Agnes Cho v. ALBERTO GONZALES, Attorney General of the United States

*Alberto Gonzales was sworn in as United States Attorney
General on February 3, 2005. We therefore have substituted
Attorney General Gonzales for John Ashcroft as the respondent.
See Fed. R. App. P. 43(c)(2).
United States Court of Appeals
For the First Circuit
No. 04-1437
AGNES CHO,
Petitioner,
v.
ALBERTO GONZALES,
Attorney General of the United States
Respondent.*
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Torruella, and Howard, Circuit Judges.
Ilana Greenstein with whom Harvey Kaplan, Jeremiah Friedman,
Maureen O'Sullivan and Kaplan, O'Sullivan & Friedman, LLP were on
brief, for petitioner.
Jamie M. Dowd, Attorney, Office of Immigration Litigation,
Civil Division, with whom Peter D. Keisler, Assistant Attorney
General, and David V. Bernal, Assistant Director, Office of
Immigration Litigation, were on brief, for respondent.
Iris Gomez, Massachusetts Law Reform Institute, and Gail
Pendleton, National Immigration Project of the National Lawyers
Guild, on brief for The Family Violence Prevention Fund,

-- 1 of 20 --

Massachusetts Law Reform Institute, Inc., National Immigration
Project of the National Lawyers Guild and Greater Boston Legal
Services, amici curiae.
April 19, 2005

-- 2 of 20 --

-3-
HOWARD, Circuit Judge. Under the Immigration and
Nationality Act, an alien who marries a United States citizen is
entitled to petition for permanent residency on a conditional
basis. See 8 U.S.C. §§ 1151(b)(2)(A)(i), 1154(a)(1)(A)(i) & (ii),
and 1186a(a)(1). Within 90 days of the second anniversary of the
conditional admission, the couple (if the citizen is not deceased)
may jointly petition for the removal of the condition. See 8
U.S.C. §§ 1186a(c)(1)(A) & 216(d)(2)(A). Each such petition is
required to state, inter alia, that the marriage has not been
judicially annulled or terminated, and that it was not entered into
for the purpose of procuring the alien spouse's admission as an
immigrant. See 8 U.S.C. § 1186a(d)(1)(A)(i)(II) & (III).
If the couple has divorced within two years of the
conditional admission, the alien spouse may still apply to the
Attorney General to remove the conditional nature of her admission
by granting a "hardship waiver." 8 U.S.C. § 1186a(c)(4). Insofar
as is relevant here, the statute authorizing the Attorney General
to grant such applications provides:
The Attorney General, in the Attorney
General's discretion, may remove the
conditional basis of the permanent resident
status for an alien who fails to meet the
[conditions described above] if the alien
demonstrates that . . .
(B) the qualifying marriage was entered
into in good faith by the alien spouse, but
the qualifying marriage has been terminated
(other than through the death of the spouse)

-- 3 of 20 --

-4-
and the alien was not at fault in failing to
meet the [conditions described above] . . . .
In acting under applications under this
paragraph, the Attorney General shall consider
any credible evidence relevant to the
application. The determination of what
evidence is credible and the weight to be
given that evidence shall be within the sole
discretion of the Attorney General . . . .
8 U.S.C. § 1186a(c)(4)(B).
On September 15, 1997, petitioner Agnes Cho, a Chinese
citizen of Burmese descent, married a United States citizen of
Burmese descent. Subsequently, Cho secured conditional admission
as a permanent United States resident. The couple divorced within
two years of the marriage, and Cho applied to the Attorney General
for a hardship waiver. But the Attorney General, acting first
through an INS district director, then through an immigration
judge, and finally through the Board of Immigration Appeals, denied
Cho's application on the ground that she failed to establish that
she had married in good faith and thus failed to establish
eligibility for a hardship waiver. Cho petitions to vacate the
order of removal that followed these determinations, arguing, inter
alia, that the record lacks substantial evidence to support the
Attorney General's ruling. The Attorney General responds that we
lack jurisdiction to entertain this petition and, alternatively,
that the removal order is grounded in substantial evidence.
We begin with the jurisdictional issue. The Attorney
General argues that we lack power to consider the petition under a

