Empowering Immigrants, Strengthening America
Attorney Derek DeCosmo recently presented oral arguments before the United States Court of Appeals for the Third Circuit in Guadalupe Garcia v. Attorney General of the United States, No. 25-3432. Argued on October 20, 2026, the case addresses an important question in federal immigration law concerning eligibility for cancellation of removal and how a child’s age should be evaluated during lengthy immigration proceedings.
Representing petitioner Guadalupe Garcia, Derek DeCosmo argued that the passage of time during the immigration appeals process should not unfairly affect a family’s eligibility for relief from removal. The case also involves a disagreement among federal appellate courts over how to interpret the applicable immigration statute.
When Does a Child’s Age Affect Immigration Relief?
At the center of the case is 8 U.S.C. § 1229b, which allows certain noncitizens to seek cancellation of removal if they meet specific statutory requirements. One requirement involves demonstrating that removal would cause “exceptional and extremely unusual hardship” to a qualifying relative, such as a U.S. citizen or lawful permanent resident child.
For a child to qualify under this provision, the child generally must be unmarried and under the age of 21.
The legal question in Garcia is when that age requirement must be satisfied. Should a child’s age be determined when an Immigration Judge issues a decision, or must the child remain under 21 throughout the administrative appeals process?
This distinction matters because immigration appeals can take years. A child who qualifies when an Immigration Judge first rules may turn 21 before the Board of Immigration Appeals (BIA) completes its review.
Addressing a Split Among Federal Courts
During oral argument, Derek DeCosmo addressed conflicting interpretations of this issue among federal appellate courts.
The Sixth Circuit, in Perez v. Bondi, held that a qualifying child’s age is fixed when the Immigration Judge issues a decision. The Ninth Circuit, in Torres-Casas v. Blanche, adopted a different approach, treating the application as a continuing proceeding and allowing a child to age out while an appeal is pending before the BIA.
Derek DeCosmo argued that the hardship determination made by an Immigration Judge is a cumulative assessment of the family’s circumstances. In his view, that determination should not be undone simply because a child turns 21 during an extended administrative appeals process.
Government counsel presented the opposing argument, maintaining that the qualifying relative must still meet the statutory definition of a child when the BIA issues its final decision. They argued that the statute requires courts to evaluate the hardship that would exist at the time of removal.
The judges also questioned Derek DeCosmo about how his proposed interpretation would apply to other developments occurring after an Immigration Judge’s decision, including the death of a qualifying relative or an applicant’s conviction for a disqualifying crime.
Listen to the Oral Argument
The Third Circuit’s consideration of Garcia presents an important opportunity to address an unresolved question in immigration law with meaningful consequences for families facing removal proceedings.
The full oral argument recording and transcript are available through CourtListener.
Listen to Derek DeCosmo’s Oral Argument
Derek DeCosmo’s appearance before the Third Circuit highlights his advocacy in complex immigration matters and his work representing individuals navigating the federal immigration system.