Yupangui-Yunga v. Bondi

23-6522
Yupangui-Yunga v. Bondi
In the
United States Court of Appeals
For the Second Circuit
August Term, 2024
No. 23-6522
J ULIO CESAR YUPANGUI -Y UNGA,
Petitioner,
v.
PAMELA B ONDI ,
U NITED S TATES ATTORNEY GENERAL ,
Respondent.
On Petition for Review of an Order of
the Board of Immigration Appeals.
S UBMITTED: J ANUARY 30, 2025
D ECIDED: O CTOBER 24, 2025
Before: J ACOBS, C ARNEY , and N ARDINI , Circuit Judges.
Petitioner Julio Cesar Yupangui-Yunga (“Yupangui”), a citizen
of Ecuador unlawfully present in the United States, seeks review of a
decision of the Board of Immigration Appeals (“BIA”) denying his

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motion to reopen his removal proceedings. Yupangui applied for
cancellation of removal under 8 U.S.C. § 1229b(b)(1)(D) on the ground
that his removal would result in “exceptional and extremely unusual
hardship” to his three United States-citizen children. An immigration
judge denied Yupangui’s application and ordered him removed, and
the BIA affirmed. A few months later, Yupangui moved to reopen his
removal proceedings, submitting a psychological evaluation of his
eldest daughter, who was then almost 20 years old, as new evidence
that his removal would cause her exceptional and extremely unusual
hardship. Almost two years later, the BIA denied Yupangui’s motion,
finding that his newly proffered evidence would not alter the
outcome of his cancellation-of-removal application because his
daughter was now 21 years old and had therefore “aged out” of
qualifying-relative status while his motion was pending. Yupangui
now challenges the BIA’s decision. According to Yupangui, given
what he describes as the agency’s “undue delay” in processing his
application for cancellation of removal, and ambiguity in the
cancellation-of-removal statute, what matters is his daughter’s age at
the time he filed his application for relief; or perhaps at the time of his
hearing before the IJ; or perhaps at the time he presented the new
evidence of hardship; but certainly not at the time of the agency’s
decision. We disagree. We hold that § 1229b(b)(1)(D) requires a
qualifying “child” to be under the age of 21 at the time an application
for cancellation of removal is adjudicated. Accordingly, Yupangui’s
petition is DENIED.
Edward J. Cuccia, Esq., Law Offices of
Edward J. Cuccia, P.C., New York, NY, for
Petitioner.

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Joseph D. Hardy, Trial Attorney, Office of
Immigration Litigation, Brian M. Boynton,
Principal Deputy Assistant Attorney
General, Anthony C. Payne, Assistant
Director, Civil Division, U.S. Department of
Justice, Washington, DC, for Respondent.
WILLIAM J. N ARDINI , Circuit Judge:
Petitioner Julio Cesar Yupangui-Yunga (“Yupangui”), a citizen
of Ecuador unlawfully present in the United States, petitions for
review of a decision by the Board of Immigration Appeals (“BIA”)
denying his motion to reopen his removal proceedings. In his initial
proceedings, Yupangui applied for cancellation of removal under 8
U.S.C. § 1229b(b)(1)(D) on the ground that his deportation would
result in “exceptional and extremely unusual hardship” to his three
United States-citizen children. An immigration judge (“IJ”) denied
Yupangui’s application and ordered him removed to Ecuador, and
the BIA affirmed.
A few months later, Yupangui moved to reopen his removal
proceedings. He submitted a psychological evaluation of his eldest
daughter, who was then almost 20 years old, as new evidence that his
removal would cause her to suffer the requisite hardship. Almost two
years later, the BIA denied the motion, concluding that his newly
proffered evidence would not alter the outcome of his removal
proceedings. As pertinent here, the BIA determined that his daughter

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had “aged out” of her status as a qualifying relative because she had
turned 21 while his motion to reopen was pending.
Yupangui now challenges the BIA’s decision. According to
Yupangui, given what he describes as the agency’s “undue delay” in
processing his application for cancellation of removal, and ambiguity
in the cancellation-of-removal statute, what matters is his daughter’s
age at the time he filed his application for relief; or perhaps at the time
of his hearing before the IJ; or perhaps at the time he presented the
new evidence of hardship; but certainly not at the time of the agency’s
decision. The government disagrees, and further argues that
Yupangui is precluded from raising this argument before this Court
because he failed to raise it before the BIA.
As a threshold matter, we hold that the exhaustion doctrine
does not bar Yupangui from contesting the BIA’s ruling that his
daughter “aged out” of her qualified-relative status. At the time
Yupangui filed his motion to reopen, his daughter was still 19 years
old. The aging-out question was raised for the first time by the BIA,
when it issued its decision nearly two years later. Yupangui cannot
be faulted for failing to preemptively raise it, or for failing to challenge
it on a motion for reconsideration before the BIA.
But on the merits, we agree with the BIA. We hold that
§ 1229b(b)(1)(D) requires a qualifying “child” to be under the age of
21 at the time an application for cancellation of removal is
adjudicated. Accordingly, Yupangui’s petition for review is
DENIED.

