along versus sessions to the court that number one is the immigration jaws actually denied the decided the hardship waiver which is a question of law and also the good faith way were based on the that was going on from two thousand and two to three to two thousand and five and also there was a waiver on best on the fact that it was cruelty of by one of the spouses in this case so basically after this if we agree with you and this will remain because i say consistent with your argument that b i employ the wrong standard is there anything else you would present i mean it yearly that has to go back to the i'm going to send does to make it for the findings on this case on the matter of facts until as law so therefore there will be a different results and on the second part of the saying that that necessarily would what you're asking but maybe i misunderstood was too for us to remain it back to the to employ the correct legal standard in your view the correct legal standard was with respect to whether the facts that were found by the i j a noun a to a constituted a good faith or not a good faith marriage you know not of the on not only the facts to be able to have to if you were you might if your dream and this is the be all you would have to look into the legal question as well because of the question of hardship is a legal question it's not a quick peck still question right but following up on judge lawyers question it and tell me where i am misunderstanding you we we send it back to the b i say and we tell the b i had a you need to look at the facts as found by the immigration judge you cannot alter that was fact findings unless they were clearly erroneous as made by the immigration judge when you have that set of facts you then reviewed a no for whether that set of facts constitutes a sham marriage or a legitimate marriage is that as a matter of law is that correct you or i would like to appropriate review on the lead case yes seventeen to six to seven for us as well yes your argument is that the employed the wrong legal standard morning your honors good morning your honor to me please the court iran's eighty for the attorney general this case involves a limited procedural challenge to the board standard of review interviewing an immigration judge as good faith marriage determination that's the question presented in the first petition in this consolidated peel that's stuck at number seventeen dash to six to seven and if what i plan to focus on today subject of course to this panel's questions now just to clarify my post council has mentioned a few different types of waiver request that is before this court is the good faith waiver if you look at eleven eighty six a c four there are four different types of waiver it was clear from the record that some previous waivers had been sought a hardship w under eighty six a c four c four a and a b the hardship excuse me a spouse will abuse waiver under c four d we're only talking with the other ones were not even presented to the agency they were never even involved in removal proceedings alone decides incomes yes your honor and so and that gets back to the question of the first petition in this consolidated appeal so petitioners challenge on that question is a sexually that this court should follow the fourth circuit's ruling in a pot which held that this question whether the ultimate question of whether a petition is weight of evidence meets the good faith marriage standard is it is a question of law to be reviewed dyn o by the  court has joined the fourth circuit in ruling that an immigration judge is good faith marriage determination has to be fourth circuit really weighed in on this issue so no other court has ruled in on in the specific context of ruling on the board standard review and neither has this court many courts including this court have reviewed whether this quarter other courts have jurisdiction to review those final agency determinations notwithstanding the jurisdictional bar for discretionary determinations but that is all as i understand in the context of cases where the just the challenge related to eventually matters not to that alternate conclusion that in that it's for us well that's that's not true respectfully on in the but that is the ultimate question right is that if you look in starting with this court's precedent going back to contrary salinas this two thousand and nine decision which first addressed whether or not the court has jurisdiction to review those good faith marriage determinations this court since that decision has consistently interpreted challenges to those good faith marriage of terminations both judge lawyer to the underlying factual findings and so i am reading the contrary salinas case and we said there because we conclude the petitioners claims challenge only credibility determinations and the estimony and the weight given to the evidence amounted to good faith but only on whether the credibility determinations were fairly erroneous correct now but the point that we're making right now this is that seven fourteen of contrary salinas this court also talked about the immigration judges consideration of the evidence in its entirety in reaching his conclusions and in choudhry which we also cited on page twenty one of our brief they talk about a petitioners ability to carry his ultimate burden of meeting the good faith good faith marriage standard so i take your point judge lawyer that these are about how this court has construed those challenges but that's my entire point is that in the way that this court has construed those challenges it is even construed the ultimate challenge to the burden to whether evidence met the burden as a factual question and thus not one that this court can review  one right your honor again so in that case they actually did mention how the board reviewed the evidence the board does not assume for a second let's just assume with means we have never really said anything about the issue the current or sites issue before us in the case so where does that leave us that leaves your honor with how do you interpret how do you choose how to review what's a mixed question of law basically just the application of the legal standard to facts and i think we would point you to the route the supreme court's recent decision in u s bank which said very clearly that just the presence of a mixed question of law just a just the presence of applying a legal standard to facts does not make something legal question the inquiry still turns on what is the nature of that question so for instance that in on how the law