Trokon Diahn v. Todd Blanche

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 5, 2026
• Docket: 25-1692
• Status: Published

Opinion

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PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 24-2066

TROKON MORRIS DIAHN,

Petitioner,

v.

TODD BLANCHE, Acting Attorney General,

Respondent.

No. 24-2154

No. 25-1692

Respondent. USCA4 Appeal: 25-1692 Doc: 50 Filed: 05/05/2026 Pg: 2 of 33

On Petition for Review of an Order of the Board of Immigration Appeals.

Argued: January 29, 2026 Decided: May 5, 2026

Before GREGORY, HEYTENS, and BENJAMIN, Circuit Judges.

Petition granted, order vacated and remanded with instructions by published opinion. Judge Gregory wrote the opinion, in which Judge Benjamin joined. Judge Heytens wrote a separate opinion, concurring in the judgment in part and dissenting in part.

ARGUED: Sahar R. Atassi, COOLEY LLP, Washington, D.C., for Appellant. Gerald M. Alexander, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Brett A. Shumate, Assistant Attorney General, Leslie McKay, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

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GREGORY, Circuit Judge:

Trokon Diahn, a twenty-year-old man, was born in Cote d’Ivoire after his parents

fled Liberia during the civil war. He left Cote d’Ivoire with his family when he was two

years old and settled in the United States. But, unlike his parents, he never acquired lawful

permanent resident status. Though he has spent his entire life in the United States and has

no connection to Liberia, he is now facing removal to Liberia.

Diahn’s proceedings before the Immigration Judge (“IJ”) and the Bureau of

Immigration Appeals (“Board”) were fraught. Diahn came before the IJ pro se, so he had

limited understanding of the legal standards he needed to meet and the evidence necessary

to corroborate his claims. He was also incarcerated throughout his interactions with the IJ.

Due to confusing communications from the IJ, Diahn sent relevant documentary evidence

in support of his applications for relief to the incorrect immigration court. With an

inadequate record before it, the IJ denied relief on all grounds. On appeal before the Board,

and hampered by ineffective counsel, Diahn was unable to adequately present his claims,

and his appeal was dismissed in full by the Board. He petitions for this Court’s review of

the Board’s decision.

Diahn argues that he did not receive a full and fair hearing before the IJ. We agree.

For the reasons below, we grant Diahn’s petition for review, vacate the Board’s

determination, and remand for further proceedings. 1

1 Because we grant the lead petition for review in Diahn’s case, No. 24-2066, and vacate the underlying order, we dismiss Diahn’s remaining petitions for review, Nos. 24-2154 and 25-1692, as moot. 3 USCA4 Appeal: 25-1692 Doc: 50 Filed: 05/05/2026 Pg: 4 of 33

I.

Diahn was born in a refugee camp in Cote d’Ivoire. During the Second Liberian

Civil War, Diahn’s uncle, a military officer, was killed by rebel groups. Diahn’s other

relatives were also targeted by rebel groups; his mother, for instance, was detained and

interrogated while she was pregnant with him. As a result, Diahn’s family fled Liberia for

Cote d’Ivoire before Diahn was born. Diahn’s family later left Cote d’Ivoire for the United

States, where Diahn was admitted as a refugee when he was two years old, along with his

parents and siblings. His father is a naturalized United States citizen, and his mother is a

lawful permanent resident. Diahn, however, lacked permanent legal status, which he did

not learn until he received notice decades later that he was subject to removal proceedings.

Diahn is bisexual, and fears persecution and violence because of his identity if he

returns to Liberia. He has never visited Liberia and has no network there. Diahn is also

very close to his family, so his deportation would negatively impact them. He also fears

being targeted because of his family, in part because his father’s business associates had

threatened to inflict harm on Diahn’s family due to a business dispute.

II.

At the time his immigration proceedings began, Diahn was incarcerated in

Pennsylvania due to two criminal convictions. While incarcerated, the DHS filed a Notice to

Appear in Baltimore Immigration Court, charging Diahn deportable because of his

convictions. These convictions included: (1) conviction of an attempt or conspiracy to

commit an aggravated felony, 8 U.S.C. §§ 1101(a)(43)(U), 1227(a)(2)(A)(iii); (2) conviction

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for two crimes involving moral turpitude not arising from a single scheme of criminal

misconduct, 8 U.S.C. § 1227(a)(2)(A)(ii); and (3) conviction for an aggravated felony

involving fraud or deceit with a loss exceeding $10,000, 8 U.S.C. §§ 1101(a)(43)(M),

1227(a)(2)(A)(iii).2 These convictions rendered Diahn deportable. 8 U.S.C.

§ 1227(a)(2)(A)(ii)-(iii). But though the Notice to Appear stated that proceedings would

occur in Baltimore Immigration Court, they were all conducted virtually—the IJ initially

handling his case, IJ Golparvar, was located in Pennsylvania.

Diahn appeared at several remote hearings noticed for Baltimore Immigration Court

between January and October 2023. He sought four overlapping forms of relief: a waiver

of inadmissibility in connection with his adjustment-of-status application under 8 U.S.C.

§ 1159(c); asylum, which requires proof of past persecution or a well-founded fear of future

persecution based on a protected ground, such as race, religion, political opinion, or

membership in a “particular social group,” 8 U.S.C. § 1101(a)(42)(A); withholding of

removal under 8 U.S.C. § 1231(b)(3); and Convention Against Torture (CAT) deferral

under 8 C.F.R. § 1208.16(c)(2). Diahn repeatedly voiced confusion with the process. See

J.A. 488 (“I thought today was supposed to be like the final order or something.”); J.A. 497

(“[E]very time I come to . . . the court, I was trying to figure out when is going to be like

2 At the time, the Baltimore Immigration Court served as the designated administrative court for Pennsylvania state prisons, where Mr. Diahn was incarcerated. Executive Office for Immigration Review, EOIR Immigration Court Listing (Administrative Control List), (archived Dec. 7, 2022), https://www.justice.gov/eoir/immigration-court-administrative-control-list; https://perma.cc/739X-3D28 (last visited March 31, 2026). 5 USCA4 Appeal: 25-1692 Doc: 50 Filed: 05/05/2026 Pg: 6 of 33

the resolution because it’s . . . mentally giving me anxiety every time I come down here

and not knowing what’s going on.”).

