Yupangui-Yunga v. Bondi

23-6522

Yupangui-Yunga v. Bondi

In the

United States Court of Appeals

For the Second Circuit

August Term, 2024

No. 23-6522

JULIO CESAR YUPANGUI-YUNGA,

Petitioner,

v.

PAMELA BONDI,

UNITED STATES ATTORNEY GENERAL,

Respondent.

On Petition for Review of an Order of

the Board of Immigration Appeals.

SUBMITTED: JANUARY 30, 2025

DECIDED: OCTOBER 24, 2025

Before: JACOBS, CARNEY, and NARDINI, Circuit Judges.

Petitioner Julio Cesar Yupangui-Yunga (“Yupangui”), a citizen

of Ecuador unlawfully present in the United States, seeks review of a

decision of the Board of Immigration Appeals (“BIA”) denying his

motion to reopen his removal proceedings. Yupangui applied for

cancellation of removal under 8 U.S.C. § 1229b(b)(1)(D) on the ground

that his removal would result in “exceptional and extremely unusual

hardship” to his three United States-citizen children. An immigration

judge denied Yupangui’s application and ordered him removed, and

the BIA affirmed. A few months later, Yupangui moved to reopen his

removal proceedings, submitting a psychological evaluation of his

eldest daughter, who was then almost 20 years old, as new evidence

that his removal would cause her exceptional and extremely unusual

hardship. Almost two years later, the BIA denied Yupangui’s motion,

finding that his newly proffered evidence would not alter the

outcome of his cancellation-of-removal application because his

daughter was now 21 years old and had therefore “aged out” of

qualifying-relative status while his motion was pending. Yupangui

now challenges the BIA’s decision. According to Yupangui, given

what he describes as the agency’s “undue delay” in processing his

application for cancellation of removal, and ambiguity in the

cancellation-of-removal statute, what matters is his daughter’s age at

the time he filed his application for relief; or perhaps at the time of his

hearing before the IJ; or perhaps at the time he presented the new

evidence of hardship; but certainly not at the time of the agency’s

decision. We disagree. We hold that § 1229b(b)(1)(D) requires a

qualifying “child” to be under the age of 21 at the time an application

for cancellation of removal is adjudicated. Accordingly, Yupangui’s

petition is DENIED.

Edward J. Cuccia, Esq., Law Offices of

Edward J. Cuccia, P.C., New York, NY, for

Petitioner.

2

Joseph D. Hardy, Trial Attorney, Office of

Immigration Litigation, Brian M. Boynton,

Principal Deputy Assistant Attorney

General, Anthony C. Payne, Assistant

Director, Civil Division, U.S. Department of

Justice, Washington, DC, for Respondent.

WILLIAM J. NARDINI, Circuit Judge:

Petitioner Julio Cesar Yupangui-Yunga (“Yupangui”), a citizen

of Ecuador unlawfully present in the United States, petitions for

review of a decision by the Board of Immigration Appeals (“BIA”)

denying his motion to reopen his removal proceedings. In his initial

proceedings, Yupangui applied for cancellation of removal under 8

U.S.C. § 1229b(b)(1)(D) on the ground that his deportation would

result in “exceptional and extremely unusual hardship” to his three

United States-citizen children. An immigration judge (“IJ”) denied

Yupangui’s application and ordered him removed to Ecuador, and

the BIA affirmed.

A few months later, Yupangui moved to reopen his removal

proceedings. He submitted a psychological evaluation of his eldest

daughter, who was then almost 20 years old, as new evidence that his

removal would cause her to suffer the requisite hardship. Almost two

years later, the BIA denied the motion, concluding that his newly

proffered evidence would not alter the outcome of his removal

proceedings. As pertinent here, the BIA determined that his daughter

3

had “aged out” of her status as a qualifying relative because she had

turned 21 while his motion to reopen was pending.

Yupangui now challenges the BIA’s decision. According to

Yupangui, given what he describes as the agency’s “undue delay” in

processing his application for cancellation of removal, and ambiguity

in the cancellation-of-removal statute, what matters is his daughter’s

age at the time he filed his application for relief; or perhaps at the time

of his hearing before the IJ; or perhaps at the time he presented the

new evidence of hardship; but certainly not at the time of the agency’s

decision. The government disagrees, and further argues that

Yupangui is precluded from raising this argument before this Court

because he failed to raise it before the BIA.

As a threshold matter, we hold that the exhaustion doctrine

does not bar Yupangui from contesting the BIA’s ruling that his

daughter “aged out” of her qualified-relative status. At the time

Yupangui filed his motion to reopen, his daughter was still 19 years

old. The aging-out question was raised for the first time by the BIA,

when it issued its decision nearly two years later. Yupangui cannot

be faulted for failing to preemptively raise it, or for failing to challenge

it on a motion for reconsideration before the BIA.

