INA § 1229a(b)(4)(A) Requires a “Reasonable and Realistic” Opportunity to Replace Withdrawn Counsel Before Merits Deadlines

1. Introduction

In Josselyn Rodriguez-Solis v. Todd Blanche (4th Cir. May 21, 2026), the Fourth Circuit granted a petition for review and vacated a final order of removal after concluding that an Immigration Judge (IJ) violated a noncitizen’s statutory right to counsel under the Immigration and Nationality Act (INA), 8 U.S.C. § 1229a(b)(4)(A).

The case arose when Rodriguez-Solis’s attorney of more than a decade moved to withdraw shortly before a merits hearing and an IJ-imposed filing deadline to update briefing and evidence. The IJ granted withdrawal without explanation and then denied Rodriguez-Solis’s request for additional time to secure new counsel, requiring her to proceed pro se at the final asylum merits hearing. The Board of Immigration Appeals (BIA) affirmed on the ground that she had “approximately one month” to obtain new counsel. The Fourth Circuit held that reasoning legally insufficient because it ignored the practical constraints created by earlier litigation deadlines and the demands of preparing an asylum merits hearing.

The central issues were: (i) what § 1229a(b)(4)(A) requires when counsel withdraws near critical deadlines; (ii) the proper standard of review for an asserted statutory right-to-counsel violation; and (iii) whether the court should decide prejudice or remand for the agency to address it first.

2. Summary of the Opinion

  • The court held that the IJ’s refusal to continue the merits hearing, given counsel’s withdrawal near a filing deadline and hearing date, violated Rodriguez-Solis’s statutory right to counsel under 8 U.S.C. § 1229a(b)(4)(A).
  • The court adopted the BIA’s own articulation from Matter of C-B-, 25 I. & N. Dec. 888: absent an express waiver, IJs must afford a “reasonable and realistic period of time” to seek, consult, and retain counsel.
  • The Fourth Circuit concluded the BIA committed legal error by focusing on the time before the hearing while disregarding an IJ-imposed September 18 submission deadline—a deadline that effectively required meaningful legal preparation earlier than the hearing date.
  • The court did not reach the alternative Due Process Clause argument because the statutory violation was dispositive for vacatur and remand.
  • The court remanded to the BIA to determine prejudice “in the first instance,” including whether prejudice may be presumed for § 1229a(b)(4)(A) violations and how such a presumption might be rebutted.

3. Analysis

A. Precedents Cited

1) Standard of review and whose decision is reviewed

  • Herrera-Alcala v. Garland, 39 F.4th 233 and Martinez v. Holder, 740 F.3d 902 framed the scope of review: the Fourth Circuit reviews the BIA’s reasoning and only considers the IJ’s decision to the extent the BIA adopted or incorporated it.
  • Cabrera v. Garland, 21 F.4th 878 supplied the general rule that continuance denials are typically reviewed for abuse of discretion; but the court emphasized that Rodriguez-Solis raised a distinct legal claim—statutory right to counsel.
  • Rusu v. U.S. Immigr. & Naturalization Serv., 296 F.3d 316 was pivotal: statutory and due process procedure claims are reviewed de novo. The court also analogized to sister-circuit approaches that treat right-to-counsel continuance disputes as legal questions (citing Hernandez Lara v. Barr, 962 F.3d 45 and Usubakunov v. Garland, 16 F.4th 1299).
  • Williams v. Garland, 59 F.4th 620 was used by analogy to support de novo review of mixed questions where legal standards govern outcome.

2) The statutory right to counsel and the “reasonable and realistic” time requirement

  • The court leaned heavily on Matter of C-B-, 25 I. & N. Dec. 888, which requires IJs—absent an express waiver—to provide a “reasonable and realistic period of time” to obtain counsel. The Fourth Circuit expressly “endorse[d] and adopt[ed]” that framework.
  • The court also cited Gandarillas-Zambrana v. Board of Immigr. Appeals, 44 F.3d 1251 (noting statutory protections for counsel and describing steps an IJ took there to safeguard that right by advisals, a legal-services list, and postponement to obtain counsel). The contrast mattered: in Rodriguez-Solis’s case the IJ denied her first post-withdrawal request for time.

