Roderico Filadelfo Perez-Perez v. PAMELA BONDI, Attorney General

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 25a0315p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
RODERICO FILADELFO PEREZ-PEREZ,
Petitioner,
v.
PAMELA BONDI, Attorney General,
Respondent.
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No. 25-3146
On Petition for Review from the Board of Immigration Appeals.
No. A 201 985 731
Argued: October 21, 2025
Decided and Filed: November 21, 2025
Before: GIBBONS, McKEAGUE, and RITZ, Circuit Judges.
_________________
COUNSEL
ARGUED: Shanta Driver, DRIVER, SCHON & ASSOCIATES PLC, Detroit, Michigan, for
Petitioner. Christina R. Zeidan, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent. ON BRIEF: Shanta Driver, DRIVER, SCHON & ASSOCIATES PLC,
Detroit, Michigan, for Petitioner. Christina R. Zeidan, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.
GIBBONS, J., delivered the opinion of the court in which RITZ, J., concurred.
McKEAGUE, J. (pp. 12–17), delivered a separate dissenting opinion.
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OPINION
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JULIA SMITH GIBBONS, Circuit Judge. The Immigration and Nationality Act (“INA”)
allows the Attorney General to cancel the deportation of an otherwise deportable noncitizen if
that noncitizen establishes four preconditions to relief. Singh v. Rosen, 984 F.3d 1142, 1147 (6th
Cir. 2021); see also 8 U.S.C. § 1229b(b)(1). The four preconditions to relief are met if the
noncitizen demonstrates: (1) continuous physical presence for a minimum of 10 years prior to the
cancellation application; (2) he has been a person of “good moral character” during that period;
(3) he has no convictions of a disqualifying offense; and (4) he has established that “removal
would result in exceptional and extremely unusual hardship to the [noncitizen’s] spouse,
parent, or child” who is a U.S. citizen or lawfully admitted permanent resident. 8 U.S.C.
§§ 1229b(b)(1)(A)-(D). The INA defines “child” as “an unmarried person under twenty-one
years of age[.]” Id. § 1101(b)(1).
An immigration judge (“IJ”) granted Petitioner Roderico Filadelfo Perez-Perez
cancellation of removal under § 1229b(b)(1)(D) in 2020, when his youngest daughter and
qualifying “child,” Ady Perez-Velasquez, was seventeen years old. The government appealed,
but the Board of Immigration Appeals (“BIA”) did not resolve the case until 2025, at which
point it determined that Ady was over twenty-one and therefore no longer a qualifying “child”
under the INA. As a result, the BIA vacated Perez-Perez’s cancellation of removal and ordered
him removed to Guatemala.
Because we now hold that the correct time to ascertain the age of a qualifying “child”
under § 1229b(b)(1)(D) on an application for cancellation of removal is when the IJ issues its
decision, we grant Perez-Perez’s petition for review and reverse the decision of the BIA.
I.
Roderico Filadelfo Perez-Perez, a native of Guatemala, entered the United States without
inspection in December of 1994. Perez-Perez settled in Detroit, Michigan, where he remained
until he was detained in 2019 by the Department of Homeland Security (“DHS”). Perez-Perez

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shares three children with his ex-wife, from whom he was divorced in 2008: Alex Perez, Talita
Perez-Velasquez, and Ady Perez-Velasquez.
On August 17, 2019, Perez-Perez was pulled over after he hit a police vehicle stopped on
the road in response to an automobile accident. After conducting a breathalyzer exam twice,
officers charged him with a DUI for operating his vehicle while intoxicated. Perez-Perez pled
guilty to his DUI charge in October 2019 and received a sentence of twelve months’ probation.
Shortly thereafter, in December of 2019, U.S. Immigration and Customs Enforcement (“ICE”)
took Perez-Perez into custody and detained him at the Monroe County Jail in Monroe, Michigan.
On January 8, 2020, Perez-Perez appeared for his first removal hearing, represented by
counsel, and conceded his removability. At that time, he also indicated that he planned to seek
cancellation of his removal under 8 U.S.C. § 1229b(b)(1)(D), naming his youngest daughter Ady
as his qualifying relative. In the following months, Perez-Perez’s removal hearing was
ultimately scheduled for April of 2020.1
On April 24, 2020, IJ Jennifer M. Gorland granted Perez-Perez cancellation of his
removal. At the time of Perez-Perez’s 2020 removal hearing, his daughter Ady was seventeen
years old. In reaching her decision, Judge Gorland concluded that Perez-Perez was credible and
of good moral character, and that Ady would suffer the requisite hardship if her father was
removed from the country. On May 19, 2020, DHS filed a timely notice of appeal of the IJ’s
decision. The BIA did not issue a briefing schedule for the case until January 1, 2022.
On February 21, 2025, the BIA issued its decision on DHS’s appeal. The BIA declined
to address the merits of Perez-Perez’s case, as raised by DHS in its briefing, and instead
sustained the appeal solely on the grounds that Ady was over twenty-one at the time of its
decision and therefore no longer a qualifying relative under 8 U.S.C. § 1229b(b)(1)(D). As a
1On March 31, 2020, prior to his removal hearing, Perez-Perez filed an emergency petition for a writ of
habeas corpus, seeking immediate release from the Monroe County Jail. When a nurse at the jail tested positive for
COVID-19 two weeks later, Perez-Perez filed an emergency temporary restraining order. On May 9, 2020, the
district court granted Perez-Perez’s motion and ordered his release, subject to home quarantine requirements.
However, Perez-Perez was taken back into ICE custody while his request for an emergency stay of removal, filed on
March 18, 2025, was pending with our court and has remained there since. On April 29, 2025, our court denied
Perez-Perez’s emergency motion for release from detention, finding that first-instance review of his challenge to
detention lies within the district court’s jurisdiction, not the court of appeals.

