The Sixth Circuit Court of Appeals has weighed in on a key question in immigration law: At what point in the process of applying for cancellation of removal should the age of a “child” be determined? The court ruled in favor of the applicant, Roderico Filadelfo Perez-Perez, stating that the relevant time to consider the age of a qualifying child is when the Immigration Judge (IJ) makes their decision, not when the Board of Immigration Appeals (BIA) reviews the case. This decision has implications for non-citizens seeking to avoid deportation based on the hardship it would cause their children.
The Core of the Case
The case, *Perez-Perez v. Bondi*, centered on Mr. Perez-Perez, a native of Guatemala who entered the United States without inspection in 1994. He was facing deportation after being detained in 2019 and pled guilty to a DUI. He applied for cancellation of removal, a process that allows certain non-citizens to remain in the U.S. if they meet specific criteria. One of these criteria is demonstrating that their removal would cause “exceptional and extremely unusual hardship” to a qualifying relative, which can include a U.S. citizen or a lawful permanent resident who is a spouse, parent, or child. The law defines a “child” as an unmarried person under 21 years of age.
In April 2020, an IJ granted Mr. Perez-Perez’s application for cancellation of removal, finding that his youngest daughter, Ady, who was then seventeen, would suffer the required hardship if he were deported. However, the government appealed this decision to the BIA. By the time the BIA issued its decision in February 2025, Ady was over 21 years old. The BIA, therefore, reversed the IJ’s decision, concluding that Ady was no longer a qualifying child and ordered Mr. Perez-Perez removed to Guatemala.
Mr. Perez-Perez then appealed to the Sixth Circuit Court of Appeals, arguing that the BIA erred in its interpretation of the law. He contended that the relevant point in time to determine Ady’s age was when the IJ made the initial decision, not when the BIA reviewed the case.
The Court’s Reasoning
The Sixth Circuit sided with Mr. Perez-Perez. The court’s opinion, authored by Judge Julia Smith Gibbons, focused on interpreting the Immigration and Nationality Act (INA). The court stated that the INA itself does not explicitly state the exact moment in the cancellation of removal process when a child’s age must be assessed. Therefore, the court had to interpret the law to determine the proper timing.
The court started by examining the plain meaning of the relevant sections of the INA. It highlighted that the law requires a non-citizen to “establish” that their removal “would result in exceptional and extremely unusual hardship” to their child. The court reasoned that this language implies that the child must meet the definition of a “child” (under 21 and unmarried) at the time the IJ is making their decision. The court cited a previous case in the Sixth Circuit, *Huerta v. Garland*, which supported this interpretation.
The court also emphasized that it is no longer bound by the BIA’s interpretation of the INA because of a recent Supreme Court decision, *Loper Bright Enterprises v. Raimondo*. Prior to this ruling, courts often deferred to the BIA’s interpretation. However, the *Loper Bright* decision clarified that courts, not agencies, have the final say on interpreting statutory ambiguities.
The court acknowledged that some other courts have reached different conclusions. However, it found that these cases were either factually different or relied on a conflicting legal analysis.
The Dissenting Opinion
Judge McKeague wrote a dissenting opinion, arguing that the BIA’s decision should be upheld. He reasoned that the age of the child should be measured at the time of the final administrative decision on the application for cancellation of removal, which, in this case, was the decision of the BIA.
Judge McKeague argued that the plain language of the statute and the context of other immigration laws support this view. He stated that the hardship must be assessed at the time of removal and that a child must meet the definition of “child” at the time the final decision is made. Judge McKeague cited case law from other circuits that support his conclusion.
He also addressed the fact that Mr. Perez-Perez’s daughter aged out while the appeal was pending. Judge McKeague argued that the statute does not offer an exception for such situations and that the hardship must be present at the time of the final decision.
Implications of the Decision
The Sixth Circuit’s ruling provides clarity on the timing of determining a child’s age in cancellation of removal cases within its jurisdiction, which includes Michigan, Ohio, Kentucky, and Tennessee. This means that if an IJ grants cancellation of removal, the relevant date to determine if a child qualifies is the date of the IJ’s decision, even if the case is appealed.
This decision could benefit non-citizens who have children who are close to turning 21. If the IJ grants cancellation before the child’s 21st birthday, the non-citizen may be able to avoid deportation, even if the government appeals the decision.
The Sixth Circuit’s decision could also lead to more appeals of IJ decisions, as the government may try to delay the process to allow a child to age out.
The ruling might also influence other circuits to re-evaluate their positions on this issue. Since the law is not entirely clear on this matter, and the Supreme Court has not yet weighed in, there is a possibility that this issue may be decided differently in various jurisdictions.