Fixing “Child” Status at the Immigration Judge’s Decision: The Sixth Circuit’s Post‑Loper Bright Approach to INA § 1229b(b)(1)(D) in Perez‑Perez v. Bondi

Fixing “Child” Status at the Immigration Judge’s Decision: The Sixth Circuit’s Post‑Loper Bright Approach to INA § 1229b(b)(1)(D) in Perez‑Perez v. Bondi

I. Introduction

In Roderico Filadelfo Perez‑Perez v. Pamela Bondi, No. 25‑3146 (6th Cir. Nov. 21, 2025), the Sixth Circuit addressed a question of first impression in the circuit, and one that is increasingly dividing the courts of appeals: at what point in the cancellation‑of‑removal process must a qualifying “child” under the Immigration and Nationality Act (INA) still be under 21 years old?

The answer determines whether non‑permanent residents can retain eligibility for relief when their children “age out” while appeals are pending. Against the backdrop of the Supreme Court’s recent rejection of Chevron deference in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), the Sixth Circuit held that the relevant time to measure the age of the qualifying child is when the Immigration Judge (IJ) issues his or her decision, not when the Board of Immigration Appeals (BIA) resolves an appeal.

The majority opinion, authored by Judge Julia Smith Gibbons and joined by Judge Ritz, grants the petition, reverses the BIA, and reinstates the IJ’s grant of cancellation. Judge McKeague dissents, arguing that the child’s age should be measured at the time of the final administrative decision—here, the BIA’s decision—because “removal” and the associated hardship occur only after cancellation has been finally adjudicated.

The decision has significant implications for:

  • Noncitizens seeking cancellation of removal based on hardship to qualifying children;
  • How courts interpret the INA in a post‑Chevron, post‑Loper Bright world; and
  • The growing circuit split on the “age‑out” problem under INA § 240A(b)(1)(D), 8 U.S.C. § 1229b(b)(1)(D).

II. Background and Procedural History

A. Factual Background

Roderico Filadelfo Perez‑Perez, a native of Guatemala, entered the United States without inspection in December 1994 and settled in Detroit, Michigan. He has three children with his ex‑wife: Alex, Talita, and Ady. His youngest, Ady Perez‑Velasquez, is a U.S. citizen and was 17 years old at the time of his April 2020 removal hearing.

In August 2019, Perez‑Perez was arrested for driving under the influence (DUI) after striking a police vehicle. He pled guilty and received twelve months’ probation. In December 2019, Immigration and Customs Enforcement (ICE) detained him and initiated removal proceedings.

At his initial removal hearing in January 2020, represented by counsel, he conceded removability and announced his intent to seek cancellation of removal under 8 U.S.C. § 1229b(b)(1), naming his daughter Ady as the qualifying “child” under § 1229b(b)(1)(D).

B. The IJ’s Grant of Cancellation (2020)

On April 24, 2020, IJ Jennifer M. Gorland granted cancellation of removal. At that time:

  • Ady was 17 and plainly a “child” under 8 U.S.C. § 1101(b)(1) (“an unmarried person under twenty‑one years of age”).
  • The IJ found:
    • Continuous presence for at least 10 years;
    • Good moral character;
    • No disqualifying convictions despite the DUI; and
    • That removal would result in “exceptional and extremely unusual hardship” to Ady.

DHS filed a timely appeal to the BIA on May 19, 2020, challenging only the IJ’s hardship determination. It did not dispute that Ady was a qualifying child at that time.

C. Delay at the BIA and Ady’s “Aging Out”

The BIA did not issue a briefing schedule until January 1, 2022, and did not decide the appeal until February 21, 2025. By that time Ady was over 21.

Rather than reach DHS’s challenge to the hardship finding, the BIA decided the appeal solely on the ground that Ady was no longer a “child” because she was over 21 at the time of its decision. It therefore vacated the IJ’s grant of cancellation and ordered Perez‑Perez removed to Guatemala.

D. Appeal to the Sixth Circuit

Perez‑Perez petitioned the Sixth Circuit for review, arguing that:

  • The BIA applied the wrong legal standard by looking to Ady’s age at the time of the BIA decision instead of the IJ’s decision (or, in the alternative, the close of the administrative record).
  • The long BIA delay unfairly caused his daughter to “age out.”