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I. Background
Yupangui illegally entered the United States in December 1997,
and since then he has continuously resided in this country. On July
12, 2010, Yupangui was convicted in Westchester County, New York,
for his third offense of operating a motor vehicle while under the
influence of alcohol or drugs.1 A month later, the Department of
Homeland Security (“DHS”) served Yupangui with a notice to
appear, charging that he was subject to removal under 8 U.S.C.
§ 1182(a)(6)(A)(i) as “[a]n alien present in the United States without
being admitted or paroled.” Certified Admin. R. (“CAR”) at 859.
Yupangui was subsequently ordered to appear before an IJ in New
York City.
At his initial removal hearing on May 10, 2013, Yupangui—
who had retained counsel—admitted all of the facts needed to make
him removable. That is, he conceded that he is not a citizen or
national of the United States; that he is a native and citizen of Ecuador;
that he unlawfully entered the United States on or around
December 25, 1997, through Nogales, Arizona; and that he was never
admitted or paroled into the United States following inspection by an
immigration officer.
1 On September 8, 2003, Yupangui was convicted of driving under the
influence, leaving the scene of an incident, and driving without a license. Then,
on January 8, 2007, he was convicted of driving under the influence, driving
without a license, and consuming or possessing alcohol in a motor vehicle. And,
on March 27, 2009, he was convicted of disorderly conduct following an incident
involving the mother of his two oldest children.

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But conceding removability was not necessarily the end of the
road for Yupangui. Under certain circumstances, “an alien who is
inadmissible or deportable from the United States” may apply for
cancellation of removal and adjustment of status to that of a lawful
permanent resident under 8 U.S.C. § 1229b(b). As relevant here, if an
applicant like Yupangui satisfies four criteria, the Attorney General
has discretion to grant such relief. For starters, an applicant must
demonstrate (1) continuous physical presence in the United States for
no less than 10 years in the period immediately preceding the
application; (2) good moral character during that period; and (3) no
criminal convictions on a specified list. 8 U.S.C. § 1229b(b)(1)(A)-(C).
As most relevant here, an applicant must also establish (4) “that
removal would result in exceptional and extremely unusual hardship
to the alien’s spouse, parent, or child, who is a citizen of the United
States or an alien lawfully admitted for permanent residence.”
8 U.S.C. § 1229b(b)(1)(D);2 see Toalombo Yanez v. Bondi, 140 F.4th 35, 39
2 The full text of Section 1229b(b) provides:
(1) In general
The Attorney General may cancel removal of, and adjust to
the status of an alien lawfully admitted for permanent residence,
an alien who is inadmissible or deportable from the United States
if the alien—
(A) has been physically present in the United States for a
continuous period of not less than 10 years immediately
preceding the date of such application;
(B) has been a person of good moral character during such period;

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(2d Cir. 2025) (“The burden is on the noncitizen to prove that she
‘satisfies the applicable [cancellation-of-removal] eligibility
requirements’ and ‘merits a favorable exercise of discretion.’”
(quoting 8 U.S.C. § 1229a(c)(4)(A)).
At the time, Yupangui had three minor children who were
United States citizens, and so he was eligible to request cancellation
of removal if he could check off all four boxes, including that at least
one of his children would suffer “exceptional and extremely unusual
hardship” by consequence of his removal. Accordingly, on
September 6, 2013, Yupangui applied for cancellation of removal. He
asserted that all three children would “suffer a lot” if he were
deported to Ecuador because he was the “only financial support that
they ha[d].” CAR at 808.
At a merits hearing on Yupangui’s application on October 19,
2017, Yupangui offered testimony from himself and his oldest
daughter in support of his application for cancellation of removal.
He testified that he had never been married, but currently lived with
a partner, and that they had an eight-year-old daughter who was
living with them. He had two additional children, then aged 10 and
(C) has not been convicted of an offense under section 1182(a)(2),
1227(a)(2), or 1227(a)(3) of this title, subject to paragraph (5); and
(D) establishes that removal would result in exceptional and extremely
unusual hardship to the alien’s spouse, parent, or child, who is a citizen
of the United States or an alien lawfully admitted for permanent
residence.

