USCA11 Case: 20-14297 Date Filed: 11/02/2021 Page: 1 of 13
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14297
Non-Argument Calendar
____________________
RODOLFO ESPINOZA-SOLORZANO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A201-233-992
____________________
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2 Opinion of the Court 20-14297
Before JILL PRYOR, NEWSOM, and ANDERSON, Circuit Judges.
PER CURIAM:
Rodolfo Espinoza-Solorzano seeks review of the final order
of the Board of Immigration Appeals (“BIA”) affirming the Immi-
gration Judge’s (“IJ”) denial of his application for cancellation of
removal. To be eligible for cancellation of removal, an applicant
must have, among other things, a qualifying relative, such as a
child, who is a United States citizen. Espinoza-Solorzano argues
that the BIA erred in concluding that his daughter, who was un-
der 21 at the time he filed his application, did not qualify as a child
for purposes of cancellation of removal. Because the BIA reasona-
bly determined that a relative’s age must be assessed at the time
the IJ rules on the application for cancellation of removal, not the
time the application is filed, we deny his petition.
I. BACKGROUND
Espinoza-Solorzano is a citizen of Mexico who entered the
United States without inspection. After living in the United States
for several decades, he was arrested and charged with identity
fraud. He pled guilty to the lesser charge of criminal trespass and
was sentenced to probation. The incident brought him to the at-
tention of immigration authorities, who began removal proceed-
ings. In immigration proceedings, Espinoza-Solorzano conceded
that he was removable.
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20-14297 Opinion of the Court 3
In 2011, Espinoza-Solorzano applied for cancellation of re-
moval. See 8 U.S.C. § 1229b. To be eligible, Espinoza-Solorzano
needed to have a qualifying relative—here, a U.S. citizen child
under 21 years old—who would suffer hardship if he were re-
moved to Mexico. See
8 U.S.C. §§ 1101(b)(1); 1229b(b)(1)(D). He
claimed his daughter, who was 15 years old at the time, as the
qualifying relative who would suffer hardship if he were re-
moved. She is intellectually disabled; her “cognitive ability is sig-
nificantly below that of her peers.” AR at 111. 1 Espinoza-
Solorzano was her primary caretaker: he brought her to doctor’s
appointments, took her to school, and worked with her school to
ensure that she received specialized academic support and pro-
gressed in her learning.
Espinoza-Solorzano’s application for cancellation of re-
moval remained pending for several years. 2 The IJ finally adjudi-
cated his application in 2018. By that time, Espinoza-Solorzano’s
daughter was 22 years old and had aged out of “child” status. He
argued that her diminished mental capacity and continued de-
pendence on him for her daily needs meant that she should still be
1 “AR” refers to the administrative record.
2 Espinoza-Solorzano had his first immigration hearing in 2011. The IJ stayed
the proceedings until after his criminal proceedings wrapped up. At a 2017
hearing, he asked for a continuance to explore the possibility of getting a de-
rivative visa through his daughter. The IJ granted the continuance, and the
hearing was rescheduled in 2018.
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4 Opinion of the Court 20-14297
considered a qualifying relative, despite her chronological age.
Disagreeing, the IJ found that Espinoza-Solorzano was ineligible
for cancellation of removal because he had no qualifying relatives
at the time of adjudication and denied his application. Because the
IJ concluded that Espinoza-Solorzano lacked a qualifying relative,
the issue of whether Espinoza-Solorzano’s removal would cause a
hardship to his daughter was not reached.
On appeal, the BIA agreed with the IJ’s determination that
Espinoza-Solorzano’s daughter did not qualify as a child. The BIA
explained that, in this context, the Immigration and Nationality
Act (“INA”) defined a child as “an unmarried person under twen-
ty-one years of age.”
8 U.S.C. § 1101(b)(1). Even though Espinoza-
Solorzano’s daughter had been under 21 at the time he applied for
cancellation of removal, the BIA concluded that she did not quali-
fy as a child because she was not under 21 at the time of the IJ’s
decision. Because she did not qualify as a child, the BIA ruled that
Espinoza-Solorzano was ineligible for cancellation of removal and
dismissed his appeal. The BIA rejected Espinoza-Solorzano’s ar-
gument that his daughter qualified as a child based on her “mental
age” as “unsupported by law.” AR at 4. Like the IJ, after having
concluded that Espinoza-Solorzano’s daughter was not a qualify-
ing relative, the BIA did not address whether the daughter would
experience a hardship if Espinoza-Solorzano were removed. Espi-
noza-Solorzano has now petitioned our Court for review of the
BIA’s decision.