-- 4 of 20 --

-5-
permanent, jurisdiction-stripping statute enacted into law as part
of the Immigration Reform and Immigrant Responsibility Act of 1996.
In relevant part, the statute reads:
Notwithstanding any other provision of law, no
court shall have jurisdiction to review --
(i) any judgment regarding the granting of
relief under [certain statutory grants of
discretionary authority to the Attorney
General not here relevant], or
(ii) any other decision or action of the
Attorney General the authority for which is
specified under this subchapter to be in the
discretion of the Attorney General, other than
the granting of relief under [another statute
not here relevant].
8 U.S.C. § 1252(a)(2)(B). The parties agree that the Attorney
General's rejection of an application for a hardship waiver under
8 U.S.C. § 1186a(c)(4)(B) is a decision made pursuant to the
relevant statutory "subchapter" mentioned in subparagraph (ii).
They also agree that the Attorney General's general authority to
grant a hardship waiver under § 1186a(c)(4)(B) is specified to be
within the Attorney General's discretion. But they disagree over
whether these two facts resolve the jurisdictional issue.
The Attorney General says that they do. He primarily
argues that the "decision or action" referred to in 8 U.S.C. §
1252(a)(2)(B)(ii) is his final order, which he says is his denial
of the hardship waiver, and not the threshold eligibility ruling --
that Cho failed to prove that she married in good faith -- on which
that order was based. And because this "decision or action"

-- 5 of 20 --

-6-
involves the withholding of discretionary relief, the argument
goes, we have no power of review. Cf. Pilch v. Ashcroft, 353 F.3d
585, 587 (7th Cir. 2003) (interpreting a similar jurisdiction-
stripping provision of the IIRIRA's transitional rules, IIRIRA §
309(c)(4)(E), and explaining that, absent an all-or-nothing
approach, "there would be no jurisdiction if the agency is right
but jurisdiction when it errs; [and] that would be a back door
assertion of jurisdiction to review every decision, and an
effective nullification of the statute"). Cho counters that the
"decision or action" referred to in the statute is not the Attorney
General's discretionary decision to withhold a hardship waiver, but
the specific and non-discretionary (or so she argues, see infra)
ruling upon which that decision depended and which she challenges
in her petition -- i.e., that Cho is not within the class of aliens
entitled to apply to discretionary relief under 8 U.S.C. §
1186a(c)(4)(B) because she failed to establish that she married in
good faith.
We think that Cho has the better of this argument. We
start with the fact that the Attorney General's position proves too
much. Even if we were to accept for the sake of argument that the
final agency order at which the petition is directed, and not the
eligibility ruling leading to the order, is the "decision or
action" to which 8 U.S.C. § 1252(a)(2)(B)(ii) refers, the final
agency order in this case would not be the Attorney General's

-- 6 of 20 --

-7-
rejection of Cho's application for a hardship waiver. Rather, it
would be the removal order itself, which is the final decision of
the Attorney General that we have jurisdiction to review under 8
U.S.C. § 1252(a)(1). See Subhan v. Ashcroft, 383 F.3d 591, 594
(7th Cir. 2004). And the removal order is not a decision or action
the authority for which is specified by the relevant statute to be
in the discretion of the Attorney General. See id.
Accordingly, and contrary to the position he takes in his
brief, the Attorney General needs us to look to the rationale
underlying his order, and not simply the nature of the order
itself, if 8 U.S.C. § 1252(a)(2)(B)(ii) is ever to preclude court
review of a final removal order. And in this case, the rationale
for the final removal order was not that the Attorney General, in
an exercise of the discretion conferred upon him by 8 U.S.C. §
1186a(c)(4)(B), saw fit to reject Cho's application for a hardship
waiver; it was that Cho is ineligible as a matter of law for a
discretionary hardship waiver under § 1186a(c)(4)(B) because she
failed to establish that she married in good faith. So even if we
assume arguendo that the "decision or action" to which §
1252(a)(2)(B)(ii) refers in the context of this case is not the
removal order, but is the specific decision leading to the removal
order, we would not accept the Attorney General's characterization
of that decision as involving a discretionary denial of a hardship
waiver to an eligible alien under § 1186a(c)(4)(B).