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16, who lived with their mother, with whom he had a previous
relationship. Yupangui testified that he paid child support for those
two children, and they would stay with him two or three weekends
per month. When asked whether his older children could be
supported by their mother if he were to be deported to Ecuador,
Yupangui testified that he didn’t “think so,” but was “not sure”; he
thought that she “works in like cleaning, something like that,” but he
wasn’t sure because he didn’t “have a lot of communication” with
their mother. CAR at 371. His daughter, who was then in 11th grade,
then testified that if her father were deported, her life would “change
drastically.” Id. at 387. She explained that he provided financial
support, as well as advice and emotional support. At the conclusion
of the hearing, the IJ explained that, because the annual limit on
grants of cancellation of removal had been reached for the fiscal year,
she would reserve decision on Yupangui’s application until
additional grants became available the following year. See 8 U.S.C.
§ 1229b(e)(1) (limiting the number of available grants of cancellation-
of-removal applications to 4,000 per fiscal year); 8 C.F.R.
§ 1240.21(c)(1) (“When grants are no longer available in a fiscal year,
further decisions to grant such relief must be reserved until such time
as a grant becomes available under the annual limitation in a
subsequent fiscal year.”). Once the hearing concluded, the IJ closed
the record and placed Yupangui’s case on her decision calendar.
On December 18, 2018, the IJ rendered an oral decision denying
Yupangui’s application for cancellation of removal. The IJ found that
Yupangui failed to establish two of the four eligibility requirements

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for cancellation relief. First, he had not demonstrated good moral
character because of his “criminal history, including felony [driving
while intoxicated] and criminal contempt and his disregard for the
laws of the United States by continuing to drive without a license
frequently over a period of many years.” CAR at 322–23. Second, he
had failed to show that his removal would result in the requisite
“exceptional and extremely unusual hardship” to his three children.
Id. at 323–25. Moreover, even if Yupangui had been eligible, the IJ
held that he had failed to demonstrate that his case merited
“cancellation of removal as a matter of discretion” given Yupangui’s
“blatant disregard for laws relating to the operation of motor vehicles
and public safety.” Id. at 325. The IJ accordingly ordered Yupangui
removed to his native Ecuador.
Yupangui appealed the IJ’s decision to the BIA. According to
Yupangui, the IJ had abused her discretion by, among other things,
failing to consider evidence regarding the hardship his children
would suffer if he was deported. On March 2, 2021, the BIA adopted
and affirmed the IJ’s determination that Yupangui had not shown
“that his removal would result in exceptional and extremely unusual
hardship to his qualifying relatives, his three United States citizen
children.” CAR at 280. Each of those children would “remain in the
United States with their respective mothers,” and Yupangui had not
shown that their mothers would be “unable to . . . provide for the
children’s basic needs.” Id. The BIA found Yupangui’s failure to
show “exceptional and extremely unusual hardship” dispositive of
his administrative appeal, so it declined to address the IJ’s other bases

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for denying cancellation of removal. The BIA therefore dismissed his
appeal, and Yupangui did not seek judicial review of that decision.
Yupangui eventually obtained new counsel and, on June 1,
2021, filed a motion asking the BIA to reopen his removal
proceedings. As pertinent here, Yupangui argued that the
circumstances of his eldest daughter had “significantly changed”
because a newly proffered psychological evaluation showed that she
“would clearly suffer extreme and unusual hardship” if he were
removed to Ecuador. CAR at 14. Yupangui submitted the evaluation
in support of his motion to reopen, which was filed eleven days before
that daughter turned 20 years old.
On April 20, 2023, almost two years later, the BIA denied
Yupangui’s motion, concluding that he “ha[d] not shown that the
newly proffered evidence would likely affect the outcome of this case
in reopened proceedings.” CAR at 3. In reaching that conclusion, the
BIA cited its longstanding practice of treating a cancellation-of-
removal application as a “continuing application,” making a child
who was under 21 when her parent applied for cancellation of
removal, but who had aged out by the time the application is
adjudicated, no longer a “child” for purposes of 8 U.S.C.
§ 1229b(b)(1)(D).3 Id. at 4 (citing Matter of Isidro-Zamorano, 25 I. & N.
3 In its decision, the BIA erroneously referred to the definition of “child”
under 8 U.S.C. § 1101(c)(1), which applies to Subchapter III of Chapter 12 of Title 8.
It should have referred to the definition of “child” under 8 U.S.C. § 1101(b)(1),
which applies to Subchapters I and II (in which § 1229b is located). CAR at 4. The
BIA’s mistaken citation does not, however, affect our analysis. Both provisions