At an August 2023 hearing, however, Diahn was told for the first time that his

proceedings would take place in the Philadelphia Immigration Court:

IJ GOLPARVAR TO DIAHN To the respondent, sir, if you have any additional documents in support of your application, please start sending them to me but they’ll now need to be sent to the Philadelphia immigration court going forward. Your case was transferred to that court. Any additional documents such as letters of support, country reports, newspaper articles, anything in support of your application for your green card, and then also because you’re also applying for protection, withholding of removal, and Convention Against Torture, anything that will support your claim of being harmed in Liberia, any and all of those documents will be due by September 26th at the Philadelphia immigration court, okay?

DIAHN TO IJ GOLPARVAR So, September 6th and not—but I thought it was October 6th, I mean, not October 6th–

IJ GOLPARVAR TO DIAHN Yeah, it is

DIAHN TO IJ GOLPARVAR –on the last paper I got, it said, like, I had to submit my evidence before the 6th of September.

IJ GOLPARVAR TO DIAHN If you’re able to get it all in by the 6th of September, that’s even better. So, yes, that is—that date is still correct. If you need a little bit more time to get your evidence in, I’ll provide that to you. That won’t be a problem.

J.A. 519–520 (emphasis added). Before his merits hearing, Diahn mailed his supporting

documents to Baltimore Immigration Court. Although IJ Golparvar stated the merits

hearing was scheduled for October 6, 2023, it was held on October 12, 2023. No

justification for this change is in the record.

On October 12, the merits hearing occurred virtually before IJ McDermott at the

Philadelphia Immigration Court. Diahn, still detained, attended virtually. At the hearing,

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Diahn expressed bewilderment at several junctures. When IJ McDermott asked Diahn how

many witnesses he had brought to the virtual hearing, Diahn replied, “I didn’t even know

you bring witnesses, so none.” J.A. 534–35. IJ McDermott likewise asked Diahn questions

about Diahn’s background and family circumstances, but when Diahn attempted to offer

more information, the IJ cut him off: “I want you to just take a breath . . . there is a method

to the questions I ask.” J.A. 539. IJ McDermott also did not describe the legal standards

applicable to Diahn’s four immigration claims, even though Diahn appeared pro se before

the IJ in the merits hearing.

At the conclusion of the merits hearing, IJ McDermott issued a decision denying

Diahn all relief and ordering removal. First, he determined that Diahn’s waiver of

inadmissibility was subject to a heightened standard because Diahn’s aggravated assault

conviction rendered him “violent or dangerous,” based on the conviction itself and the

underlying conduct. J.A. 411. Then, as required under In Re Jean, 23 I&N Dec. 373, (A.G.

2002), the IJ weighed the impact that both Diahn and his family would suffer upon his

removal and found it did not meet the heightened standard of “exceptional and extremely

unusual” hardship. J.A. 412–13. The IJ also stated that Diahn had not established that he

merited waiver based on the IJ’s discretionary balancing of the equities.

Next, IJ McDermott denied asylum on multiple grounds. First, IJ McDermott noted

that applicants have to prove by “clear and convincing evidence” that their asylum

application was filed within one year of the date of their arrival to the United States. 8

U.S.C. § 1158(a)(2)(B). J.A. 415. The IJ determined that Diahn failed to meet either

exception to the one-year bar, so his application for asylum should be denied. In the

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alternative, the IJ found that Diahn’s bank fraud conviction constituted a per se particularly

serious crime, which rendered him ineligible for asylum relief. He also found that Diahn

failed to establish an objective well-founded fear of future persecution because he had “not

corroborated his claim with respect to this issue.” J.A. 416. The IJ stated he considered

Diahn’s “particular social groups of member of the LGBTQ community, bisexual person,

and son of the respondent’s father,” alongside his race and nationality. J.A. 417. But the

IJ nonetheless stated that Diahn did not adequately establish a “slight though discernible

chance of future persecution” as to these “protected classes.” J.A. 417. Finally, he denied

asylum on discretionary grounds.

IJ McDermott also denied withholding of removal on statutory grounds, again

stating that Diahn’s bank fraud conviction was a particularly serious crime, rendering him

ineligible for statutory withholding.

The IJ then moved to Diahn’s claims under CAT. CAT proscribes removal to a country

where it is “more likely than not” the applicant will be tortured by, or with the acquiescence

of, a public official. 8 C.F.R. §§ 1208.16–18. There are two forms of relief under CAT: CAT

withholding of removal and CAT deferral of removal. 8 C.F.R. § 1208.16(c)(4). For CAT

withholding, the IJ again said that the particularly serious crime bar rendered Diahn ineligible.

On the merits of CAT deferral, which is not precluded by criminal convictions, 8 C.F.R.

§ 1208.17(a), the IJ stated that Diahn failed to establish a likelihood of torture in Liberia based

on either Diahn’s identity as a member of the LGBTQ community or his connection to his

father. Nor did IJ McDermott find specific evidence tying any threat of harm to government

actors in Liberia, as necessary for a CAT claim.

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Diahn, after retaining counsel, timely appealed IJ McDermott’s determinations to

the Board. He raised four issues on appeal:

(1) For Diahn’s adjustment-of-status application, the IJ erroneously concluded that Diahn was convicted of a particularly serious crime without engaging in the required individualized analysis.

(2) The IJ erred in denying Diahn’s adjustment-of-status waiver application by applying a heightened discretionary standard based on Diahn’s juvenile record, rather than engaging in a fact-specific inquiry.

(3) The IJ failed to apply necessary safeguards to Diahn’s hearing because he was not sufficiently competent to proceed with the removal proceedings.

(4) The IJ denied Diahn his “statutory and due process right to a fundamentally fair hearing” by failing to consider the evidence Diahn had mailed to the Baltimore Immigration Court three-and-a-half weeks before September 6.

J.A. 321–30.

The Board dismissed the appeal on April 17, 2024. First, it held that Diahn had waived

his challenges to the denial of asylum because he did not address the timeliness ruling or the

particularly serious crime bar in his appeal to the Board. It also held that, because Diahn’s

asylum claim failed on the merits, he necessarily could not meet his burden of proving

eligibility for statutory withholding of removal. The Board then affirmed the IJ’s

discretionary denial of Diahn’s waiver of inadmissibility application and rejected any

argument as to the fundamental fairness of Diahn’s hearing before IJ McDermott. Finally, it

held that any argument challenging the denial of CAT protection was waived for failure to

raise it on appeal to the Board.

Diahn, again pro se, timely petitioned for judicial review of the Board’s dismissal.

