Third Circuit: “Is or Was” in Special-Rule (Battered Child) Cancellation Turns on Abuser’s Status by Adjudication, Not at Time of Abuse

1. Introduction

In Samuel Cardenas v. Attorney General United States of America (3d Cir. Mar. 31, 2026), the Third Circuit reviewed a Board of Immigration Appeals (“BIA”) decision affirming an Immigration Judge’s (“IJ”) denial of two forms of relief from removal: (1) special rule cancellation for battered children under 8 U.S.C. § 1229b(b)(2)(A)(i)(II), and (2) non-LPR cancellation of removal under 8 U.S.C. § 1229b(b)(1).

The petitioner, Samuel Cardenas, entered the United States without authorization as a teenager and alleged severe abuse by his stepfather, Francisco Escolastico, who later became an LPR (and possibly a citizen). The agency denied special rule cancellation based on the BIA’s precedent Matter of L-L-P-, 28 I. & N. Dec. 241 (BIA 2021), reasoning that the abuser must have been an LPR at the time of the abuse. The agency also denied non-LPR cancellation, concluding Cardenas failed to show his mother would suffer “exceptional and extremely unusual hardship” if he were removed.

The Third Circuit’s key legal issue on special rule cancellation was purely interpretive: whether the statutory phrase “parent who is or was” an LPR/citizen ties the abuser’s immigration status to the time of abuse or instead allows eligibility where the abuser obtains LPR/citizenship status after the abuse but before adjudication of the relief application.

2. Summary of the Opinion

  • Special rule cancellation: The Court granted the petition in part and rejected the BIA’s reading in Matter of L-L-P-. It held that the plain text of 8 U.S.C. § 1229b(b)(2)(A)(i)(II) covers applicants abused by a parent/stepparent who is or was an LPR (or citizen) at some point up to adjudication, even if the abuser lacked that status at the time of the abuse. The Court remanded for the agency to consider the remaining statutory requirements and discretionary factors.
  • Non-LPR cancellation (hardship): The Court denied the petition in part, holding that substantial evidence supported the agency’s conclusion that the petitioner did not prove the requisite “exceptional and extremely unusual hardship” to his mother under 8 U.S.C. § 1229b(b)(1)(D).

3. Analysis

3.1. Precedents Cited

A. Standards of review and agency decision framing

  • Nelson v. Att'y Gen., 685 F.3d 318 (3d Cir. 2012) and Chavarria v. Gonzalez, 446 F.3d 508 (3d Cir. 2006): The Court used these cases to define what it reviews as the “final agency decision” (the BIA’s decision) and when it also looks to the IJ’s reasoning (where adopted or deferred to).
  • Sesay v. Att'y Gen., 787 F.3d 215 (3d Cir. 2015): Cited for de novo review of the BIA’s legal determinations, which was central to the statutory-interpretation question about “is or was.”

B. Textualism and grammar-based interpretation

  • Jimenez v. Quarterman, 555 U.S. 113 (2009): Invoked for the basic proposition that statutory interpretation begins with the statute’s plain language.
  • Bostock v. Clayton County, 590 U.S. 644 (2020): Provided the Court’s anchor principle: when statutory meaning is plain, the inquiry ends, and courts should not override text with “extratextual” considerations. This directly undercut the BIA’s resort to perceived ambiguity and legislative history.
  • Abdul-Akbar v. McKelvie, 239 F.3d 307 (3d Cir. 2001) (en banc) and 1 U.S.C. § 1: Used to support the canon that present tense can include the future unless context indicates otherwise—supporting the Court’s conclusion that “is” is not limited to the historical moment of abuse.
  • United States v. Atiyeh, 402 F.3d 354 (3d Cir. 2005): Cited for the ordinary meaning of “was” as past tense, reinforcing that “is or was” spans time rather than fixing status at a single historical point.
  • Nielsen v. Preap, 586 U.S. 392 (2019): Quoted for the interpretive rule that “rules of grammar govern” unless they contradict legislative intent or purpose; the Court used this to criticize the BIA’s treatment of “is” as though it could mean “was.”
  • Duncan v. Walker, 533 U.S. 167 (2001): Cited for the anti-surplusage principle (“give effect” to every word), deployed to argue that the BIA’s approach made “or was” superfluous.

