Cancellation of removal; Preconditions for relief from removal under 8 USC § 1229b(b)(1)(A)-(D); “Exceptional & extremely unusual hardship” to a qualifying child; § 1229b(b)(1)(D); Child defined (§1101(b)(1)); At what stage in the proceedings the qualifying child’s age is determined; Huerta v Garland (Unpub 6th Cir); Immigration judge (IJ); Board of Immigration Appeals (BIA)

In an issue of first impression in the Sixth Circuit, the court held that “the correct time to ascertain the age of a qualifying ‘child’ under § 1229b(b)(1)(D) on an application for cancellation of removal is when the IJ issues its decision[.]” As a result, it granted petitioner-Perez-Perez’s petition for review and reversed the BIA’s decision vacating the IJ’s grant of cancellation of removal under § 1229b(b)(1)(D). The qualifying child was 17 years old in 2020 when the IJ made its ruling. But the child reached the age of 21 during the approximately five-year delay between the IJ’s ruling and the BIA’s resolution of the case. Cancellation of removal can occur under §§ 1229b(b)(1)(D) if it would cause “‘exceptional and extremely unusual hardship to a [noncitizen’s] . . . child’)[.]” Section 1101(b)(1) defines “‘child’ as ‘an unmarried person under’” 21 years of age. Perez-Perez argued that the relevant time for determining the qualifying child’s age should be when the IJ made the decision or when the administrative record is closed. The government argued that it should be when the BIA issues its decision on appeal. The court noted that the statute is silent on this issue, but that it held in an unpublished opinion last year (Huerta) that “the plain meaning of § 1229b(b)(1)(D) instructs courts to assess the age of a qualifying ‘child’ at the time of removal for purposes of removal cancellation proceedings.” Section 1229b(b)(1)(D) requires the applicant for “cancellation of removal to ‘establish[]’ that his removal ‘would result in exceptional and extremely unusual hardship to the [noncitizen’s] . . . child, who is a citizen of the United States[.]’” Accordingly, the statute “mandates that the qualifying child must be a child at the time the noncitizen’s removal is adjudicated by the IJ.”