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result, the panel concluded that Perez-Perez’s removal was no longer eligible for cancellation
under the INA and ordered him removed to Guatemala.
Perez-Perez filed a timely appeal to our court on March 7, 2025.2
II.
Perez-Perez argues that the BIA erred by reversing the IJ’s decision and ordering his
removal to Guatemala. “Where the [BIA] reviews the immigration judge’s decision and issues a
separate opinion” instead of affirming the IJ’s order, we review the BIA’s opinion as a final
agency determination. Turcios-Flores v. Garland, 67 F.4th 347, 353 (6th Cir. 2023) (citation
omitted). We review questions of law de novo. See Gutierrez v. Sessions, 887 F.3d 770, 774
(6th Cir. 2018). And following the Supreme Court’s 2024 decision in Loper Bright Enterprises
v. Raimondo, 603 U.S. 369 (2024), we are no longer obligated to defer to the BIA’s
interpretation of the INA. Id. at 400. However, “any issues the Board did not address are not
before the court [of appeals].” See Turcios-Flores, 67 F.4th at 353; see also Bi Xia Qu v. Holder,
618 F.3d 602, 609 (6th Cir. 2010) (“When the BIA does not fully consider an issue . . . ‘the
proper course, except in rare circumstances, is to remand[.]’”) (citation omitted).
III.
In denying Perez-Perez’s application for cancellation of removal, the BIA determined
that Perez-Perez was no longer eligible for cancellation under § 1229b(b)(1)(D) because his
qualifying child, his daughter Ady, was over twenty-one years old at the time the BIA decided
the case on appeal. The BIA did not examine the merits of the IJ’s decision granting Perez-
Perez’s application for cancellation of removal. The government concedes that its appeal to the
BIA did not challenge Ady’s status as a qualifying “child” and instead only addressed the merits
2On March 26, 2025, our court granted Perez-Perez’s request for an emergency stay of removal, finding
that he had a high likelihood of success on the merits and that the balance of hardships weighed in his favor. Our
court further recognized that “[a]s the Tenth Circuit has explained, it is thus at least ‘reasonable’ to say that the
relevant time [to ascertain the age of a qualifying “child” under § 1229b(b)(1)(D)] should either be when the record
closes or when the immigration judge ‘ultimately rul[es] on’ the application.” CA6 R. 14, Order Staying Removal,
at 3-4 (citation omitted).

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of the IJ’s finding of “extreme and unusual hardship” under § 1229b(b)(1)(D). Perez-Perez now
petitions our court for review of the BIA’s order.
This case presents a pure question of law: at what point in the cancellation of
removal process should courts ascertain the age of a qualifying “child” under 8 U.S.C.
§ 1229b(b)(1)(D)?3 Is it when the administrative record closes, when the IJ renders its decision,
or when the BIA decides the case on appeal? As a result, we will conduct our analysis de novo.
Singh, 984 F.3d at 1148 (“Sometimes, appellate courts are presented with a ‘purely legal’ issue
(e.g., what do the words of the immigration statute mean?)”) (citation omitted). Perez-Perez
asserts that the relevant point in time for ascertaining the age of a qualifying “child” is either
when the IJ renders its decision or when the administrative record closes.4 Meanwhile, DHS
counters that the correct time is instead when the BIA hands down its decision on appeal.
Ultimately, the parties present an issue of first impression in our circuit.
The first step we must take in determining the correct time to ascertain the age of a
qualifying “child” under § 1229b(b)(1)(D) is to examine the plain meaning of the statute’s text.
See Huerta v. Garland, No. 23-3361, 2024 WL 2142068, at *2 (6th Cir. Feb. 8, 2024); Esquivel-
Quintana v. Sessions, 581 U.S. 385, 391 (2017) (interpreting § 1101(a)(43)(A) of the INA); see
also Riley v. Bondi, 606 U.S. 259, 266-67 (2025) (interpreting § 1252(b)(1) of the INA). If the
language is unclear, we may then examine the relevant legislative history.5 Lockhart v.
Napolitano, 573 F.3d 251, 255 (6th Cir. 2009). The relevant INA provisions at issue here,
§ 1229b(b)(1)(D) and § 1101(b)(1), do not explicitly state at which point in the removal
cancellation process the qualifying “child” must be under twenty-one for their status as a “child”
3While we are typically precluded by 8 U.S.C. § 1252(a)(2)(B)(i) from reviewing discretionary relief
granted under 8 U.S.C. § 1229b, we nonetheless have jurisdiction to review this appeal because it presents a
question of law. See 8 U.S.C. § 1252(a)(2)(D) (INA section confirming that § 1252(a)(2)(B)(i) should not be
construed “as precluding review of constitutional claims or questions of law raised upon a petition for review filed
with an appropriate court of appeals”) (emphasis added).
4The administrative record typically closes at the conclusion of the removal hearing, when one takes place,
though it may remain open if the IJ allows parties to submit further briefing. See 4 C.F.R. § 28.63(a). As a result, it
is possible for the administrative record to close before the IJ issues its decision concerning an application for
cancellation of removal.
5The legislative history of the INA “clearly indicates that the Congress intended to provide for a liberal
treatment of children and was concerned with the problem of keeping families of United States citizens and
immigrants united.” H.R. Rep. No. 85-1199, pt. 2 (1957).