might be shaped and applied in the future or develops auxilary legal principles to be applied to cases down the road well and that's a legal question subject to denote a view if on the other hand the inquiry is heavily case specific in fact  specific and especially involves questions of evidentiary weight and credibility well then it's a factual question subject to clear air review and that's exactly what we have here the examination here turned only on the specifics of petitioners financial situation with his now ex wife with his living arrangement with her with evidence and post marriage and ultimately the question of what his intentions and credibility was were in entering that relationship and that's a point your honor is that i cannot overstate that this question of whether there's a good faith marriage is ultimately itself a credibility did her determination you know there's no room between the factual determination and the legal term that's that's exactly is that that ultimate question is a credibility determination you are asking whether somebody can be believed in saying that the entered a marriage for the purpose of the relationship and not for some other purpose  swear without your you know you are with jurisdiction to consider the question of whether the board applied the appropriate standard review we are just saying that here the board did and that review standard was clear in the other line of cases you can continue to construe them all  his question when you say the there's really no so you are saying that it is impossible for someone subjectively to enter into a marriage in order to among other things gain american citizenship eventually and have that marriage be deemed a good fake marriage that it is impossible to enter with what intention as well as an intention to also marry that person for the sake of good faith for the sake of the relationship that would just come to how the immigration judge actually viewed the evidence so if there was a case where an immigration judge looked at an intent perhaps it had been expressed i doubt this would happen but a petitioner said well yeah i was hoping i would rely on that marriage down the road to naturalize or some house to seek status and the immigration judge could rule that i could weigh that evidence and see how it affected ultimately whether or not to enter the marriage in good faith but i don't think the very presence of that intent would mean that they'd enter the marriage in bad faith what is what is a legitimate marriage is a specific definition not in the statute no so the statute doesn't speak to the definition the regulations on speak to the definition but they provide evidence that de just can look at which involves birth certificate it's evidence of co mingled finances evidence of cohabitation and then ultimately a sort of residual any other evidence retain some level of consistency we're on i think again it goes back to the question of what the actual nature of the good faith marriage determination is if that had some sort of legal right if that i think if that determination had more had more to do with  legal principles and the actual standard itself was shaped by the law and was a matter of law to be afloat tied to future cases and perhaps the uniformity could compel applying to a noble review a series of contradictory findings from different ways or actually could have the same findings from different ages and have different arrive at different different conclusions about whether those const institutionally in a better position to rule on the immigration judge's ruling on credibility findings even though those might also sometimes be inconsistent those are about the fact finder but how you aggregate of those facts and how you analyze the facts that you find to come to a particular conclusion relating to the gym a c of a marriage or his that's a that's a different exercise you will know your honor that's that is the point i'm making in my answer to judge  that that aggregation as one side and then the application of the other those are not separate questions in the good faith marriage determination context those are very much the same and a direct this panel to the fifth circuit brief we cited for what would happen if you accepted approaches approach my person counsels approach here if you were to apply to novo review to the ultimate question after applying clear air review to the underlying factual findings in that case the immigration judge found a petition had entered his marriage in good faith the board on review applied fact a clear review to the underlying factual findings did not disagree with any of them but then ultimately said but we don't feel that this meets the good faith in it as your saying judge lloyd as a separate question the fifth circuit reversed that determination saying that that involved in improper reworking of evidence by the board without affording clear air without affording deference to the fact that so that is inviting the board to engage in improper fact finding published a clear review for factual questions to know who are the legal questions and then proceed with its decision where the board has spoken specifically to the standard of review for the ultimate determination the board has said from what i can find clear air in every circumstance except for one and even that that's actually an unpublished decision chase cited by the fourth circuit in a pasha and even there it was a board member who has in other decisions actually applied clear air review so which i'm which i don't think is wrong i think one of the central takeaways from the u s banks decision is that it's not a one size fits all approach if it depends necessarily on the nature of the inquiry that in some situations the inquiry will compel clear review in other situations it'll it'll necessarily entail done over this court has already reached that conclusion itself in ball it versus holder again the different context of what their judicial review but this court has found that it is a legal question in one circumstance and now is where whether certain types of evidence could be considered in assessing good faith in a marriage and that was whether evidence during the course of the marriage could be considered because the ultimate inquiry is whether you entered the marriage in good faith the court said yes you can consider marriage and evidence of conduct during the marriage and that can be considered as a legal question whether that evidence can be considered if there are no further questions your honor we asked the consolidated appeal be denied