violated, the applicant generally must show the error likely mattered to the outcome. The Fourth Circuit reserved that question for the BIA on remand.
Mootness: A court dismisses issues that no longer present a live dispute. Because the court vacated the underlying BIA order, review of the denial of reconsideration no longer had independent practical effect.

5. Conclusion

The Fourth Circuit’s published decision establishes a clear procedural principle for cancellation of removal proceedings: when an IJ limits a respondent to briefing on a threshold legal question and indicates a later merits hearing will follow, the INA’s “reasonable opportunity” requirement is not satisfied if the IJ then denies cancellation on hardship grounds without ever allowing the respondent to present and develop hardship evidence—particularly evidence addressing third country removal consequences.

By vacating and remanding, the court re-centers cancellation adjudication on a developed record and ensures the hardship inquiry reflects the realistic removal outcomes that remain after country-specific protection like withholding of removal.