No Equitable Exception to Under-21 Requirement in Cancellation of Removal

Introduction

In Pedro Zarate Piña & Marina Dominguez Gonzalez v. Attorney General of the United States, 24-12590 (11th Cir. Apr. 28, 2025), the Eleventh Circuit clarified that a parent seeking cancellation of removal under 8 U.S.C. § 1229b(b) must have a “qualifying child”—defined in 8 U.S.C. § 1101(b)(1) as an “unmarried person under twenty-one years of age”—at the time the Board of Immigration Appeals (BIA) issues its final order. Petitioners, Mexican nationals removable for unlawful entry, argued that a five-year adjudicatory delay caused their U.S. citizen daughter to age out before the BIA’s decision and that they should nonetheless qualify for relief. The court denied their petition for review, holding that neither statute nor precedent permits an equitable exception to the age requirement.

Summary of the Judgment

The Eleventh Circuit, in a per curiam opinion, affirmed the BIA’s denial of cancellation of removal. Petitioners conceded removability but sought cancellation based on hardship to their then-17-year-old daughter. While their case progressed, the daughter turned 21, and the BIA dismissed their appeal as moot under Matter of Isidro-Zamorano, 25 I. & N. Dec. 829, 831 (BIA 2012), because she no longer met the statutory definition of a “child.” The petitioners urged an equitable exception for undue delay; the Eleventh Circuit declined, finding no statutory basis and noting that delays were self-inflicted when petitioners opted for a “non-expedited” track and failed to object to docket removal. Citing its recent decision in Diaz-Arellano v. U.S. Attorney General, 120 F.4th 722 (11th Cir. 2024), the court held unequivocally 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.”

Analysis

Precedents Cited

8 U.S.C. § 1229b(b)(1) & 8 U.S.C. § 1101(b)(1): The statutory framework for cancellation of removal requires, inter alia, a qualifying dependent (spouse, parent, or child). A “child” must be under 21.
Matter of Isidro-Zamorano (BIA 2012): Held that a child who turns 21 before adjudication is no longer a qualifying relative. The BIA applied this rule to dismiss Petitioners’ appeal.
Diaz-Arellano v. U.S. Att’y Gen., 120 F.4th 722 (11th Cir. 2024): The Eleventh Circuit interpreted § 1229b(b)(1)(D), concluding that a biologically qualifying child must still be under 21 at the time of final decision. It also rejected any implied equitable exception for adjudicative delays, especially when delays resulted from the applicant’s choices.
Loper Bright Ents. v. Raimondo, 603 U.S. 369 (2024): Overruled Chevron deference, prompting the Eleventh Circuit to apply its own “independent judgment” to BIA statutory interpretations such as Matter of Isidro-Zamorano.
Ponce Flores v. U.S. Att’y Gen., 64 F.4th 1208 (11th Cir. 2023): Confirms that courts do not review issues the BIA did not reach.

Legal Reasoning

The court’s reasoning rested on a straightforward statutory interpretation and application of its binding decision in Diaz-Arellano. First, the statutory text is unambiguous: a “child” must be under 21 at the time the BIA issues its final order. Nothing in the statute contemplates preserving eligibility based on the child’s age at the time of the initial application or service of the Notice to Appear (NTA).

Second, the court rejected the petitioners’ plea for an equitable remedy grounded in due-process or undue-delay concerns. Petitioners had expressly declined an expedited docket, waited over four years for BIA consideration, and did not challenge the BIA’s removal of their case from the active docket, even though they knew their daughter was approaching 21. Drawing on Diaz-Arellano, the court reasoned that delays caused by the alien’s strategic or procedural choices cannot give rise to an equitable exception to a clear statutory requirement.

Impact

This decision shores up the Eleventh Circuit’s firm stance that statutory eligibility criteria for cancellation of removal are jurisdictional and non-waivable. Practitioners should advise clients promptly to:

Monitor a qualifying child’s age relative to key adjudicative milestones,
Seek expedited proceedings when aging-out is imminent, and
Object to any removal from active BIA dockets if a child dependent’s status is in flux.

More broadly, courts in the Eleventh Circuit are unlikely to entertain equitable exceptions to mandatory age or relationship requirements in immigration relief statutes when delays are attributable—at least in part—to the parties.

Complex Concepts Simplified

Cancellation of Removal: Discretionary relief allowing certain deportable noncitizens to become lawful permanent residents if they demonstrate extreme hardship to qualifying relatives.
Qualifying Child: Under immigration law, an unmarried child under 21 who is a U.S. citizen or lawful permanent resident.
Aging-Out: When a dependent child turns 21 and thus loses the statutory status that qualifies them as a beneficiary for certain relief.
Non-Expedited Docket: A slower track for removal proceedings; applicants may choose this to pursue multiple forms of relief but risk delays.
BIA Recalendaring: The BIA’s process of restoring a case to its active docket after it has been administratively set aside or removed.

Conclusion

The Eleventh Circuit’s decision in Pedro Zarate Piña v. Attorney General reinforces that the statutory under-21 requirement for cancellation of removal is absolute and must be satisfied at the moment the BIA issues its final order. No equitable or due-process exception will preserve eligibility when a child ages out, particularly where delays are attributable to the applicant’s procedural choices. This ruling underscores the importance of strategic docket management and early remedies for families facing removal whose relief hinges on the age of a dependent.