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to confer cancellation eligibility to the applicant parent. See 8 U.S.C. §§ 1229b(b)(1)(D)
(providing for cancellation of removal if the removal would cause “exceptional and extremely
unusual hardship to a [noncitizen’s] . . . child”), 1101(b)(1) (defining “child” as “an unmarried
person under twenty-one years of age”).
Despite the lack of explicit direction in the text of the INA itself, we held last year in an
unpublished decision that the plain meaning of § 1229b(b)(1)(D) instructs courts to assess the
age of a qualifying “child” at the time of removal for purposes of removal cancellation
proceedings. Huerta, 2024 WL 2142068, at *3. Although we refrained from affirmatively
answering when exactly “removal” occurs (considering either (1) at the time the IJ adjudicates a
cancellation application or (2) when the noncitizen is physically removed from the United
States), we ultimately concluded that because Huerta’s daughter, the qualifying relative, turned
twenty-one before the IJ adjudicated Huerta’s cancellation application, her daughter was no
longer a “child” as understood by the INA and subsequently ordered Huerta’s removal. See id. at
*3-4 (calling the time the IJ renders a decision in a removal cancellation application “the critical
point of adjudication”). In a separate concurrence, Judge Nalbandian wrote that “‘removal’ takes
effect when the immigration judge decides the case.” See id. at *4 (Nalbandian, J., concurring)
(“[T]he statute directs judges to consider hardship to the child in the present—the time of
adjudication . . . . [s]o we must assess hardship at the time the court adjudicates the last step in
the process—the entry of the order of removal.”).
Interpreting § 1229b(b)(1)(D) to require that the age of a qualifying “child” be
ascertained, at the latest, when the IJ issues its decision would harmonize with Huerta, and it
would further accord with the plain meaning of the statute itself. See Lockhart, 573 F.3d at 255
(recognizing that the text of the INA must be examined to determine its plain meaning). It is our
duty as an appellate court to “interpret statutes as a whole, giving effect to each word and making
every effort not to interpret a provision in a manner that renders other provisions of the same
statute inconsistent, meaningless, or superfluous.” Keeley v. Whitaker, 910 F.3d 878, 884 (6th
Cir. 2018). The text of § 1229b(b)(1)(D) requires the noncitizen applying for cancellation of
removal to “establish[]” that his removal “would result in exceptional and extremely unusual
hardship to the [noncitizen’s] . . . child, who is a citizen of the United States[.]” 8 U.S.C. §

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1229b(b)(1)(D) (emphasis added). The plain meaning of the INA therefore mandates that the
qualifying child must be a child at the time the noncitizen’s removal is adjudicated by the IJ. See
Huerta, 2024 WL 2142068, at *3. This is because the statute instructs the IJ to make a present-
tense evaluation of whether the noncitizen “establishes” the requisite hardship “would result” to
the child who “is a citizen” at that time of its decision. 8 U.S.C. § 1229b(b)(1)(D) (emphasis
added); see Huerta, 2024 WL 2142068, at *4 (Nalbandian, J., concurring); Araujo-Padilla v.
Garland, 854 F. App’x 646, 648 n.1 (6th Cir. 2021) (“Only [Petitioner’s] children who were
under twenty-one at the time [of his removal hearing] counted as qualifying relatives for
purposes of [§ 1229b(b)(1)(D)].”)
Previously, if courts determined there was ambiguity within the INA they would defer to
the BIA’s reasonable interpretation of the statute.6 However, although many previous opinions,
including those in our circuit, deferred to the BIA’s interpretation of the INA when evaluating
the meaning of the statute’s text, that deference was accorded most often under the principles
announced by the Supreme Court’s now-overruled Chevron doctrine.7 See generally Loper
Bright, 603 U.S. 369 (overruling Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S.
837 (1984)). Chevron deference for BIA interpretations of the INA, including interpretations of
§ 1229b(b)(1)(D), was accorded in other circuits as well. See, e.g., Espinoza-Solorzano v. U.S.
Att’y Gen., No. 20-14297, 2021 WL 5095955, at *4 (11th Cir. Nov. 2, 2021) (“Because the
statute does not directly address the question [regarding § 1229b(b)(1)(D)] before us, we turn to
step two of Chevron.”); Rangel-Fuentes v. Garland, 99 F.4th 1191, 1192 (10th Cir. 2024) (“[W]e
hold that the BIA’s interpretation of § 1229b(b)(1)(D) is reasonable and entitled to deference
under [Chevron].”).
Post-Loper Bright, we are no longer obliged to defer to the BIA’s interpretation of the
INA. See Loper Bright, 603 U.S. at 400-01 (“[A]gencies have no special competence in
6It is worth emphasizing that the need to defer to the BIA’s interpretation of the INA only arose if the court
found that the statute’s language was ambiguous. See Hernandez v. Whitaker, 914 F.3d 430, 433 (6th Cir. 2019).
7See, e.g., Arangure v. Whitaker, 911 F.3d 333, 338 (6th Cir. 2018) (“The Board is eligible
for Chevron deference when it interprets the INA.”); Martial-Emanuel v. Holder, 523 F. App’x 345, 351 (6th Cir.
2013) (“When reviewing the BIA's interpretation of ambiguous terms in the Immigration and Nationality Act, we
apply Chevron deference[.]”); Ramirez-Canales v. Mukasey, 517 F.3d 904, 907 (6th Cir. 2008) (“The Supreme
Court has held that Chevron deference to the Board’s interpretation of immigration statutes is appropriate.”).