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Dec. 829, 831 (B.I.A. 2012)). The BIA acknowledged the hardship the
daughter had experienced due to her father’s immigration status, but
it found that it could consider the alleged hardship only to his
“qualifying relatives”—namely, his two other children still under the
age of 21. Id. Because the BIA found that Yupangui had not provided
new evidence showing that his other two children would suffer
exceptional and extremely unusual hardship upon his removal, it
denied Yupangui’s motion to reopen.
On May 18, 2023, Yupangui filed a timely petition seeking our
review of the BIA’s decision, challenging only the BIA’s
determination that his eldest daughter had “aged out” of qualifying-
relative status under § 1229b(b)(1)(D). The petition for review does
not challenge the BIA’s hardship determination as to Yupangui’s
younger children. In support of his petition, Yupangui argues that
the statute is ambiguous as to whether a person can age out of
qualifying-relative status during the pendency of an application for
cancellation of removal, and that, under Loper Bright Enterprises v.
Raimondo, 603 U.S. 369 (2024), the BIA’s interpretation of the statute is
due no deference. He further argues that in light of the ambiguity in
the statute, and the agency’s “undue delay” in processing his
application for cancellation of removal, the Court should interpret
§ 1229b(b)(1)(D) to fix his daughter’s age as of the date he filed his
application for cancellation of removal, or the date of his merits
define “child” to include only those who are “under twenty-one years of age,” and
§ 1101(b)(1)’s age restriction is the only part of the statutory definition pertinent to
this appeal.

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hearing before the IJ, or perhaps the date when evidence of his
daughter’s hardship was presented. Pet’r Br. at 16.4
II. Discussion
Our jurisdiction over this case is provided by 8 U.S.C. § 1252(a)
because, as the Supreme Court has held, “circuit courts have
jurisdiction when an alien appeals from the Board’s denial of a motion
to reopen a removal proceeding.” Mata v. Lynch, 576 U.S. 143, 147
(2015).
Things are a little more complicated because Yupangui’s
motion to reopen sought to revisit not the agency’s underlying
finding that he is removable, but only its denial of cancellation of
removal—a form of discretionary relief. Congress has generally
prohibited judicial review of such discretionary actions, and it has
expressly listed denials of cancellation of removal pursuant to 8
U.S.C. § 1229b among those forms of relief that lie beyond the
purview of courts to review. See 8 U.S.C. § 1252(a)(2)(B)(i) (“except as
provided in subparagraph (D) . . . no court shall have jurisdiction to
review . . . any judgment regarding the granting of relief under section
. . . 1229b . . . of this title . . . .”). But Congress has carved out an
exception to that jurisdiction-stripping provision, allowing for
judicial review of “constitutional claims or question of law” raised in
4 Although Yupangui asserts that the BIA incorrectly concluded “that
neither it nor the Immigration Court had jurisdiction to grant [his] application,”
Pet’r Br. at 20 (emphasis added), we decline to address this argument because the
BIA did not refuse to consider his daughter’s purported hardships on
jurisdictional grounds. See CAR at 4.

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a petition for review. Id. § 1252(a)(2)(D). Yupangui’s sole argument
turns on a question of statutory interpretation: whether the child of
an applicant for cancellation of removal can “age out” of qualifying
status under 8 U.S.C. § 1229b(b)(1)(D). This is a “question of law” that
is reviewable; and because it involves an abstract legal question, it is
“subject to de novo review.” Garcia Pinach v. Bondi, 147 F.4th 117, 127
(2d Cir. 2025) (explaining that not all “questions of law” under
§ 1252(a)(2)(D) are subject to the same standard of review); see also
Naizhu Jiang v. Garland, 18 F.4th 730, 734 (2d Cir. 2021) (“When
considering a petition for review of an order denying a statutory
motion to reopen, we review the BIA’s conclusions of law de novo.”)
(citation omitted).
A. Exhaustion of the “Aging Out” Issue
Yupangui’s petition raises the threshold question of whether he
was required to exhaust his argument—regarding the “aging out” of
his eldest daughter—with the BIA before raising it in this petition for
review. For its part, the Government contends that Yupangui was
required do so. Because the BIA raised the aging-out issue for the first
time in its ruling, after Yupangui moved to reopen his removal
proceedings, we conclude that exhaustion of Yupangui’s argument
before the BIA was not a precondition to asserting it here.
To be sure, 8 U.S.C. § 1252(d)(1) provides that “[a] court may
review a final order of removal only if . . . the alien has exhausted all
administrative remedies available to the alien as of right.” Although
this issue-exhaustion rule is “not jurisdictional,” Santos-Zacaria v.