-- 7 of 20 --

-8-
Treating the Attorney General's ineligibility ruling as
the relevant "decision or action" (again, assuming for the sake of
argument that the relevant "decision or action" is not the removal
order itself) is consistent with the approach we have taken in
other cases interpreting similar jurisdiction-stripping provisions
of the IIRIRA. In those cases, we have consistently emphasized
that, in deciding whether a jurisdiction-stripping statute applies,
we should engage in a precise reading of both the agency decision
and the petition. See Succar v. Ashcroft, 394 F.3d 8, 20 (1st Cir.
2005) (interpreting 8 U.S.C. § 1252(a)(2)(B)(i)); Prado v. Reno,
198 F.3d 286, 288 (1st Cir. 1999) (also interpreting §
1252(a)(2)(B)(i)); Bernal-Vallejo v. INS, 195 F.3d 56, 61-62 (1st
Cir. 1999) (interpreting IIRIRA § 309(c)(4)(E)).
The reasons for reading precisely provided in those cases
pertain here as well. First, if Congress had intended to preclude
all court review of agency decisions involving hardship waiver
applications, it is hard to see why it would not have said so more
clearly and categorically, using language such as that in, for
example, IIRIRA § 309(c)(4)(G) ("[T]here shall be no appeal
permitted in the case of an alien who is inadmissable or deportable
by reason of having committed [certain criminal offenses]") -- a
transitional rule which we have read to preclude all court review
in the case of an alien who was deemed by the agency to be
inadmissible or deportable by reason of having committed one of the

-- 8 of 20 --

-9-
specified criminal offenses. See Bernal-Vallejo, 195 F.3d at 62;
see also Ruckbi v. INS, 159 F.3d 18, 21 (1st Cir. 1998). And short
of using language of this sort, Congress certainly could have added
8 U.S.C. § 1186a(c)(4)(B) to the list of statutes described in 8
U.S.C. § 1252(a)(2)(B)(i) as involving "judgment[s]" that "no court
shall have jurisdiction to review." See Prado, 198 F.3d at 290
(suggesting in dicta that the jurisdiction-stripping language of §
1252(a)(2)(B)(i) prohibits review of a "broader" range of agency
decisions than does IIRIRA § 309(c)(4)(E), which, like §
1252(a)(2)(B)(ii), prohibits review of only certain discretionary
"decisions"); but see Montero Martinez v. Ashcroft, 277 F.3d 1137,
1141-44 (9th Cir. 2002) (holding that the term "judgment" in §
1252(a)(2)(B)(i) encompasses only discretionary decisions by the
Attorney General).
Second, the IIRIRA's jurisdiction-stripping provisions
have been interpreted not to preclude judicial review "of the legal
question of interpretation of the statute as to whether an alien is
eligible for consideration of relief." Succar, 394 F.3d at 19
(emphasis added); see also Goncalves v. Reno, 144 F.3d 110, 125
(1st Cir. 1998) ("Analytically, the decision whether an alien is
eligible to be considered for a particular discretionary form of
relief is a statutory question separate from the discretionary
component of the administrative decision whether to grant
relief.").

-- 9 of 20 --

-10-
Third, and relatedly, the eligibility ruling challenged
here is not one that historically has been regarded as entirely
discretionary. See Bernal-Vallejo, 195 F.3d at 63 (looking at pre-
IIRIRA caselaw to determine whether a particular ruling should be
regarded as purely discretionary or as having a reviewable legal
component). Rather, it is a question the resolution of which has
been regarded as circumscribed by a legal standard. See
Rodriguez v. INS, 204 F.3d 25, 27 (1st Cir. 2000) (adopting and
applying a legal standard -- "whether, at the time of the marriage,
there was an intent to establish a life together" -- in reviewing
the Attorney General's determination that the petitioner failed to
establish that he had married in good faith) (citation and
quotation marks omitted); see also, e.g., Damon v. Ashcroft, 360
F.3d 1084, 1088-89 (9th Cir. 2004) (concluding, in light of
governing legal principles and without discussion of any
jurisdictional issues, that there was no substantial evidence to
support the Attorney General's determination that an alien was
ineligible for § 1186a(c)(4)(B) relief because she failed to prove
that she had married in good faith). It also is a question whose
resolution is informed by objective regulatory criteria set forth
at 8 C.F.R. § 216.5(e)(2) (listing factors to be considered in
assessing whether a marriage was entered into in good faith).
Cf. Bernal-Vallejo, 195 F.3d at 62 (observing that inquiries guided
by objective statutory criteria are not discretionary).

