The Tenth Circuit Applies Loper Bright to Decide When a “Child” is a Child 

On September 29, 2025, the Tenth Circuit issued its decision in Rangel-Fuentes v. Bondi. The case not only resolves an important question about eligibility for cancellation-of-removal orders under federal immigration law but also provides a roadmap for how courts might approach statutory interpretation—and, specifically, delegations of discretionary agency authority—in the post-Chevron era. 

Background: The Case and Its Stakes

Cristina Rangel-Fuentes, a Mexican citizen, entered the United States unlawfully in the mid-1990s.  She then married and went on to have three children.  In early 2012, following her arrest for contempt of court, the Department of Homeland Security (“DHS”) charged Mrs. Rangel with inadmissibility and ordered her removal from the country.  Mrs. Rangel challenged the removal and later filed an application for asylum, arguing deportation would cause “exceptional and extremely unusual hardship” to her youngest son, who was then seventeen years old.  She also claimed she feared for her safety if returned to Mexico, given recent violence against her family members. 

The crux of Mrs. Rangel’s dispute with DHS was about timing.  When the immigration judge closed the administrative record for her cancellation-of-removal application in 2017, Mrs. Rangel’s youngest son still qualified as a “child,” as defined by the Immigration and Nationality Act (“INA”).  Due to an annual cap on cancellation orders, however, the immigration judge only issued his opinion two years later, at which point the son had reached majority.  Because the son was no longer a “child,” Mrs. Rangel’s application was denied.  (The judge also denied Mrs. Rangel’s separate asylum claim as untimely.)  The Board of Immigration Appeals (“BIA”) affirmed, rejecting the argument that the son’s eligibility should have been fixed at the time the administrative record closed. 

The Statutory Question: When is a “Child” a Child? 

The INA requires that an applicant for cancellation-of-removal “establish” how “removal would result in exceptional and extremely unusual hardship” to a qualifying relative, such as a “child” under the age of twenty-one.  But the statute is silent on how the age of a “child” is supposed to be computed.  Is it assessed at the time of filing an application?  When the record closes?  Or when an immigration judge renders a decision?  

Courts used to defer to BIA under the Chevron doctrine on this question.  In fact, the Tenth Circuit previously ruled for the government in Mrs. Rangel’s case, concluding BIA’s interpretation reflected a reasonable interpretation of an otherwise vague law.  As the Circuit explained, Mrs. Rangel’s interpretation was not “itself impermissible or unreasonable,” but the ambiguous “phrasing of the statute” also did “not compel” her “construction.”  Given that tie, Chevron required the benefit to go to the government. 

Enter Loper Bright: Independent Judicial Judgment 

While Mrs. Rangel’s petition for rehearing was pending, the Supreme Court decided Loper Bright, overruling Chevron and instructing courts to “exercise independent judgment” when interpreting the law.  The Tenth Circuit vacated its prior decision and ordered supplemental briefing. 

Applying the new Loper Bright standard, the Rangel-Fuentes court re-reviewed BIA’s statutory interpretation de novo.  At the outset, the Circuit rejected the agency’s argument that Congress intended to give it interpretive “latitude as a delegated exercise of agency discretion.”  In Loper Bright, the Supreme Court had explained that sometimes “the best reading of a statute is that it delegates discretionary authority to an agency.”  In these instances, a reviewing court should stick to ensuring an “agency has engaged in reasoned decisionmaking” within the “boundaries” of Congress’s delegation.  In this case, the INA did not empower BIA with discretionary power.  “[A] delegation must come from somewhere,” and nothing in the text of the INA gave the BIA the power to “interpret any of . . . [the] terms” of the cancellation-of-removal provision or to “fill in any of its blanks.”  The Circuit also rejected BIA’s proposal to ground its claimed regulatory discretion in its general rulemaking authority to “carry[] out” responsibilities under the INA.  To have ruled otherwise “would render Loper Bright essentially toothless.” 

Even without a delegation of discretion in the mix, though, the Tenth Circuit ultimately agreed BIA’s interpretation reflected the best reading of the law.  Judge Nancy Moritz, writing for the majority, explained the plain meaning of the operative word, “establish,” taken in isolation, is inconclusive.  It simply means “to convince someone of,” or “demonstrate or prove to be true.”  But the INA’s overall focus on the hardships that result from “removal” naturally supports construing “establish” to require consideration of a petitioner’s circumstances at the time of an immigration judge’s decision.  Assessing a supposed child’s age at that moment—rather than when the record closes—better aligns with statutory context and purpose, even if it means some applicants will suffer due to delays outside their control.  Mrs. Rangel’s desired result, by contrast, would “require an immigration judge to don blinders once the record closes and ignore evolving facts that are plainly relevant to an application’s eligibility for relief.” 

Asylum Appeal: Abuse of Discretion and Remand 

On a separate issue, the Circuit concluded BIA abused its discretion by treating Mrs. Rangel’s asylum appeal as waived.  The majority determined Mrs. Rangel’s notice of appeal and briefing adequately challenged the immigration judge’s adverse finding on the nexus between her social group and claims of feared persecution.  It remanded and directed BIA to address the merits of the asylum petition. 

Implications for Statutory Interpretation After Loper Bright 

The Rangel-Fuentes decision reflects many of the trends developing in the lower courts in the wake of Loper Bright.  Without Chevron deference, courts must now interpret statutes independently.  Statutory text—as read through the lenses of the canons of interpretation—will be the most important focus of that effort.  Yet more than anything, Rangel-Fuentes shows how courts must carefully examine claimed delegations of regulatory discretion, ensuring they are grounded in express statutory text rather than mere implication.   

Here, the BIA tried to sidestep Loper Bright by claiming Congress gave it authority to “fill out” “gaps” in the INA.  The Tenth Circuit rejected that interpretation because Congress had not expressly delegated such power to BIA.  And general “housekeeping” statutes provide no alternative basis for shielding the agency’s position from meaningful judicial review.  As courts across the country grapple with similarly contested statutes and delegations, the lessons of Rangel-Fuentes case will likely resonate far beyond immigration law.