Background
Cruz Torres-Casas, a native and citizen of Mexico, conceded removability and sought cancellation of removal under 8 U.S.C. § 1229b(b)(1). He asserted that removal would cause exceptional and extremely unusual hardship to his U.S.-citizen son and daughter and his lawful-permanent-resident parents. The immigration judge found that the relatives would experience emotional and financial hardship but concluded that it would not rise substantially beyond the hardship ordinarily associated with removal.
Torres appealed to the Board of Immigration Appeals while his son was still 20. During the appeal, however, his son turned 21. The BIA treated eligibility as a continuing inquiry and declined to consider hardship to the son because the Immigration and Nationality Act defines a “child” as an unmarried person under 21. It then affirmed the denial based on the hardship evidence concerning Torres’s remaining qualifying relatives. Torres petitioned the Ninth Circuit for review.
The Court’s Holding
The Ninth Circuit denied the petition. Exercising independent judgment under Loper Bright, the court held that § 1229b(b)(1)(D) requires the agency to assess qualifying relatives when the application is finally adjudicated. If no administrative appeal is taken, the relevant facts are those existing when the immigration judge decides the case. If an appeal is taken, the BIA becomes the final adjudicator and must account for changes in qualifying-relative status through the date of its decision.
Accordingly, Torres’s son ceased to be a qualifying relative when he turned 21 during the BIA appeal. The court reasoned that the statute requires a prediction of the hardship that removal would cause, using the facts current at final adjudication, and contains no provision freezing a child’s age at the immigration judge’s decision. The court distinguished Mendez-Garcia v. Lynch, which addressed children who aged out before the immigration judge ruled and did not decide whether a child could age out during a BIA appeal.
The court also held that substantial evidence supported the agency’s determination that Torres had not established exceptional and extremely unusual hardship to his other qualifying relatives. The record did not compel a contrary conclusion, and the court was unpersuaded that the agency had failed to consider the evidence cumulatively. To the extent Torres challenged the correctness of the agency’s underlying factual findings, the court lacked jurisdiction to review those findings.
Key Takeaways
- A cancellation applicant must have a qualifying relative when the agency finally adjudicates the application.
- A child who turns 21 while a parent’s BIA appeal is pending can no longer support eligibility under § 1229b(b)(1)(D), even if the child was under 21 when the immigration judge ruled.
- The continuing-assessment rule works in both directions: the agency must also account for newly qualifying relatives arising before final adjudication.
- Courts may review the agency’s ultimate hardship determination for substantial evidence but lack jurisdiction to revisit its underlying factual findings.
Why It Matters
The decision makes the timing of final agency adjudication potentially outcome-determinative for cancellation applicants whose children are nearing 21. Eligibility is not frozen when the immigration judge rules, and an applicant may lose a qualifying relative while an administrative appeal remains pending.
At the same time, the rule permits applicants to rely on qualifying relationships that arise during proceedings, including a new marriage, birth, or change in a parent’s immigration status. The Ninth Circuit acknowledged that agency delay can produce harsh results but concluded that creating an age-freezing rule would require language Congress did not include in the cancellation statute.