By Katie Baiocchi

On February 22, 2017, the Fourth Circuit issued a public opinion on a Petition for Review of an Order of the Board of Immigration Appeals in the case of Upatcha v. Sessions. In Upatcha, the Fourth Circuit reversed the order of the Board of Immigration Appeals which denied plaintiff Juraluk Upatcha’s appeal. The Fourth Circuit held that the Board of Immigration Appeals used the wrong standard of review. The question before the Board of Immigration Appeals was whether Upatcha entered into a good faith marriage. The Court emphasized that this was ultimately a legal judgment and therefore was subject to de novo review.

Facts and Procedural History

Plaintiff Upatcha was living in Thailand when she met Sergio Gonzalez, a naturalized United States citizen living in South Carolina. Gonzalez traveled to Thailand to visit Upatcha for one week and Upatcha accepted his marriage proposal. Upatcha entered the United States on a fiancé visa and married Gonzalez five days later. Upatcha became a lawful permanent resident on a conditional basis under 8 U.S.C. § 1186a(a)(1). Three months after entering the United States Upatcha and Gonzalez divorced. This ended Upatcha’s conditional residency and subjected her to removal.

Upatcha subsequently filed a hardship waiver which required her to demonstrate that the marriage “was entered into in good faith” under 8 U.S.C. § 1186a(c)(4). This petition was denied because of discrepancies between the divorce decree and the evidence provided by Upatcha. During her removal proceedings the immigration judge denied her renewed petition for a good faith marriage waiver. The immigration judge found that Upatcha’s testimony was not credible and held that on the totality of the circumstances Upatcha had not shown she had entered into a good faith marriage and therefore should be removed.

The Board of Immigration Appeals (the “Board”) dismissed Upatcha’s appeal. In dismissing Upatcha’s appeal the Board applied the clear error standard of review because they believed that the question of whether the marriage was entered into in good faith is a factual question. Upatcha petitioned the Fourth Circuit for review.

The Board Applied the Wrong Standard of Review

The Fourth Circuit held that while the Board properly reviewed the credibility determination of the immigration judge for clear error, the Board should have reviewed de novo the immigration judge’s legal conclusion that the undisputed facts and credited evidence did not meet the good faith standard. The Board correctly deferred to the factual findings of the immigration judge because those facts were not found to be clearly erroneous. However, the Department of Justice has emphasized that Board members should retain independent judgment regarding review of pure questions of law and the application of the standard of law to those facts.

The Fourth Circuit concluded that the good faith marriage determination presents a mixed question of law and fact subject to a hybrid standard of review. The factual determinations regarding what happened in the case were subject to clearly erroneous review. However, the application of those facts found by the immigration judge to the legal standard for a good faith marriage were subject to de novo review.


Without commenting on the ultimate legal issue the Fourth Circuit granted Upatcha’s petition and remanded the matter back to the Board. The Court instructed the Board to exercise independent judgment in evaluating the legal significance of the facts found by the immigration judge and applying those facts to the good faith marriage standard.