3) Distinguishing continuance and counsel-withdrawal cases

  • Jean v. Gonzales, 435 F.3d 475 was invoked by the government to resist a rule requiring continuances after withdrawal. The court distinguished Jean because it involved reconsideration review, did not analyze § 1229a(b)(4)(A), and counsel withdrew after testimony and evidence were essentially complete—unlike forcing pro se representation at the final merits hearing.
  • Mendoza-Garcia v. Barr, 918 F.3d 498 was the government’s best sister-circuit authority. The Fourth Circuit distinguished it because the BIA here found only “approximately one month,” and because the Fourth Circuit emphasized the overlooked earlier filing deadline and applied de novo review (whereas Mendoza-Garcia repeatedly stressed abuse-of-discretion review).
  • Alsamhouri v. Gonzales, 484 F.3d 117 was distinguished because the noncitizen terminated counsel and had new counsel present at the merits hearing.
  • Arrey v. Barr, 916 F.3d 1149 was distinguished as a paradigm of adequate opportunity: multiple continuances and repeated warnings put the noncitizen on notice; Rodriguez-Solis had neither.
  • The court approvingly referenced Freza v. Attorney Gen. U.S., 49 F.4th 293 for the proposition that there was no finding Rodriguez-Solis’s request was a “dilatory tactic.”

4) Remand, Chenery, and deciding prejudice

  • The remand decision was grounded in Securities & Exch. Comm'n v. Chenery Corp., 318 U.S. 80 and Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29: courts may not uphold agency action on reasoning the agency itself did not supply.
  • The court emphasized it is “a court of review, not of first view,” citing Cutter v. Wilkinson, 544 U.S. 709, and cited prior immigration remands, including Tinoco Acevedo v. Garland, 44 F.4th 241 and Nken v. Holder, 585 F.3d 818.
  • The opinion noted (without resolving) the modern tension between Chenery and harmless error discussed in Food & Drug Admin. v. Wages & White Lion Invs., L.L.C., 604 U.S. 542, and refused to apply harmless error because the government did not press it, citing waiver principles from Stokes v. Stirling, 64 F.4th 131.

5) Prejudice standards and presumed prejudice possibilities

  • The court acknowledged Fourth Circuit precedent requiring a showing of prejudice for statutory/regulatory violations, citing Rusu v. U.S. Immigr. & Naturalization Serv., 296 F.3d 316 and Delgado-Corea v. Immigration & Naturalization Serv., 804 F.2d 261.
  • It also highlighted that prejudice may be presumed in some categories, citing Quintero v. Garland, 998 F.3d 612 and the BIA’s framework in Matter of Garcia-Flores, 17 I. & N. Dec. 325.
  • To illustrate why prejudice may be difficult to measure for counsel-deprivation, the court analogized to the Sixth Amendment choice-of-counsel context in United States v. Gonzales-Lopez, 548 U.S. 140.
  • The court referenced Montes-Lopez v. Holder, 694 F.3d 1085 (as cataloging circuit approaches) to situate the Fourth Circuit’s historical prejudice requirement.

