Immigration Status, Divorce and Removal: What Is the Standard of Review?

When a foreign national marries an American citizen and gains lawful permanent residency on a conditional basis, she remains in that state for two years, after which the “condition” expires. At this point, she can apply for permanent residency by submitting to the government a joint petition in which she and her husband attest that their marriage was legal, remains in effect, and was not entered into merely for immigration purposes. 8 U.S.C. § 1186a(c)(1); 8 C.F.R. § 216.4(a)(1).

The complication for Upatcha was that she started divorce proceedings against her husband just three months after the marriage began, and once she and Gonzalez were no longer husband and wife — the divorce became final in February 2009 — her conditional lawful permanent residency ended. Thus, Upatcha could not file the joint petition with Gonzalez in accordance with § 1186a(c)(1) to gain unconditional lawful permanent residency, and she became subject to potential removal.

Upatcha, unable to go the conventional route to marriage-based permanent residency, instead filed for a “hardship waiver.” Such a waiver permits the Secretary of Homeland Security, at his discretion, to “remove the conditional basis of [] permanent residence status” for a noncitizen if she can show that she entered into the marriage in good faith. See 8 U.S.C. § 1186a(c)(4). DHS denied Upatcha's waiver request, however, and that denial put her before an immigration judge (IJ) who would decide if she should be deported.

Before the IJ, Upatcha renewed her petition for waiver based on good-faith marriage, in accordance with § 1186a(c)(4)(B). The IJ cited to Laureano, 19 I. & N. Dec. 1, 2-3 (B.I.A. Dec. 12, 1983), quoting it as requiring that the critical inquiry in cases such as Upatcha's rested on “whether the parties intended to establish a life together at the inception of the marriage.” By proving this intent, she would prove the “good-faith” marriage requirement. Further, the IJ noted that in conducting this inquiry, a judge “shall consider evidence relating to the amount of commitment by both parties to the marital relationship,” including documentation concerning the intermingling of the couple's finances and the length of time that they lived together as a couple. 8 C.F.R. § 1216.5(e)(2).

After considering Upatcha's testimony, that of other witnesses and the documentary evidence submitted, the IJ concluded that Upatcha's credibility was suspect and that, due to countervailing evidence, she had failed to meet her burden of establishing a good-faith marriage under § 1186a(c)(4)(B). Specifically, the IJ found that Upatcha's testimony concerning her good-faith intentions lacked credibility in light of contrary testimony from her ex-husband, the short durations of both the courtship and the marriage, the couple's lack of financial co-mingling and the absence of family or friends at their wedding. The IJ therefore found that Upatcha was subject to removal from the United States.

Upatcha appealed to the Board of Immigration Appeals (BIA). In a single-member decision, her appeal was dismissed on the basis that 8 C.F.R. § 1003.1(d)(3)(i) instructs the BIA to review IJ good-faith-marriage determinations only for “clear error.” As to the IJ's credibility finding, the BIA stated that it was entitled to a “high degree of deference,” and found no clear error. The BIA also considered 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). After finding no clear error on the IJ's part, the BIA declined to consider the merits of Upatcha's good-faith-marriage arguments, upholding the IJ's decision.

The Fourth Circuit Discusses Two Standards of Review

Upatcha petitioned the Fourth Circuit for review of the order of the BIA, and the petition was granted. She argued on appeal that the BIA applied the wrong standard of review to the IJ's conclusion that she had not proven she entered into her marriage in good faith. “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,” stated the Fourth Circuit, citing for authority to Turkson v. Holder, 667 F.3d 523, 527 (4th Cir. 2012).

The Fourth Circuit noted that, prior to 2002, regulations provided for the BIA to give de novo review to all aspects of IJ decisions, but that in 2002 new regulations created a bifurcated standard of review. Under the amended regulations in force since then, the BIA is charged with reviewing different aspects of IJ decisions using one of two different standards:

• An IJ's findings of fact and of witness and party credibility may be reversed for clear error only (8 C.F.R. § 1003.1(d)(3)(i)); but
• As to all other issues in appeals from IJ decisions — including questions of law, discretion and judgment — the BIA is to review de novo (8 C.F.R. § 1003.1(d)(3)(ii)).

For guidance in the matter before it, the Fourth Circuit looked to commentary accompanying the 2002 amendments, in which the Department of Justice (DOJ) explained 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). However, the DOJ further elucidated that in a “mixed question of law and fact,” while “defer[ring] to the factual findings of the immigration judge unless clearly erroneous,” members of the BIA 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 (internal quotation marks omitted).