The government conceded that its appeal to the BIA had not raised Ady’s status as a qualifying child, and that the BIA sua sponte relied on her age at the time of its own decision. The Sixth Circuit granted a stay of removal pending review, noting that it was at least “reasonable” to treat the IJ’s decision as the relevant time to measure a child’s age.

III. Summary of the Court’s Decision

A. Jurisdiction and Standard of Review

Although 8 U.S.C. § 1252(a)(2)(B)(i) generally bars judicial review of the discretionary aspects of cancellation of removal under § 1229b, § 1252(a)(2)(D) preserves jurisdiction over “constitutional claims or questions of law” in petitions for review. Here, the timing question—when to measure the age of the child—is a pure legal question.

Accordingly:

  • The Sixth Circuit reviewed the BIA’s legal interpretation de novo.
  • Because the BIA issued its own opinion (rather than adopting the IJ’s), the court reviewed the BIA decision as the “final agency determination.”

B. Holding

The majority holds:

“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 Immigration Judge renders its decision.”

Because Ady was under 21 when the IJ granted cancellation in 2020, the BIA erred in deeming her non‑qualifying based on her age at the time of the BIA’s 2025 decision. The court:

  • Grants the petition for review; and
  • Reverses the BIA’s order of removal.

The court expressly declines to decide whether there exists any “undue or unfair delay” exception for cases where a child ages out during protracted administrative review, noting that:

  • Its statutory holding makes that issue unnecessary in this case; and
  • The BIA had not addressed the undue delay issue, so there was no agency determination on that question for the court to review.

C. The Dissent

Judge McKeague dissents. He agrees that the statute requires a qualifying child at the time of “removal,” but:

  • Reads “removal” to refer to the point at which the application is finally adjudicated by the agency.
  • Concludes that in appealed cases, that final administrative decision is the BIA’s decision.
  • Therefore finds that because Ady was no longer under 21 when the BIA decided the case, Perez‑Perez no longer satisfied § 1229b(b)(1)(D).

The dissent relies heavily on neighboring INA provisions that define when removal orders become final, and on a growing body of case law from other circuits that treats the qualifying‑relative requirement as “continuing” through the final administrative adjudication.

IV. Statutory Framework

A. Cancellation of Removal for Non‑Permanent Residents

Under 8 U.S.C. § 1229b(b)(1), the Attorney General may cancel removal of certain non‑permanent residents if they prove:

  1. Continuous physical presence in the United States for at least 10 years;
  2. Good moral character during that period;
  3. No disqualifying convictions (certain criminal offenses bar eligibility); and
  4. “Exceptional and extremely unusual hardship” to a qualifying U.S. citizen or lawful permanent resident spouse, parent, or child if the applicant is removed.

The “qualifying relative” requirement in § 1229b(b)(1)(D) is the central provision in this case.

B. Definition of “Child”

The INA defines “child” for these purposes in 8 U.S.C. § 1101(b)(1) as:

“an unmarried person under twenty-one years of age.”

Thus, a qualifying relative under § 1229b(b)(1)(D) must:

  • Be a U.S. citizen or LPR; and
  • Fit the statutory definition of “child,” which hinges on age and marital status.

The opinion assumes Ady meets all other aspects of the definition; the only dispute is when her age must satisfy the “under 21” requirement.

C. Jurisdiction over Legal Questions in Cancellation Cases

Although judicial review of discretionary cancellation decisions is generally barred by § 1252(a)(2)(B)(i), § 1252(a)(2)(D) explicitly preserves review for:

“constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals.”

Here, the question “when do we measure the age of the qualifying child?” is a paradigmatic question of statutory interpretation, and thus squarely within the court’s jurisdiction.

V. Detailed Analysis

A. The Core Legal Question

All parties agreed that, to qualify for cancellation based on hardship to a “child,” a noncitizen must show that removal would result in exceptional hardship to someone who is, at the relevant time, a “child” under § 1101(b)(1). The dispute is purely temporal:

  • Petitioner’s position: The relevant time is either:
    • When the IJ renders the decision; or
    • When the administrative record closes (typically, the end of the merits hearing).
  • DHS’s/BIA’s position: The relevant time is when the BIA issues its decision (i.e., the final administrative decision).

This issue is particularly important where, as here, there are lengthy administrative delays, and a child may turn 21 during the pendency of appeals.

