Juraluk Upatcha v. Eric Holder, Jr.
PUBLISHED AUTHORED OPINION filed. Originating case number: A087 251 219. . [15-1270]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JEFFERSON B. SESSIONS, III, Attorney General,
On Petition for Review of an Order of the Board of Immigration Appeals.
Argued: October 28, 2016
Decided: February 22, 2017
Before TRAXLER, DIAZ, and HARRIS, Circuit Judges.
Petition for review granted; reversed and remanded by published opinion. Judge Harris
wrote the opinion, in which Judge Traxler and Judge Diaz joined.
ARGUED: Benjamin Winograd, IMMIGRANT & REFUGEE APPELLATE CENTER,
LLC, Alexandria, Virginia, for Petitioner. Arthur Leonid Rabin, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF:
Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, Julie
M. Iversen, Senior Litigation Counsel, Office of Immigration Litigation, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
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PAMELA HARRIS, Circuit Judge:
Facing deportation, petitioner Juraluk Upatcha, a citizen of Thailand, sought a
hardship waiver that would allow her to stay in the country despite the fact that her
marriage to a United States citizen had ended in divorce. An immigration judge (“IJ”)
denied the request, concluding that Upatcha failed to demonstrate that she entered into
her marriage in good faith, as required by 8 U.S.C. § 1186a(c)(4)(B). The Board of
Immigration Appeals (“BIA” or “Board”), reviewing for clear error only, affirmed.
We hold that the BIA applied the wrong standard of review. Whether Upatcha
established that her marriage was entered into in good faith under § 1186a(c)(4)(B) is a
mixed question of fact and law, and the IJ’s ultimate conclusion that the credited
evidence did not meet the good faith standard is a legal judgment subject to de novo
review. Accordingly, we grant Upatcha’s petition and remand so that the Board may
review the IJ’s determination under the proper standard.
While living in Thailand, Upatcha was introduced by her sister to Sergio
Gonzalez, a naturalized United States citizen living in South Carolina. Because of the
distance between them, Upatcha and Gonzalez courted primarily through emails and
phone calls. But Gonzalez also made a one-week trip to Thailand to visit Upatcha, and
during that trip Upatcha accepted his marriage proposal. Upatcha entered the United
States on a fiancé visa on July 13, 2008, and five days later she married Gonzalez.
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As a result of her marriage to a United States citizen, Upatcha became a lawful
permanent resident on a conditional basis. See 8 U.S.C. § 1186a(a)(1) (2013). After a
period of two years, that condition would expire, allowing Upatcha to stay in the country
permanently, if Upatcha and her husband submitted a joint petition swearing that their
marriage was legal, remained in effect, and was not entered into for immigration
purposes. Id. § 1186a(c)(1); 8 C.F.R. § 216.4(a)(1). But Upatcha could not file that joint
petition in 2010 because on October 20, 2008 – approximately three months after
entering the country – she initiated divorce proceedings against Gonzalez. That divorce,
which became final in February 2009, ended Upatcha’s conditional residency and
potentially subjected her to removal.
So instead of a joint petition, Upatcha filed for a “hardship waiver,” which allows
the Secretary of Homeland Security, at his discretion, to “remove the conditional basis of
 permanent residence status” for a noncitizen whose marriage has ended if the
noncitizen demonstrates that the marriage “was entered into in good faith.” See 8 U.S.C.
The Department of Homeland Security (“DHS”) denied Upatcha’s
petition, citing discrepancies between the couple’s divorce decree and the evidence
provided by Upatcha. As a result, DHS terminated Upatcha’s conditional permanent
resident status and charged her with deportability.
Upatcha appeared for removal proceedings before an IJ, where she conceded the
charge of deportability and renewed her petition for a good faith marriage waiver under
After conducting an evidentiary hearing during which Upatcha,
Gonzalez, and other witnesses testified, the IJ denied Upatcha’s petition.
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As the IJ recognized, the “critical inquiry” in determining whether the good faith
standard has been met is “whether the parties intended to establish a life together at the
inception of the marriage.” A.R. 65 (citing Laureano, 19 I. & N. Dec. 1, 2–3 (B.I.A.
Dec. 12, 1983)); see Chhay v.