In Turkson, the Fourth Circuit had applied that bifurcated standard of review to an IJ's holding that a noncitizen would probably be tortured if he was returned to his native country; this decision made him eligible for deferral of removal under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). “That holding, we concluded, involved both purely factual determinations and also a legal judgment,” stated the Fourth Circuit. “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). [] 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).” As the court explained in Turkson, what all this meant was that while the BIA “largely defers to the IJ's findings of historical facts and the likelihood of a future occurrence,” de novo review must be applied to the legal significance of those facts and the ultimate conclusions to which they lead.

In another Fourth Circuit case, the court was asked to review a BIA decision in a deportation case that involved an alien seeking cancellation of removal under the “exceptional and extremely unusual hardship” standard of 8 U.S.C. § 1229b(b)(2). See Massis v. Mukasey, 549 F.3d 631 (4th Cir. 2008). There, the court agreed that the BIA should use the “clearly erroneous” standard to review the IJ's findings of facts, but that the manner in which the law was applied to those facts should be reviewed by the BIA de novo.

“The good faith marriage determination,” the Fourth Circuit concluded in Upatcha, “falls into the same category [as Turkson and Massis], presenting a mixed question of law and fact subject to a hybrid standard of review.” Therefore, the BIA was correct in deferring to the IJ in its determinations of the historical facts in Upatcha, such as Upatcha's testimonial credibility, the events leading up to the couple's marriage and divorce, and the handling of their finances. “Those determinations — the 'what happened' of the case,” the court declared, “are subject to clearly erroneous review by the BIA.” However, just as in Turkson and Massis, the IJ in Upatcha applied the legal standard for determining a good-faith marriage to that series of facts, and in so doing, came to a judgment. Under 8 C.F.R. § 1003.1(d)(3)(ii), the BIA must apply de novo review to that “ultimate conclusion” of law.

The Fourth Circuit's Upatcha decision does not stand alone; other jurisdictions have also held that an immigration-eligibility hearing review should be bifurcated, with the factual and credibility findings receiving greater deference and the legal conclusions being considered de novo. 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); Cho v. Gonzales, 404 F.3d 96, 102 (2d Cir. 2005).

One Further Argument

The Government in Upatcha ultimately seemed to concede the appropriateness of a BIA bifurcated review of an IJ's determination, yet it had one more argument to make: It claimed that the Upatcha case fell outside the general rule of bifurcated review because the IJ in Upatcha relied for his decision only on his adverse credibility determination. As credibility determinations are to be given greater deference and to be overturned only if there is a showing of clear error, and the BIA reviewed only the credibility determination, the Government argued that the “clear error” standard the BIA applied to the IJ's decision was correct and the determination that the IJ's conclusion should stand was also correct.

The Fourth Circuit did not agree with the Government's characterization of the proceedings below. The court noted that while the IJ's opinion devoted a section to what it titled “Credibility,” it also had a section following that one called “Bona Fide Marriage,” in which the IJ expressly stated that “the evidence submitted” was considered. “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,” which the court here observed was “precisely the analysis that the government concedes must be reviewed de novo.”

As an aside, the Fourth Circuit also pointed out that if the IJ had indeed based the removal decision only on the testimony of Juraluk Upatcha, and had conducted no other inquiry, the IJ would have been derelict in his duties. The Fourth Circuit has held previously, in Kourouma v. Holder, 588 F.3d 234, 241 (4th Cir. 2009), that an IJ may not deny relief solely on the basis of incredible testimony and without also considering corroborating evidence. “Similarly,” stated the court, “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.”

Conclusion

Although immigration law need not be an area of expertise in a family law practitioner's toolbelt, it doesn't hurt to have some knowledge of the ins and outs of this system when presented with a client facing possible removal from the United States because a marriage was short-lived. Understanding cases like Juraluk Upatcha's can help.

At press time, Upatcha's bid to stay in the United States was awaiting a second review by the BIA, and that body is charged with reviewing de novo the bona fides of her intentions at the time of her marriage. The ultimate outcome is not clear, but at least she now has a second chance, this time to convince the BIA that hers was a good-faith marriage that, unfortunately, simply went bad.

*****
Janice G. Inman is Editor-in-Chief of this newsletter.

For those who entered the United States in order to be married, the increasing U.S. emphasis on deportation of illegal immigrants has changed very little; the rules that apply to such cases are as they have been for many years. Still, there are nuances that sometimes confuse even the experts, and attorneys of divorcing immigrants should be aware of them in order to better advise their clients on what to expect if, because of the break-up of a marriage, they have to deal with immigration issues. A recent decision from the U.S. Court of Appeals for the Fourth Circuit explains one such obscure point of law — one that is giving a woman slated for removal from the United States a second chance to appeal an Immigration Judge's adverse decision. See Upatcha v. Sessions, 2017 U.S. App. LEXIS 3135 (4th Cir., 2/22/17).