B. Legal Reasoning

  1. Statutory right to counsel is independent of due process. The court treated § 1229a(b)(4)(A) as creating a procedural protection beyond the constitutional floor, making it unnecessary to reach the Due Process Clause once the statute was violated.
  2. “Reasonable and realistic” time must be assessed against the actual litigation calendar. The BIA’s focus on time before the hearing date was incomplete because the IJ imposed a key submission deadline (September 18) to update briefing and evidence, after the IJ itself flagged deficiencies (vagueness of the particular social group) and suggested additional relief (cancellation of removal). A “reasonable and realistic” opportunity therefore required time not merely to appear, but to prepare and file.
  3. The court rejected a “need-a-lawyer” threshold. The government argued counsel was unnecessary because testimony was the main task. The court held the statute confers the “privilege” of counsel without conditioning it on a showing of necessity—particularly where the noncitizen repeatedly objected to proceeding without counsel.
  4. The court rejected the government’s reliance on the INA’s 10-day initial-hearing rule. The government’s argument based on 8 U.S.C. § 1229(b)(1) failed because that provision concerns scheduling of a “first hearing date” (initial master calendar), not a final merits hearing with pre-hearing filing deadlines.
  5. Remand for prejudice was compelled by administrative-law fundamentals. Because the BIA decided only the “violation” question and did not address prejudice, the court vacated and remanded rather than deciding prejudice itself.

C. Impact

The decision meaningfully strengthens right-to-counsel protections in Fourth Circuit removal proceedings by clarifying that:

  • Statutory right-to-counsel claims are reviewed de novo when framed as legal violations of the INA (even if arising from a continuance denial).
  • The “reasonable and realistic” time analysis must account for all operative deadlines (briefing/evidence cutoffs and other preparation burdens), not merely the calendar date of the merits hearing.
  • BIA decisions that treat “time to hearing” as dispositive—without engaging the procedural posture and deadlines the IJ imposed—risk vacatur for legal error.
  • On remand, the BIA is now directly tasked (in a published Fourth Circuit case) with clarifying whether and when prejudice may be presumed for § 1229a(b)(4)(A) violations, potentially reshaping how such claims are litigated and decided.

Practically, IJs within the Fourth Circuit may respond by (i) scrutinizing withdrawal motions more carefully, (ii) giving explicit warnings about proceeding pro se, and (iii) aligning continuance decisions with the reality that merits preparation often begins well before the hearing date—especially when the IJ has requested updated legal theories or evidence.

4. Complex Concepts Simplified

Statutory “right to counsel” vs. Sixth Amendment right to counsel
In removal proceedings, there is no Sixth Amendment right to government-appointed counsel. But the INA gives noncitizens the privilege to be represented by a lawyer they choose (at no government expense). This case is about protecting that statutory privilege when counsel withdraws at a critical moment.
Master calendar hearing vs. individual merits hearing
A master calendar hearing is largely scheduling and case-management. An individual merits hearing is the trial-like proceeding where testimony is taken and claims (like asylum) are decided.
Continuance
A continuance is a postponement. Here, the question was whether denying a postponement effectively forced pro se representation contrary to the INA.
Administrative closure and recalendaring
Administrative closure pauses a case without a final decision. Recalendaring resumes it. The court noted much of the long case duration was attributable to government and court scheduling choices, complicating reliance on “case age” as a reason to deny time for counsel.
Chenery / “court of review, not of first view”
Courts generally cannot uphold an agency decision based on reasons the agency never gave. And appellate courts usually avoid deciding issues the agency has not addressed first—hence the remand for prejudice.
Prejudice (and presumed prejudice)
“Prejudice” asks whether the legal error likely mattered to the outcome. Sometimes courts/agency presume prejudice when an error makes meaningful review or outcome assessment inherently difficult—an issue the Fourth Circuit instructed the BIA to consider here.

5. Conclusion

Rodriguez-Solis establishes a Fourth Circuit rule of practical consequence: when counsel withdraws near key merits deadlines, an IJ violates 8 U.S.C. § 1229a(b)(4)(A) by proceeding over objection without providing a reasonable and realistic opportunity to retain new counsel—an assessment that must account for pre-hearing filing deadlines and preparation needs, not just the hearing date.

The court’s remedy—vacatur and remand—positions the BIA to clarify the prejudice framework for statutory right-to-counsel violations, including whether prejudice may be presumed. The decision thus simultaneously (i) tightens procedural safeguards around counsel withdrawal and continuances and (ii) tees up the next doctrinal development: how prejudice is measured (or presumed) when a noncitizen is forced to litigate a merits hearing without counsel.