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Garland, 598 U.S. 411, 431 (2023), we must generally treat it as
mandatory when the Government raises it, see Ud Din v. Garland,
72 F.4th 411, 419–20 (2d Cir. 2023). Here, the Government has raised
the exhaustion issue by arguing that Yupangui “has not preserved
any claim that the [BIA] should have accepted a different timeframe
in his particular case for determining whether his daughter qualified
as his ‘child’ under 8 U.S.C. § 1229b(b)(1)(D).” Resp. Br. at 22. So, we
would ordinarily require that a party have brought this argument to
the BIA before raising it in our Court.
However, in Santos-Zacaria, the Supreme Court invited us to
consider a situation nearly identical to the one presented in this case,
concerning an immigration petitioner “whose only issue for judicial
review [was] one she had not raised previously because the Board’s
decision introduced the issue.” 598 U.S. at 430. The Government
contended that § 1252(d)(1) barred judicial review of the petitioner’s
claim “until after she pursues reconsideration” before the BIA. Id.
The Supreme Court rejected that view as requiring a “worthless
exercise,” because “the statutory scheme [of the INA] contemplates
that she immediately petition for judicial review of the Board’s initial,
prereconsideration decision.” Id. (citing 8 U.S.C. §§ 1252(b)(1), (6),
1229a(c)(6)(B)).
Applying the Supreme Court’s cautionary instruction here, we
recognize that it was the BIA that first raised the aging-out issue in its
decision denying Yupangui’s motion to reopen. Accordingly,
Yupangui was not required to seek reconsideration of the BIA’s
decision on that issue in order to raise it on this petition for review.

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The Government nevertheless argues that Yupangui was
required to anticipatorily exhaust the aging-out question, even
though it had never been raised by anyone (and indeed was
inapplicable at that time, because his daughter was still under 21).
According to the Government, Yupangui “could (and should) have
anticipated that the Board likely would not have adjudicated his
motion in time to remand the matter for an immigration judge to issue
a final decision on any application prior to [his daughter] turning 21
years of age a mere 376 days after he filed his motion.” Resp. Br. at
17. The Government bases this argument on two premises: (1) that
Yupangui had already seen that the BIA took about 26 months to rule
on his appeal from the IJ’s denial of his application for cancellation of
removal, and (2) settled BIA precedent had decided the aging-out
issue years earlier. Id. (noting that Isidro-Zamorano had been decided
in 2012).
We do not find the Government’s arguments persuasive. For
one thing, they are completely unresponsive to the Supreme Court’s
ruling in Santos-Zacaria that an immigration petitioner need not
exhaust an issue that is first introduced by “the Board’s decision.”
598 U.S. at 430. The Supreme Court did not create an exception for
cases where an immigration petitioner could have, or should have,
guessed that the BIA would sua sponte raise a new issue that neither
party had yet floated. Moreover, we are not convinced by the
Government’s suggestion that Yupangui should have realized that
the BIA would not get around to ruling on his motion, and an IJ would
not then adjudicate his application, within what the Government

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breezily describes as “a mere 376 days.” Resp. Br. at 17. Though we
are fully cognizant of the substantial caseload faced by the
immigration courts, it was not incumbent on Yupangui to assume that
adjudication of his motion would take any particular amount of time,
much less to predict more than a year in advance whether new legal
issues might be injected into his case. The Government’s
suggestion—that Yupangui should have briefed issues that were
neither raised nor relevant at the time—would seem to fit perfectly
within what the Supreme Court characterized in Santos-Zacaria as a
“worthless exercise.” 598 U.S. at 430.
B. Qualifying “Child” Under 8 U.S.C. § 1229b(b)(1)(D)
Moving to the merits, we note as a guiding principle that the
faithful interpretation of a statutory provision begins with its text,
read coherently and in context. See Wisconsin Cent. Ltd. v. United
States, 585 U.S. 274, 277-78 (2018). Here, the text of 8 U.S.C.
§ 1229b(b)(1)(D) grants the Attorney General discretion to cancel
removal proceedings for certain nonpermanent residents if (assuming
other requirements are met) “removal would result in exceptional
and extremely unusual hardship to the alien’s spouse, parent, or
child,” who is either a U.S. citizen or a lawful permanent resident. As
relevant here, the term “child” is definitionally limited to “an
unmarried person under twenty-one years of age.”
8 U.S.C. § 1101(b)(1).
The question we must answer is this: When is a child’s age
determined such that an IJ may weigh her alleged hardship for

