Time-of-Decision Controls Qualifying-Child Status Under § 1229b(b)(1)(D); Post-Loper Bright, No Agency Deference; BIA’s Waiver Determinations Constrained by 8 C.F.R. § 1003.3(b)

Introduction

In Rangel-Fuentes v. Bondi, the Tenth Circuit issued a published, precedential decision resolving two important immigration law questions in the post-Loper Bright landscape. First, the court held that for non-LPR cancellation of removal under 8 U.S.C. § 1229b(b)(1)(D), the age of a “qualifying child” (a U.S. citizen or LPR under 21, see § 1101(b)(1)) is assessed at the time the immigration judge (IJ) decides the application—not at the hearing, not when the record closes, and not when the application is filed. Second, the court ruled that the Board of Immigration Appeals (BIA) abused its discretion in deeming the petitioner’s asylum appeal waived, clarifying that 8 C.F.R. § 1003.3(b)’s “relatively low bar” for identifying issues on appeal was satisfied and that the BIA must address the merits of the asylum nexus and timeliness questions.

The opinion also delineates the Tenth Circuit’s approach to agency deference after the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, emphasizing that neither § 1229b nor § 1103(g)(2) delegates interpretive authority to the BIA over the timing component of § 1229b(b)(1)(D), and that the court will exercise independent judgment in statutory interpretation. The court thus aligns with the Eleventh Circuit’s reading in Diaz-Arellano on the age-timing question, and with the Sixth Circuit’s insistence that the BIA lacks discretion to define § 1229b(b)(1)(D)’s standard post-Loper Bright.

Background and Procedural History

Cristina Rangel-Fuentes, a Mexican national who last entered the United States without inspection in 1995/1996, accrued decades of residence and raised three children, including the youngest, Fernando (born September 7, 1997). Following a 2012 inadmissibility charge under § 1182(a)(6)(A)(i), she sought non-LPR cancellation of removal in 2014, contending her removal would cause “exceptional and extremely unusual hardship” to Fernando.

In 2017, she also applied for asylum, invoking the “changed circumstances” exception to the one-year filing deadline under § 1158(a)(2)(D), pointing to late-2016 violent incidents involving her family in Mexico (a murdered cousin and a kidnapped uncle). At her July 2017 hearing, she submitted testimony and a psychological report concerning Fernando’s depression linked to the removal proceedings.

The IJ closed the record in September 2017, when Fernando was 20 (still a statutory “child”). Due to the annual 4,000-case cap on cancellation grants (§ 1229b(e)(1)) and the reserve-decision regulation, 8 C.F.R. § 1240.21(c)(1), the IJ deferred the decision and ultimately issued it in September 2019, by which time Fernando was 22. The IJ denied cancellation (no longer a “child”) and denied asylum (untimely and no nexus to a protected ground, specifically no nexus to her proposed group, “women repatriated to Mexico from the U.S.”).

The BIA affirmed the IJ’s approach to the qualifying-child age and deemed Rangel’s asylum appeal waived for failure to challenge the adverse nexus finding. An earlier panel opinion applying Chevron deference was vacated after Loper Bright overruled Chevron; the panel reheard the case and issued the opinion here.

Summary of the Opinion

Cancellation of Removal (Denied): The Tenth Circuit holds that § 1229b(b)(1)(D) “contemplates assessing a qualifying child’s age when the immigration judge issues a decision.” Because Fernando was 22 when the IJ decided the case, Rangel could not establish hardship to a “child” and was statutorily ineligible. The court reaches this interpretation de novo and without deference, relying on statutory context and aligning with the Eleventh Circuit’s Diaz-Arellano and the BIA’s Isidro-Zamorano.
Administrative Deference (Rejected): Post-Loper Bright, the court refuses to treat the BIA’s view as the product of any congressional delegation under § 1229b or the general authority in § 1103(g)(2). It interprets the statute independently, noting “an ambiguity is simply not a delegation of law-interpreting power.”
Asylum (Remanded): The court finds the BIA abused its discretion by declaring Rangel’s nexus appeal waived. Under 8 C.F.R. § 1003.3(b), her notice of appeal and BIA brief sufficiently identified the challenge to the IJ’s adverse nexus determination. The panel remands for the BIA to decide the merits of nexus and timeliness in the first instance. Remand is not futile.
Separate Opinion: Judge Hartz concurs on cancellation but dissents on the asylum remand, arguing that the BIA reasonably found waiver under its long-standing specificity requirements and that Rangel failed to develop any argument addressing nexus.