A Short-Lived Marriage

Juraluk Upatcha, a Thai citizen, was living in Thailand when her sister introduced her to Sergio Gonzalez, a naturalized U.S. citizen living in South Carolina. When Gonzalez returned home, the two courted by means of phone calls and emails, though Gonzalez did visit Upatcha in Thailand for a period of one week. During that week he proposed marriage to her, and she accepted. Upatcha entered the United States on a fiancé visa on July 13, 2008, and she and Gonzalez were married five days later. The marriage rendered her a lawful permanent resident on a conditional basis. See 8 U.S.C. § 1186a(a)(1) (2013).

When a foreign national marries an American citizen and gains lawful permanent residency on a conditional basis, she remains in that state for two years, after which the “condition” expires. At this point, she can apply for permanent residency by submitting to the government a joint petition in which she and her husband attest that their marriage was legal, remains in effect, and was not entered into merely for immigration purposes. 8 U.S.C. § 1186a(c)(1); 8 C.F.R. § 216.4(a)(1).

The complication for Upatcha was that she started divorce proceedings against her husband just three months after the marriage began, and once she and Gonzalez were no longer husband and wife — the divorce became final in February 2009 — her conditional lawful permanent residency ended. Thus, Upatcha could not file the joint petition with Gonzalez in accordance with § 1186a(c)(1) to gain unconditional lawful permanent residency, and she became subject to potential removal.

Upatcha, unable to go the conventional route to marriage-based permanent residency, instead filed for a “hardship waiver.” Such a waiver permits the Secretary of Homeland Security, at his discretion, to “remove the conditional basis of [] permanent residence status” for a noncitizen if she can show that she entered into the marriage in good faith. See 8 U.S.C. § 1186a(c)(4). DHS denied Upatcha's waiver request, however, and that denial put her before an immigration judge (IJ) who would decide if she should be deported.

Before the IJ, Upatcha renewed her petition for waiver based on good-faith marriage, in accordance with § 1186a(c)(4)(B). The IJ cited to Laureano, 19 I. & N. Dec. 1, 2-3 (B.I.A. Dec. 12, 1983), quoting it as requiring that the critical inquiry in cases such as Upatcha's rested on “whether the parties intended to establish a life together at the inception of the marriage.” By proving this intent, she would prove the “good-faith” marriage requirement. Further, the IJ noted that in conducting this inquiry, a judge “shall consider evidence relating to the amount of commitment by both parties to the marital relationship,” including documentation concerning the intermingling of the couple's finances and the length of time that they lived together as a couple. 8 C.F.R. § 1216.5(e)(2).

After considering Upatcha's testimony, that of other witnesses and the documentary evidence submitted, the IJ concluded that Upatcha's credibility was suspect and that, due to countervailing evidence, she had failed to meet her burden of establishing a good-faith marriage under § 1186a(c)(4)(B). Specifically, the IJ found that Upatcha's testimony concerning her good-faith intentions lacked credibility in light of contrary testimony from her ex-husband, the short durations of both the courtship and the marriage, the couple's lack of financial co-mingling and the absence of family or friends at their wedding. The IJ therefore found that Upatcha was subject to removal from the United States.

Upatcha appealed to the Board of Immigration Appeals (BIA). In a single-member decision, her appeal was dismissed on the basis that 8 C.F.R. § 1003.1(d)(3)(i) instructs the BIA to review IJ good-faith-marriage determinations only for “clear error.” As to the IJ's credibility finding, the BIA stated that it was entitled to a “high degree of deference,” and found no clear error. The BIA also considered 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). After finding no clear error on the IJ's part, the BIA declined to consider the merits of Upatcha's good-faith-marriage arguments, upholding the IJ's decision.

The Fourth Circuit Discusses Two Standards of Review

Upatcha petitioned the Fourth Circuit for review of the order of the BIA, and the petition was granted. She argued on appeal that the BIA applied the wrong standard of review to the IJ's conclusion that she had not proven she entered into her marriage in good faith. “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 ,” stated the Fourth Circuit, citing for authority to Turkson v. Holder , 667 F.3d 523, 527 (4th Cir. 2012).

The Fourth Circuit noted that, prior to 2002, regulations provided for the BIA to give de novo review to all aspects of IJ decisions, but that in 2002 new regulations created a bifurcated standard of review. Under the amended regulations in force since then, the BIA is charged with reviewing different aspects of IJ decisions using one of two different standards:

• An IJ's findings of fact and of witness and party credibility may be reversed for clear error only (8 C.F.R. § 1003.1(d)(3)(i)); but
• As to all other issues in appeals from IJ decisions — including questions of law, discretion and judgment — the BIA is to review de novo (8 C.F.R. § 1003.1(d)(3)(ii)).