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purposes of adjudicating her parent’s cancellation-of-removal
application? Until now, our Court has not had occasion to answer
that question, although it has come up before. See, e.g., Cruz v.
Garland, 2024 WL 1460131, *1–2 (2d Cir. Apr. 4, 2024) (summary
order) (noting petitioner’s presentation of the same aging-out
arguments presented here, but not deciding the point because
petitioner “abandoned any challenge to the BIA’s conclusion that
cancellation is a continuing application by not arguing that point”).
We hold that § 1229b(b)(1)(D) requires a qualifying “child” to be
under the age of 21 at the time an application for cancellation of
removal is adjudicated.
This case was litigated following the BIA’s decision in Matter of
Isidro-Zamorano, in which the agency held that a qualifying child who
turns 21 before the adjudication of her parent’s application for
cancellation of removal does not remain a qualifying relative under
the hardship requirement of § 1229b(b)(1)(D). See 25 I & N. Dec. at
830-31. Although Yupangui acknowledges that Isidro-Zamorano is
relevant BIA precedent, he contends that the BIA erred by not taking
other factors into account in his case—namely, the purported
ambiguity of § 1229b(b)(1)(D) as it relates to the aging-out issue and
his contention that the delay in processing his motion to reopen
harmed his case for reopening removal proceedings. The
Government, for its part, argued in its initial briefing that the BIA’s
interpretation was entitled to deference under Chevron, U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), because it

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was a “reasonable interpretation” of an ambiguous statutory
provision. Resp. Br. at 15.
After the parties’ briefing concluded, the Supreme Court in
Loper Bright overruled the Chevron deference framework. So, we
ordered supplemental briefing by the parties to hear their views
about Loper Bright’s impact.
Yupangui contends that Loper Bright liberates this Court from
deferring to the BIA’s interpretation of the cancellation-of-removal
statute and allows it to interpret § 1229b(b)(1)(D) in a way that fixes
the age of Yupangui’s non-qualifying child “as of the date he filed his
cancellation of removal application,” or perhaps “the date of his
individual hearing,” or perhaps “the date when the evidence
of . . . hardship was presented.” Pet’r Supp. Br. at 7. He does not
offer any interpretive rationale for choosing any particular one of
those dates in preference to the others; he appears content to have the
agency settle on any date that would make him eligible for
cancellation of removal.
The Government, by contrast, argues that even though Loper
Bright removes Chevron deference from the equation of how our Court
should interpret § 1229b(b)(1)(D), the BIA’s interpretation remains the
best reading of the statute: A cancellation-of-removal application is a
“continuing application” such that a qualifying child’s age is
“properly considered at the time an application for cancellation of
removal is decided.” Isidro-Zamorano, 25 I. & N. Dec. at 830-31.

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We agree with the Government. In reaching that conclusion,
we exercise our “independent judgment” in weighing whether the
BIA acted within its statutory authority when it affirmed that
Yupangui’s daughter was no longer a qualifying child for purposes
of cancellation of removal when she turned 21 during the pendency
of his application. Loper Bright, 603 U.S. at 412. We are persuaded by
the BIA’s conclusion that a request for cancellation of removal is best
viewed as a “continuing application.” Isidro-Zamorano, 25 I. & N. Dec.
at 831 (internal quotation marks omitted).
We must consider the full text of 8 U.S.C. § 1229b(b)(1)(D) in
order to determine the timing of its provisions. Recall that
cancellation of removal is permitted only if “removal would result in
exceptional and extremely unusual hardship to the alien’s spouse,
parent, or child, who is” a citizen or lawful permanent resident of the
United States. 8 U.S.C. § 1229b(b)(1)(D) (emphasis added). There are
two verbs in that phrase—“would result” and “is”—and we must
read them in conjunction, and in the context of the entire
subparagraph (D), to understand which moment in time is relevant.
“Because words are to be given the meaning that proper grammar
and usage would assign them, the rules of grammar govern statutory
interpretation.” Nielsen v. Preap, 586 U.S. 392, 407–08 (2019) (quoting
A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts
140 (2012)) (alteration adopted and internal quotation marks and
citation omitted).
Start with “would result,” in the longer phrase “removal would
result in . . . hardship.” That verb (“would result”) is in the

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conditional mood. In context here, it denotes a hypothetical situation
in which a certain condition (removal) needs to be met in order for a
result to occur (hardship to a qualifying relative). The result must
flow from the condition; if it were the other way around, it could not
be the “result” of the condition. In the context of § 1229b(b)(1)(D),
therefore, because the hardship must be the “result” of removal, the
hardship must follow (not precede) removal.
What sort of hardship does the statute require? It must be a
hardship “to the alien’s spouse, parent, or child, who is” a United
States citizen or lawful permanent resident. 8 U.S.C. § 1229b(b)(1)(D)
(emphasis added). The verb “is”—which links the qualifying
relationship (spouse/parent/child) to the qualifying status (citizen or
lawful permanent resident)—appears in the present tense.
Accordingly, the relative in question must, while the relationship
with the applicant exists, contemporaneously have a qualifying status
in the United States. And as relevant here, the statutory definition of
a “child” for these purposes requires that the child be “an unmarried
person under twenty-one years of age.” 8 U.S.C. § 1101(b)(1).
Putting these all together, removal must cause a particular kind
of hardship—a hardship that will arise only upon an applicant’s
removal—to a person who at the time of removal has all the attributes
(relationship plus status) of a qualifying relative. In this case, that
means that Yupangui was eligible to be considered for cancellation of
removal only if, at the time of his removal, his eldest daughter was
both unmarried and under 21 (making her a “child”) and a U.S.
citizen (giving her the requisite status). By the time the BIA