B. The Majority’s Textual and Structural Reasoning

1. Plain Meaning and Present‑Tense Evaluation

The majority starts with the text of § 1229b(b)(1)(D):

The noncitizen must “establish[] that removal would result in exceptional and extremely unusual hardship to the [noncitizen’s] . . . child, who is a citizen of the United States.” (emphasis added).

Key features:

  • “Establishes” is present‑tense, directed at the time of adjudication.
  • “Would result” asks the IJ to assess prospective hardship based on present facts.
  • “Child, who is a citizen” describes the current status of the qualifying relative.

From this, the majority draws the conclusion that the statute contemplates a present‑tense evaluation by the IJ, meaning:

  • At the time the IJ decides the case, the noncitizen must show that removal would cause hardship to a person who is then a “child” as defined in § 1101(b)(1).
  • This is the “critical point of adjudication,” a phrase the panel borrows from its own unpublished decision in Huerta v. Garland, No. 23‑3361, 2024 WL 2142068 (6th Cir. Feb. 8, 2024).

2. Harmonizing with Prior Sixth Circuit Authority

The majority relies on several prior Sixth Circuit decisions:

  • Huerta v. Garland, 2024 WL 2142068 (6th Cir. 2024)
    • Held that a child who turned 21 before the IJ adjudicated cancellation no longer qualified.
    • Described the IJ’s decision as the “critical point of adjudication.”
    • Judge Nalbandian’s concurrence explicitly stated that “removal takes effect when the immigration judge decides the case.”
  • Araujo‑Padilla v. Garland, 854 F. App’x 646 (6th Cir. 2021)
    • Noted in a footnote that “only [Petitioner’s] children who were under twenty‑one at the time [of his removal hearing] counted as qualifying relatives.”

Although Huerta did not definitively resolve whether “removal” occurs at the IJ decision or at physical removal, the holding that a child who aged out before the IJ’s decision was no longer qualifying implies that the child’s age must be assessed no later than the IJ’s adjudication.

3. Statutory Coherence and Avoiding Surplusage

Citing Keeley v. Whitaker, 910 F.3d 878 (6th Cir. 2018), the majority emphasizes that statutes must be read as coherent wholes, giving effect to each word and avoiding interpretations that create inconsistency or surplusage.

On this view:

  • Reading § 1229b(b)(1)(D) to require that the child be under 21 at the BIA’s decision would effectively treat the IJ’s hardship inquiry as provisional and unstable, despite the statute focusing on what the applicant “establishes” before the IJ.
  • It would also give undue weight to appellate delay—which the statute does not mention—as a factor in extinguishing relief even after it has been properly established at the trial‑like hearing stage.

C. The Post‑Loper Bright Landscape: No Chevron Deference to the BIA

Historically, courts often deferred to the BIA’s reasonable interpretation of ambiguous INA provisions under Chevron. In the cancellation context, multiple circuits had expressly applied Chevron to BIA interpretations of § 1229b(b)(1)(D).

Key background:

  • Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) required judicial deference to reasonable agency interpretations of ambiguous statutes they administer.
  • Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024) overruled Chevron, holding that “agencies have no special competence in resolving statutory ambiguities. Courts do.”

In this case, the majority leverages Loper Bright in an important way:

  • It refuses to defer to the BIA’s prior interpretations of § 1229b(b)(1)(D).
  • It notes that § 1229b(b)(1)(D) does not contain any explicit “vesting” or delegation language giving the BIA special interpretive authority.
  • It cites Moctezuma‑Reyes v. Garland, 124 F.4th 416 (6th Cir. 2024), which rejected BIA deference under the same cancellation provision post‑Loper Bright.

The court recognizes that BIA decisions may still have persuasive force (a nod to Skidmore‑type deference), but only to the extent their reasoning is convincing. Here, the BIA’s approach—treating the application as “continuing” until the BIA’s decision and measuring age at that point—does not persuade the majority in light of the statutory text and prior circuit precedent.

D. Precedents Cited and How They Shape the Court’s Reasoning

1. Sixth Circuit and Supreme Court Cases on Statutory Interpretation

  • Esquivel‑Quintana v. Sessions, 581 U.S. 385 (2017)
    • The Supreme Court interpreted the INA’s “sexual abuse of a minor” aggravated felony definition, emphasizing close textual analysis in immigration statutes.
    • Here it is cited as a model for careful, text‑based interpretation of INA provisions.
  • Riley v. Bondi, 606 U.S. 259 (2025)
    • Cited for refusing to extend statutory deadlines in immigration review absent clear textual support, reinforcing the primacy of statutory text.
  • Lockhart v. Napolitano, 573 F.3d 251 (6th Cir. 2009)
    • Provides the methodology: look first to text, then, if needed, legislative history.
  • Huerta v. Garland (6th Cir. 2024, unpublished)
    • Directly addresses age‑out issues under § 1229b(b)(1)(D) and treats the IJ’s decision as the critical adjudicative point.