Holder, 407 F. App’x 656, 657 (4th Cir. 2011)
(unpublished) (same). And in applying that standard, a judge “shall consider evidence
relating to the amount of commitment by both parties to the marital relationship,”
including documentation concerning the intermingling of finances, the length of time of
cohabitation, and birth certificates of any children. A.R. 63; 8 C.F.R. § 1216.5(e)(2).
Considering Upatcha’s testimony, the testimony of other witnesses, and the documentary
evidence submitted, the IJ concluded that Upatcha had failed to meet her burden of
establishing a good faith marriage under § 1186a(c)(4)(B).
The IJ began by finding that Upatcha’s testimony was not credible.
credibility determination rested primarily on what the IJ deemed to be material
inconsistencies between Upatcha’s account of her marriage and information from other
sources, including Gonzalez’s testimony. The IJ then went on to analyze other relevant
evidence, including the brevity of the couple’s one-week in-person courtship, the fact that
the couple married without any family members present, the duration of the couple’s
marriage, and the absence of documentary records showing a joint bank account or other
jointly held property. Based on the “totality of the evidence,” the IJ held, Upatcha could
not show that she had entered into her marriage in good faith, and therefore should be
removed. A.R. 70.
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In a single-member decision, the BIA dismissed Upatcha’s appeal.
describing the governing statutory framework, the Board identified the applicable
standard of review: “Whether a marriage was entered into in good faith is a factual
question, and therefore the Immigration Judge’s decision denying a section
[1186a(c)(4)(B)] waiver on the merits is reviewed by this Board for clear error.” A.R. 4
(citing 8 C.F.R. § 1003.1(d)(3)(i)). As to the IJ’s credibility finding, entitled to a “high
degree of deference,” id., the BIA found no clear error. The Board separately reviewed
the IJ’s assessment of “numerous other factors,” including “uncontested facts” and a
“relative lack of documentary evidence,” and on the record as a whole, found no clear
error in the IJ’s determination that Upatcha had not satisfied the good faith standard
under § 1186a(c)(4)(B). A.R. 5.
Upatcha timely petitioned this court for review.
Upatcha argues that the Board applied the wrong standard of review to the IJ’s
ultimate conclusion that her evidence did not meet the good faith standard. That is a
question of law over which we have jurisdiction under 8 U.S.C. § 1252(a)(2)(D), and
which we review de novo. Turkson v. Holder, 667 F.3d 523, 527 (4th Cir. 2012). And
for the reasons given below, we agree with Upatcha: While the BIA properly reviewed
the IJ’s credibility determination for clear error, it should have reviewed de novo the IJ’s
ultimate legal judgment that the undisputed facts and credited evidence did not meet the
good faith standard of § 1186a(c)(4)(B).
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Board review of IJ decisions is governed by regulation. Prior to 2002, those
regulations provided for de novo review of all aspects of IJ decisions. See In re S-H-, 23
I. & N. Dec. 462, 463–64 (B.I.A. Sept. 12, 2002). In 2002, however, new regulations
established a bifurcated standard of review. Under the amended regulations – which
continue in force today – BIA review of findings of fact and credibility determinations is
limited; such IJ findings may be reversed for clear error only. 8 C.F.R. § 1003.1(d)(3)(i)
(“Facts determined by the immigration judge, including findings as to the credibility of
testimony, shall be reviewed only to determine whether the findings of the immigration
judge are clearly erroneous.”). But the Board continues to review de novo “all other
issues in appeals from decisions of immigration judges,” including “questions of law,
discretion and judgment.” Id. § 1003.1(d)(3)(ii).
In commentary accompanying the 2002 amendments, the Department of Justice
emphasized that the new clearly erroneous standard of review would apply only to “the
specific findings of fact” of immigration judges.
Board of Immigration Appeals:
Procedural Reforms to Improve Case Management, 67 Fed. Reg. 54,878, 54,890 (Aug.
26, 2002) (to be codified at 8 C.F.R. pt. 3). On a “mixed question of law and fact,” on
the other hand, while “defer[ring] to the factual findings of the immigration judge unless
clearly erroneous,” Board members would “retain their independent judgment and
discretion . . . regarding the review of pure questions of law and the application of the
standard of law to those facts.” Id. at 54,888 (emphasis added) (internal quotation marks
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In Turkson, we applied that bifurcated standard of review to an IJ’s holding that a
noncitizen likely would face torture in his native country, making him eligible for
deferral of removal under the United Nations Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, or “CAT.” 667 F.3d at 525–26.