-- 10 of 20 --

-11-
Our jurisdictional inquiry does not end with our decision
to treat the Attorney General's eligibility ruling, and not his
denial of the hardship waiver, as the relevant "decision or action"
for purposes of assessing the effect of 8 U.S.C. §
1252(a)(2)(B)(ii) on Cho's petition. The Attorney General has a
fallback position: that his eligibility rulings are themselves
discretionary decisions or actions shielded from substantial
evidence review under § 1252(a)(2)(B)(ii). At first, this argument
seems implausible in light of the authority, set forth in the
preceding paragraph, suggesting that the decision whether an alien
has married in good faith is not completely discretionary but is,
rather, a decision with a legal component that helps define the
class of aliens eligible for hardship waivers. But as the Attorney
General correctly points out, 8 U.S.C. § 1186a(c)(4)(B) not only
commits to the Attorney General's discretion the decision whether
to grant eligible aliens hardship waivers, but it also contains the
provision which states: "In acting on applications under this
paragraph, the Attorney General shall consider any credible
evidence relevant to the application. The determination of what
evidence is credible and the weight to be given that evidence shall
be within the sole discretion of the Attorney General."
In the Attorney General's view, this "sole discretion"
provision effectively describes all that goes into a threshold
eligibility ruling under 8 U.S.C. § 1186a(c)(4)(B), and thus

-- 11 of 20 --

-12-
renders all such rulings "decision(s) or action(s)" textually
committed to the Attorney General's unreviewable discretion per 8
U.S.C. § 1252(a)(2)(B)(ii). The Attorney General says that the
Third Circuit has accepted this reading of the statute. See Urena-
Tavarez v. Ashcroft, 367 F.3d 154, 159-61 (3d Cir. 2004); see also
Assaad v. Ashcroft, 378 F.3d 471, 475 (5th Cir. 2004) (following
Urena-Tavarez); Randhawa v. Ashcroft, 2005 WL 221502 (6th Cir. Jan.
31, 2005) (unpublished opinion) (same).
Although Urena-Tavarez and the cases which follow it use
sweeping language, they do not unequivocally hold that 8 U.S.C. §
1252(a)(2)(B)(ii) bars all court challenges to determinations by
the Attorney General that an alien has failed to prove that she
married in good faith and thus is ineligible for discretionary
relief under 8 U.S.C. § 1186a(c)(4)(B). Of the three opinions,
only Urena-Tavarez describes in any detail the nature of the
arguments made in the petition for review, and it is clear that the
arguments in that case were directed at the Attorney General's
credibility determinations and the weight he gave to the evidence
that he credited. See 367 F.3d at 160-61. And we certainly have
no quarrel with the conclusion that § 1252(a)(2)(B)(ii) precludes
court review of petitions grounded in such arguments (again,
assuming arguendo that we should peek behind the veil of the
removal order itself).
But we think it evident that the portion of 8 U.S.C. §

-- 12 of 20 --

2Indeed, one should be careful not to read the "sole
discretion" language too broadly, because such a reading could be
in tension both with the previous sentence in the statute --
directing that (our emphasis) "the Attorney General shall consider
any credible evidence relevant to the application" -- and the
legislative history describing the origin and purpose of the two
sentences, as a pair. See H.R. Rep. 103-395 (describing purpose of
section 242); H.R. Conf. Rep. 103-711 at 164-65.
-13-
1186a(c)(4)(B) which commits to the Attorney General's "sole
discretion" the tasks of deciding what evidence is credible and the
weight to be given to that evidence should not be read also to
commit to the Attorney General's sole discretion the qualitatively
different tasks of interpreting applicable background legal
questions and applying those standards to the evidence ultimately
credited and deemed weighty. Such a reading would broadly
interpret the relevant statutory language, unnaturally we think, to
yield an outlier enclave of administrative law in which the courts
are stripped of their customary power to be the final word on the
meaning of legal concepts imbedded in our immigration statutes.2
Not surprisingly, the Supreme Court has cautioned against such
outcomes. See INS v. St. Cyr, 533 U.S. 289, 298 (2001); see
also Montero-Martinez, 277 F.3d at 1141. Perhaps this is why
courts, including ours, have not hesitated to review the Attorney
General's threshold eligibility determinations under §
1186a(c)(4)(B) for substantial record evidence notwithstanding the
statute's "sole discretion" provision -- a provision which,
incidentally, pre-dates the IIRIRA. See, e.g., Syed v. Ashcroft,