He also filed two motions to reopen. In the first, he discussed his prior counsel’s failure to 9 USCA4 Appeal: 25-1692 Doc: 50 Filed: 05/05/2026 Pg: 10 of 33

appeal necessary issues and submit more evidence in his support. His counsel in the Board

hearing had also refused to communicate with him until three days before the deadline to

file his petition for review. Diahn further argued that IJ McDermott improperly held the

merits hearing in Philadelphia, rather than Baltimore, therefore harming his case because

he submitted his documentary evidence to Baltimore.

The Board denied the first motion to reopen as untimely on October 21, 2024, under

8 C.F.R. § 1003.2(c)(2), because, though Diahn submitted his motion to reopen a day before

the statutory ninety-day deadline, it was not received until two days after the deadline. The

Board also held that Diahn had failed to sufficiently explain why his untimeliness was

attributable to his ineffective counsel. A few months later, after Diahn petitioned for our

review, Diahn filed a second motion to reopen. In his second motion to reopen, he expanded

on the failures of his counsel and argued that his initial submission should be equitably

tolled because of his issues with counsel and the impact of his detention on his ability to

timely submit briefing. The Board denied this motion as well, holding both that it was time-

barred and that equitable tolling was not warranted because Diahn failed to adequately

establish that he acted with the requisite diligence and that he was sufficiently prejudiced

by the ineffective assistance of counsel and his detention. Counsel for Diahn was appointed

after Diahn submitted his two motions to reopen.

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III.

A.

We have jurisdiction over Diahn’s petition seeking review of a final order of

removal, provided he has exhausted administrative remedies. 8 U.S.C. § 1252(d)(1).

Though we generally lack jurisdiction to review removal orders against noncitizens

convicted of an aggravated felony, 8 U.S.C. § 1252(a)(2)(C), we retain jurisdiction here

because all issues presented are questions of law, including the application of law to settled

facts. 8 U.S.C. § 1252(a)(2)(D); Guerrero-Lasprilla v. Barr, 589 U.S. 221, 227–28 (2020).

We review these questions of law de novo. Guerrero-Lasprilla, 589 U.S. at 227–28.

B.

Diahn’s removal proceedings were statutorily inadequate. Because Diahn failed to

receive a full and fair hearing, we vacate the Board’s determination and remand for further

proceedings. 3

To start, the Government argues that Diahn failed to raise, and therefore failed to

exhaust, his record-development claim before the Board. While Congress has limited our

jurisdiction to consider final orders of removal, we retain jurisdiction “to review

constitutional claims or questions of law” if the petitioner has complied with the

administrative exhaustion requirement. 8 U.S.C. § 1252(a)(2)(D). Though we previously

recognized that this rule was jurisdictional, the Supreme Court held in Santos-Zacaria v.

3 Because we grant Diahn’s petition on the grounds that the IJ failed to fulfill its statutory duty to develop the record, we do not reach the merits of his other arguments on appeal. 11 USCA4 Appeal: 25-1692 Doc: 50 Filed: 05/05/2026 Pg: 12 of 33

Garland, 598 U.S. 411, 416 (2023) that exhaustion in the immigration context is a claims-

processing rule, so it is subject to the traditional rules of forfeiture and waiver.

A court may only review a final order of removal if the noncitizen has “exhausted

all administrative remedies available” to the noncitizen. 8 U.S.C. § 1252(d)(1). “The

exhaustion doctrine serves the twin purposes of protecting administrative agency authority

and promoting judicial efficiency.” Portillo Flores v. Garland, 3 F.4th 615, 632 (4th Cir.

2021) (en banc). But the exhaustion requirement “only prohibits ‘the consideration of . . .

general issues that were not raised below,” and “not of specific, subsidiary legal arguments,

or arguments by extension, that were not made below.’” Ramirez v. Sessions, 887 F.3d

693, 700 (4th Cir. 2018) (citing Gill v. INS, 420 F.3d 82, 86 (2d Cir. 2005)). Our precedent

makes clear that a noncitizen’s filings must alert the Board “in substance” to the

noncitizen’s claims and does not require he use “magic words.” Atemnkeng v. Barr, 948

F.3d 231, 240 (4th Cir. 2020).

Petitioners satisfy the exhaustion requirement when they “in essence raise[] the

concern before the Board,” id., even if they do not argue the exact contours of the argument

ultimately raised before the court. See Higgs v. Atty. Gen. of the U.S., 655 F.3d 333, 338

(3d Cir. 2011) (explaining that petitioner satisfied exhaustion requirement where he made

“some effort, however insufficient, to place the Board on notice of a straightforward issue

being raised on appeal”) (citation omitted); Dale v. Holder, 610 F.3d 294, 299 (5th Cir.

2010) (stating that a petitioner need only “ma[ke] some concrete statement before the

Board to which [he] could reasonably tie [his] claims before this court”) (alteration in

original) (citing Omari v. Holder, 562 F.3d 314, 322 (5th Cir. 2009), abrogated on other

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grounds by Santos-Zacaria v. Garland, 598 U.S. 411 (2023)); Restrepo v. McElroy, 369

F.3d 627, 633 n.10 (2d Cir. 2004) (noting that exhaustion requirement did not prevent court

from considering new reliance argument on appeal because petitioner “raised the general

issue of the AEDPA’s retroactivity” below, and the court “enjoy[s] broad discretion to

consider subsidiary legal arguments that were not specifically raised below”).

Diahn explicitly stated in his Board brief that the IJ “violated his statutory and due

process right to a fundamentally fair hearing” because he was “denied the right to corroborate

his claim in the removal proceedings” before the IJ. J.A. 330. In Quintero v. Garland, we

recognized that immigration judges have a duty to develop the record in immigration court

proceedings. 998 F.3d 612, 622 (4th Cir. 2021). Diahn’s statement that he did not receive a

full and fair hearing and was denied the right to corroborate his claims, in violation of his

statutory rights, placed the Board on notice that the IJ failed to comply with 8 U.S.C.

§ 1229a(b)(1)’s requirements and preserved the argument for our review.

In a separate section, Diahn also stated that he “did not understand his obligations

to corroborate his application or was unable to do so.” J.A. 328. While Diahn raised this

in the context of his competency argument, this statement also put the Board on notice that

Diahn did not understand how to support his claims, rendering the IJ’s statutory failure all

the more damaging. Diahn’s lack of understanding of what was required of him is clear

from the record: the record is devoid of country conditions research, evidence supporting

his applications for relief, or any witness affidavits or testimony.