But on the merits, we agree with the BIA. We hold that

§ 1229b(b)(1)(D) requires a qualifying “child” to be under the age of

21 at the time an application for cancellation of removal is

adjudicated. Accordingly, Yupangui’s petition for review is

DENIED.

4

I. Background

Yupangui illegally entered the United States in December 1997,

and since then he has continuously resided in this country. On July

12, 2010, Yupangui was convicted in Westchester County, New York,

for his third offense of operating a motor vehicle while under the

influence of alcohol or drugs. 1 A month later, the Department of

Homeland Security (“DHS”) served Yupangui with a notice to

appear, charging that he was subject to removal under 8 U.S.C.

§ 1182(a)(6)(A)(i) as “[a]n alien present in the United States without

being admitted or paroled.” Certified Admin. R. (“CAR”) at 859.

Yupangui was subsequently ordered to appear before an IJ in New

York City.

At his initial removal hearing on May 10, 2013, Yupangui—

who had retained counsel—admitted all of the facts needed to make

him removable. That is, he conceded that he is not a citizen or

national of the United States; that he is a native and citizen of Ecuador;

that he unlawfully entered the United States on or around

December 25, 1997, through Nogales, Arizona; and that he was never

admitted or paroled into the United States following inspection by an

immigration officer.

1 On September 8, 2003, Yupangui was convicted of driving under the

influence, leaving the scene of an incident, and driving without a license. Then,

on January 8, 2007, he was convicted of driving under the influence, driving

without a license, and consuming or possessing alcohol in a motor vehicle. And,

on March 27, 2009, he was convicted of disorderly conduct following an incident

involving the mother of his two oldest children.

5

But conceding removability was not necessarily the end of the

road for Yupangui. Under certain circumstances, “an alien who is

inadmissible or deportable from the United States” may apply for

cancellation of removal and adjustment of status to that of a lawful

permanent resident under 8 U.S.C. § 1229b(b). As relevant here, if an

applicant like Yupangui satisfies four criteria, the Attorney General

has discretion to grant such relief. For starters, an applicant must

demonstrate (1) continuous physical presence in the United States for

no less than 10 years in the period immediately preceding the

application; (2) good moral character during that period; and (3) no

criminal convictions on a specified list. 8 U.S.C. § 1229b(b)(1)(A)-(C).

As most relevant here, an applicant must also establish (4) “that

removal would result in exceptional and extremely unusual hardship

to the alien’s spouse, parent, or child, who is a citizen of the United

States or an alien lawfully admitted for permanent residence.”

8 U.S.C. § 1229b(b)(1)(D); 2 see Toalombo Yanez v. Bondi, 140 F.4th 35, 39

2 The full text of Section 1229b(b) provides:

(1) In general

The Attorney General may cancel removal of, and adjust to

the status of an alien lawfully admitted for permanent residence,

an alien who is inadmissible or deportable from the United States

if the alien—

(A) has been physically present in the United States for a

continuous period of not less than 10 years immediately

preceding the date of such application;

(B) has been a person of good moral character during such period;

6

(2d Cir. 2025) (“The burden is on the noncitizen to prove that she

‘satisfies the applicable [cancellation-of-removal] eligibility

requirements’ and ‘merits a favorable exercise of discretion.’”

(quoting 8 U.S.C. § 1229a(c)(4)(A)).

At the time, Yupangui had three minor children who were

United States citizens, and so he was eligible to request cancellation

of removal if he could check off all four boxes, including that at least

one of his children would suffer “exceptional and extremely unusual

hardship” by consequence of his removal. Accordingly, on

September 6, 2013, Yupangui applied for cancellation of removal. He

asserted that all three children would “suffer a lot” if he were

deported to Ecuador because he was the “only financial support that

they ha[d].” CAR at 808.

At a merits hearing on Yupangui’s application on October 19,

2017, Yupangui offered testimony from himself and his oldest

daughter in support of his application for cancellation of removal.

He testified that he had never been married, but currently lived with

a partner, and that they had an eight-year-old daughter who was

living with them. He had two additional children, then aged 10 and

(C) has not been convicted of an offense under section 1182(a)(2),

1227(a)(2), or 1227(a)(3) of this title, subject to paragraph (5); and

(D) establishes that removal would result in exceptional and extremely

unusual hardship to the alien’s spouse, parent, or child, who is a citizen

of the United States or an alien lawfully admitted for permanent

residence.