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resolving statutory ambiguities. Courts do.”); Moctezuma-Reyes v. Garland, 124 F.4th 416, 420
(6th Cir. 2024) (withholding deference to the BIA’s interpretation of § 1229b(b)(1)(D) following
Loper Bright). In fact, the Tenth Circuit vacated and ordered a rehearing in light of the Supreme
Court’s ruling in Loper Bright in a case addressing a very similar issue to that presented by
Perez-Perez’s appeal. See Rangel-Fuentes v. Garland, No. 23-9511, 2024 WL 3405079, at *1
(10th Cir. July 10, 2024). And the Eleventh Circuit, holding that § 1229b(b)(1)(D) requires that
a “child” qualify at the time the IJ issues its “final decision,” withheld deference to the BIA’s
interpretation of § 1229b(b)(1)(D) in accordance with Loper Bright.8 See Diaz-Arellano v. U.S.
Att’y Gen., 120 F.4th 722, 725 (11th Cir. 2024). Without express language in § 1229b(b)(1)(D)
“vesting” the BIA with discretion to determine the meaning of a qualifying “child,” we do not
need to afford deference to the BIA’s interpretation. See Moctezuma-Reyes, 124 F.4th at 420
(confirming that § 1229b(b)(1)(D) contains no such “vesting” language).
We see no such vesting language here and therefore find that we are empowered to
interpret § 1229b(b)(1)(D) without regard to the BIA’s prior interpretation. See id. And reading
§ 1229b(b)(1)(D) to require that the qualifying child’s age be ascertained at the time the IJ
renders its decision would align with our circuit’s previous opinions on this issue, as well as
decisions released by other circuits concerning the same question. See, e.g., Huerta, 2024 WL
2142068, at *2; Araujo-Padilla, 854 F. App’x at 648 n.1; see also, e.g., Espinoza-Solorzano,
2021 WL 5095955, at *5 (“To be considered a child and thus a qualifying relative, [Espinoza-
Solorzano’s daughter] needed to be under 21 years old at the time the IJ adjudicated her father’s
application[.]”); Gonzalez-Juarez v. Bondi, 137 F.4th 996, 1007 (9th Cir. 2025) (finding that
Gonzalez-Juarez’s two sons qualified as children for purposes of § 1229b(b)(1)(D) because they
were under twenty-one at the time of the IJ’s decision); Crew v. Att’y Gen. of U.S., 396 F. App’x
889, 890-91 (3d Cir. 2010) (concluding that Crew’s daughter was not a “child” for purposes of
8The dissent reasons “the final decision on cancellation of removal is made” when the BIA enters its
decision. Dissenting Op. at 12-13 (quoting Diaz-Arellano, 120 F.4th at 725). In support, the dissent cites to
“[n]eighboring statutory provisions” addressing orders of deportation and the point at which the “removal period”—
the period when the Attorney General must remove a noncitizen who was ordered removed—begins to run. Id.
(citing 8 U.S.C. §§ 1101(a)(47)(B), 1231(a)(1)(B)). In this case, though, the IJ did not order removal; rather, the IJ
granted cancellation of removal. Because those statutes are therefore inapplicable, we decline to adopt this
reasoning. See also Huerta, 2024 WL 2142068, at *4 (Nalbandian, J., concurring) (“I am thus not convinced that
mention of ‘final adjudication’ in a related part of the U.S. Code defeats the most natural reading of the text at
issue.”).

