When does a child age-out for purposes of serving as the qualifying relative for 42b Cancellation of Removal?
In Roderico Filadelfo Perez‑Perez v. Pamela Bondi, No. 25‑3146 (6th Cir. Nov. 21, 2025), the Sixth Circuit addressed an extremely important question that has caused a divide among the Circuits–At what point in the 42b non-LPR Cancellation of Removal process must a qualifying “child” under the Immigration and Nationality Act (INA) still be under 21 years old?
Since numbers are limited many applicants who prove extreme and exceptionally unusual hardship are made to wait for years in order for visa numbers to become available. This raises concerns if the US citizen child is getting close to the age of twenty-one. In Roderico Filadelfo Perez-Perez they deal with a different question though. What if the Immigration Judge issues a decision when the child is under twenty-one, then there is an appeal, and the child turns twenty-one while the appeal is pending?
The Sixth Circuit held that the relevant time to measure the age of the qualifying child is when the Immigration Judge issues the decision, not when the Board of Immigration Appeals (BIA) adjudicates the appeal.
The decision has significant implications for:
- Noncitizens seeking cancellation of removal based on hardship to qualifying children;
- How courts interpret the INA in a post‑Chevron, post‑Loper Bright world; and
- The growing circuit split on the “age‑out” problem under INA § 240A(b)(1)(D), 8 U.S.C. § 1229b(b)(1)(D).
The Circuit Split
| Jurisdiction | Rule Applied | Key Case(s) |
| 6th Circuit | IJ Decision Rule: Age fixed at IJ decision. | Perez-Perez (2025) |
| 9th Circuit | Mixed/IJ Rule: Generally IJ decision (for initial grants). | Mendez-Garcia; Gonzalez-Juarez |
| 10th Circuit | IJ Decision Rule: Reaffirmed post-Loper Bright. | Rangel-Fuentes |
| 11th Circuit | Final Decision Rule: Age must persist through BIA decision. | Diaz-Arellano; Pina |
| 2nd Circuit | Final Decision Rule (likely): Indicated in reopening contexts. | Yupangui-Yunga (cited in Dissent) |
If you want to know more about this decision you should read this really good summary of the decision.