Of course, where a noncitizen fails to make any substantive argument that would

have placed the Board on notice of their claim, that claim is unexhausted. In Perez Vasquez

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v. Garland, for example, we determined that a noncitizen’s CAT claim was not exhausted

because they had made no argument that would place the Board on notice that the

noncitizen was raising a CAT claim. 4 F.4th 213, 228 (4th Cir. 2021). In contrast, Diahn

discussed the fundamental unfairness he experienced before the IJ in the brief he submitted

to the Board. His brief provided the Board with sufficient opportunity to correct any error

by the IJ. See Kurfees v. I.N.S., 275 F.3d 332, 336 (4th Cir. 2001). 4

Accordingly, Diahn adequately exhausted his statutory failure-to-develop claim, so

we may move to the merits of his claim.

C.

We agree with Diahn that both IJs failed to fulfill their obligation to develop the

record as to Diahn’s claims, particularly given his incarcerated and pro se status. See 8

U.S.C. § 1229a(b)(1), (b)(4)(B). In doing so, we are guided by our precedent in Quintero,

998 F.3d at 622–27. In Quintero, we detailed the reasons for imposing this weighty duty

on immigration judges, drawing on a robust consensus long-established in other circuits.

The statutory duty—distinct from the constitutional due process protections accorded to a

litigant—arises from the Immigration and Nationality Act, which requires that immigration

judges “‘administer oaths, receive evidence, and interrogate, examine, and cross-examine

the [noncitizen] and any witnesses” in removal proceedings.’” Id. at 623 (citing 8 U.S.C.

§ 1229a(b)(1)). So, “unlike an Article III judge,” an immigration judge “is not merely the

4 We are likewise satisfied that judicial efficiency poses no barrier in Diahn’s case. A failure-to-develop claim requires no fact-finding, so the existing record of the proceedings before the IJ suffices for our review. 14 USCA4 Appeal: 25-1692 Doc: 50 Filed: 05/05/2026 Pg: 15 of 33

fact finder and adjudicator but also has an obligation to establish the record.” Yang v.

McElroy, 277 F.3d 158, 162 (2d Cir. 2002) (citing 8 U.S.C. § 1229a(b)(1)). Indeed, “‘a

cooperative approach in Immigration Court is particularly appropriate,” so immigration

judges “have a role in introducing [relevant] evidence into the record.’” Quintero, 998

F.3d at 625 (citing S-M-J-, 21 I. & N. Dec. 722 (B.I.A 1997)).

We also joined the Second and Seventh Circuits to hold that, while this duty applies

in all cases before an immigration judge, it is paramount in cases involving pro se

noncitizens like Diahn. Id. at 622 n.8. Pro se individuals in removal proceedings have a

“particularly strong need for procedural protections, without which they would not be able

to ‘receive a meaningful hearing.’” Id. at 627 (citing Rusu v. INS, 296 F.3d 316, 321 n.7);

see id. (holding that “immigration judges’ duty to fully develop the record—while

applicable in all cases—becomes especially crucial in cases involving unrepresented

noncitizens”). Pro se litigants may lack “English proficiency and relevant legal

knowledge,” which is particularly harmful in the “abstruse” context of immigration law.

Id. Given the “gravity of the interests at stake,” immigration judges must “scrupulously

and conscientiously probe into, inquire of, and explore for all the relevant facts.” Id. (citing

Agyeman v. I.N.S., 296 F.3d 871, 877 (9th Cir. 2002)). Because “many [noncitizens] are

uncounselled, our removal system relies on IJs to explain the law accurately to pro se

[noncitizens].” United States v. Copeland, 376 F.3d 61, 71 (2d Cir. 2004) abrogation

recognized by United States v. Mejia, No. 24-3086-cr, 2026 WL 958828 at *5 (2d Cir.

2026). “‘Otherwise, such [noncitizens] would have no way of knowing what information

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was relevant to their cases and would be practically foreclosed from making a case against

removal.’” Quintero, 998 F.3d at 627–28 (quoting Copeland, 376 F.3d at 71).

Thus, “immigration judges’ duty to develop the record includes adequately

explaining the hearing procedures and the relevant legal requirements in plain language.”

Id. at 629. They must “provide . . . sufficient guidance as to how [noncitizens] may prove

the elements of their claims—i.e., “what evidence will demonstrate their eligibility for

relief from deportation” and “in what form that evidence could be presented.” Id.

(alteration in original) (citing Agyeman, 296 F.3d at 883–84). So immigration judges must

do “more than just asking a specific number of relevant questions.” Id. And even when

immigration judges ask relevant questions, “‘the superficial quality of the questioning”

may nonetheless deprive a noncitizen of a full and fair hearing.’” Id. (citing Mendoza-

Garcia v. Barr, 918 F.3d 498, 507 (6th Cir. 2019)). Moreover, immigration judges may

not “circumscrib[e] [a noncitizen’s] ability to elaborate on the details of his claim by

instructing him only to answer the questions asked.” Id. (alteration in original) (citing Al

Khouri v. Ashcroft, 362 F.3d 461, 465 (8th Cir. 2004)). To ensure compliance with this

statutory duty, we scrutinize the decisions of the immigration judge on a case-by-case basis.

See id. at 630.

Consequently, we emphasized that failing to provide noncitizens in removal

proceedings the procedural protections to which they are entitled is “presumptively

prejudicial.” Id. at 642. An immigration judge’s “failure to fully develop the record” on

an issue “material” to the noncitizen’s claim is “not an error amenable to the ordinary

prejudice inquiry” because the noncitizen cannot “‘produce a record that does not exist.’”

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Id. (citing Agyeman, 296 F.3d at 885). The reviewing court cannot assess whether

prejudice exists as it otherwise would because the immigration judge’s error “hamper[s]

the ability of the reviewing court to assess whether and how the applicant was prejudiced.”

Id. at 643.

As noted above, Diahn sought four overlapping forms of relief from the IJs. We

will briefly address each below.

First, Diahn sought a waiver of inadmissibility in connection with his adjustment-

of-status application under 8 U.S.C. § 1159(c). This waiver may be granted “for

humanitarian purposes, to assure family unity, or when it is otherwise in the public

interest.” Id. Relief under 8 U.S.C. § 1159(c) requires a showing of “exceptional and

extremely unusual hardship” if any of Diahn’s prior convictions were considered to be

“violent or dangerous.” 8 C.F.R. § 1212.7(d).

Second, Diahn raised an asylum claim, which requires proof of past persecution or

a “well-founded fear” of persecution based on a protected ground, such as “race, religion,

nationality, membership in a particular social group, or political opinion.” 8 U.S.C.