That holding, we concluded, involved both purely factual determinations and also a legal
judgment. Id. at 528. Determination of “what would likely happen if the alien was
removed,” we explained, was factual in nature, and thus subject to clearly erroneous
review by the Board under 8 C.F.R. § 1003.1(d)(3)(i). Id. But application of the CAT’s
standard for torture to those facts entailed a legal judgment, which the BIA was to review
de novo under 8 C.F.R. § 1003.1(d)(3)(ii). Id. In other words, while the Board largely
defers to the IJ’s findings of historical facts and the likelihood of a future occurrence,
“the legal significance of [those] facts” and the “ultimate conclusions to which [they]
lead” are matters on which the BIA “exercise[s] its independent judgment” under de novo
review. Id. at 527.
We followed the same bifurcated approach in Massis v. Mukasey, 549 F.3d 631,
636 n.6 (4th Cir. 2008), this time with respect to BIA review of an application for
cancellation of removal under the “exceptional and extremely unusual hardship” standard
of 8 U.S.C. § 1229b(b)(2).
When it comes to a factual determination of “what
happened,” we explained, the BIA reviews the findings of an IJ under the clearly
erroneous standard, consistent with 8 C.F.R. § 1001.1(d)(3)(i). Massis, 549 F.3d at 636
n.6 (quoting 67 Fed. Reg. at 54,888–90). But “application of the law to those facts” is
different, and an IJ’s assessment of “whether those facts amount to ‘exceptional and
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extremely unusual hardship’” as required by law is to be reviewed by the BIA de novo.
The good faith marriage determination, we conclude, falls into the same category,
presenting a mixed question of law and fact subject to a hybrid standard of review. The
IJ in Upatcha’s case made a series of factual determinations, first as to the credibility of
Upatcha’s testimony, but also regarding, for instance, the amount of money sent to
Upatcha by Gonzalez and the degree to which the couple’s finances were intermingled,
the details of their long-distance courtship, and the events that immediately preceded
their separation. Those factual determinations – the “what happened” of the case, see id.
– are subject to clearly erroneous review by the BIA. But just as in Turkson and Massis,
the IJ also made a legal judgment, applying the legal standard for good faith marriage to
the facts and deciding whether that standard was met. See 667 F.3d at 528; 549 F.3d at
636 n.6. Under 8 C.F.R. § 1003.1(d)(3)(ii), that “ultimate conclusion” of law, Turkson,
667 F.3d at 527, is to be reviewed de novo by the Board.
Our conclusion, we note, is consistent with the position we have taken in an
unpublished decision, see Chhay, 407 F. App’x at 657 (applying de novo review to
finding that petitioner’s “evidence failed to satisfy the legal standard of what constitutes a
good faith marriage”), as well as the position taken by the BIA itself in unpublished
decisions, see, e.g., Courtney Malcolm, AO56-106-237, at *2 (B.I.A. Oct. 7, 2011)
(“Whether a marriage was entered into in good faith is not a purely factual question . . . .
[T]he [IJ’s] conclusion . . . as to whether or not the respondent met his burden to show
that his marriage was entered into in ‘good faith’ is a legal question which we review de
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novo.”). It also conforms to the majority view of the circuit courts that for jurisdictional
purposes, the ultimate determination of whether credited evidence meets the statutory
standard for good faith marriage is a question of law, reviewable by the courts under 8
U.S.C. § 1252(a)(2)(D). See, e.g., Ibrahimi v. Holder, 566 F.3d 758, 763–64 (8th Cir.
2009) (holding that “whether the IJ properly applied the law to the facts” in determining
eligibility for good faith marriage waiver is a “legal question” over which courts retain
jurisdiction); Fynn v. U.S. Att’y Gen., 752 F.3d 1250, 1252 n.1 (11th Cir. 2014)
In this context, too, that is, the courts have bifurcated their
analysis of the good faith marriage inquiry, deeming credibility determinations and the
weighing of evidence unreviewable but exercising jurisdiction over the distinct legal
question of whether the “evidence ultimately credited and deemed weighty” by the
agency meets the good faith standard. Cho v. Gonzales, 404 F.3d 96, 102 (2d Cir. 2005);
Fynn, 762 F.3d at 1252–53.