Analysis

Precedents and Authorities Cited

Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024): Overrules Chevron. The Tenth Circuit emphasizes that courts must exercise independent judgment and that statutory ambiguity does not equal a delegation of interpretive authority. This framing is pivotal in declining to defer to the BIA’s reading of § 1229b(b)(1)(D) and in rejecting the agency’s fallback claims to special “latitude.”
Martinez-Perez v. Barr, 947 F.3d 1273 (10th Cir. 2020): Earlier Tenth Circuit decision recognizing ambiguity in the cancellation hardship provision but not resolving the timing question (because the BIA had disclaimed authority to interpret it). After Loper Bright, the Martinez-Perez suggestion that ambiguity implies delegation is no longer viable.
Diaz-Arellano v. U.S. Attorney General, 120 F.4th 722 (11th Cir. 2024): Holds that the statute directs assessment of effects “of the applicant’s removal,” naturally tying eligibility to circumstances at the time of decision. The Tenth Circuit adopts this reasoning and result.
Matter of Isidro-Zamorano, 25 I. & N. Dec. 829 (BIA 2012): The BIA’s own precedent endorsing time-of-decision assessment. The panel agrees with this timing but expressly does so via independent statutory interpretation, not deference.
Moctezuma-Reyes v. Garland, 124 F.4th 416 (6th Cir. 2024): Concludes the BIA has no discretion to define the § 1229b(b)(1)(D) standard. The Tenth Circuit cites this to reinforce the no-delegation point post-Loper Bright.
Patel v. Garland, 596 U.S. 328 (2022): Clarifies limits and scope of judicial review in cancellation cases; here it supports the court’s jurisdiction to review legal questions (timing of age assessment) under § 1252(a)(2)(D).
Niang v. Gonzales, 422 F.3d 1187 (10th Cir. 2005): Provides the articulation of the asylum “nexus” requirement—the protected characteristic must be central to the persecutor’s motive. The IJ relied on a lack of nexus; the remand requires the BIA to address that question on the merits.
8 C.F.R. § 1003.3(b): Sets the standard for notice-of-appeal content to avoid summary dismissal. The panel characterizes this as a low hurdle met by Rangel’s filings.
Zapata-Chacon v. Garland, 51 F.4th 1191 (10th Cir. 2022) and Mickeviciute v. INS, 327 F.3d 1159 (10th Cir. 2003): Discuss the bar on courts upholding agency decisions on grounds the agency did not invoke, and the “futility” exception to remanding. The court finds remand is not futile here.
Other cited authorities include INS v. Aguirre-Aguirre (1999) (no longer a deference anchor post-Loper Bright), Skidmore v. Swift & Co. (1944) (agency views may be persuasive but do not control), and Vermont Yankee (1978) (agency procedures—distinct from substantive standards).

Legal Reasoning

1) Cancellation: The Statute’s Focus on “Removal Would Result In … Hardship” Anchors a Time-of-Decision Rule

The core interpretive move is contextual. Section 1229b(b)(1)(D) directs adjudicators to determine whether “removal would result in exceptional and extremely unusual hardship” to a qualifying relative. The Tenth Circuit reads this as asking about the real-world effects of removal at the juncture when removal is ordered or canceled—which is when the IJ decides the case. This is reinforced by the Eleventh Circuit’s observation that the “effects” are realized or averted at decision, not at record closure.

The petitioner urged a textual hook in the verb “establishes” (“establishes that removal would result in … hardship”), arguing that this fixing occurs at the time proof is offered (i.e., no later than record closure). The court rejected that granular parsing, treating the “establishes” phrasing as incidental when read against the broader sentence and statutory architecture. It also declined to employ the canon of lenity because the contextual reading resolves the timing question.

Practical realities inform the reasoning: given the 4,000-per-year statutory cap on cancellation and the reserving of decisions when the cap is reached, an applicant’s child may age out during natural, agency-driven delays. The court acknowledges this consequence but resists freezing obviously relevant facts. Indeed, the panel highlights the dynamic character of hardship: new qualifying relatives and new hardship evidence arising before the decision should be considered; therefore, the statute does not require IJs to “don blinders” after the record closes. Equally, a child’s birthday is a fact that can be judicially recognized without new evidence.

2) Deference: No Delegation to the BIA to Define § 1229b(b)(1)(D); Skidmore Persuasion But No Chevron

The BIA contended its interpretation merited “latitude” as an exercise of delegated discretion. The court held otherwise. Neither § 1229b nor the general grant in § 1103(g)(2) “empower[s]” the BIA to define the details of the cancellation scheme with force of law. Post-Loper Bright, an ambiguity is not a delegation. The court therefore interprets the statute de novo. Although the court’s reading happens to coincide with BIA precedent (Isidro-Zamorano), that agreement is a matter of shared textual analysis, not deference.

