Petition for Review of an Order of the Board of Immigration
Argued: October 28, 2016
Benjamin Winograd, IMMIGRANT & REFUGEE APPELLATE CENTER,
LLC, Alexandria, Virginia, for Petitioner.
Leonid Rabin, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
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.
TRAXLER, DIAZ, and HARRIS, Circuit Judges.
for review granted; reversed and remanded by published
opinion. Judge Harris wrote the opinion, in which Judge
Traxler and Judge Diaz joined.
HARRIS, CIRCUIT JUDGE.
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.
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.
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 ...