For guidance in the matter before it, the Fourth Circuit looked to commentary accompanying the 2002 amendments, in which the Department of Justice (DOJ) explained 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). However, the DOJ further elucidated that in a “mixed question of law and fact,” while “defer[ring] to the factual findings of the immigration judge unless clearly erroneous,” members of the BIA 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 (internal quotation marks omitted).

In Turkson, the Fourth Circuit had applied that bifurcated standard of review to an IJ's holding that a noncitizen would probably be tortured if he was returned to his native country; this decision made him eligible for deferral of removal under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). “That holding, we concluded, involved both purely factual determinations and also a legal judgment,” stated the Fourth Circuit. “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). [] 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).” As the court explained in Turkson, what all this meant was that while the BIA “largely defers to the IJ's findings of historical facts and the likelihood of a future occurrence,” de novo review must be applied to the legal significance of those facts and the ultimate conclusions to which they lead.

In another Fourth Circuit case, the court was asked to review a BIA decision in a deportation case that involved an alien seeking cancellation of removal under the “exceptional and extremely unusual hardship” standard of 8 U.S.C. § 1229b(b)(2). See Massis v. Mukasey , 549 F.3d 631 (4th Cir. 2008). There, the court agreed that the BIA should use the “clearly erroneous” standard to review the IJ's findings of facts, but that the manner in which the law was applied to those facts should be reviewed by the BIA de novo.

“The good faith marriage determination,” the Fourth Circuit concluded in Upatcha, “falls into the same category [as Turkson and Massis], presenting a mixed question of law and fact subject to a hybrid standard of review.” Therefore, the BIA was correct in deferring to the IJ in its determinations of the historical facts in Upatcha, such as Upatcha's testimonial credibility, the events leading up to the couple's marriage and divorce, and the handling of their finances. “Those determinations — the 'what happened' of the case,” the court declared, “are subject to clearly erroneous review by the BIA.” However, just as in Turkson and Massis, the IJ in Upatcha applied the legal standard for determining a good-faith marriage to that series of facts, and in so doing, came to a judgment. Under 8 C.F.R. § 1003.1(d)(3)(ii), the BIA must apply de novo review to that “ultimate conclusion” of law.

The Fourth Circuit's Upatcha decision does not stand alone; other jurisdictions have also held that an immigration-eligibility hearing review should be bifurcated, with the factual and credibility findings receiving greater deference and the legal conclusions being considered de novo. 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); Cho v. Gonzales , 404 F.3d 96, 102 (2d Cir. 2005).

One Further Argument

The Government in Upatcha ultimately seemed to concede the appropriateness of a BIA bifurcated review of an IJ's determination, yet it had one more argument to make: It claimed that the Upatcha case fell outside the general rule of bifurcated review because the IJ in Upatcha relied for his decision only on his adverse credibility determination. As credibility determinations are to be given greater deference and to be overturned only if there is a showing of clear error, and the BIA reviewed only the credibility determination, the Government argued that the “clear error” standard the BIA applied to the IJ's decision was correct and the determination that the IJ's conclusion should stand was also correct.

The Fourth Circuit did not agree with the Government's characterization of the proceedings below. The court noted that while the IJ's opinion devoted a section to what it titled “Credibility,” it also had a section following that one called “Bona Fide Marriage,” in which the IJ expressly stated that “the evidence submitted” was considered. “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,” which the court here observed was “precisely the analysis that the government concedes must be reviewed de novo.”

As an aside, the Fourth Circuit also pointed out that if the IJ had indeed based the removal decision only on the testimony of Juraluk Upatcha, and had conducted no other inquiry, the IJ would have been derelict in his duties. The Fourth Circuit has held previously, in Kourouma v. Holder , 588 F.3d 234, 241 (4th Cir. 2009), that an IJ may not deny relief solely on the basis of incredible testimony and without also considering corroborating evidence. “Similarly,” stated the court, “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.”

Conclusion

Although immigration law need not be an area of expertise in a family law practitioner's toolbelt, it doesn't hurt to have some knowledge of the ins and outs of this system when presented with a client facing possible removal from the United States because a marriage was short-lived. Understanding cases like Juraluk Upatcha's can help.

At press time, Upatcha's bid to stay in the United States was awaiting a second review by the BIA, and that body is charged with reviewing de novo the bona fides of her intentions at the time of her marriage. The ultimate outcome is not clear, but at least she now has a second chance, this time to convince the BIA that hers was a good-faith marriage that, unfortunately, simply went bad.

*****
Janice G. Inman is Editor-in-Chief of this newsletter.