7

16, who lived with their mother, with whom he had a previous

relationship. Yupangui testified that he paid child support for those

two children, and they would stay with him two or three weekends

per month. When asked whether his older children could be

supported by their mother if he were to be deported to Ecuador,

Yupangui testified that he didn’t “think so,” but was “not sure”; he

thought that she “works in like cleaning, something like that,” but he

wasn’t sure because he didn’t “have a lot of communication” with

their mother. CAR at 371. His daughter, who was then in 11th grade,

then testified that if her father were deported, her life would “change

drastically.” Id. at 387. She explained that he provided financial

support, as well as advice and emotional support. At the conclusion

of the hearing, the IJ explained that, because the annual limit on

grants of cancellation of removal had been reached for the fiscal year,

she would reserve decision on Yupangui’s application until

additional grants became available the following year. See 8 U.S.C.

§ 1229b(e)(1) (limiting the number of available grants of cancellation-

of-removal applications to 4,000 per fiscal year); 8 C.F.R.

§ 1240.21(c)(1) (“When grants are no longer available in a fiscal year,

further decisions to grant such relief must be reserved until such time

as a grant becomes available under the annual limitation in a

subsequent fiscal year.”). Once the hearing concluded, the IJ closed

the record and placed Yupangui’s case on her decision calendar.

On December 18, 2018, the IJ rendered an oral decision denying

Yupangui’s application for cancellation of removal. The IJ found that

Yupangui failed to establish two of the four eligibility requirements

8

for cancellation relief. First, he had not demonstrated good moral

character because of his “criminal history, including felony [driving

while intoxicated] and criminal contempt and his disregard for the

laws of the United States by continuing to drive without a license

frequently over a period of many years.” CAR at 322–23. Second, he

had failed to show that his removal would result in the requisite

“exceptional and extremely unusual hardship” to his three children.

Id. at 323–25. Moreover, even if Yupangui had been eligible, the IJ

held that he had failed to demonstrate that his case merited

“cancellation of removal as a matter of discretion” given Yupangui’s

“blatant disregard for laws relating to the operation of motor vehicles

and public safety.” Id. at 325. The IJ accordingly ordered Yupangui

removed to his native Ecuador.

Yupangui appealed the IJ’s decision to the BIA. According to

Yupangui, the IJ had abused her discretion by, among other things,

failing to consider evidence regarding the hardship his children

would suffer if he was deported. On March 2, 2021, the BIA adopted

and affirmed the IJ’s determination that Yupangui had not shown

“that his removal would result in exceptional and extremely unusual

hardship to his qualifying relatives, his three United States citizen

children.” CAR at 280. Each of those children would “remain in the

United States with their respective mothers,” and Yupangui had not

shown that their mothers would be “unable to . . . provide for the

children’s basic needs.” Id. The BIA found Yupangui’s failure to

show “exceptional and extremely unusual hardship” dispositive of

his administrative appeal, so it declined to address the IJ’s other bases

9

for denying cancellation of removal. The BIA therefore dismissed his

appeal, and Yupangui did not seek judicial review of that decision.

Yupangui eventually obtained new counsel and, on June 1,

2021, filed a motion asking the BIA to reopen his removal

proceedings. As pertinent here, Yupangui argued that the

circumstances of his eldest daughter had “significantly changed”

because a newly proffered psychological evaluation showed that she

“would clearly suffer extreme and unusual hardship” if he were

removed to Ecuador. CAR at 14. Yupangui submitted the evaluation

in support of his motion to reopen, which was filed eleven days before

that daughter turned 20 years old.

On April 20, 2023, almost two years later, the BIA denied

Yupangui’s motion, concluding that he “ha[d] not shown that the

newly proffered evidence would likely affect the outcome of this case

in reopened proceedings.” CAR at 3. In reaching that conclusion, the

BIA cited its longstanding practice of treating a cancellation-of-

removal application as a “continuing application,” making a child

who was under 21 when her parent applied for cancellation of

removal, but who had aged out by the time the application is

adjudicated, no longer a “child” for purposes of 8 U.S.C.

§ 1229b(b)(1)(D). 3 Id. at 4 (citing Matter of Isidro-Zamorano, 25 I. & N.

3 In its decision, the BIA erroneously referred to the definition of “child”

under 8 U.S.C. § 1101(c)(1), which applies to Subchapter III of Chapter 12 of Title 8.

It should have referred to the definition of “child” under 8 U.S.C. § 1101(b)(1),

which applies to Subchapters I and II (in which § 1229b is located). CAR at 4. The

BIA’s mistaken citation does not, however, affect our analysis. Both provisions

10

Dec. 829, 831 (B.I.A. 2012)). The BIA acknowledged the hardship the

daughter had experienced due to her father’s immigration status, but

it found that it could consider the alleged hardship only to his

“qualifying relatives”—namely, his two other children still under the

age of 21. Id. Because the BIA found that Yupangui had not provided

new evidence showing that his other two children would suffer

exceptional and extremely unusual hardship upon his removal, it

denied Yupangui’s motion to reopen.