Indeed, the government does not really contest this analysis, conceding that the
Board should review de novo an IJ’s ultimate legal determination of whether an applicant
has marshaled sufficient evidence to satisfy the good faith standard of § 1186a(c)(4)(B).
Br. for Resp’t at 25. Instead, the government argues that this case falls outside the
general rule: Because here the IJ relied solely on an adverse credibility determination,
and the BIA reviewed only that credibility determination, the government urges, the clear
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error standard applies under 8 C.F.R. § 1003.1(d)(3)(i) (credibility findings subject to
clear error review). *
We cannot agree with the government’s reading of the agency proceedings. First,
it is clear from the face of the opinions that neither the IJ nor the Board focused
exclusively on Upatcha’s credibility. It is true that the IJ’s opinion devotes an entire
section – “Credibility” – to the finding that Upatcha’s testimony is not credible. A.R. 63–
64. But that section is followed by another – “Bona Fide Marriage,” A.R. 65–69 – in
which the IJ expressly and at length considers not only Upatcha’s testimony but also “the
evidence submitted,” A.R. 65. Only then does the IJ conclude that “based on the totality
of the evidence, [Upatcha] has not met her burden of establishing” a good faith marriage,
A.R. 70 – precisely the analysis that the government concedes must be reviewed de novo.
See Br. for Resp’t at 25. And the Board, for its part, evidently reads the IJ’s opinion the
same way, because its opinion perfectly tracks the IJ’s two-part analysis: The Board first
reviewed the IJ’s credibility determination, finding no clear error, and then went on to
consider separately the evidentiary record as a whole – the testimony of witnesses other
than Upatcha, documentary evidence, and uncontested facts – before concluding that the
Because the dispute in this case centers on the nature of the agency proceedings
and not the dictates of 8 C.F.R. § 1003.1(d)(3)(i) and (ii), we have no occasion to
consider whether a single-member Board decision construing an agency regulation
should be accorded deference under Auer v. Robbins, 519 U.S. 452 (1997). See Martinez
v. Holder, 740 F.3d 902, 909–10 (4th Cir. 2014) (holding that single-member Board
decisions are not entitled to Chevron deference). All parties, that is, agree on the proper
reading of the governing regulation; what is contested is only how to characterize the
findings of the IJ and Board in this case.
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IJ did not clearly err in determining that Upatcha failed to establish a good faith marriage
under § 1186a(c)(4)(B).
Second, even if it could be reconciled with the language of the opinions, the
government’s credibility-only gloss on the agency proceedings would raise its own set of
difficulties. We have held, for instance, that an IJ may not deny relief solely on the basis
of incredible testimony and without also considering corroborating evidence, including
Kourouma v. Holder, 588 F.3d 234, 241 (4th Cir. 2009).
Similarly, the regulation that governs adjudication of applications for good faith marriage
waivers requires the agency to “consider evidence relating to the amount of commitment
by both parties” to the marital relationship, including relevant documentary evidence. 8
C.F.R. § 1216.5(e)(2). In assessing not only the credibility of Upatcha’s testimony but
also whether the evidence as a whole satisfied the good faith marriage standard, the IJ
and Board were doing precisely as they are charged.
In short, while the Board properly reviewed the IJ’s credibility determination and
findings of fact for clear error only, whether the credited evidence meets the good faith
marriage standard is a legal question subject to de novo review. We of course express no
opinion on that ultimate legal issue. Instead, we grant Upatcha’s petition and remand this
matter to the Board so that it may “exercise its independent judgment” in evaluating the
“legal significance” of the facts found by the IJ and the application of the good faith
marriage standard to those facts. See Turkson, 667 F.3d at 527.
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For the foregoing reasons, we grant Upatcha's petition for review, reverse the
Board’s order denying Upatcha’s appeal, and remand this matter to the BIA for further
proceedings consistent with this opinion.
PETITION FOR REVIEW GRANTED;
REVERSED AND REMANDED
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