C. Present perfect tense and timing of abuse

  • Mejia-Castanon v. Att'y Gen., 931 F.3d 224 (3d Cir. 2019): Used (via a grammar citation) to explain the present perfect (“has been”) can describe actions that are completed or continuing up to the present, supporting the Court’s clarification (in footnote) that past abuse can qualify even if not ongoing.
  • Hewitt v. United States, 606 U.S. 419 (2025): Cited for discussion of present-perfect tense; it reinforced the Court’s grammatical parsing separating “has been” (abuse) from “is or was” (abuser status).

D. Special rule cancellation authorities and conflict with BIA precedent

  • Matter of L-L-P-, 28 I. & N. Dec. 241 (BIA 2021): The central agency precedent the Third Circuit rejected. The BIA had treated “is” as susceptible to a time-of-abuse reading, declared ambiguity, and tied eligibility to abuser status at the time of abuse.
  • Saleheen v. Holder, 618 F.3d 957 (8th Cir. 2010) and In re Tabassum Saleheen, A097 967 736 (BIA July 20, 2009): Cited to show that, at least in that matter, the BIA had recognized a straightforward reading that the abuser’s status at the time the abused alien seeks relief can satisfy the statute (and to note the discretionary nature of cancellation once eligibility is met).
  • Medina-Morales v. Ashcroft, 371 F.3d 520 (9th Cir. 2004): Cited in the stepchild context to confirm a stepparent can qualify as a “parent” for this relief, aligning the statutory definition of “child” with special rule cancellation’s parent/child framing.

E. Hardship review in non-LPR cancellation

  • Wilkinson v. Att'y Gen., 131 F.4th 134 (3d Cir. 2025): Controlled both (i) the “substantially beyond ordinary hardship” articulation of “exceptional and extremely unusual hardship” and (ii) the use of substantial-evidence review for hardship determinations.
  • In re Monreal-Aguinaga, 23 I. & N. Dec. 56 (BIA 2001): Cited (through Wilkinson) for the factors relevant to hardship (age, health, circumstances of qualifying relatives).
  • Abdille v. Ashcroft, 242 F.3d 477 (3d Cir. 2001): Provided the substantial-evidence formulation: reversal is warranted only when the record compels a contrary conclusion.

3.2. Legal Reasoning

A. The new rule on “is or was” in special rule cancellation

The Court’s holding is fundamentally textual: in 8 U.S.C. § 1229b(b)(2)(A)(i)(II), the phrase “has been battered or subjected to extreme cruelty by a … parent who is or was [an LPR]” does not require the abuser to have had LPR/citizenship status at the time of the abuse.

The Court reasoned:

  1. Verb tense and time reference: “Is” is present tense; present tense is not past tense. By ordinary grammar and statutory canons (including 1 U.S.C. § 1), “is” can capture the present and extend forward to the relevant decision point.
  2. Disjunctive breadth: The phrase “is or was” naturally spans more than a single moment; it covers situations where the abuser presently has the status, or had it previously.
  3. No “time-of-abuse” limiter in the text: Had Congress intended to require LPR/citizenship status at the time of the abuse, it could have used explicit temporal language (the Court’s example: “who was then” an LPR). The absence of such limiting language mattered.
  4. Anti-surplusage: Reading the statute to require status at the time of abuse would make “or was” do no work. Under Duncan v. Walker, courts avoid interpretations that render statutory words superfluous.
  5. Text-first methodology: Because the Court found the text unambiguous, it criticized the BIA’s approach (in Matter of L-L-P-) for treating the provision as “ambiguous” and then relying on non-textual aids, including legislative history—an approach the Court viewed as inconsistent with Bostock v. Clayton County.

B. Clarifying “has been battered” as including past abuse

Although the parties did not dispute whether the abuse must be ongoing, the Court addressed it. Using grammar analysis and precedent on the present perfect tense, it explained that “has been battered” refers to a completed or continuing condition—meaning past abuse can qualify even if it ended before the application was filed or decided. This reinforces that the statute is designed around the fact of abuse, not a requirement of ongoing contact.