2. BIA Precedent on “Continuing” Applications and Qualifying Relationships

  • Matter of Isidro‑Zamorano, 25 I. & N. Dec. 829 (BIA 2012)
    • Held that an applicant who “loses his qualifying relationship before his application is even adjudicated on its merits by the Immigration Judge” cannot retain eligibility.
    • Confirmed that while cancellation is a “continuing” application, the relevant forward‑looking inquiry ends at the IJ’s decision.
    • Supports the majority’s IJ‑centric timing rule.
  • Matter of Portillo‑Gutierrez, 25 I. & N. Dec. 148 (BIA 2009)
    • Likewise indicates that “child” status is assessed when the IJ adjudicates the cancellation application.
  • Matter of Bautista Gomez, 23 I. & N. Dec. 893 (BIA 2006)
    • Held that a qualifying relationship can sometimes be gained later—e.g., when a family member becomes a qualifying relative after the IJ decision.
    • Here, the majority finds it inapposite because it dealt with becoming eligible later (gaining a qualifying relative) rather than losing eligibility (child aging out).

The majority emphasizes that Bautista Gomez addressed a distinct question (acquisition of eligibility via motion to reopen), so it should not control cases where eligibility is lost after the IJ’s merits decision.

3. Other Circuits Aligning with the IJ‑Time Rule

The majority also cites decisions from other circuits that, in its reading, support measuring the child’s age at the IJ’s decision, including:

  • Espinoza‑Solorzano v. U.S. Att’y Gen., 2021 WL 5095955 (11th Cir. Nov. 2, 2021)
    • Unpublished; concluded that the qualifying child must be under 21 when the IJ adjudicates the cancellation application.
  • Mendez‑Garcia v. Lynch (cited in opinion as Mendez‑Garcia v. Gonzales), 840 F.3d 655 (9th Cir. 2016)
    • Held that the child must be under 21 at the time of the IJ’s adjudication.
  • Crew v. Att’y Gen. of U.S., 396 F. App’x 889 (3d Cir. 2010)
    • Held that a 35‑year‑old daughter at the time of the IJ hearing was not a “child” under the statute.
  • Valerio‑Lopez v. Garland, 861 F. App’x 178 (10th Cir. 2021)
    • Accepted the IJ’s conclusion that children who turned 21 before the IJ hearing were not qualifying relatives.
  • Gonzalez‑Juarez v. Bondi, 137 F.4th 996 (9th Cir. 2025)
    • Held that children qualified because they were under 21 when the IJ issued its decision.
  • Rangel‑Fuentes v. Bondi, 155 F.4th 1138 (10th Cir. 2025)
    • On rehearing after Loper Bright, held that § 1229b(b)(1)(D) “contemplates assessing a qualifying child’s age when the immigration judge issues a decision.”

These authorities are marshalled to show that, at least in the cancellation‑of‑removal setting, there is substantial support—across circuits and at the BIA—for treating the IJ’s decision date as the proper reference point for a child’s age.

4. Distinguishing Cases That Measure Age at the BIA’s Decision

The majority acknowledges contrary authority but seeks to limit its reach:

  • Pina v. U.S. Att’y Gen., 2025 WL 1216719 (11th Cir. Apr. 28, 2025)
    • Held that because the petitioners’ child was over 21 when the BIA issued its decision, they were no longer eligible.
    • Relied on Diaz‑Arellano v. U.S. Att’y Gen., 120 F.4th 722 (11th Cir. 2024), which the majority reads as focused on the IJ’s decision.
  • Baltazar‑Felipe v. U.S. Att’y Gen., 2023 WL 3961411 (11th Cir. June 13, 2023)
  • Garcia Hernandez v. Bondi, 2025 WL 2399968 (9th Cir. Aug. 19, 2025)
    • Involved a motion to reopen, not an initial cancellation adjudication; the majority treats that procedural posture as materially different.