On May 18, 2023, Yupangui filed a timely petition seeking our

review of the BIA’s decision, challenging only the BIA’s

determination that his eldest daughter had “aged out” of qualifying-

relative status under § 1229b(b)(1)(D). The petition for review does

not challenge the BIA’s hardship determination as to Yupangui’s

younger children. In support of his petition, Yupangui argues that

the statute is ambiguous as to whether a person can age out of

qualifying-relative status during the pendency of an application for

cancellation of removal, and that, under Loper Bright Enterprises v.

Raimondo, 603 U.S. 369 (2024), the BIA’s interpretation of the statute is

due no deference. He further argues that in light of the ambiguity in

the statute, and the agency’s “undue delay” in processing his

application for cancellation of removal, the Court should interpret

§ 1229b(b)(1)(D) to fix his daughter’s age as of the date he filed his

application for cancellation of removal, or the date of his merits

define “child” to include only those who are “under twenty-one years of age,” and

§ 1101(b)(1)’s age restriction is the only part of the statutory definition pertinent to

this appeal.

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hearing before the IJ, or perhaps the date when evidence of his

daughter’s hardship was presented. Pet’r Br. at 16. 4

II. Discussion

Our jurisdiction over this case is provided by 8 U.S.C. § 1252(a)

because, as the Supreme Court has held, “circuit courts have

jurisdiction when an alien appeals from the Board’s denial of a motion

to reopen a removal proceeding.” Mata v. Lynch, 576 U.S. 143, 147

(2015).

Things are a little more complicated because Yupangui’s

motion to reopen sought to revisit not the agency’s underlying

finding that he is removable, but only its denial of cancellation of

removal—a form of discretionary relief. Congress has generally

prohibited judicial review of such discretionary actions, and it has

expressly listed denials of cancellation of removal pursuant to 8

U.S.C. § 1229b among those forms of relief that lie beyond the

purview of courts to review. See 8 U.S.C. § 1252(a)(2)(B)(i) (“except as

provided in subparagraph (D) . . . no court shall have jurisdiction to

review . . . any judgment regarding the granting of relief under section

. . . 1229b . . . of this title . . . .”). But Congress has carved out an

exception to that jurisdiction-stripping provision, allowing for

judicial review of “constitutional claims or question of law” raised in

4 Although Yupangui asserts that the BIA incorrectly concluded “that

neither it nor the Immigration Court had jurisdiction to grant [his] application,”

Pet’r Br. at 20 (emphasis added), we decline to address this argument because the

BIA did not refuse to consider his daughter’s purported hardships on

jurisdictional grounds. See CAR at 4.

12

a petition for review. Id. § 1252(a)(2)(D). Yupangui’s sole argument

turns on a question of statutory interpretation: whether the child of

an applicant for cancellation of removal can “age out” of qualifying

status under 8 U.S.C. § 1229b(b)(1)(D). This is a “question of law” that

is reviewable; and because it involves an abstract legal question, it is

“subject to de novo review.” Garcia Pinach v. Bondi, 147 F.4th 117, 127

(2d Cir. 2025) (explaining that not all “questions of law” under

§ 1252(a)(2)(D) are subject to the same standard of review); see also

Naizhu Jiang v. Garland, 18 F.4th 730, 734 (2d Cir. 2021) (“When

considering a petition for review of an order denying a statutory

motion to reopen, we review the BIA’s conclusions of law de novo.”)

(citation omitted).

A. Exhaustion of the “Aging Out” Issue

Yupangui’s petition raises the threshold question of whether he

was required to exhaust his argument—regarding the “aging out” of

his eldest daughter—with the BIA before raising it in this petition for

review. For its part, the Government contends that Yupangui was

required do so. Because the BIA raised the aging-out issue for the first

time in its ruling, after Yupangui moved to reopen his removal

proceedings, we conclude that exhaustion of Yupangui’s argument

before the BIA was not a precondition to asserting it here.

To be sure, 8 U.S.C. § 1252(d)(1) provides that “[a] court may

review a final order of removal only if . . . the alien has exhausted all

administrative remedies available to the alien as of right.” Although

this issue-exhaustion rule is “not jurisdictional,” Santos-Zacaria v.

