Harrison Tudtud v. Jefferson B. Sessions, III

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 18a0007n.06 No. 14-3926 UNITED STATES COURT OF APPEALS FILED Jan 04, 2018 FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk HARRISON SALINAS TUDTUD; CAROL ) SIBI TUDTUD, ) ) Petitioners, ) ON PETITION FOR REVIEW ) FROM THE UNITED STATES v. ) BOARD OF IMMIGRATION ) APPEALS JEFFERSON B. SESSIONS, III, Attorney ) General; DEPARTMENT OF HOMELAND ) SECURITY, ) ) Respondents. ) BEFORE: SUHRHEINRICH, GRIFFIN, and THAPAR, Circuit Judges. PER CURIAM. Harrison Salinas Tudtud and Carol Sibi Tudtud, husband and wife, petition this court for review of an order of the Board of Immigration Appeals (BIA) denying their motion to reopen their removal proceedings based on ineffective assistance of counsel. As set forth below, we deny the petition for review. The Tudtuds, natives and citizens of the Philippines, last entered the United States in 2001 with B-2 tourist visas. In 2009, the Department of Homeland Security (DHS) served the Tudtuds with a notice to appear in removal proceedings, charging them with removability as nonimmigrants who remained in the United States for a time longer than permitted. See 8 U.S.C. § 1227(a)(1)(B). Appearing before an immigration judge (IJ), the Tudtuds conceded removability as charged and stated their intent to seek cancellation of removal on the basis that their removal would result in exceptional and extremely unusual hardship to their United States No. 14-3926, Tudtud v. Sessions citizen son. See 8 U.S.C. § 1229b(b)(1)(D). When the IJ did not receive the Tudtuds’ cancellation applications by the stated deadline, the IJ deemed their applications abandoned and set a deadline to inform the immigration court if they wished to seek voluntary departure. Upon receiving no response, the IJ found that the Tudtuds had elected not to apply for voluntary departure and ordered that they be removed to the Philippines. The Tudtuds filed a motion to reconsider the IJ’s removal order and attached a motion to reopen their removal proceedings and accept their cancellation applications, asserting that they had mistakenly sent their applications to the U.S. Citizenship and Immigration Services rather than the immigration court. The IJ denied the motion to reconsider, and the Tudtuds appealed. The BIA sustained their appeal, concluding that reopening was warranted, and remanded the matter to provide the Tudtuds an opportunity to have their cancellation applications adjudicated in a merits hearing. Upon remand, the IJ conducted a merits hearing on the Tudtuds’ cancellation applications. The Tudtuds presented the testimony of a psychologist who had evaluated their son as well as their own testimony. Near the end of the hearing, the DHS attorney made an offer to agree to pre-hearing voluntary departure and allow the Tudtuds to remain in the United States through the end of the school year. Following up on that offer, the IJ pointed out that the Tudtuds were not eligible for post-hearing voluntary departure because their passports had expired. The IJ went on to state that the Tudtuds had not demonstrated exceptional and extremely unusual hardship to their son, ...

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