In short, the majority sees the contrary cases either as:

  • Factually distinguishable (e.g., motions to reopen rather than original cancellation decisions), or
  • Based on legal analysis that conflicts with what the majority views as the statute’s plain meaning and with post‑Loper Bright interpretive methodology.

E. The Dissent’s Competing Interpretation

1. Textual Focus on “Removal” and “Hardship”

The dissent accepts that the question is governed by § 1229b(b)(1)(D)’s text—specifically, the requirement that the applicant “establishes that removal would result in exceptional and extremely unusual hardship to [his] . . . child.”

From this, Judge McKeague reasons:

  • The statute deals with “facts on the ground at the time of removal,” not at some earlier stage;
  • Hardship is defined as hardship that “would result” upon removal, not at the time of the IJ’s hearing; and therefore
  • We must ask whether, when removal occurs, there is a “child”—an unmarried person under 21—to whom that hardship will accrue.

He endorses the Eleventh Circuit’s formulation in Diaz‑Arellano:

“When an applicant is proceeding based on exceptional hardship to a child, there must be a child—an unmarried person under the age of twenty‑one—when the final decision on cancellation of removal is made.”

2. Final Administrative Decision as the Relevant Time

To identify when “removal” and its associated hardships are properly evaluated, the dissent invokes neighboring INA provisions:

  • 8 U.S.C. § 1101(a)(47)(B)
    • Defines when an order of deportation or removal becomes “final”:
      • Upon BIA affirmance; or
      • Upon expiration of time to seek BIA review.
  • 8 U.S.C. § 1231(a)(1)(B)
    • States that the “removal period” (the time within which the government must execute removal) begins when the removal order becomes administratively final.

From these provisions, the dissent concludes:

  • There is no “removal” (or removal period) until the order is administratively final.
  • In appealed cases, the BIA’s decision is what makes the order administratively final.
  • Therefore, the appropriate time to measure both hardship and the child’s status is when the BIA issues its final administrative decision.

He acknowledges that in unappealed or waived‑appeal cases, the IJ’s decision would be the final administrative action, so in that set of cases there would be no disparity between the majority and his reading.

3. Case Law Supporting a “Continuing Qualification” Requirement

The dissent marshals several decisions that treat the qualifying relative requirement as continuing until final resolution:

  • Pina v. U.S. Att’y Gen., 2025 WL 1216719 (11th Cir. 2025)
  • Baltazar‑Felipe v. U.S. Att’y Gen., 2023 WL 3961411 (11th Cir. 2023)
  • Dominguez‑Montoya v. Garland, 2024 WL 4224905 (9th Cir. 2024)
    • Upheld BIA’s determination that because the child turned 21 during the pendency of the appeal, the applicant no longer had a qualifying relative by the time of the final decision.
  • Cervantes Mejia v. Bondi, 2025 WL 1201391 (9th Cir. 2025)
  • Yupangui‑Yunga v. Bondi, 2025 WL 2989588 (2d Cir. 2025)
    • In a motion‑to‑reopen context, held that once the daughter turned 21, removal no longer “would result” in hardship to a qualifying relative.
  • Garcia Hernandez v. Bondi, 2025 WL 2399968 (9th Cir. 2025)

He argues that earlier cases cited by the majority—where children aged out before the IJ decision—do not resolve the question present here (age‑out during BIA appeal), because:

  • They simply say a child who is over 21 by the time the IJ decides the case is not qualifying.
  • They do not purport to fix the relevant time at the IJ decision for cases in which the child remains under 21 at that point but ages out later.

4. Statutory Purpose and Harsh Results

The majority references legislative history indicating that Congress sought “liberal treatment of children” and family unity. The dissent does not deny the harshness of the result for applicants like Perez‑Perez, but emphasizes:

  • The statute protects children, not adult offspring.
  • Once all children are adults at the time of removal, there is no qualifying minor child to protect.
  • The applicant is “really only a subsidiary beneficiary”; Congress could have frozen age, as it did in the Child Status Protection Act (CSPA), but did not.

Therefore, while delays may be regrettable, they simply “had the effect of assuring there will be no exceptional hardship to a qualifying relative” by the time removal occurs, which is consistent, not inconsistent, with the statutory design.