The court also rejected broader “immigration exceptionalism” theories of deference premised on the political branches’ central role in immigration enforcement. It noted that courts routinely decide immigration cases and that generalized invocations of political-branch primacy cannot insulate agency interpretations from ordinary judicial review absent a specific statutory delegation.

3) Asylum: Abuse of Discretion to Treat the Nexus Appeal as Waived

The BIA summarily deemed Rangel’s asylum appeal waived on the theory that she did not challenge the IJ’s adverse nexus finding. The Tenth Circuit disagreed, pointing to two filings:

Notice of Appeal Addendum: Rangel wrote that the IJ “erred in finding that [she] did not establish eligibility for asylum” and that she had “a well-founded fear of future persecution on [the PSG] basis.” The court read this as directly challenging the IJ’s no-nexus determination and satisfying the specificity required by § 1003.3(b).
BIA Brief: Rangel argued the IJ failed to address her evidence (including her repatriated cousin’s murder) and ignored documentary proof of gender-based violence in Mexico. She cited authority on the need to assess evidence of increased persecution. The court held this discourse adequately pressed a nexus challenge, even if she did not use talismanic words like “nexus” or “on account of.”

Because those filings “plainly” challenged the adverse nexus finding, the BIA’s waiver ruling rested on a misapplication of its own regulation and thus constituted an abuse of discretion under § 1252(b)(4)(D). The panel declined to decide broader questions (e.g., whether an issue identified only in the notice but omitted from the brief is waived), and instead confined the holding to the adequacy of what Rangel actually said in both filings.

The Dissent

Judge Hartz concurred on cancellation but dissented on the asylum remand. He emphasized the BIA’s long-standing specificity requirements (citing Matter of Holguin and Matter of Valencia) and multiple circuit decisions upholding summary dismissal where appellants fail to explain “what aspects of the IJ’s decision were allegedly incorrect and why.” In his view, Rangel’s notice and brief were perfunctory, failed to present a developed nexus argument, and therefore could reasonably be treated as waived. He also underscored the BIA’s crushing workload as a reason to enforce strict presentation standards, distinguishing between the sufficiency of “exhaustion” for judicial review and the BIA’s discretion to dismiss inadequately presented issues.

The majority responded that § 1003.3(b) sets a relatively low bar, that neither party relied on Valencia, and that an “as detailed as possible” preservation standard is unworkable and ultra-demanding. The majority also rejected workload concerns as a basis to alter the legal analysis.

Impact and Forward-Looking Implications

A. Cancellation of Removal

Uniformity and predictability in the Tenth Circuit: The time-of-decision rule now governs qualifying-child age under § 1229b(b)(1)(D). Applicants cannot lock in a child’s age at filing, hearing, or record closure; they must remain statutorily eligible when the IJ renders a decision.
Practical effects of the annual cap: The decision candidly acknowledges that Congress’s 4,000-per-year cap and the reserve regulation, § 1240.21(c)(1), can cause aging-out beyond the applicant’s control. While unfortunate for some applicants, the court concludes that the statute’s focus on the effects “of removal” compels this outcome.
Dynamic hardship record: The court’s approach cuts both ways. Post-hearing developments that increase hardship or create new qualifying relatives before the IJ’s decision must be considered; conversely, a child’s turning 21 defeats eligibility. Practitioners should update hardship evidence continuously up to decision and, where appropriate, seek to supplement the record or request prompt adjudication when a child’s 21st birthday looms.
Potential legislative or regulatory responses: The Child Status Protection Act does not reach cancellation. Congress or EOIR could address aging-out in the cancellation context, especially when decisions are reserved due to the cap.

B. Statutory Interpretation in Immigration Post-Loper Bright

No Chevron; no reflexive agency deference: The Tenth Circuit will independently construe immigration statutes absent a clear delegation. General rulemaking authority in § 1103(g)(2) does not confer a roving power to bind courts on substantive statutory meaning. The BIA’s interpretations may still receive weight under Skidmore to the extent they persuade—but not more.
Convergence with other circuits: The holding resonates with the Eleventh Circuit’s approach to § 1229b(b)(1)(D) and the Sixth Circuit’s view that no discretion is delegated to the BIA to define that provision, signaling a maturing, post-Loper Bright consensus.

