Summary
The Fourth Circuit granted Kadiatou Babila Keita’s petition for review, vacated the Board of Immigration Appeals’ order, and remanded for further proceedings concerning her application for cancellation of removal. The court held that Keita was not given a reasonable opportunity to present evidence and argument regarding the exceptional and extremely unusual hardship her children might face if she were removed to a third country, rather than Guinea. The court dismissed as moot her separate petition challenging the denial of reconsideration, while the dissent would have denied the petitions.
Topics
Practice areas
Questions Presented
- Whether the immigration judge and BIA violated Keita's statutory right to a reasonable opportunity to present evidence and argument in support of her cancellation-of-removal application by denying her a promised evidentiary hearing and limiting briefing to the legal effect of withholding of removal.
- Whether the Fourth Circuit should review Keita's separate petition challenging the BIA's denial of reconsideration.
- Whether the BIA's decision could be affirmed on the government's alternative constitutional argument concerning a protected liberty interest in discretionary cancellation relief.
Holdings
- The immigration judge failed to provide Keita a reasonable opportunity under 8 U.S.C. § 1229a(b)(4)(B) to present evidence and argument that third-country removal could cause her daughters exceptional and extremely unusual hardship. The BIA therefore erred in concluding that the briefing provided a sufficient opportunity to present all of her arguments.
- The court did not decide whether a grant of withholding of removal categorically bars cancellation of removal because the agency's written decision did not rest on that theory, the BIA disavowed reliance on it, and the government did not defend it on appeal.
- Keita's petition challenging the BIA's denial of reconsideration was dismissed as moot because the court granted the petition challenging the BIA's original order and vacated that underlying order.
Key quotations
“As our court and the BIA have recognized, noncitizens in removal proceedings generally are entitled, under “both the [INA] and the Due Process Clause of the Fifth Amendment,” to a “full and fair hearing.”” (12)
“It was thus eminently reasonable for all parties at the June 2016 hearing to have understood, as the IJ himself clarified, that once the question of categorical ineligibility was briefed and resolved – and assuming it was not resolved against Keita – Keita would have the chance to present a full case as to exceptional hardship at a live hearing.” (14)
“That left Keita with no “reasonable opportunity,” 8 U.S.C. § 1229a(b)(4)(B), to present evidence or argument on her claim for cancellation as it pertained to third country removal.” (15)
Factual background
Keita, a Guinean national, entered the United States in 2000 on a student visa and remained after it expired. She was raising two United States citizen daughters as a single mother and argued that removal would expose them to female genital mutilation in Guinea or create severe hardship if they had to accompany her to a third country or remain in the United States without a parent or caregiver. The immigration judge granted withholding of removal to Guinea but did not permit Keita to present testimony or evidence concerning hardship from possible third-country removal before denying cancellation of removal.
Procedural history
The Department of Homeland Security initiated removal proceedings in 2011. Keita conceded removability and applied for asylum, withholding of removal, relief under the Convention Against Torture, and cancellation of removal. The immigration judge granted withholding of removal to Guinea but denied cancellation of removal without holding the promised evidentiary hearing. The BIA affirmed, reasoning that Keita had a sufficient opportunity to present her arguments in briefing, and later denied reconsideration. The Fourth Circuit granted the first petition, vacated the BIA's order, remanded for further proceedings, and dismissed the second petition as moot.
Remand instructions
The BIA must reconsider Keita's procedural objection and conduct further proceedings consistent with the opinion, including addressing whether Keita was prejudiced by the failure to provide a reasonable opportunity to present evidence and argument concerning hardship from third-country removal. The BIA may also address the government's constitutional argument if relevant.