Harrison Tudtud v. Jefferson B. Sessions, III
14-3926
| 6th Cir. | Jan 4, 2018Background
- Harrison and Carol Tudtud, Filipino nationals, entered the U.S. on B-2 visas in 2001 and were placed in removal proceedings in 2009 for overstaying. They conceded removability and sought cancellation of removal based on hardship to their U.S. citizen son.
- The immigration judge (IJ) deemed their cancellation applications abandoned when not filed to the immigration court and ordered removal; the BIA later remanded to permit adjudication of the cancellation applications.
- At the merits hearing, DHS offered pre-hearing voluntary departure allowing the Tudtuds to remain through the end of the school year. The IJ explained pre- and post-hearing voluntary departure limits and that a waiver of unlawful presence might be available but was not guaranteed.
- After consulting counsel, the Tudtuds withdrew their cancellation applications, waived appeal rights, and accepted pre-hearing voluntary departure. They later moved to reopen, asserting they relied on erroneous assurances that a waiver of unlawful presence would make return possible.
- The BIA denied the ineffective-assistance motion to reopen, concluding counsel’s alleged errors were not prejudicial because the IJ would have denied cancellation relief on the merits (hardship was “real but common,” not “exceptional and extremely unusual”). The Sixth Circuit denied review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of motion to reopen for ineffective assistance of counsel was an abuse of discretion | Tudtuds: prior counsel advised them they were eligible for an unlawful-presence waiver and thus they reasonably withdrew cancellation applications; counsel’s errors prejudiced them | Government: record shows IJ would have denied cancellation relief on the merits; no prejudice from counsel’s advice | Denied — BIA did not abuse discretion; Tudtuds failed to show prejudice or denial of fundamental fairness |
| Whether IJ’s statements rendered the hearing fundamentally unfair (ex ante prejudice) | Tudtuds: IJ’s statements about waiver availability and that they could meet "extreme hardship" misled them into accepting voluntary departure | Government: IJ repeatedly cautioned that outcomes were not guaranteed; one favorable comment came after withdrawal decision, so it could not have influenced choice | Denied — Tudtuds failed to show the IJ’s remarks made the proceeding fundamentally unfair |
| Whether BIA improperly relied on IJ’s critical language instead of independently assessing prejudice | Tudtuds: BIA relied on IJ’s “sales speech” and a hyperbolic remark that they “haven’t come close” to showing hardship | Government: BIA independently reviewed the record and concluded hardships were common, not exceptional | Denied — BIA performed independent review and reasonably concluded no different outcome would have resulted |
| Whether relief by administrative means (e.g., deferred action/administrative closure) was appropriate to direct by court | Tudtuds: (in part) request government to mediate or administratively hold case until son can sponsor them | Government: such requests are directed to DHS and not proper relief from the court | Not reached as a basis to reopen; Court directed Tudtuds to seek DHS for such requests |
Key Cases Cited
- Sako v. Gonzales, 434 F.3d 857 (6th Cir. 2006) (standard for reviewing BIA denial of motion to reopen and framework for ineffective-assistance claims)
- Allabani v. Gonzales, 402 F.3d 668 (6th Cir. 2005) (ineffective assistance claim review and burden to show prejudice/fundamental fairness)
- Hamid v. Ashcroft, 336 F.3d 465 (6th Cir. 2003) (Fifth Amendment due-process protections in removal proceedings)
- Hussaini v. Lynch, [citation="644 F. App'x 403"] (6th Cir. 2016) (administrative relief requests, like administrative closure, are for DHS to consider)