-- 13 of 20 --

-14-
389 F.3d 248, 251 (1st Cir. 2004); Rodriguez, 204 F.3d at 27.
There is, after all, only marginal (if any) tension between the
"sole discretion" provision (narrowly directed to the question of
what evidence is credible and how much weight it should be given)
and the substantial evidence standard of review (as applied to the
statutory question whether the marriage was entered into in good
faith), which merely looks to whether an agency determination is
reasonably grounded in the administrative record and has never
properly been understood to permit a reviewing court either to
substitute its own credibility findings for those made by the
agency or to weigh the credited evidence itself. See, e.g.,
Consolo v. Federal Maritime Comm., 383 U.S. 607, 619-21 (1966);
Seavey v. Barnhart, 276 F.3d 1, 10 (1st Cir. 2001); see generally
II Richard J. Pierce, Jr., Administrative Law Treatise, § 11.2 (4th
ed. 2002).
We conclude our discussion of jurisdiction by observing
that the concern expressed by Judge Easterbrook in Pilch and noted
above -- that allowing a peek behind the veil at the actual
rationale of the Attorney General's decision would open the door to
the de facto nullification of the jurisdiction-stripping statute,
see 353 F.3d at 587 -- is not relevant here. We hold today only
that eligibility rulings under section 1186a remain reviewable by
the courts, and that this is true whether the 'decision or action'
phrase of § 1252(a)(2)(B)(ii) covers only 'final' decisions or also

-- 14 of 20 --

-15-
interim rulings, cf. Subhan, 383 F.3d at 594-95. The
jurisdictional questions arising from that statutory provision are
many and complex, and nothing we say here should be taken to
dictate answers for problems beyond the one we are addressing.
We turn now to whether there is substantial record
evidence supporting the Attorney General's decision, here delegated
to and made by the BIA, that Cho failed to prove that she married
in good faith. The relevant legal standard is, again, whether Cho
intended to establish a life with her spouse at the time she
married him. See Rodriquez, 204 F.3d at 27 (citing Bark v. INS,
511 F.2d 1200, 1201 (9th Cir. 1975)). Cho's marriage is legitimate
so long as this standard is met, even if securing an immigration
benefit was one of the factors that led her to marry. See Matter
of Boromand, 17 I. & N. Dec. 450, 454 (BIA 1980); Sarah Ignatius &
Elisabeth S. Stickney, Immigration Law & the Family, § 4:21 (2004);
cf. United States v. Tagalicud, 84 F.3d 1180, 1185 (9th Cir. 1996)
("The ulterior motive of financial benefit or immigration benefit
does not make the marriage a fraud, though it may be evidence that
the marriage is fraudulent.") (interpreting 8 U.S.C. § 1325(b)).
We start with the fact that Cho made a very strong
showing that she married with the requisite intent to establish a
life with her husband. Cho introduced uncontradicted evidence --
expressly credited by the IJ and never questioned by the BIA --
that she and her future husband engaged in a nearly two-year

-- 15 of 20 --

-16-
courtship prior to marrying (Cho lived in Taiwan at the time she
was telephonically introduced to her future husband by a mutual
acquaintance in January 1996); that she and her future husband were
in frequent telephonic contact during the portions of this two-year
period when they lived apart (telephone records were introduced to
substantiate this); that her future husband traveled to Taiwan and
then to Burma in December 1996 (he stayed through early 1997) to
meet her and her family; that she paid a ten-day visit to her
future husband in the United States in March 1997 to meet his
family and to sightsee; that she returned to the United States in
June 1997 (on a visitor's visa which permitted her to remain in the
country through late September 1997) to decide whether she would
remain in the United States or whether her future husband would
move with her to Taiwan; that the two decided to marry civilly on
September 15, 1997 and then to return to Taiwan to hold a more
formal reception (a reception that was never held because of
emergent marriage troubles traceable, inter alia, to her husband's
physical and emotional abuse and intimate relationship with a
former girlfriend); and that the two lived together at his parents'
house from the time of her arrival in the United States in June
1997 until he asked her to move out on April 22, 1998 (the day of
her conditional residency interview, at which she angered her
husband by arriving with counsel and an affidavit detailing his
abuse of her).