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cancellation of removal because she was thirty-five on the date of the IJ’s hearing); Valerio-
Lopez v. Garland, 861 F. App’x 178, 179 (10th Cir. 2021) (recognizing an IJ’s finding that
Valerio-Lopez’s children did not qualify under § 1229b(b)(1)(D) because they turned twenty-one
prior to the IJ’s removal hearing).
We acknowledge, and the dissent appropriately points out, that there are some cases that
reach the opposite result from our holding here. See, e.g., Pina v. U.S. Att’y Gen., No. 24-12590,
2025 WL 1216719, at *3 (11th Cir. Apr. 28, 2025); Baltazar-Felipe v. U.S. Att’y Gen., No. 22-
13188, 2023 WL 3961411, at *2 (11th Cir. June 13, 2023); Garcia Hernandez v. Bondi, No. 23-
2006, 2025 WL 2399968, at *1 (9th Cir. Aug. 19, 2025). However, we believe most of these
cases are either factually distinguishable or rely on conflicting legal analysis. For example,
Garcia Hernandez, a Ninth Circuit case finding that the petitioner’s son did not qualify under
§ 1229b(b)(1)(D) because he was twenty-two when the BIA issued its decision, concerned
review of a motion to reopen the petitioner’s removal proceedings, not an application for
cancellation of removal. See 2025 WL 2399968, at *1.9 In Pina v. U.S. Att’y Gen., a panel for
the Eleventh Circuit, relying on its previous decision in Diaz-Arellano, held that “because
[petitioners’ daughter] was no longer under 21 at the time the BIA rendered its final decision”
they were “no longer eligible for cancellation of removal.” 2025 WL 1216719, at *3. However,
Diaz-Arellano stated that § 1229b(b)(1)(D) explicitly requires that the age of a qualifying “child”
be ascertained “when the immigration court finalizes its decision on the application for
cancellation of removal.” 120 F.4 at 725. The Diaz-Arellano panel subsequently recognized that
because Diaz-Arellano’s child was over twenty-one at the time the IJ adjudicated the case, the
child did not qualify under § 1229b(b)(1)(D). See id.
As stated previously, for applications for cancellation of removal, we believe the time to
ascertain when a noncitizen “establishes” the age of a “child” under § 1229b(b)(1)(D) is the date
of the IJ adjudication. See also Mendez-Garcia v. Lynch Gonzales, 840 F.3d 655, 666 (9th Cir.
2016) (affirming that the qualifying child must be under twenty-one at the time the IJ adjudicates
9See also Yupangui-Yunga v. Bondi, No. 23-6522, 2025 WL 2989588, at *7 (2d Cir. Oct. 24, 2025)
(involving a motion to reopen removal proceedings after the BIA dismissed the petitioner’s appeal of the IJ’s denial
of removal cancellation and misstating the holdings of Diaz-Arellano and Rangel-Fuentes).

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the noncitizen’s removal cancellation application); Rangel-Fuentes v. Bondi, 155 F.4th 1138,
1145 (10th Cir. 2025) (after rehearing post-Loper, finding that § 1229b(b)(1)(D) “contemplates
assessing a qualifying child’s age when the immigration judge issues a decision”).
Ascertaining the age of a qualifying child under § 1229b(b)(1)(D), at the latest, when the
IJ issues a decision also aligns with authoritative precedent from the BIA on this issue. In Matter
of Isidro-Zamorano, 25 I. & N. Dec. 829 (B.I.A. 2012), the BIA held that an applicant “who
loses his qualifying relationship before his application is even adjudicated on its merits by the
Immigration Judge” cannot retain his eligibility for purposes of removal cancellation. Id. at 831.
Just like the petitioner in Huerta, the petitioner in Isidro-Zamorano based his cancellation
application on a qualifying relative who turned twenty-one prior to the issuance of the IJ’s
decision. Although the BIA recognized in Isidro-Zamorano, and as DHS emphasizes in its brief,
that relief from removal is a “continuing” application, the BIA nonetheless determined that the
relevant point in time to end that forward-looking inquiry occurred when the IJ issued its
decision. See id. at 830-31. Applying the logic of Isidro-Zamorano to Perez-Perez’s case, we
find additional support that a qualifying child’s age is properly considered at the time the IJ
issues its decision. See also Matter of Portillo-Gutierrez, 25 I. & N. Dec. 148, 149 (B.I.A. 2009)
(affirming that a “child” under the INA qualifies at the time the IJ adjudicates an application for
cancellation of removal).
The BIA’s decision, as well as the parties’ briefs, also cite Matter of Bautista Gomez, 23
I. & N. Dec. 893 (B.I.A. 2006), in support of their respective arguments. However, Matter of
Bautista Gomez is inapposite here because that case concerned a noncitizen becoming eligible
for cancellation of removal during the removal cancellation process, rather than a noncitizen
becoming ineligible. See Isidro-Zamorano v. Holder, 365 F. App’x 846, 847 (9th Cir. 2010)
(finding that Matter of Bautista Gomez “is not determinative” and “does not control” in cases
where a noncitizen becomes ineligible, rather than eligible, during the adjudication of his
removal cancellation application). Matter of Bautista Gomez also necessarily addressed a
different question than that presented by Perez-Perez’s appeal. 23 I. & N. Dec. at 894-95
(addressing whether a family member who becomes a qualifying relative after an IJ adjudicates
an application for cancellation of removal can re-confer the ability for a petitioner to cancel their