C. Remand scope and the separate hardship standard under special rule cancellation

The Court emphasized that special rule cancellation has other statutory prerequisites and a different hardship formulation: § 1229b(b)(2)(A)(v) requires “extreme hardship” (not “exceptional and extremely unusual hardship”), and it is not limited to hardship to a citizen/LPR qualifying relative in the same way. Because the agency had not applied that distinct standard, remand was required.

D. Upholding denial of non-LPR cancellation under substantial-evidence review

For non-LPR cancellation under § 1229b(b)(1)(D), the Court applied Wilkinson v. Att'y Gen. and held substantial evidence supported the agency’s hardship finding. Even crediting serious evidence of the mother’s past trauma and suicidality risk, the agency permissibly relied on countervailing “changed circumstances” (support from spouse/children/family, full-time work, separation from abuser, no longer living in fear) to conclude the predicted deterioration did not rise to the unusually high statutory threshold. The record did not compel the opposite result under Abdille v. Ashcroft.

3.3. Impact

  • Direct circuit precedent against Matter of L-L-P- within the Third Circuit: The decision establishes that, at least in the Third Circuit, the BIA may not deny special rule cancellation eligibility solely because the abuser lacked LPR/citizenship status at the time of the abuse, so long as the abuser is or was an LPR/citizen by the time the application is adjudicated.
  • Expanded eligibility in real-world abusive household timelines: Victims often cannot safely leave or report abuse until immigration status changes in the household. This interpretation makes eligibility less dependent on the timing of the abuser’s status and more dependent on the statutory elements Congress actually wrote (abuse + abuser who “is or was” LPR/citizen).
  • Procedural consequences (motions and pending applications): The Court noted that an applicant may be able to amend a pending application if the abuser later obtains LPR status—suggesting practitioners should monitor abuser status changes during proceedings.
  • Doctrinal reinforcement of text-based statutory interpretation in immigration adjudication: The opinion signals skepticism toward agency “ambiguity” findings that conflict with ordinary grammar and that lead to legislative-history-based reasoning.
  • Hardship claims remain highly deferential on review: By denying the non-LPR cancellation claim under substantial evidence, the Court underscores that even powerful mental-health evidence may not succeed absent a record that compels the conclusion that hardship is substantially beyond ordinary removal consequences.

4. Complex Concepts Simplified

Special rule cancellation (battered child) — 8 U.S.C. § 1229b(b)(2)
A form of cancellation of removal available to certain noncitizens who were battered or subjected to extreme cruelty by a qualifying relative (including a parent/stepparent). If granted, it can stop removal and confer lawful status. It has its own eligibility requirements, including an “extreme hardship” showing and discretionary approval.
“Is or was”
The statutory phrase that describes the abuser’s immigration status. The Third Circuit held it is satisfied if the abuser has (or had) LPR/citizenship status by the time the application is adjudicated—not necessarily when the abuse occurred.
Present perfect (“has been battered”)
A verb form that can describe something that occurred in the past and may or may not continue. The Court used this to confirm that the statute covers people who suffered abuse in the past even if it is not ongoing.
Non-LPR cancellation and “exceptional and extremely unusual hardship” — 8 U.S.C. § 1229b(b)(1)(D)
A different relief requiring a very high hardship showing to certain qualifying relatives (often U.S. citizen/LPR family). It is higher than “extreme hardship,” and reviewing courts defer heavily to the agency’s hardship assessment.
Substantial-evidence review
A deferential standard: the court upholds the agency unless the record compels the opposite conclusion, not merely because the court might have weighed evidence differently.

5. Conclusion

Cardenas establishes a clear textual rule in the Third Circuit: for special rule cancellation under 8 U.S.C. § 1229b(b)(2)(A)(i)(II), an applicant may satisfy the “parent who is or was” an LPR/citizen requirement even if the abuse occurred before the abuser obtained that status, so long as the status exists (or existed) by the time the application is adjudicated. The Court’s rejection of Matter of L-L-P- turns on ordinary grammar, anti-surplusage principles, and a text-first approach.

At the same time, the decision reaffirms that non-LPR cancellation hardship determinations are difficult to overturn on appeal: absent a record that compels a contrary finding, substantial evidence will sustain the agency’s assessment even in cases involving serious trauma and mental-health risk.