C. Asylum Appeals and BIA Waiver

Preservation standard in the Tenth Circuit: The court reads § 1003.3(b) as imposing a low but real requirement: appellants must “specifically identify” the challenged findings or legal conclusions. Magic words are unnecessary; what matters is whether the issue is reasonably and fairly presented. The BIA may not ignore arguments that are there.
Administrative law baseline: Because courts may not uphold agency action on grounds the agency did not invoke, waiver findings that bypass merits can trigger remand unless governing law would compel the same result. Here, the court found remand not futile.
Practice implications: To avoid waiver rulings, counsel should (1) name the issue (e.g., “nexus”), (2) identify the IJ’s adverse finding, (3) cite the specific evidence the IJ overlooked or misweighed, and (4) supply at least minimal supporting authority. While the Tenth Circuit set a forgiving standard, other circuits (as the dissent catalogues) have endorsed stricter approaches; practitioners should draft with the strictest standards in mind.

Complex Concepts Simplified

Non-LPR Cancellation of Removal (§ 1229b(b)(1)): A discretionary relief for certain long-resident noncitizens. Among other criteria, the applicant must show that removal would cause “exceptional and extremely unusual hardship” to a qualifying relative (including a “child,” defined as an unmarried person under 21).
Qualifying Relative’s Age Timing: This case holds that whether someone is a “child” (under 21) is determined when the IJ decides the case, not earlier.
Statutory Cap and Reserved Decisions: By law, only 4,000 cancellations can be granted nationwide per fiscal year. When that quota is exhausted, decisions intended as grants are reserved until a new fiscal year slot opens, sometimes delaying outcomes and allowing children to age out.
Closing the Record vs. Decision: “Closing the record” stops new evidence from being submitted absent leave. But the IJ still decides later. Facts like a birthday can become relevant by the time of decision even without new evidence.
Asylum “Nexus”: To qualify as a refugee, a noncitizen must show persecution or a well-founded fear “on account of” a protected ground (race, religion, nationality, particular social group, political opinion). Nexus asks whether the protected characteristic is central to the persecutor’s motive.
Particular Social Group (PSG): A protected category under asylum law. A PSG must be defined with sufficient particularity and social distinction in the relevant society; here, the IJ addressed a proposed PSG of “women repatriated to Mexico from the United States.”
Waiver before the BIA: The BIA can dismiss an appeal if the notice/brief does not identify what findings or conclusions are being challenged. In the Tenth Circuit’s view, § 1003.3(b) sets a low threshold that Rangel met.
Chevron vs. Loper Bright: Chevron required courts to defer to reasonable agency interpretations of ambiguous statutes. Loper Bright overruled Chevron; courts now interpret statutes independently unless Congress clearly delegated interpretive authority to the agency.
Skidmore Deference: Courts may give weight to agency views based on their power to persuade, but such views are not controlling.
Chenery Principle (in substance): Courts cannot uphold agency action on grounds the agency itself did not rely on. Remand can be avoided only if the outcome is legally inevitable (futility).

Conclusion

Rangel-Fuentes makes two consequential contributions to Tenth Circuit immigration law. On cancellation of removal, it adopts a clear, administrable rule: a qualifying child’s age is measured at the time of the IJ’s decision, harmonizing with the Eleventh Circuit and the BIA’s own precedent while expressly rejecting agency deference post-Loper Bright. This rule ensures that IJs can (and must) account for the real-time consequences of removal when they decide whether to cancel it, even as it will deny relief to some applicants whose children age out during cap-driven delays.

On asylum, the court reinforces that 8 C.F.R. § 1003.3(b) does not erect a trap for unwary appellants. When a notice of appeal and brief identify an IJ’s adverse nexus finding and direct the BIA to the evidence and legal authorities that bear on it, the BIA must decide the merits rather than declare waiver. The remand underscores the court’s insistence that merits adjudication, not procedural forfeiture, should ordinarily resolve contested issues where the appellant has fairly presented them.

More broadly, the decision signals the Tenth Circuit’s post-Loper Bright posture: statutory interpretation is the judiciary’s task absent a clear congressional delegation, and general agency rulemaking provisions do not substitute for such delegations. Immigration litigants should expect independent judicial readings of statutory text and context, tempered by Skidmore’s call to consider persuasive agency reasoning, but no longer controlled by Chevron’s deference regime.

The bottom line: Petition denied in part (cancellation of removal), granted in part (asylum), and remanded for the BIA to address the merits of asylum. Practitioners should take careful note of the timing rule for qualifying-child status, the court’s deference analysis, and the clarified preservation expectations for BIA appeals.