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No. 25-3146 Perez-Perez v. Bondi Page 11
removal). Because this case concerns Perez-Perez becoming ineligible after the IJ adjudicated
his application for cancellation of removal, we do not find that the logic of Matter of Bautista
Gomez transfers to Perez-Perez’s case. See Isidro-Zamorano v. Holder, 365 F. App’x at 847.
****
Both parties also raised the issue of whether an “undue or unfair delay” exception exists
to excuse petitioners seeking cancellation of removal whose children “age out” during the
pendency of an appeal challenging a grant of cancellation. Because we now reverse the BIA’s
interpretation of § 1229b(b)(1)(D) and find that the age of Perez-Perez’s qualifying child was
properly ascertained at the time of the IJ’s decision, we decline to reach the question concerning
the existence of an undue or unfair delay exception. We need not engage in this analysis to
properly resolve Perez-Perez’s petition for review.
Moreover, we note that the BIA did not make an explicit finding as to whether an unfair
or undue delay occurred in DHS’s appeal of the IJ’s decision granting Perez-Perez cancellation
of removal. And “when the BIA does not fully consider an issue . . . a reviewing court is not
generally empowered to conduct a de novo inquiry into the matter being reviewed.” Bi Xia Qu,
618 F.3d at 609 (quoting Gonzalez v. Thomas, 547 U.S. 183, 186 (2006)) (citation modified).
Thus, we further recognize that addressing this issue falls outside our scope of review.
IV.
For the foregoing reasons, we grant Perez-Perez’s petition for review and reverse the
BIA’s order finding that Ady Perez-Velasquez no longer qualified as a “child” under the INA
because she was over twenty-one at the time of the BIA’s decision. Instead, we conclude that
the proper moment to ascertain the age of a qualifying “child” on an application for cancellation
of removal under § 1229b(b)(1)(D) is at the time the IJ renders its decision. Accordingly, we
remand to the BIA for further proceedings consistent with this decision.

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_________________
DISSENT
_________________
McKEAGUE, Circuit Judge, dissenting. I agree with the majority that to qualify for
cancellation of removal an applicant must have a child under the age of twenty-one at the time of
removal. Although Perez-Perez satisfied that statutory requirement when an immigration judge
(“IJ”) initially granted his application, his qualifying daughter turned twenty-one while an appeal
of that decision was pending before the Board of Immigration Appeals (“BIA”). The majority
concludes that Perez-Perez still qualifies for cancellation of removal by fixing the age of his
daughter at the time of the IJ’s decision. But the text of 8 U.S.C. § 1229b(b)(1)(D), cases
applying that provision, and Congress’s purpose in enacting the cancellation of removal statute
lead me to a different conclusion: the age of a qualifying child should be measured at the time of
the final administrative decision on an application for cancellation of removal, which in this case
was the decision of the BIA.
Start with the statute’s text. The INA allows an applicant like Perez-Perez to seek
cancellation of removal if, among other requirements, he “establishes that removal would result
in exceptional and extremely unusual hardship to [his] . . . child.” 8 U.S.C. § 1229b(b)(1)(D).
And, as the statute tells us, a child is “an unmarried person under twenty-one years of age.”
8 U.S.C. § 1101(b)(1).
According to “the plain meaning of the text” the question is whether “removal would
result in hardship.” Huerta v. Garland, No. 23-3361, 2024 WL 2142068, at *3 (6th Cir. Feb. 8,
2024) (citation modified), cert. denied, 145 S. Ct. 566 (2024). And, “we must assess hardship at
the time of removal—because that is when the hardship would result—not during the pendency
of the request to cancel removal.” Id. (citing Baltazar-Felipe v. U.S. Att’y Gen., No.
22-13188, 2023 WL 3961411, at *2 (11th Cir. June 13, 2023)); Yupangui-Yunga v. Bondi, No.
23-6522, ––– F.4th –––, 2025 WL 2989588, at *7 (2d Cir. Oct. 24, 2025) (“[R]emoval 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 . . . of a qualifying
relative.”).

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Putting those pieces together, “[t]he statute deals with facts on the ground at the time of
removal—it does not require immigration judges to pretend hardships still exist that plainly do
not by the time the application is adjudicated.” Diaz-Arellano v. U.S. Att’y Gen., 120 F.4th 722,
726 (11th Cir. 2024). So, when “an applicant is proceeding based on exceptional hardship to a
child” the statute requires “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.” Id. at 725; Baltazar-
Felipe, 2023 WL 3961411, at *2 (“[T]he plain language of the statute indicates that the relative
must be a child—that is, under 21 years of age and unmarried—when the hardship of removal
occurs, which can only be after the final adjudication of the application for cancellation of
removal.”). There was no final administrative adjudication of Perez-Perez’s case until the BIA
resolved his application for cancellation of removal. See Oral. Arg. at 8:45-8:51 (Perez-Perez’s
counsel indicating that “there was no final order of deportation until the BIA acted”). And, at
that point, because Perez-Perez’s daughter was over the age of twenty-one, he no longer satisfied
the statutory requirements of §1229b(b)(1).1
Neighboring statutory provisions support the conclusion that removal cannot occur until
an application for cancellation of removal has been finally adjudicated. See 8 U.S.C.
§ 1101(a)(47)(B) (establishing that an order of deportation is “final upon the earlier of . . . a
determination by the Board of Immigration Appeals affirming such order” or “the expiration of
the period in which the alien is permitted to seek review of such order by the Board of
Immigration Appeals”);2 8 U.S.C § 1231(a)(1)(B) (establishing, in relevant part, that the
“removal period begins on . . . [t]he date the order of removal becomes administratively final”).
So, as I see it, in cases where no appeal is taken or an appeal is waived, an IJ’s decision would
constitute a final administrative order. But in this context—when the IJ’s order is appealed—the
1One additional point on the statutory language. Huerta noted a potential ambiguity as to whether removal
refers to the point in time when an order of removal is issued or when the process of removal is effectuated. 2024
WL 2142068, at *3; cf. id. at *4 (Nalbandian, J., concurring) (“[W]e must assess hardship at the time the court
adjudicates the last step in the process—the entry of the order of removal.”). Just as in Huerta, however, that issue
does not impact the outcome here. If a child ages out before final administrative adjudication, the child is
necessarily too old to satisfy the statutory requirements at all subsequent stages of the removal process.
2Although § 1101(a)(47) references an order of deportation and not an order of removal, in this context,
those terms are treated alike. See Riley v. Bondi, 606 U.S. 259, 267 (2025).