13

Garland, 598 U.S. 411, 431 (2023), we must generally treat it as

mandatory when the Government raises it, see Ud Din v. Garland,

72 F.4th 411, 419–20 (2d Cir. 2023). Here, the Government has raised

the exhaustion issue by arguing that Yupangui “has not preserved

any claim that the [BIA] should have accepted a different timeframe

in his particular case for determining whether his daughter qualified

as his ‘child’ under 8 U.S.C. § 1229b(b)(1)(D).” Resp. Br. at 22. So, we

would ordinarily require that a party have brought this argument to

the BIA before raising it in our Court.

However, in Santos-Zacaria, the Supreme Court invited us to

consider a situation nearly identical to the one presented in this case,

concerning an immigration petitioner “whose only issue for judicial

review [was] one she had not raised previously because the Board’s

decision introduced the issue.” 598 U.S. at 430. The Government

contended that § 1252(d)(1) barred judicial review of the petitioner’s

claim “until after she pursues reconsideration” before the BIA. Id.

The Supreme Court rejected that view as requiring a “worthless

exercise,” because “the statutory scheme [of the INA] contemplates

that she immediately petition for judicial review of the Board’s initial,

prereconsideration decision.” Id. (citing 8 U.S.C. §§ 1252(b)(1), (6),

1229a(c)(6)(B)).

Applying the Supreme Court’s cautionary instruction here, we

recognize that it was the BIA that first raised the aging-out issue in its

decision denying Yupangui’s motion to reopen. Accordingly,

Yupangui was not required to seek reconsideration of the BIA’s

decision on that issue in order to raise it on this petition for review.

14

The Government nevertheless argues that Yupangui was

required to anticipatorily exhaust the aging-out question, even

though it had never been raised by anyone (and indeed was

inapplicable at that time, because his daughter was still under 21).

According to the Government, Yupangui “could (and should) have

anticipated that the Board likely would not have adjudicated his

motion in time to remand the matter for an immigration judge to issue

a final decision on any application prior to [his daughter] turning 21

years of age a mere 376 days after he filed his motion.” Resp. Br. at

17. The Government bases this argument on two premises: (1) that

Yupangui had already seen that the BIA took about 26 months to rule

on his appeal from the IJ’s denial of his application for cancellation of

removal, and (2) settled BIA precedent had decided the aging-out

issue years earlier. Id. (noting that Isidro-Zamorano had been decided

in 2012).

We do not find the Government’s arguments persuasive. For

one thing, they are completely unresponsive to the Supreme Court’s

ruling in Santos-Zacaria that an immigration petitioner need not

exhaust an issue that is first introduced by “the Board’s decision.”

598 U.S. at 430. The Supreme Court did not create an exception for

cases where an immigration petitioner could have, or should have,

guessed that the BIA would sua sponte raise a new issue that neither

party had yet floated. Moreover, we are not convinced by the

Government’s suggestion that Yupangui should have realized that

the BIA would not get around to ruling on his motion, and an IJ would

not then adjudicate his application, within what the Government

15

breezily describes as “a mere 376 days.” Resp. Br. at 17. Though we

are fully cognizant of the substantial caseload faced by the

immigration courts, it was not incumbent on Yupangui to assume that

adjudication of his motion would take any particular amount of time,

much less to predict more than a year in advance whether new legal

issues might be injected into his case. The Government’s

suggestion—that Yupangui should have briefed issues that were

neither raised nor relevant at the time—would seem to fit perfectly

within what the Supreme Court characterized in Santos-Zacaria as a

“worthless exercise.” 598 U.S. at 430.

B. Qualifying “Child” Under 8 U.S.C. § 1229b(b)(1)(D)

Moving to the merits, we note as a guiding principle that the

faithful interpretation of a statutory provision begins with its text,

read coherently and in context. See Wisconsin Cent. Ltd. v. United

States, 585 U.S. 274, 277-78 (2018). Here, the text of 8 U.S.C.

§ 1229b(b)(1)(D) grants the Attorney General discretion to cancel

removal proceedings for certain nonpermanent residents if (assuming

other requirements are met) “removal would result in exceptional

and extremely unusual hardship to the alien’s spouse, parent, or

child,” who is either a U.S. citizen or a lawful permanent resident. As

relevant here, the term “child” is definitionally limited to “an

unmarried person under twenty-one years of age.”

8 U.S.C. § 1101(b)(1).

The question we must answer is this: When is a child’s age

determined such that an IJ may weigh her alleged hardship for

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purposes of adjudicating her parent’s cancellation-of-removal

application? Until now, our Court has not had occasion to answer

that question, although it has come up before. See, e.g., Cruz v.

