Reported / Citable
Background
Cruz Torres-Casas sought cancellation of removal, a discretionary remedy requiring exceptional and extremely unusual hardship to a qualifying spouse, parent, or child. One son was under 21 when the immigration judge ruled but turned 21 while Torres’s administrative appeal remained pending. Torres also relied on hardship to other qualifying relatives.
The Board of Immigration Appeals treated eligibility as continuing through its decision, excluded the adult son as a qualifying child, and upheld denial of relief.
The Court’s Holding
In a published opinion, the Ninth Circuit denied review. The statutory present-tense language requires the agency to assess whether a relative qualifies when the BIA adjudicates the appeal. Because the son had turned 21, he no longer met the immigration statute’s definition of a child.
Substantial evidence also supported the conclusion that hardship to Torres’s remaining relatives, though serious, did not rise to the unusually demanding statutory level. The panel rejected a due-process theory based on administrative delay under existing circuit precedent.
Key Takeaways
- Cancellation eligibility must continue through the BIA’s decision, not merely the immigration judge’s hearing.
- A child can age out while an administrative appeal is pending.
- Counsel should identify multiple qualifying relatives and develop individualized hardship proof early.
- Ordinary family, financial, emotional, and health burdens may not satisfy the exceptional-hardship standard.
Why It Matters
The decision makes administrative timing outcome-determinative for some families. Immigration counsel should flag imminent twenty-first birthdays, seek appropriate expedition where available, and avoid building the entire hardship case around a single child close to aging out.