§ 1101(a)(42)(A). An individual seeking asylum must establish both a subjective and

objective “well-founded fear” of persecution, thus requiring the noncitizen corroborate

their claim with both subjective and objective evidence. Marynenka v. Holder, 592 F.3d

594, 600 (4th Cir. 2010). “The subjective component is satisfied by presenting candid,

credible, and sincere testimony demonstrating a genuine fear of persecution, while “[t]he

objective element requires the asylum [applicant] to show, with specific, concrete facts,

that a reasonable person in like circumstances would fear persecution.” Id. (citations

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omitted). Importantly, an asylum claim is subject to a one-year filing deadline and a

“particularly serious crime bar.” 8 U.S.C. §§ 1158(a)(2)(B), 1158(b)(2)(A)(ii).

Third, Diahn raised a withholding of removal claim under 8 U.S.C. § 1231(b)(3),

which, similar to a claim for asylum, requires proof that he will “more likely than not” have

his life or freedom threatened because of his “race, religion, nationality, membership in a

particular social group, or political opinion” if he returns to Liberia. Gomis v. Holder, 571

F.3d 353, 359 (4th Cir. 2009).

Finally, Diahn sought CAT deferral under 8 C.F.R. § 1208.16(c)(2), which requires

proof that it is “more likely than not” he would be tortured by, or with the consent or

acquiescence of, the government of Liberia. See Moreno-Osorio v. Garland, 2 F.4th 245,

256 (4th Cir. 2021); 8 C.F.R. § 1208.16(c)(2).

After a careful review of the record, we hold that the IJs below failed to fulfill their

statutory duty. These failures fall into two buckets: the IJ’s failure to ensure relevant

evidence entered the record and the IJ’s failure to elicit relevant facts and apprise Diahn of

the relevant legal standards. We will discuss both in turn.

First, the IJ failed to ensure relevant evidence entered the record. IJs must “[e]nsure

that the applicant presents his case as fully as possible and with all available evidence.”

Quintero, 998 F.3d at 625 (alteration in original) (citing S-M-J-, 21 I. & N. Dec. at 729

(B.I.A. 1997)). See 8 C.F.R. § 240.10(a)(4) (providing that alien will have a reasonable

opportunity to present evidence).

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IJ Golparvar failed to advise Diahn regarding “‘what evidence will demonstrate [his]

eligibility for relief . . .’ and ‘in what form that evidence could be presented.’” Quintero, 988

F.3d at 629 (quoting Agyeman, 296 F.3d at 883–84). Before Diahn’s merits hearing, IJ

Golparvar discussed categories of relevant evidence, such as country conditions reports and

police records. But he failed to explain what evidence would allow Diahn to establish

eligibility for relief based on his specific claims. For example, he did not tell Diahn that

Diahn would need objective evidence to substantiate his claims. IJ McDermott asked Diahn

for “objective evidence” like “photographs of [Diahn] with partners and invitations,

receipts, things of this nature” to establish his membership in the LGBTQ community. J.A.

561. But Diahn had no such evidence, because he was never told he would need to provide

that evidence.

Yet perhaps most damaging to Diahn’s claims for asylum and CAT deferral, IJ

Golparvar did not adequately notify Diahn of his right to bring witnesses to his merits

hearing. At the initial calendar hearing in January—nine months before Diahn’s merits

hearing—IJ Golparvar told Diahn he would have “the right to submit evidence or witnesses

in support of [his] case.” J.A. 449. This statement, made in the middle of a long discussion

by the IJ, was the only time Diahn was told about his ability to present witnesses. The

failure is particularly concerning because, though Diahn had initially communicated that

he planned to retain an attorney, he remained detained and unrepresented throughout his

communications with IJ Golparvar about his hearing preparation. And the IJ’s reminders

to Diahn focused only on the applications and documents he was required to submit. That

single remote statement from IJ Golparvar was insufficient.

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Diahn’s failure to provide this witness testimony harmed his case. When the IJ

asked Diahn why he did not provide “objective evidence” or “witnesses” to corroborate his

LGBTQ identity, Diahn responded that he did not know he could bring witnesses to the

virtual conference. J.A. 561. Consequently, IJ McDermott explicitly recognized that he

was suspicious of Diahn’s claim of LGBTQ membership because Diahn did not provide

evidence corroborating his membership. Without objective evidence to corroborate his

claim that he belonged to the LGBTQ community, Diahn was ill-equipped to establish his

membership in that particular social group. 5

DHS and IJ Golparvar also did not tell Diahn where to submit his evidence. IJ

Golparvar began by stating that Diahn could “start sending them to [him],” but that they

would “now need to be sent to the Philadelphia immigration court going forward.” J.A.

519–20. It is unclear from the record whether Diahn himself had to submit information to

the Philadelphia Immigration Court, because IJ Golparvar initially encouraged Diahn to

send them to him. Going further, IJ Golparvar told Diahn that if Diahn needed more time

to submit his evidence, “[the IJ] would provide that to [Diahn].” J.A. 520. Diahn never

received written notice of this change. Nor did he ever receive the precise address for the

Philadelphia Immigration Court where he was expected to send his materials.

5 We recognize that Diahn stated that he did not provide letters or affidavits from prior romantic partners because he “didn’t want everybody to know [his] business.” J.A. 561. But we read that statement in the broader context of Diahn’s discussion that he would have provided witness testimony or other objective evidence if he was adequately informed of the manner in which that testimony would corroborate his claims. See J.A. 561 (“[I]f you needed like witness to show up, I'll be able to like produce like witness to support my story.”).

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Diahn—pro se, detained, and appearing virtually—could hardly ascertain that the

Baltimore Immigration Court was no longer the appropriate locale for his submissions. We

know he didn’t. He discovered halfway through his merits hearing that IJ McDermott did

not have the evidence Diahn had mailed to the only address the IJ had ever provided to

him: the address of the Baltimore Immigration Court. J.A. 557 (“If I’m not mistakenly,

early October, I sent [the evidence] to IJ Golparvar. I sent it directly to the courthouse, his

room for 440 31 or 31 Hopkins Plaza in Baltimore.”); see J.A. 331 (stating that he mailed

his documentary evidence to IJ Golparvar’s address “3 and a half week[s]” before the “Sept

6 of 2023” deadline). See also J.A. 65, J.A. 453–54, J.A. 460, J.A. 477, J.A. 478, J.A. 496,

J.A. 501, J.A. 506, J.A. 511 (a year’s worth of notices stating that Diahn should attend

hearings and send filings to Baltimore Immigration Court). IJ Golparvar’s single oral

communication to Diahn created the uncertainty that ultimately prejudiced his case.