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20-14297 Opinion of the Court 5
II. STANDARD OF REVIEW
We review our own subject matter jurisdiction de novo.
Jeune v. U.S. Att’y Gen.,
810 F.3d 792, 799 (11th Cir. 2016). We
generally lack jurisdiction to review the denial of certain forms of
discretionary relief under the INA, including a denial of cancella-
tion of removal.
8 U.S.C. § 1252(a)(2)(B)(i); Guillen v. U.S. Att’y
Gen.,
910 F.3d 1174, 1179 (11th Cir. 2018). But we retain jurisdic-
tion to review any petition that raises constitutional claims or
questions of law.
8 U.S.C. § 1252(a)(2)(B)(i), (D); Germain v. U.S.
Att’y Gen.,
9 F.4th 1319, 1323 (11th Cir. 2021). The issue of what
point in time should be used to determine a child’s age for qualify-
ing-relative purposes is a question of law.
We review only the BIA’s decision, except where, as here,
the BIA explicitly agrees with the IJ’s opinion. Thamotar v. U.S.
Att’y Gen.,
1 F.4th 958, 969 (11th Cir. 2021). We review the BIA’s
statutory interpretation de novo. Quinchia v. U.S. Att’y Gen.,
552
F.3d 1255, 1258 (11th Cir. 2008).
III. DISCUSSION
After a noncitizen is found to be removable, an immigra-
tion judge has discretion to cancel the removal. 8 U.S.C.
§ 1229b(b); Gelin v. U.S. Att’y Gen.,
837 F.3d 1236, 1238 (11th Cir.
2016). But the noncitizen is eligible for cancellation of removal
only if he meets certain statutory requirements. 8 U.S.C.
§ 1229b(b)(1); Resendiz-Alcaraz v. U.S. Att’y Gen.,
383 F.3d 1262,
1266 (11th Cir. 2004). He meets the requirements if he: (1) has 10
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6 Opinion of the Court 20-14297
years of continuous physical presence in the United States; (2) is
of good moral character; (3) has not been convicted of certain
crimes, including aggravated felonies and crimes of moral turpi-
tude; and (4) shows that removal would result in “exceptional and
extremely unusual hardship” to his child, parent, or spouse who is
a United States citizen. Id.; 8 U.S.C. § 1229b(b)(1). That child, par-
ent, or spouse is known as a “qualifying relative.” See Alhuay v.
U.S. Att’y Gen.,
661 F.3d 534, 549 (11th Cir. 2011). The INA de-
fines “child” as an unmarried person under 21 years of age.
8
U.S.C. § 1101(b)(1).
In this appeal, Espinoza-Solorzano argues that the BIA
erred in concluding that he failed to satisfy the qualifying-relative
requirement. He contends that because his daughter, who is a
United States citizen, was under 21 years of age when he applied
for cancellation of removal, she met the statutory definition of a
child and thus was a qualifying relative. He further argues that
even if there is a general rule that an IJ must use the child’s age at
the date the application for cancellation of removal is adjudicated,
an exception should be made here to account for his daughter’s
diminished mental capacity. 3 We address each of these arguments
in turn.
3Espinoza-Solorzano also argues that the BIA erred in failing to consider the
hardship that his daughter would face if he were removed. But we do not
consider issues, like this one, that the BIA did not reach. Gonzalez v. U.S.
Att’y Gen.,
820 F.3d 399, 403 (11th Cir. 2016).
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20-14297 Opinion of the Court 7
A. The BIA Reasonably Interpreted the INA.
We begin with the legal question of whether, under the
INA, we look to the age of a qualifying relative at the time the IJ
adjudicated the noncitizen’s application or at the time the applica-
tion was filed to determine if she was a “child.” In this case, the
BIA, applying a prior precedential decision, determined that we
look to the relative’s age at the time of adjudication, not the time
of application. We must “defer to the BIA’s interpretation of a
statute” so long as it is “reasonable” and “does not contradict the
clear intent of Congress.” Jaggernauth v. U.S. Att’y Gen.,
432 F.3d
1346, 1350 (11th Cir. 2005) (citing Chevron, U.S.A., Inc. v. Natural
Res. Def. Council, Inc.,
467 U.S. 837, 842–44 (1984)).
Under Chevron, “[w]hen a court reviews an agency’s con-
struction of the statute which it administers . . . [and] the statute is
silent or ambiguous with respect to the specific issue, the question
for the court is whether the agency’s answer is based on a permis-
sible construction of the statute.” Chevron,
467 U.S. at 842–43. “In
such a case, a court may not substitute its own construction of a
statutory provision for a reasonable interpretation made by the
administrator of an agency.”