5. Skepticism about Any Equitable “Undue Delay” Exception

The dissent notes that Perez‑Perez raised an equitable “undue delay” argument, but:

  • The BIA never addressed it;
  • The court cannot affirm or reject agency decisions on grounds not invoked by the agency; and
  • He doubts whether the statute admits of such an equitable exception at all, citing Eleventh Circuit authority that found no textual basis for such an exception.

F. The Unresolved “Undue Delay” Question

Both majority and dissent mention, but do not decide, whether an “undue delay” exception might exist where BIA processing times alone cause a child to age out. The majority explicitly declines to reach this question because:

  • Its legal holding (measuring age at IJ decision) already resolves the case; and
  • The BIA made no findings on delay, so there is nothing for the court to review on that ground.

This leaves for future cases the possibility that courts or the BIA might:

  • Recognize an equitable doctrine to protect applicants from agency‑caused aging out; or
  • Reject such a doctrine as inconsistent with the text of § 1229b(b)(1).

VI. Simplifying Key Legal Concepts

A. What is Cancellation of Removal?

Cancellation of removal is a form of discretionary relief that allows certain non‑permanent residents to avoid deportation and obtain lawful status if they meet stringent requirements (10 years’ presence, good moral character, no disqualifying crimes, and extreme hardship to specific relatives).

Think of it as a last‑chance remedy: even if someone is removable (e.g., for unlawful entry), the Attorney General can “cancel” that removal if the consequences for qualifying family members would be extraordinarily severe.

B. Who Counts as a “Child” Under the INA?

For many immigration benefits (including cancellation), “child” is a term of art. Under 8 U.S.C. § 1101(b)(1), it means:

  • Unmarried; and
  • Under 21 years old.

Once a person turns 21, they are no longer a “child” for these purposes—even if they are the applicant’s biological son or daughter.

C. What Does “Age Out” Mean?

To “age out” means to lose eligibility for an immigration benefit because the person crosses an age threshold, here turning 21. In the cancellation context, if the only qualifying relative is a child, and that child turns 21 at the wrong time, the parent may lose eligibility.

Congress sometimes “freezes” age for certain programs (for example, under the Child Status Protection Act), but it did not do so explicitly in § 1229b(b)(1)(D).

D. What Did Loper Bright Change?

Before 2024, courts often deferred to reasonable agency interpretations of ambiguous statutes under the Chevron doctrine. For the BIA, this frequently meant that if the statutory text of the INA was not crystal clear, courts would accept the BIA’s reading as long as it was reasonable.

In Loper Bright, the Supreme Court:

  • Overruled Chevron; and
  • Reaffirmed that courts, not agencies, have the final responsibility to interpret statutes.

Now, the BIA’s interpretations are no longer binding simply because they are reasonable; they are persuasive only to the extent their reasoning is convincing under traditional tools of statutory construction.

E. What is a “Final Order of Removal”?

A removal order becomes “final” when:

  • The BIA affirms the IJ; or
  • The time to appeal to the BIA expires and no appeal is taken.

This “administrative finality” is what triggers the government’s duty to remove the noncitizen within a certain period, and it is also relevant to timing‑related questions such as those in this case.

F. Why Does the Timing Question Matter So Much?

Because cancellation is a one‑shot, highly discretionary remedy, and because many noncitizens rely on their minor children as qualifying relatives:

  • If child’s age is measured at the IJ decision, aging out on appeal does not destroy eligibility.
  • If age is measured at the BIA decision, multi‑year appeals can easily wipe out relief even after an initial grant, solely due to administrative delay.

Thus, the court’s choice of timing rule effectively determines whether families can rely on timely IJ victories, or whether their relief remains precarious throughout the appellate process.

VII. Impact and Practical Implications

A. Impact on Noncitizens in the Sixth Circuit

For noncitizens within the Sixth Circuit (Michigan, Ohio, Kentucky, Tennessee), the decision provides a significant measure of protection against “aging out” during appeal:

  • If the applicant’s child is under 21 when the IJ grants cancellation, the child’s subsequent turning 21 during BIA or court of appeals proceedings does not, by itself, destroy eligibility.
  • Family‑unity interests are strengthened because a favorable IJ cancellation grant is not so easily undone by post‑decision delays.

However, applicants still face risk if:

  • The child turns 21 before the IJ hearing or decision; or
  • The IJ denies cancellation and the applicant tries to rely on a child who turns 21 before a remand or reopening.