Garland, 2024 WL 1460131, *1–2 (2d Cir. Apr. 4, 2024) (summary

order) (noting petitioner’s presentation of the same aging-out

arguments presented here, but not deciding the point because

petitioner “abandoned any challenge to the BIA’s conclusion that

cancellation is a continuing application by not arguing that point”).

We hold that § 1229b(b)(1)(D) requires a qualifying “child” to be

under the age of 21 at the time an application for cancellation of

removal is adjudicated.

This case was litigated following the BIA’s decision in Matter of

Isidro-Zamorano, in which the agency held that a qualifying child who

turns 21 before the adjudication of her parent’s application for

cancellation of removal does not remain a qualifying relative under

the hardship requirement of § 1229b(b)(1)(D). See 25 I & N. Dec. at

830-31. Although Yupangui acknowledges that Isidro-Zamorano is

relevant BIA precedent, he contends that the BIA erred by not taking

other factors into account in his case—namely, the purported

ambiguity of § 1229b(b)(1)(D) as it relates to the aging-out issue and

his contention that the delay in processing his motion to reopen

harmed his case for reopening removal proceedings. The

Government, for its part, argued in its initial briefing that the BIA’s

interpretation was entitled to deference under Chevron, U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), because it

17

was a “reasonable interpretation” of an ambiguous statutory

provision. Resp. Br. at 15.

After the parties’ briefing concluded, the Supreme Court in

Loper Bright overruled the Chevron deference framework. So, we

ordered supplemental briefing by the parties to hear their views

about Loper Bright’s impact.

Yupangui contends that Loper Bright liberates this Court from

deferring to the BIA’s interpretation of the cancellation-of-removal

statute and allows it to interpret § 1229b(b)(1)(D) in a way that fixes

the age of Yupangui’s non-qualifying child “as of the date he filed his

cancellation of removal application,” or perhaps “the date of his

individual hearing,” or perhaps “the date when the evidence

of . . . hardship was presented.” Pet’r Supp. Br. at 7. He does not

offer any interpretive rationale for choosing any particular one of

those dates in preference to the others; he appears content to have the

agency settle on any date that would make him eligible for

cancellation of removal.

The Government, by contrast, argues that even though Loper

Bright removes Chevron deference from the equation of how our Court

should interpret § 1229b(b)(1)(D), the BIA’s interpretation remains the

best reading of the statute: A cancellation-of-removal application is a

“continuing application” such that a qualifying child’s age is

“properly considered at the time an application for cancellation of

removal is decided.” Isidro-Zamorano, 25 I. & N. Dec. at 830-31.

18

We agree with the Government. In reaching that conclusion,

we exercise our “independent judgment” in weighing whether the

BIA acted within its statutory authority when it affirmed that

Yupangui’s daughter was no longer a qualifying child for purposes

of cancellation of removal when she turned 21 during the pendency

of his application. Loper Bright, 603 U.S. at 412. We are persuaded by

the BIA’s conclusion that a request for cancellation of removal is best

viewed as a “continuing application.” Isidro-Zamorano, 25 I. & N. Dec.

at 831 (internal quotation marks omitted).

We must consider the full text of 8 U.S.C. § 1229b(b)(1)(D) in

order to determine the timing of its provisions. Recall that

cancellation of removal is permitted only if “removal would result in

exceptional and extremely unusual hardship to the alien’s spouse,

parent, or child, who is” a citizen or lawful permanent resident of the

United States. 8 U.S.C. § 1229b(b)(1)(D) (emphasis added). There are

two verbs in that phrase—“would result” and “is”—and we must

read them in conjunction, and in the context of the entire

subparagraph (D), to understand which moment in time is relevant.

“Because words are to be given the meaning that proper grammar

and usage would assign them, the rules of grammar govern statutory

interpretation.” Nielsen v. Preap, 586 U.S. 392, 407–08 (2019) (quoting

A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts

140 (2012)) (alteration adopted and internal quotation marks and

citation omitted).

Start with “would result,” in the longer phrase “removal would

result in . . . hardship.” That verb (“would result”) is in the

19

conditional mood. In context here, it denotes a hypothetical situation

in which a certain condition (removal) needs to be met in order for a

result to occur (hardship to a qualifying relative). The result must

flow from the condition; if it were the other way around, it could not

be the “result” of the condition. In the context of § 1229b(b)(1)(D),

therefore, because the hardship must be the “result” of removal, the

hardship must follow (not precede) removal.

What sort of hardship does the statute require? It must be a

hardship “to the alien’s spouse, parent, or child, who is” a United

States citizen or lawful permanent resident. 8 U.S.C. § 1229b(b)(1)(D)

(emphasis added). The verb “is”—which links the qualifying

relationship (spouse/parent/child) to the qualifying status (citizen or

lawful permanent resident)—appears in the present tense.

