Fourth Circuit Cracks Down on Board of Immigration Appeals for applying Clearly Erroneous Standard of Review in Determining whether a Marriage Meets the Good Faith Standard
Last week, the Fourth Circuit Court of Appeals (“Fourth Circuit”) reviewed the Board of Immigration Appels (“BIA”) application of a clearly erroneous standard of review to determine whether an alien had truly entered into a good faith marriage. In doing so, the Fourth Circuit held that the BIA had applied an incorrect standard of review, reversed the BIA’s order denying the alien’s appeal and remanded the matter to the BIA to apply the correct standard of de novo review.
When the BIA applies a de novo review, it is reviewing the case from the same position as the Immigration Judge, as if it were viewing the case anew. A clearly erroneous standard of review is when the BIA reviews the factual determinations made by the Immigration Judge, determining if a factual mistake has been made.
In coming to its decision, the Fourth Circuit reasoned that while the BIA is to be deferential and apply a clearly erroneous standard to the decisions of the IJ on factual determinations of credibility, when issues involve a mix of law and fact, specifically here whether credited evidence meets the good faith marriage standard, reviewing courts are to apply de novo review.
The facts of the case are as follows. Upatcha is from Thailand. While living in Thailand, she pursued a long-distance relationship with a U.S. citizen man, Gonzalez. In July 2008, Upatcha came into the U.S. on a K-1 fiancée visa and married Gonzalez five days later. She was then granted Conditional Lawful Permanent Residence as an immediate relative of a U.S. citizen spouse. In October 2008, Upatcha and Gonzalez filed for divorce. The divorce was finalized in February 2009, before they could even file a joint petition to remove the conditions on Upatcha’s Conditional Residence. Her conditional residence was therefore terminated and Upatcha became subject to removal. To be exempted from removal, Upatcha filed for a good faith marriage waiver under INA § 1186a(c)(4)(B), claiming that she had entered into a good faith marriage and could not foresee that the marriage was going to end so quickly. USCIS denied the waiver and placed her into removal proceedings.
The Immigration Judge (“IJ”) later affirmed the decision of USCIS. The IJ first found that because Upatcha had not shown credibility, the Court could not find that Upatcha had entered into a good faith marriage. The IJ also reached this conclusion on the basis of other relevant evidence, including: the brevity of the courtship, the fact that couple married without any family members present, the duration of the marriage, and lack of joint accounts and joint property. Therefore, based on the totality of the evidence, the IJ held that Upatcha could not show that she had entered the marriage in good faith and should therefore be removed.
Upatcha appealed to the BIA, which upheld the decision of the IJ. In upholding its decision, the BIA implemented a clearly erroneous standard to review the factual determinations of the IJ and analyzed the case in the same way. Upatcha again appealed to the Fourth Circuit arguing that the BIA applied the incorrect standard of review to the IJ’s conclusion that Upatcha’s evidence did not meet the good faith standard.
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