The submitted evidence included country conditions research, as well as letters

discussing Diahn’s bisexuality, his fear of harm if he returned to Liberia, and the hardship

his removal would cause to his family. These documents would bolster the argument that

his departure would impose an “exceptional and extremely unusual hardship” on his

family, as necessary for his waiver of inadmissibility application. They would also support

the “objective” prong of Diahn’s asylum claim and provide further evidence of his

membership in the LGBTQ community, as relevant to both his asylum and CAT claims.

Because Diahn’s documents never made it into the record, he was unable to fully make his

case. To this day, it is unclear whether the Baltimore Immigration Court ever received

Diahn’s evidence.

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Additionally, while the IJ and the Board did not have the opportunity to consider

Diahn’s letters because they were not part of the administrative record, we need not read

those letters to find that Diahn was prejudiced by their exclusion. The IJ’s failure to

develop the record is “presumptively prejudicial” to a pro se litigant. Quintero, 998 F.3d

at 642. When the record lacks necessary evidence because the IJ failed to fulfill its

responsibility, the noncitizen is per se prejudiced by its absence.

IJ McDermott’s failure to elaborate on relevant legal standards and elicit key facts

compounded the harm of Diahn’s inadequate record. When Diahn asked about his waiver

of inadmissibility in his October 12 hearing before the IJ, IJ McDermott stated that the

issue was “whether or not [Diahn was] going to be able to demonstrate the hardship

necessary for [him] to get the waiver,” which is “a high burden.” J.A. 532–33. The IJ

never made clear that Diahn was required to meet a much higher standard of demonstrating

that the denial of his adjustment-of-status application would result in an “exceptional and

extremely unusual hardship” because he had been convicted of a “violent or dangerous”

offense. 8 C.F.R. § 1212.7(d). Diahn was not told that he needed to prove hardship

“substantially different from, or beyond, that which would normally be expected” to result

from his removal. Wilkinson v. Garland, 601 U.S. 209, 222 (2024) (internal citations

omitted). So, though the IJ allowed Diahn an opening to recite key facts, Diahn was not

provided with an understanding of the relevant legal standard, so he could not adequately

focus his testimony. The IJ merely asked Diahn if there was “anything else that [Diahn]

would like to add to tell [the IJ] about the hardship [Diahn] would suffer?” J.A. 545. Diahn

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responded in the negative. IJ McDermott’s failure, combined with the missing letters

corroborating the hardship imposed by Diahn’s departure, prevented Diahn from meeting

the requisite standard.

The IJ likewise failed to elicit facts as to Diahn’s asylum claim. 6 The IJ’s duty to

develop the record—already weighty in pro se cases—applies with “even greater force” in

asylum cases because “the law of asylum is one of the most complex areas thereof.”

Quintero, 998 F.3d at 632. IJ McDermott began by discussing the exceptions to the one-

year filing bar at issue in 8 U.S.C. § 1158(a)(2)(B). IJ McDermott also briefly asked Diahn

about his criminal history. But IJ McDermott did not mention that “membership in a

particular social group” is a cognizable category for those seeking asylum under 8 U.S.C.

§ 1158(b)(1)(B). The IJ did not even use the term “particular social group,” let alone ensure

Diahn established the facts necessary to demonstrate he was eligible for relief based on his

membership in that group. In Quintero, we recognized that immigration judges “must, at a

minimum, adequately explain in plain language: what a particular social group is; the three

elements of cognizability; what types of evidence may be potentially relevant to the

applicant’s claim; and how the applicant may prove his or her eligibility for relief.” 998 F.3d

at 633 (emphasis added).7 Such a duty stems from the “decades-long common practice

6 As is clear from the IJ’s opinion, its asylum determination was dispositive to its statutory withholding of removal determination. J.A. 12. 7 We also noted that “[i]mmigration judges must also seek clarification as needed; help the applicant identify and delineate any potentially cognizable particular social group(s) supported by his or her factual circumstances; and ultimately consider those groups as well as any groups proposed by the applicant in determining eligibility for asylum or withholding of removal.” Quintero, 998 F.3d at 634. 23 USCA4 Appeal: 25-1692 Doc: 50 Filed: 05/05/2026 Pg: 24 of 33

among Immigration Judges [to] enter[ ] into a dialogue with respondents to identify claims

for relief, including defining a legally sufficient particular social group.” Id. (internal citations

omitted). The IJ’s failure to do so in Diahn’s case requires vacatur under our precedent.

What’s more, IJ McDermott never discussed the fact that noncitizens must establish

both a subjective and objective fear of persecution. Marynenka, 592 F.3d at 600. So, though

IJ McDermott recognized that Diahn contributed credible subjective testimony, he

determined that Diahn did not adequately meet the objective prong, which was ultimately

fatal to the merits of Diahn’s asylum claim. And IJ McDermott’s failure to elicit facts to

substantiate the objective prong exacerbated IJ Golparvar’s failure to help Diahn “identify[]

appropriate sources of evidence to support [his] claim.” Quintero, 998 F.3d at 629 (citing

Agyeman, 296 F.3d at 884).

Finally, addressing Diahn’s CAT claims, IJ McDermott asked Diahn to express how

he met the requirements for relief under CAT in “as much detail as possible.” J.A. 553.

Diahn described the manner in which members of the LGBTQ community in Liberia are

harmed, and even killed, because of their sexual orientation. Diahn then described the

evidence he sent to the Baltimore Immigration Court, including three letters from family

members, as well as country conditions research. He stated that he was unaware of his

ability to bring witnesses to the hearing. Diahn noted that he is “not like legally savvy to

know like the ins or out of immigration courts.” Id.

Yet IJ McDermott did not sua sponte offer a continuance or explain the process to

ensure Diahn could secure witnesses, as the regulations permit. 8 C.F.R. § 1240.6. He did

not ask follow-up questions to Diahn regarding what the letters from his mother, cousin,

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and brother said to provide Diahn with an opportunity to establish an over-fifty-percent

likelihood of persecution if he returned to Liberia. Nor did he ask Diahn to elaborate on

the information contained in the country conditions research he submitted to the Baltimore

Immigration Court. This was error.

The Government’s reliance on Tepas v. Garland, 73 F.4th 208, 216 (4th Cir. 2023)

is misplaced. When Tepas, a pro se asylum applicant, expressed that he feared gang

violence, the IJ “probed further” to understand Tepas’s interactions with gangs. Id. at 212.