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BIA decision constitutes the final agency decision. And Perez-Perez could not be removed until
that decision was in place.
Faced with similar facts, the Eleventh Circuit has measured a qualifying child’s age at the
time of the BIA’s decision. In Pina v. U.S. Att’y Gen., for example, an IJ denied applications for
cancellation of removal because the petitioners had not demonstrated that their child—who was
under twenty-one years old at the time—would face exceptional or extremely unusual hardship if
they were removed. No. 24-12590, 2025 WL 1216719, at *1 (11th Cir. Apr. 28, 2025), cert.
denied, 2025 WL 3198595. The petitioners appealed, but because of various delays, their
qualifying child aged-out while the administrative appeal was pending, so the BIA dismissed the
appeal. Id. at *2. The Eleventh Circuit denied the petition for review, holding that “because
[petitioners’ child] was no longer under 21 at the time the BIA rendered its final decision, the
[p]etitioners were no longer eligible for cancellation of removal.” Id. at *3 (citing Diaz-
Arellano, 120 F.4th at 725-26).
Much the same in Baltazar-Felipe, the petitioner argued that the BIA erred in concluding
that a child who turned twenty-one years old after the IJ’s decision but before the BIA’s could
not be considered in a cancellation of removal analysis. 2023 WL 3961411, at *1. Rejecting
that argument, the Eleventh Circuit recognized that “the plain language of the statute indicates
that the relative must be a child—that is, under 21 years of age and unmarried—when the
hardship of removal occurs, which can only be after the final adjudication of the application for
cancellation of removal;” in that case, the BIA’s decision. Id. at *2.
Cases from other circuits in the reopening context point in the same direction. See, e.g.,
Yupangui-Yunga, 2025 WL 2989588, at *7 (2d Cir. Oct. 24, 2025) (finding that petitioner’s
“removal no longer ‘would result’ in hardship to a qualifying relative” when petitioner’s
daughter turned twenty-one while motion to reopen was pending before BIA); Garcia Hernandez
v. Bondi, No. 23-2006, 2025 WL 2399968, at *1 (9th Cir. Aug. 19, 2025) (finding that “a child
must be under 21 to qualify . . . and [petitioner’s] son was 22 years old when the BIA made its
decision”). As do cases decided after Loper Bright Enters. v. Raimondo, even if they do not
explicitly address deference issues. See Cervantes Mejia v. Bondi, No. 23-1735, 2025 WL
1201391, at *1 (9th Cir. Apr. 25, 2025) (“By the time that the BIA adjudicated [the petitioner’s]

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appeal, his daughter [] was no longer a qualifying relative under 8 U.S.C. §§ 1101(b)(1) and
1229b(b)(1)(D).”); Dominguez-Montoya v. Garland, No. 23-1277, 2024 WL 4224905, at *1 (9th
Cir. Sept. 18, 2024) (“A qualifying relative is required for cancellation of removal . . . and thus
the BIA properly stated that the Petitioner needed to maintain a qualifying relative until the
application [was] finally resolved by an Immigration Judge or the Board. Petitioner’s qualifying
relative—his daughter—turned twenty-one years old during the pendency of the appeal. Given
this, the BIA properly denied Petitioner’s application for cancellation because he no longer had a
qualifying relative.” (citation modified)).
And, although we no longer defer to the BIA, its decisions lend further support. See, e.g.,
Matter of Bautista Gomez, 23 I. & N. Dec. 893, 894 (BIA 2006) (“[W]e find that the issue of
qualifying relatives should properly be considered as of the time an application for cancellation
of removal is finally decided.” (citing Matter of Ortega-Cabrera, 23 I. & N. Dec. 793 (BIA
2005))); see Loper Bright Enters. v. Raimondo, 603 U.S. 369, 394 (2024) (citing Skidmore v.
Swift & Co., 323 U.S. 134 (1944) and recognizing that courts may “seek aid from the
interpretations of those responsible for implementing particular statutes”).
In splitting from that line of authority, the majority and Perez-Perez point to cases
focused on a qualifying child’s age at the time of an IJ’s decision. See, e.g., Rangel-Fuentes
v. Bondi, 155 F.4th 1138, 1144-45 (10th Cir. 2025); Huerta, 2024 WL 2142068, at *2-3;
Diaz-Arellano, 120 F.4th at 725-26; Espinoza-Solorzano v. U.S. Att’y Gen., No. 20-14297, 2021
WL 5095955, at *5 (11th Cir. Nov. 2, 2021); Valerio-Lopez v. Garland, 861 F. App’x 178, 179
(10th Cir. 2021); Araujo-Padilla v. Garland, 854 F. App’x 646, 648 n.1 (6th Cir. 2021); Mendez-
Garcia v. Lynch, 840 F.3d 655, 664 (9th Cir. 2016); Matter of Isidro, 25 I & N Dec. 829, 830-31
(BIA 2012); Crew v. Att’y Gen. of U.S., 396 F. App’x 889, 890-91 (3d Cir. 2010). Yet, in each
of those cases, the petitioners’ children turned twenty-one prior to the IJ’s decision. Rangel-
Fuentes, 155 F.4th at 1141-42; Huerta, 2024 WL 2142068, at *2-3; Diaz-Arellano, 120 F.4th at
724; Espinoza-Solorzano, 2021 WL 5095955, at *1; Valerio-Lopez, 861 F. App’x at 179;
Araujo-Padilla, 854 F. App’x at 648 n.1; Mendez-Garcia, 840 F.3d at 661-62; Matter of Isidro,
25 I & N Dec. at 830; Crew, 396 F. App’x at 890-91. As a result, it was enough for those courts