Accordingly, the relative in question must, while the relationship

with the applicant exists, contemporaneously have a qualifying status

in the United States. And as relevant here, the statutory definition of

a “child” for these purposes requires that the child be “an unmarried

person under twenty-one years of age.” 8 U.S.C. § 1101(b)(1).

Putting these all together, removal must cause a particular kind

of hardship—a hardship that will arise only upon an applicant’s

removal—to a person who at the time of removal has all the attributes

(relationship plus status) of a qualifying relative. In this case, that

means that Yupangui was eligible to be considered for cancellation of

removal only if, at the time of his removal, his eldest daughter was

both unmarried and under 21 (making her a “child”) and a U.S.

citizen (giving her the requisite status). By the time the BIA

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adjudicated his motion to reopen, she had exceeded the maximum

age, and so Yupangui’s (necessarily future) removal no longer

“would result” in hardship to a qualifying relative. 8 U.S.C.

§ 1229b(b)(1)(D). Thus the procedural delay has had the effect of

assuring there will be no exceptional hardship to a qualifying relative.

In reaching this conclusion, we agree with the Tenth and

Eleventh Circuits, which are the only other courts of appeals to have

considered this issue since Loper Bright. 5 See Rangel-Fuentes v. Bondi,

No. 23-9511, 2025 WL 2750691, at *4 (10th Cir. Sept. 29, 2025); Diaz-

Arellano v. U.S. Att’y Gen., 120 F.4th 722, 725 (11th Cir. 2024). As the

Eleventh Circuit explained, “[i]f an applicant is proceeding based on

exceptional hardship to a child, this means 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. It is not enough

that there was once a child who would have suffered hardship when

the alien first applied for relief.” Diaz-Arellano, 120 F.4th at 725. That

is because the cancellation-of-removal statute “directs immigration

judges to examine the effect of the applicant’s ‘removal.’” Id. And

that effect “on the listed relatives depends on the state of the world at

the time of that removal—not at some earlier date,” meaning

that “[a]n alien’s removal would not cause hardship to her parent if

the parent is deceased at the time she is removed. Nor would the

alien’s removal cause hardship to a spouse if the couple has divorced

during the pendency of immigration proceedings.” Id. at 725–26. We

5 We note that the Ninth Circuit has reached the same conclusion, though

its decision was issued before Loper Bright and premised on Chevron deference. See

Mendez-Garcia v. Lynch, 840 F.3d 655, 663–64 (9th Cir. 2016).

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agree. “The statute offers no reason to conclude that Congress

prioritized relief for aliens whose removal would have caused

exceptional hardship in the past over those whose removal would

cause exceptional hardship to a qualifying relative now.” Id. at 726.

We also join in the Eleventh Circuit’s observation that the

“present-tense determination will cut both ways,” sometimes making

it easier for an immigration petitioner to obtain cancellation of

removal. Id. “Babies will be born; couples will marry. And

immigration judges may—in fact, must—consider hardship to these

newly qualifying relatives.” Id. Indeed, as the BIA explained in Isidro-

Zamorano, treating an application for cancellation of removal as a

“continuing application” allows the agency to take account of certain

late-arriving factors that might assist a petitioner’s claim. 25 I. & N.

Dec. at 831. For example, because the ten-year window for

establishing good moral character is counted backward from the date

of adjudication, a person’s old bad acts “may fade in significance” as

time rolls forward. Matter of Ortega-Cabrera, 23 I. & N. Dec. 793, 797–

98 (B.I.A. 2005), cited in Isidro-Zamorano, 25 I. & N. Dec. at 831.

Nevertheless, Yupangui contends that even if his eldest

daughter has aged out for purposes of § 1229b(b)(1)(D), “the undue

delay” in the processing of his application “compels the BIA to

interpret [that statute] in a way that would have fixed the age of [his]

eldest child as of the date he filed his cancellation of removal

application,” or at some other point before his daughter turned

twenty-one. Pet’r Br. at 16. We are unpersuaded.

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For one thing, the statute means what it means. Whether the

BIA took more or less time to adjudicate any particular application

cannot change the inherent meaning of the statute. Yupangui points

to no authority (and we are aware of none) allowing the BIA to

“interpret” § 1229b in different ways in different cases, much less

authorizing it to do so depending simply on how much time it takes

to decide a given matter. Nor does he identify any authority

authorizing the BIA to make equitable exceptions to otherwise

applicable statutory requirements.