But because Tepas simply exhibited a generalized fear of violence from gangs, the IJ

determined that Tepas had not raised a cognizable asylum claim. Id. at 216–17. On appeal,

we held that the IJ satisfied its duty. Id. at 217. In contrast, Diahn shared multiple facts

that could support relief, including his LGBTQ identity, a history of family persecution

during a civil war, and a lack of connection to Liberia. Unlike the generalized fear

presented in Tepas, the facts Diahn shared triggered a duty on the IJ’s part to sufficiently

develop the record. Moreover, the IJ in Diahn’s case failed to explain legal standards for

multiple forms of relief; did not clarify procedural requirements, such as witness and

evidence submission; and failed to consider the documentary evidence that Diahn tried to

submit. So unlike the IJ in Tepas, the IJs’ failures in Diahn’s case pervaded the

proceedings.

In sum, the IJ failed to fulfill its affirmative duty. Like the petitioner in Quintero,

Diahn is a “detained, pro se application with only a high school education” and “no legal

training.” 998 F.3d at 640. But the IJ did not “adequately explain[]” the “relevant legal

requirements in plain language” or apprise Diahn of the “appropriate sources of evidence

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to support [his] claim[s].” Id. at 629 (citing Agyeman, 296 F.3d at 884). The IJ’s

overlapping failures encumbered Diahn’s ability to make his case and prejudiced Diahn in

his pursuit for relief.

We therefore grant Diahn’s petition and vacate the Board’s determination.

D.

We independently recognize that the IJ’s actions, which contravened the statutory

duty to develop the record, likely rendered Diahn’s removal proceedings constitutionally

inadequate. The Government concedes that Diahn never received written notice of the date

of his merits hearing or where the hearing would occur. Resp. Br. 29–37. The only written

notice Diahn received stated that his hearing would occur on October 6, 2023, before the

Baltimore Immigration Court. In actuality, the hearing occurred on October 12, before the

Philadelphia Immigration Court, and Diahn was only informed of this change orally, at a

hearing. This suffices to demonstrate Diahn did not receive the “opportunity to be heard

at a meaningful time and in a meaningful manner.” Rusu, 296 F.3d at 321–22 (4th Cir.

2002) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)); see United States v. El

Shami, 434 F.3d 659, 665 (4th Cir. 2005) (recognizing fundamental unfairness where

government failed to provide written notice of hearing).

Diahn also received no written notice of where to send his documentary evidence. IJ

Golparvar’s instruction that Diahn should submit his evidence to the Philadelphia

Immigration Court created confusion that bears out in the record. That instruction hardly

made clear that IJ Golparvar was no longer the proper recipient for Diahn’s evidence. As a

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result, IJ McDermott did not receive Diahn’s documentary evidence in time for the merits

hearing, creating gaps in the record that impacted Diahn’s ability to present his case to the IJ.

Additionally, IJ Golparvar did not adequately apprise Diahn that he could present

witness testimony at his hearing to corroborate his claims. See J.A. 561 (“[O]nly think

[sic] I know about the hearings is that it’s through video. I didn’t know nobody could

join.”). Nor did IJ McDermott offer Diahn a continuance, as permitted by 8 C.F.R.

§ 1240.6, when Diahn expressed that he had not brought witnesses because he was unaware

that he could do so. Cf. Huang v. Gonzales, 157 F. App’x 608, 609 (4th Cir. 2005)

(recognizing that there was no due process violation where respondent declined IJ’s offer

for continuance to permit witness testimony). This, too, impacted Diahn’s ability to fully

argue his case before the IJ.

These violations, taken together, likely prejudiced Diahn. The link “need not be

ironclad . . . . So long as the defendant shows that but for the [due process] errors

complained of, there was a reasonable probability that he would not have been deported,

the prejudice prong is satisfied.” United States v. Fernandez Sanchez, 46 F.4th 211, 220

(4th Cir. 2022). Diahn satisfied this standard. The record is clear that IJ Golparvar’s failure

to explain where and when Diahn should submit evidence, see supra p. 6, combined with

his failure to adequately notify Diahn that he could provide witness testimony, impacted

Diahn’s ability to make his case before IJ McDermott. See J.A. 418–19 (discussing

Diahn’s failure to corroborate his claim of LGBTQ membership). And those gaps in the

record are a result of the IJ’s miscommunications: Diahn stated that the excluded

documentary evidence sent to the Baltimore Immigration Court corroborated his claims of

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LGBTQ membership, the persecution he would experience in Liberia, and the hardship his

deportation would impose on him and his family. Oral Arg. 6:50-6:57. Declining Diahn

relief without considering the confluence of procedural errors that prejudiced his

presentation of his case was in error, too.

IV.

Immigration judges have a statutory duty to develop the record, particularly in cases

involving pro se, detained noncitizens. The immigration judges’ failure to abide by that

duty encumbered Diahn’s ability to make his case. Compounding the IJs’ failures, the

Government neglected to ensure Diahn received proper notice and an adequate opportunity

to present his case, in contravention of long-established due process protections.

Accordingly, we grant Diahn’s petition, vacate Diahn’s final order of removal, and remand

to the Board with instructions to remand to the IJ for further fact-finding regarding Diahn’s

claims.

PETITION GRANTED, ORDER VACATED AND REMANDED WITH INSTRUCTIONS

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TOBY HEYTENS, Circuit Judge, concurring in the judgment in part and dissenting in part:

I too would grant Diahn’s lead petition for review (No. 24-2066) but not based on

either his statutory failure-to-develop-the-record argument or his constitutional due process

argument. In my view, the former is unexhausted and Diahn cannot establish prejudice for

any due process violation that occurred. That said, I would grant the petition and vacate

the underlying order because the agency erred in concluding that his bank fraud conviction

automatically qualifies as a particularly serious crime and thus bars his application for

withholding of removal under the Convention Against Torture. And having vacated the

final order of removal, I would dismiss Diahn’s other two petitions for review (No. 24-2154

and No. 25-1692) as moot because they seek review of the Board of Immigration Appeals’

denial of his motions to reopen or reconsider that now-vacated order.

* * *

I would not reach the merits of Diahn’s argument that the immigration court

neglected its “affirmative duty . . . to develop the record in removal proceedings,” Diahn

Br. 39, because Diahn failed to exhaust that issue before the Board. See 8 U.S.C.