B. Impact on DHS and the BIA

The decision constrains the BIA’s ability, in the Sixth Circuit, to deny or revoke cancellation grants on the basis of age‑out events occurring after the IJ’s decision:

  • The BIA must treat the qualifying‑relative determination as effectively fixed at the IJ decision date in initial cancellation adjudications.
  • DHS will need to litigate eligibility issues—at least as to “child” status—before the IJ, rather than holding them in reserve for appeal.

C. Contribution to an Emerging Circuit Split

The opinion deepens a growing divergence among circuits:

  • IJ‑time rule: Sixth Circuit (Perez‑Perez, Huerta), Tenth Circuit (Rangel‑Fuentes after rehearing), Ninth Circuit (Mendez‑Garcia), and others recognize the IJ decision as the key moment for age assessment in cancellation cases.
  • Final‑BIA‑decision rule / continuing requirement: Eleventh Circuit (Diaz‑Arellano, Baltazar‑Felipe, Pina), Ninth and Second Circuits in reopening contexts (Garcia Hernandez, Yupangui‑Yunga), and several BIA decisions emphasize continued qualification through final adjudication.

Given:

  • The recurring nature of age‑out issues;
  • The differences in how circuits treat timing and “continuing” eligibility; and
  • The new post‑Loper Bright interpretive landscape,

this is a strong candidate issue for eventual Supreme Court resolution.

D. Litigation Strategy Going Forward

For practitioners in the Sixth Circuit:

  • Develop the child‑based hardship record aggressively at the IJ level.
    • The IJ decision now definitively fixes child status, so the focus must be on building the best possible record then.
  • Track the child’s age relative to the IJ hearing.
    • If a child is close to 21, counsel may push for accelerated proceedings or argue against continuances that might push the decision date past the 21st birthday.
  • Consider alternative qualifying relatives.
    • Where possible, identify qualifying spouses or parents who will not “age out.”

In other circuits:

  • Counsel should be alert to prevailing circuit law. In jurisdictions that follow the final‑BIA‑decision rule, delays remain dangerous, and equitable or constitutional arguments may be the only recourse.

E. Broader Implications for Immigration Law Post‑Loper Bright

The decision exemplifies a broader trend in immigration law:

  • Courts are no longer automatically deferring to BIA interpretations of ambiguous INA provisions. Instead, they are engaging in more independent textual analysis.
  • Longstanding BIA doctrines, such as the “continuing” nature of certain applications, are subject to closer scrutiny. Courts may accept or reject them based on their own reading of statutory text and structure, rather than Chevron.

As a result, we can expect:

  • More circuit‑to‑circuit variation until the Supreme Court or Congress resolves key interpretive questions; and
  • A greater emphasis on careful statutory drafting by Congress, as courts will not easily infer “freezing” or “continuing qualification” doctrines in the absence of clear statutory language.

VIII. Conclusion

Perez‑Perez v. Bondi establishes a significant new rule in the Sixth Circuit: for cancellation of removal under 8 U.S.C. § 1229b(b)(1)(D), the age of a qualifying “child” is fixed at the time the Immigration Judge renders the decision on the application. If the child is under 21 at that moment, subsequent aging out during BIA or judicial review does not strip the applicant of eligibility.

This holding:

  • Aligns the Sixth Circuit with a line of decisions (including Huerta, Araujo‑Padilla, Rangel‑Fuentes, and several BIA cases) that focus on the IJ decision as the critical adjudication point;
  • Rejects BIA interpretations that push the qualifying‑child determination to the time of the BIA’s final decision; and
  • Illustrates the tangible consequences of Loper Bright for immigration law, as courts now interpret the INA without Chevron deference.

The dissent, by contrast, highlights a text‑driven and structurally grounded argument that the relevant time for evaluating hardship and child status should be the final administrative adjudication, and that harsh age‑out outcomes are a function of Congress’s policy choices rather than agency or judicial discretion.

Going forward, practitioners and courts must navigate not only the immediate implications of Perez‑Perez within the Sixth Circuit, but also the broader and still‑unsettled national landscape regarding age‑out issues in cancellation cases. Until Congress speaks more clearly or the Supreme Court resolves the emerging split, the timing of a child’s 21st birthday—and the timing of IJ decisions—will continue to play a decisive role in the fate of many families in removal proceedings.

Case Details

Year: 2025
Court: Court of Appeals for the Sixth Circuit

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