Second, to the extent that Yupangui relies on Isidro-Zamorano to

argue that the BIA recognizes an implied exception to

§ 1229b(b)(1)(D)’s temporal eligibility requirements, that argument is

based on an overreading of that decision. True, in Isidro-Zamorano,

the BIA noted in passing that the respondent had not “alleged any

improper delay on the part of the Immigration Judge.” 25 I. & N. Dec.

at 832. But the BIA did not say that if an improper delay had been

alleged, that would have influenced its ultimate conclusion that “the

respondent did not have a qualifying relative when the Immigration

Judge adjudicated the application and therefore could not establish

eligibility for relief.” Id. at 831. Instead, the BIA found “no basis in

law to conclude that an applicant in the respondent’s circumstances,

who loses his qualifying relationship before his application is even

adjudicated on its merits by the Immigration Judge, nonetheless

retains his eligibility for cancellation of removal.” Id. In short, the

BIA did not suggest that a delay in adjudicating a motion to reopen

would change the cancellation-of-removal calculus.

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We also find inapt Yupangui’s reliance on Martinez-Perez v.

Barr—a case that predated Loper Bright—where the Tenth Circuit

agreed with an immigration petitioner that the BIA “had jurisdiction

to entertain an alternate interpretation of when a child’s age is to be

assessed for cancellation.” 947 F.3d 1273, 1282 (10th Cir. 2020). The

BIA in the present case never suggested that it lacked “jurisdiction”

over Yupangui’s application, much less that it lacked “jurisdiction” to

consider any argument about how to interpret § 1229b(b)(1)(D).

Instead, it simply held that Yupangui was no longer eligible for

cancellation of relief on the merits. That conclusion, as we have

explained above, was correct. 6

We offer one final observation. Yupangui generally argues that

the BIA’s delays in processing his application for cancellation of

removal prejudiced him. It is true that, because of the passage of time

6 It may be possible to read parts of Martinez-Perez to suggest that if the BIA

had exercised its jurisdiction to consider the aging-out question, it would have had

leeway to construe § 1229b(b)(1)(D) in different ways in different cases. See, e.g.,

947 F.3d at 1281 (“Isidro-Zamorano left open the possibility that, given a different

set of facts, the BIA may interpret § 1229b(b)(1)(D) in a different way.”). If that is

what the Tenth Circuit meant, we disagree. Any such suggestion seems to be a

relic of the Chevron era. Id. at 1282 (remanding because the BIA “failed to exercise

its interpretive authority”). Moreover, in support of this proposition, the Tenth

Circuit cited the Supreme Court’s decision in INS v. Cardoza-Fonseca for the

proposition that “the BIA has the authority to give ambiguous statutory terms

‘concrete meaning through . . . case-by-case adjudication.’” Id. (quoting Cardoza-

Fonseca, 480 U.S. 421, 448 (1987) (emphasis added in Martinez)). But in that

passage, the Supreme Court was simply illustrating how agency interpretation of

statutes can develop through, among other things, adjudication as well as rule-

making. We do not read the Supreme Court as having encouraged agencies, even

during Chevron’s halcyon days, to flit among different statutory interpretations

depending on the facts of any particular case.

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between the filing and adjudication of his motion to reopen,

Yupangui is no longer eligible for cancellation of removal based on

hardship to his oldest child. But as the Eleventh Circuit aptly

observed in Diaz-Arellano, “the applicant is really only a subsidiary

beneficiary of the statute’s protections, which are designed to

safeguard the child, spouse, or parent” of a person seeking

cancellation of removal. 120 F.4th at 726 n.4. Because of the time it

took for the BIA to rule on Yupangui’s motion to reopen, and now the

time that has elapsed due to Yupangui’s petition for review, his

daughter is currently 24 years old, and he has remained in the United

States all the while. To the extent that § 1229b is designed to mitigate

harm to minor children that would flow from a parent’s removal,

such mitigation ran its course in this case as a consequence of the

BIA’s processing times.

III. Conclusion

In sum, we hold as follows:

1. The question of whether Yupangui’s child had “aged out”

of qualifying-relative status was raised sua sponte by the

BIA, for the first time, in its decision denying Yupangui’s

motion to reopen. Accordingly, Yupangui’s failure to

exhaust that issue before the agency does not bar him, under

8 U.S.C. § 1252(d)(1), from raising it before this Court in this

petition for review.

2. Under 8 U.S.C. § 1229b(b)(1)(D), a qualifying “child” must

be under the age of 21 at the time an application for

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cancellation of removal is adjudicated. Yupangui’s

daughter turned 21 during the pendency of his motion to

reopen his removal proceedings, and so the BIA did not err

in denying that motion on the ground that she was no longer

a qualifying relative for purposes of his eligibility for

cancellation of removal.

For the foregoing reasons, the petition for review is DENIED.

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