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adjudicated his motion to reopen, she had exceeded the maximum
age, and so Yupangui’s (necessarily future) removal no longer
“would result” in hardship to a qualifying relative. 8 U.S.C.
§ 1229b(b)(1)(D). Thus the procedural delay has had the effect of
assuring there will be no exceptional hardship to a qualifying relative.
In reaching this conclusion, we agree with the Tenth and
Eleventh Circuits, which are the only other courts of appeals to have
considered this issue since Loper Bright.5 See Rangel-Fuentes v. Bondi,
No. 23-9511, 2025 WL 2750691, at *4 (10th Cir. Sept. 29, 2025); Diaz-
Arellano v. U.S. Att’y Gen., 120 F.4th 722, 725 (11th Cir. 2024). As the
Eleventh Circuit explained, “[i]f an applicant is proceeding based on
exceptional hardship to a child, this means that there must be a
child—an unmarried person under the age of twenty-one—when the
final decision on cancellation of removal is made. It is not enough
that there was once a child who would have suffered hardship when
the alien first applied for relief.” Diaz-Arellano, 120 F.4th at 725. That
is because the cancellation-of-removal statute “directs immigration
judges to examine the effect of the applicant’s ‘removal.’” Id. And
that effect “on the listed relatives depends on the state of the world at
the time of that removal—not at some earlier date,” meaning
that “[a]n alien’s removal would not cause hardship to her parent if
the parent is deceased at the time she is removed. Nor would the
alien’s removal cause hardship to a spouse if the couple has divorced
during the pendency of immigration proceedings.” Id. at 725–26. We
5 We note that the Ninth Circuit has reached the same conclusion, though
its decision was issued before Loper Bright and premised on Chevron deference. See
Mendez-Garcia v. Lynch, 840 F.3d 655, 663–64 (9th Cir. 2016).

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agree. “The statute offers no reason to conclude that Congress
prioritized relief for aliens whose removal would have caused
exceptional hardship in the past over those whose removal would
cause exceptional hardship to a qualifying relative now.” Id. at 726.
We also join in the Eleventh Circuit’s observation that the
“present-tense determination will cut both ways,” sometimes making
it easier for an immigration petitioner to obtain cancellation of
removal. Id. “Babies will be born; couples will marry. And
immigration judges may—in fact, must—consider hardship to these
newly qualifying relatives.” Id. Indeed, as the BIA explained in Isidro-
Zamorano, treating an application for cancellation of removal as a
“continuing application” allows the agency to take account of certain
late-arriving factors that might assist a petitioner’s claim. 25 I. & N.
Dec. at 831. For example, because the ten-year window for
establishing good moral character is counted backward from the date
of adjudication, a person’s old bad acts “may fade in significance” as
time rolls forward. Matter of Ortega-Cabrera, 23 I. & N. Dec. 793, 797–
98 (B.I.A. 2005), cited in Isidro-Zamorano, 25 I. & N. Dec. at 831.
Nevertheless, Yupangui contends that even if his eldest
daughter has aged out for purposes of § 1229b(b)(1)(D), “the undue
delay” in the processing of his application “compels the BIA to
interpret [that statute] in a way that would have fixed the age of [his]
eldest child as of the date he filed his cancellation of removal
application,” or at some other point before his daughter turned
twenty-one. Pet’r Br. at 16. We are unpersuaded.