Id. at 844. But if Congress has writ-
ten clearly, then our inquiry ends and “we must give effect to the
unambiguously expressed intent of Congress.” Hylton v. U.S.
Att’y Gen.,
992 F.3d 1154, 1158 (11th Cir. 2021) (internal quota-
tion marks omitted). The Supreme Court has further instructed
that the “principles of Chevron deference are applicable” to the
BIA “as it gives ambiguous statutory terms concrete meaning
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8 Opinion of the Court 20-14297
through a process of case-by-case adjudication." INS v. Aguirre-
Aguirre,
526 U.S. 415, 424–25 (1999) (internal quotation marks
omitted). 4
Applying the Chevron framework, we begin by asking
whether Congress “directly spoke[] to the precise question at is-
sue”: what time period does the agency look to when determining
whether a relative qualifies as a “child.” See Chevron,
467 U.S. at
842. We independently examine the statute to determine if it an-
swers this question. Hincapie-Zapata v. U.S. Att’y Gen.,
977 F.3d
1197, 1200 (11th Cir. 2020). We start with the plain language of
the statute and use our traditional tools of statutory construction,
including the canons of construction, to see if the statute has a
plain meaning. Hylton, 992 F.3d at 1158; United States ex rel.
Hunt v. Cochise Consultancy, Inc.,
887 F.3d 1081, 1088–89 (11th
Cir. 2018). “In considering the text, we bear in mind that a provi-
sion that may seem ambiguous in isolation is often clarified by the
remainder of the statutory scheme.”
Id. at 1088 (alteration adopt-
4 Here, the BIA issued a non-precedential, single-member decision. We have
recognized that such a decision generally is not entitled to Chevron defer-
ence unless the BIA rested its decision on “existing BIA or federal court prec-
edential decisions.” Quinchia, 552 F.3d at 1258. Because the BIA’s determina-
tion that it looks to a relative’s age at the time the application for cancellation
of removal was adjudicated, not when the application was filed, rested on an
earlier, precedential BIA decision, the BIA’s decision in this case may be af-
forded Chevron deference.
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20-14297 Opinion of the Court 9
ed) (internal quotation marks omitted). And so we look at the
“whole statutory text, considering the purpose and context of the
statute, and consulting any precedents or authorities that inform
the analysis.” Dolan v. U.S. Postal Serv.,
546 U.S. 481, 486 (2006).
After reviewing the statutory text, we cannot say that the
INA speaks directly to the issue before us. The text sheds little
light on the time frame question; the statute simply does not spec-
ify whether the agency should use a relative’s age at the time the
application was filed or when it was adjudicated to determine
whether the relative qualifies as a “child.” See 8 U.S.C.
§ 1229b(b)(1)(D). The qualifying-relative provision says that the
noncitizen must establish that “removal would result in excep-
tional and extremely unusual hardship to [his] spouse, parent or
child” who is a United States citizen or a legal permanent resident.
Id. There is no time-based language here.
Other provisions in the INA do not directly answer the
question either. For example, the INA provision defining the term
“child” directs that we must consider a relative’s age to determine
if she is a child. But it provides no direction on at what point in
time the agency should measure the relative’s age. See
8 U.S.C.
§ 1101(b)(1) (defining child as “an unmarried person under twen-
ty-one years of age”). Because the statute does not directly ad-
dress the question before us, we turn to step two of Chevron.
At step two, we consider whether the BIA’s interpretation
is based on a permissible construction of the statute. In this case,
the BIA, relying on its earlier precedential decision in Matter of
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10 Opinion of the Court 20-14297
Isidro-Zamorano, determined that a relative’s age at the time the
application was adjudicated should be used to determine whether
the relative qualifies as a “child.”
25 I. & N. Dec. 829 (BIA 2012).
In Isidro-Zamorano, the noncitizen applied for cancellation of
removal, arguing that his United States citizen son was a “child”
under the INA and thus a qualifying relative.
Id. at 829–30. When
the noncitizen filed his application, his son was under 21 years
old, but by the time the IJ adjudicated his application, his son was
over 21.
Id. at 830. The IJ determined that the son could not be a
qualifying relative and denied the noncitizen’s application.
Id. The
BIA agreed that the son was no longer a qualifying relative when
the IJ adjudicated the noncitizen’s application and dismissed the
appeal.