§ 1252(d)(1). To be sure, “an applicant doesn’t need to conjure any magic words to

adequately raise an issue to the Board.” Lopez‑Benitez v. Garland, 91 F.4th 763, 771

(4th Cir. 2024) (quotation marks removed). But for an argument to be deemed exhausted,

a noncitizen’s filings with the Board “must at least launch the appropriate argument.” Id.

(alterations and quotation marks removed).

Diahn’s Board brief did not even “launch” an argument that the immigration court

failed to perform its statutory duty to fully develop the record. See, e.g., JA 329–30

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(challenging only the immigration judge’s failure to consider certain evidence). That brief

never cited the statute from which the duty is derived. See 8 U.S.C. § 1229a(b)(1). It did

not reference any of this Court’s leading cases describing the duty. See, e.g., Quintero v.

Garland, 998 F.3d 612, 622–40 (4th Cir. 2021); Tepas v. Garland, 73 F.4th 208, 214–17

(4th Cir. 2023). Nor did the brief say anything else that plausibly put the Board on “notice

of Mr. Diahn’s objections to the [immigration judge]’s failure to comply with” its duty to

develop the record. Diahn Reply Br. 16. Thus, because the government has timely raised

the “mandatory” exhaustion requirement, Tepas, 73 F.4th at 213, I would not reach the

merits of Diahn’s failure-to-develop-the-record claim—much less grant his petition for

review on that basis. 1

I also would not grant Diahn’s petition based on his constitutional due process

claim. To be sure, the record reveals a tangled procedural history and a persistent lack of

notice about key information—which is particularly troubling because Diahn was

proceeding pro se. But even assuming that what happened here amounted to a due process

violation, I do not believe Diahn has established he was prejudiced by any such violation.

The evidentiary record before the immigration court included Diahn’s “credible”

testimony about his fears of persecution and the government’s “own evidence” about the

risks LGBTQ individuals face in Liberia. Diahn Br. 38; see also id. (noting the immigration

1 Perhaps recognizing this exhaustion problem, Diahn’s reply brief argues that “the [immigration judge]’s failure to develop the record . . . would further support [his] due process claim, which he indisputably preserved by raising it below.” Diahn Reply Br. 17 n.2. Even accepting that reframing, I would still conclude that Diahn’s due process claim fails because he has not demonstrated prejudice.

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judge “acknowledged the violence against LGBTQ persons in Liberia”). And although the

documentary evidence that underlies Diahn’s due process claim was not part of that record,

the immigration judge gave Diahn an opportunity to testify about its contents. Even before

this Court, Diahn fails to explain how adding the actual, physical copies of the underlying

evidence to the record already in front of the immigration judge would have changed the

decision to deny relief. I thus would conclude Diahn failed to carry his burden of

establishing prejudice, see Atemnkeng v. Barr, 948 F.3d 231, 241 (4th Cir. 2020), and reject

his due process claim on that basis.

That said, I still would grant Diahn’s lead petition for review because the Board

gave a legally unjustifiable explanation for denying his application for withholding of

removal under the Convention Against Torture (CAT).

The Board concluded Diahn “waived” any claim about CAT-withholding because

his brief did “not allege error [in] the Immigration Judge’s finding that he failed to meet

his burden of establishing eligibility for protection under the CAT.” JA 309. That was

wrong. Diahn’s Board brief did raise an argument about CAT protection—namely, that the

immigration court erred in denying his CAT-withholding claim based on the erroneous

determination that his bank fraud conviction automatically barred that claim.

The Board’s error in concluding Diahn waived any argument is compounded by the

fact that Diahn’s argument was right: His bank fraud conviction does not necessarily bar

his CAT-withholding application because that conviction only carried a sentence of “33

months and 25 days”—that is, a little less than three years. JA 409. But as this Court has

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explained, the applicable per se bar applies only to “aggravated felon[ies] for which the

noncitizen has been sentenced to an aggregate term . . . of at least five years.” Annor v.

Garland, 95 F.4th 820, 826 (4th Cir. 2024) (alterations and quotation marks removed);

accord 8 C.F.R. § 1208.16(d)(2)(i). For that reason, the agency was required to perform a

two-step analysis to determine whether Diahn’s bank fraud conviction counts as a

particularly serious crime. See Annor, 95 F.4th at 827 (describing the relevant Board

precedent). Neither the immigration judge nor the Board did so. That was legal error.

See, e.g., Orellana v. Bondi, 141 F.4th 560, 566 (4th Cir. 2025) (explaining that, “when an

agency fails to follow its own procedures or regulations, that agency’s actions are generally

invalid” (quotation marks removed)). 2

Finally, I disagree with the government’s assertion that this error was harmless. The

government correctly points out that Diahn “did not challenge” before the Board the

immigration judge’s “merits-based denial of ” his application for deferral of removal—a

type of relief whose eligibility requirements are similar to those for the CAT-based

withholding of removal claim we are concerned with here. Gov’t Br. 47; compare 8 C.F.R.

§ 1208.16 (withholding), with § 1208.17 (deferral). And if the Board had affirmed the

immigration judge’s denial of Diahn’s CAT-deferral claim on the merits—for example, by

2 Although this error also applies to Diahn’s statutory withholding claim, I would not grant Diahn’s petition based on that claim because the Board affirmed the denial of that form of relief on alternative grounds. See Hernandez-Avalos v. Lynch, 784 F.3d 944, 948 (4th Cir. 2015) (noting that when the Board “issues its own opinion without adopting the [immigration judge]’s reasoning, we review only the [Board]’s final order”).

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concluding he did not meet one of the eligibility requirements—I agree a CAT-withholding

claim would fail for the same reasons and a remand would thus be futile.

That is not what happened here, however. Instead, the Board said nothing about the

merits of either CAT claim because it wrongly concluded Diahn waived any objections to

the immigration judge’s denial of both forms of relief. True, Diahn did not challenge the

immigration judge’s denial of CAT-deferral before the Board. But Diahn’s choice not to

raise any merits arguments about that ruling does not mean he has conceded—much less

in a binding way—that all subsidiary conclusions that formed the basis for that ruling were

correct. Thus, it would be entirely coherent for the Board to hear, consider, and even agree

with Diahn’s arguments about CAT-withholding despite his failure to challenge the

immigration judge’s ruling about CAT-deferral. See Gov’t Br. 48 (acknowledging that

CAT-deferral and CAT-withholding “are separate forms of protection”).

For the reasons stated above, I would grant Diahn’s lead petition for review, vacate

the final order of removal, and remand to the Board for further proceedings. I would not,

however, specifically instruct the Board to return the matter to the immigration judge for a

new hearing. I thus concur in the judgment in part and dissent in part.