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to say that a child who turned twenty-one before the IJ’s decision was not a qualifying relative.
In other words, they point to the IJ decision because that is what the facts demanded.
But I do not read those decisions as necessarily fixing a qualifying child’s age at the time
of an IJ’s decision. Instead, each applies the general rule applicable here: a qualifying child’s
age should be continually evaluated until an application for cancellation of removal is finally
adjudicated by the agency. And I am not alone in that reading. Recall, for example, Pina, which
involved a qualifying child aging out while a BIA appeal was pending. 2025 WL 1216719, at
*3. There, the Eleventh Circuit determined that the petitioner’s claim was “squarely
foreclose[d]” by Diaz-Arellano—even though Diaz-Arellano involved a child who aged out prior
to the IJ’s decision. Id.; Yupangui-Yunga, 2025 WL 2989588, at *7 (agreeing with and relying
on Rangel-Fuentes and Diaz-Arellano); Garcia Hernandez, 2025 WL 2399968, at *1 (relying on
Mendez-Garcia). Moreover, even cases keying in on the IJ’s decision employ broader language.
See, e.g., Huerta, 2024 WL 2142068, at *3 (“The statute is thus not ambiguous about whether
[the petitioner’s] daughter is a ‘child’ at the critical point of adjudication.”); Diaz-Arellano,
120 F.4th at 725 (“[T]here must be a child—an unmarried person under the age of twenty-one—
when the final decision on cancellation of removal is made.”). Here, there was no final decision
on cancellation of removal until the BIA adjudicated Perez-Perez’s application. Neither Perez-
Perez nor the majority point to any contrary authority with facts like those we confront here—a
qualifying child aging out during the pendency of a BIA appeal.
To be sure, § 1229b(b)(1)(D) disadvantages applicants like Perez-Perez who lose
qualifying relatives while their cancellation application is being adjudicated. But “the procedural
delay [] had the effect of assuring there will be no exceptional hardship to a qualifying relative.”
Yupangui-Yunga, 2025 WL 2989588, at *7. While that outcome is no doubt harsh, “[t]o the
extent [] § 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,” and I am not convinced the statute’s purpose is undercut when a child ages out while the
BIA considers a cancellation application. Id. at *9. Indeed, “the applicant is really only a
subsidiary beneficiary of the statute’s protections, which are designed to safeguard the child.”
Diaz-Arellano, 120 F.4th at 726 n.4. So, at bottom, when an applicant “only has adult children

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once his removal occurs,” as would be the case here, “that removal does not cause exceptional
hardship to any qualifying child.” Id. at 725-26. If Congress wants to fix the time of a child’s
age at an earlier point, it can. Indeed, Congress “has been explicit when it has intended to adopt
a policy freezing a child’s age for purposes of applying an immigration provision.” Id. at 726
(citing, for example, the Child Status Protection Act of 2002, Pub. L. No. 107-208, 116 Stat.
927). Absent any such limiting language here, I would ask whether an applicant has a qualifying
relative at the time of removal, which cannot occur before an application for cancellation of
removal is finally adjudicated.
Even still, Perez-Perez argues that he should benefit from an equitable exception to the
statute given the length of time it took the BIA to adjudicate his appeal. Pet. Br. at 14-16. But
the BIA never considered this argument and “any issues the Board did not address are not before
the court.” Turcios-Flores v. Garland, 67 F.4th 347, 353 (6th Cir. 2023); Precetaj v. Sessions,
907 F.3d 453, 460 (6th Cir. 2018) (“We are not at liberty to search the law and the record for
reasoning to support the BIA’s decision because a court may not uphold an agency action on
grounds not relied on by the agency.” (citation modified)); Cruz v. Garland, No. 23-6231, 2024
WL 1460131, at *2-3 (2d Cir. Apr. 4, 2024). And my colleagues conclude that a qualifying
child’s age should be fixed at the time of an IJ’s decision. As a result, I leave for another day the
issue of whether undue delay in the adjudication of Perez-Perez’s cancellation application
compels remand. I do question, however, whether § 1229b(b)(1) permits an equitable exception,
even where there is undue delay. See Pina, 2025 WL 1216719, at *3 (“Petitioners have cited no
authority for an equitable exception to the cancellation of removal statute based on an alleged
undue delay in the removal proceedings”); Diaz-Arellano, 120 F.4th at 727 (expressing
skepticism as to the existence of an undue delay exception, noting that petitioner “cite[d] no
authority at all for this exception in the statute’s text”).
The majority seeing things differently, I respectfully dissent.

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