Id. at 831–33.
The BIA noted its rule that an application for cancellation
of removal is a continuing application, which affects timing re-
quirements for two provisions.
Id. at 830–31 (citing Matter of
Bautista Gomez,
23 I. & N. Dec. 893, 894 (BIA 2006)). To be eligi-
ble for cancellation of removal, the noncitizen must show that he
has a good moral character. 8 U.S.C. § 1229b(b)(1)(B). This provi-
sion also lacks a timing requirement. See id. Regardless, the IJ de-
termines good moral character at the time of adjudication, not at
the time of application. See Bautista Gomez, 23 I. & N. Dec. at
894. Giving the applicant 10 years “calculat[ing] backward from
the date on which the application is finally resolved” to establish
good moral character serves the purpose of giving him time for
his “bad act [to] fade in significance.” Matter of Ortega-Cabrera,
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20-14297 Opinion of the Court 11
23 I. & N. Dec. 793, 797 (BIA 2005). Similarly, giving the applicant
until the time of adjudication to find qualifying relatives makes it
possible to use “the birth of a United States citizen child, marriage
to a lawful permanent resident or citizen, or a serious accident or
illness involving a qualifying relative” as the basis for cancellation
of removal. Bautista Gomez, 23 I. & N. Dec. at 894.
Reasoning that “the issues of good moral character and
qualifying relatives are properly considered at the time an applica-
tion . . . is decided,” the BIA concluded that the applicant in Isidro-
Zamorano had no qualifying relative at the time of adjudication
and “therefore could not establish eligibility for relief.” Isidro-
Zamorano, 25 I. & N. Dec. at 830–31 (citing Bautista Gomez, 23 I.
& N. Dec. at 894–95). The BIA recognized that this interpretation
of the statute could help some applicants and hurt others, espe-
cially those in the “difficult situation” where the noncitizen “loses
his qualifying relationship before his application is even adjudicat-
ed on its merits”—which is precisely what happened to Espinoza-
Solorzano.5 See id. at 831. It found “no basis in law” to conclude
that an applicant who loses his qualifying relationship before ad-
5 In Isidro-Zamorano, the BIA emphasized that the case before it did not in-
volve an “undue or unfair delay in the course of the[] proceedings.” 25 I. &
N. Dec. at 832. Although Espinoza-Solorzano’s application for cancellation of
removal remained pending for more than seven years, the record reflects
that he requested several extensions to resolve state criminal charges and
then to pursue the possibility of getting a derivative U-visa. He has not ar-
gued that the BIA or IJ unduly or unfairly delayed his proceedings.
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12 Opinion of the Court 20-14297
judication “nonetheless retains his eligibility for cancellation of
removal.” Id. We cannot say that this determination was unrea-
sonable. The BIA could reasonably interpret the qualifying-
relative requirement like the good-moral-character requirement
and find that the noncitizen must show that he has a qualifying
relative—and that this relative is the correct age—at the time of
adjudication.
B. The BIA Properly Focused on Espinoza-Solorzano’s Daugh-
ter’s Chronological Age.
We now turn to Espinoza-Solorzano’s claim that the BIA
should have applied an exception and treated his daughter as a
child because she has an intellectual disability and remains “men-
tally infirm” and reliant on him just like a child. Appellant’s Br. at
8. This position is inconsistent with the text of the INA, which di-
rects that we consider only a person’s chronological age to de-
termine whether she is a child.
Under the INA, the term “child” is defined as a person “un-
der twenty-one years of age.”
8 U.S.C. § 1101(b)(1). The statutory
language unambiguously uses the length of time a person has
been alive to measure her age. We know this because the ordi-
nary meaning of “age” is “the length of life or existence from
birth.” Age, Merriam-Webster’s Unabridged Dictionary,
https://unabridged.merriam-webster.com/unabridged/age (last
visited Oct. 28, 2021). Because the term “age” unambiguously re-
fers to the length of time Espinoza-Solorzano’s daughter had been
alive, the BIA was right to consider her chronological age to de-
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20-14297 Opinion of the Court 13
termine whether she was a child. To be considered a child and
thus a qualifying relative, she needed to be under 21 years old at
the time the IJ adjudicated her father’s application; however, she
was 22 years old. We agree with the BIA that Espinoza-
Solorzano’s argument that his 22-year-old daughter remains a
qualifying relative despite her age is not supported by law. Thus,
we deny his petition.
IV. CONCLUSION
For the foregoing reasons, the petition is denied.
PETITION DENIED.
