CA4 on Standard of Review: Upatcha v. Sessions

Upatcha v. Sessions, Feb. 22, 2017 - "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."

[Hats off to Ben Winograd!]