-- 16 of 20 --

-17-
In addition, Cho introduced evidence that, after the
marriage, she and her husband jointly enrolled in a health
insurance policy, filed tax returns, opened bank accounts, entered
into automobile financing agreements, and secured a credit card.
See 8 C.F.R. § 216(e)(2)(i) (noting the potential relevance to the
good-faith determination of "[d]ocumentation relating to the degree
to which the financial assets and liabilities of the parties were
combined"). Cho also introduced extensive counseling records from
the period following her separation which detailed her therapists'
perceptions that she harbored a strong desire to make her marriage
work and her serious depression over its troubles and eventual
failure.
The BIA cited four facts in support of its conclusion
that, in spite this evidence (which the Board acknowledged but did
not discuss), Cho had failed to carry her burden: (1) her
application to secure conditional permanent residency, and a visa
petition her husband concomitantly submitted on her behalf, were
prepared in Cho's handwriting within two weeks of the marriage; (2)
Cho and her husband married one week prior to the expiration of the
visitor's visa by which she came to the United States in June 1997;
(3) Cho's husband maintained an intimate relationship with another
woman during the marriage; and (4) Cho obtained employment and
moved out of the marital residence shortly after obtaining
conditional residency. These findings are problematic and do not,

-- 17 of 20 --

-18-
alone or in combination, sufficiently ground the Attorney General's
inference about Cho's intent at the time of her marriage.
The BIA did not explain, and we do not see, how Cho's
prompt submission of a conditional residency application after her
marriage tends to show that Cho did not marry in good faith. As we
already have stated, the visitor's visa by which Cho entered the
country expired just after the marriage, so Cho had to do something
to remain here lawfully. So too with the fact that the relevant
forms were filled out in Cho's handwriting; how this tends to show
a sham marriage is unexplained and not apparent to us (especially
in light of the uncontradicted record evidence that Cho filled out
the forms because she wrote more legibly in English than did her
husband). And while Cho's husband's intimate relationship with
another woman during the marriage might well have been probative of
Cho's marital intentions if there were some evidence that Cho knew
of the relationship and its nature at the time she married, the
uncontradicted evidence was that Cho learned of the affair only
after the marriage. These facts thus do little to substantiate the
conclusion that Cho failed to establish the bona fides of her
marriage.
This leaves the two findings regarding the timing of the
marriage and the separation. Taken in isolation, these findings
might seem to identify substantial evidence in support of the
Attorney General's decision. After all, the findings are supported

-- 18 of 20 --

-19-
by the record, and ordinarily, one who marries one week prior to
the expiration of her visitor's visa and then moves out of the
marital home shortly after the conditional residency interview
might reasonably be thought to have married solely for an
immigration benefit. But we are not permitted to analyze these
findings in isolation; we must evaluate them in context. See,
e.g., Mukamusoni v. Ashcroft, 390 F.3d 110, 119 (1st Cir. 2004)
(emphasizing that substantial evidence review requires an
assessment of the entirety of the administrative record). And when
we do so, any connotation of fraud raised by the timing of the
marriage and the separation largely evaporates. For the undisputed
and credited record evidence establishes both that the marriage was
preceded by a long courtship and that Cho's husband initiated the
separation after Cho publically embarrassed him by retaining
counsel and detailing his abuse of her at the conditional residency
interview. Thus, this "timing" evidence does not seem to us to be
"such evidence as a reasonable mind might accept as adequate" to
ground the Attorney General's eligibility determination.
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).
The substantial evidence test requires that we
"'conscientiously find that the evidence supporting [the Attorney
General's] decision is substantial, when viewed in the light that
the record in its entirety furnishes, including the body of
evidence opposed to the Board's view.'" Mukamusoni, 390 F.3d at 119

-- 19 of 20 --

3We acknowledge with gratitude the efforts of the Family
Violence Prevention Fund, the Massachusetts Law Reform Institute,
the National Immigration Project of the National Lawyers Guild, and
Greater Boston Legal Services, who jointly filed a brief as amici
curiae in support of Cho.
-20-
(quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)).
For the reasons set forth above, we cannot so find based on the
record in this case. Therefore, we conclude that petitioner Cho
has satisfied the "good faith" marriage requirement for eligibility
under 8 U.S.C. § 1186a(c)(4)(B). Accordingly, we grant Cho's
petition for review and remand this matter to the BIA for further
proceedings consistent with this opinion. This resolution
eliminates any need for us to consider whether the BIA erred in
upholding the IJ's denial of Cho's motion to reconsider.
So ordered.3

-- 20 of 20 --