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Upatcha v. Sessions

United States Court of Appeals, Fourth Circuit

February 22, 2017

JURALUK UPATCHA, Petitioner,
v.
JEFFERSON B. SESSIONS, III, Attorney General, Respondent.

         On Petition for Review of an Order of the Board of Immigration Appeals.

          Argued: October 28, 2016

         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.

          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.

          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.

         I.

         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 ...


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