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For one thing, the statute means what it means. Whether the
BIA took more or less time to adjudicate any particular application
cannot change the inherent meaning of the statute. Yupangui points
to no authority (and we are aware of none) allowing the BIA to
“interpret” § 1229b in different ways in different cases, much less
authorizing it to do so depending simply on how much time it takes
to decide a given matter. Nor does he identify any authority
authorizing the BIA to make equitable exceptions to otherwise
applicable statutory requirements.
Second, to the extent that Yupangui relies on Isidro-Zamorano to
argue that the BIA recognizes an implied exception to
§ 1229b(b)(1)(D)’s temporal eligibility requirements, that argument is
based on an overreading of that decision. True, in Isidro-Zamorano,
the BIA noted in passing that the respondent had not “alleged any
improper delay on the part of the Immigration Judge.” 25 I. & N. Dec.
at 832. But the BIA did not say that if an improper delay had been
alleged, that would have influenced its ultimate conclusion that “the
respondent did not have a qualifying relative when the Immigration
Judge adjudicated the application and therefore could not establish
eligibility for relief.” Id. at 831. Instead, the BIA found “no basis in
law to conclude that an applicant in the respondent’s circumstances,
who loses his qualifying relationship before his application is even
adjudicated on its merits by the Immigration Judge, nonetheless
retains his eligibility for cancellation of removal.” Id. In short, the
BIA did not suggest that a delay in adjudicating a motion to reopen
would change the cancellation-of-removal calculus.

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We also find inapt Yupangui’s reliance on Martinez-Perez v.
Barr—a case that predated Loper Bright—where the Tenth Circuit
agreed with an immigration petitioner that the BIA “had jurisdiction
to entertain an alternate interpretation of when a child’s age is to be
assessed for cancellation.” 947 F.3d 1273, 1282 (10th Cir. 2020). The
BIA in the present case never suggested that it lacked “jurisdiction”
over Yupangui’s application, much less that it lacked “jurisdiction” to
consider any argument about how to interpret § 1229b(b)(1)(D).
Instead, it simply held that Yupangui was no longer eligible for
cancellation of relief on the merits. That conclusion, as we have
explained above, was correct.6
We offer one final observation. Yupangui generally argues that
the BIA’s delays in processing his application for cancellation of
removal prejudiced him. It is true that, because of the passage of time
6 It may be possible to read parts of Martinez-Perez to suggest that if the BIA
had exercised its jurisdiction to consider the aging-out question, it would have had
leeway to construe § 1229b(b)(1)(D) in different ways in different cases. See, e.g.,
947 F.3d at 1281 (“Isidro-Zamorano left open the possibility that, given a different
set of facts, the BIA may interpret § 1229b(b)(1)(D) in a different way.”). If that is
what the Tenth Circuit meant, we disagree. Any such suggestion seems to be a
relic of the Chevron era. Id. at 1282 (remanding because the BIA “failed to exercise
its interpretive authority”). Moreover, in support of this proposition, the Tenth
Circuit cited the Supreme Court’s decision in INS v. Cardoza-Fonseca for the
proposition that “the BIA has the authority to give ambiguous statutory terms
‘concrete meaning through . . . case-by-case adjudication.’” Id. (quoting Cardoza-
Fonseca, 480 U.S. 421, 448 (1987) (emphasis added in Martinez)). But in that
passage, the Supreme Court was simply illustrating how agency interpretation of
statutes can develop through, among other things, adjudication as well as rule-
making. We do not read the Supreme Court as having encouraged agencies, even
during Chevron’s halcyon days, to flit among different statutory interpretations
depending on the facts of any particular case.

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between the filing and adjudication of his motion to reopen,
Yupangui is no longer eligible for cancellation of removal based on
hardship to his oldest child. But as the Eleventh Circuit aptly
observed in Diaz-Arellano, “the applicant is really only a subsidiary
beneficiary of the statute’s protections, which are designed to
safeguard the child, spouse, or parent” of a person seeking
cancellation of removal. 120 F.4th at 726 n.4. Because of the time it
took for the BIA to rule on Yupangui’s motion to reopen, and now the
time that has elapsed due to Yupangui’s petition for review, his
daughter is currently 24 years old, and he has remained in the United
States all the while. To the extent that § 1229b is designed to mitigate
harm to minor children that would flow from a parent’s removal,
such mitigation ran its course in this case as a consequence of the
BIA’s processing times.
III. Conclusion
In sum, we hold as follows:
1. The question of whether Yupangui’s child had “aged out”
of qualifying-relative status was raised sua sponte by the
BIA, for the first time, in its decision denying Yupangui’s
motion to reopen. Accordingly, Yupangui’s failure to
exhaust that issue before the agency does not bar him, under
8 U.S.C. § 1252(d)(1), from raising it before this Court in this
petition for review.
2. Under 8 U.S.C. § 1229b(b)(1)(D), a qualifying “child” must
be under the age of 21 at the time an application for

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cancellation of removal is adjudicated. Yupangui’s
daughter turned 21 during the pendency of his motion to
reopen his removal proceedings, and so the BIA did not err
in denying that motion on the ground that she was no longer
a qualifying relative for purposes of his eligibility for
cancellation of removal.
For the foregoing reasons, the petition for review is DENIED.

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