Background
Patience Fofo Allotey, a native and citizen of Ghana, remained in the United States after her temporary authorization expired. She conceded removability but sought cancellation of removal, arguing that deportation would cause exceptional and extremely unusual hardship to her three U.S.-citizen children.
After hearing testimony, the immigration judge found the witnesses credible but concluded that the children would not suffer the level of hardship required by statute. The judge found that their father could assume more responsibility and that Allotey’s adult son, Godson, could financially assist his younger siblings. The Board of Immigration Appeals affirmed and denied Allotey’s motion to remand for consideration of adjustment of status because she had not submitted the application and supporting documentation required for that relief.
The Court’s Holding
The Sixth Circuit dismissed Allotey’s challenge to the denial of cancellation of removal for lack of jurisdiction. Her arguments disputed the factual findings about the children’s father and Godson, and federal law bars judicial review of factual findings underlying a discretionary cancellation decision. The court rejected her contention that seriously mischaracterized facts may be treated as reviewable legal questions, explaining that the Supreme Court’s decision in Patel foreclosed that approach.
The court denied the petition insofar as Allotey asked it to remand based on prior counsel’s alleged ineffective assistance. She did not argue that the Board abused its discretion in denying her earlier motion, and any request for an original remand from the Sixth Circuit was inadequately presented and clarified only in her reply brief. Her ineffective-assistance claim had not been litigated before the agency, and her pending motion to reopen before the Board was the proper vehicle for raising it.
Key Takeaways
- Courts lack jurisdiction to review factual findings underlying the denial of discretionary cancellation of removal, even when the petitioner characterizes those findings as seriously erroneous.
- A petitioner may obtain review of legal or mixed questions concerning the statutory hardship standard, but cannot create jurisdiction merely by relabeling factual disputes.
- An ineffective-assistance claim not previously adjudicated by the agency should ordinarily be raised through a motion to reopen before the Board, not presented to the court of appeals in the first instance.
Why It Matters
The decision underscores the sharp jurisdictional boundary governing cancellation-of-removal cases after Patel. Although appellate courts may review legal and mixed questions, disagreements over the facts supporting a hardship determination remain outside their authority.
It also highlights the procedural importance of fully documenting motions before the Board and properly preserving requests for appellate relief. Claims based on immigration counsel’s performance generally must first proceed through the agency’s reopening process.