author: DIANA GRIBBON MOTZ, Circuit Judge:

text:
    The Right Reverend Charles G. VONROSENBERG, individually and in his capacity as Provisional Bishop of the Protestant Episcopal Church in the Diocese of South Carolina, Plaintiff-Appellant, v. The Right Reverend Mark J. LAWRENCE; John Does, 1-10, being fictitious defendants whose names presently are unknown to Plaintiff and will be added by amendment when ascertained, Defendants-Appellees.
    No. 15-2284
    United States Court of Appeals, Fourth Circuit.
    Argued: December 9, 2016
    Decided: February 21, 2017

      ARGUED: Thomas- S. Tisdale, Jr., HELLMAN YATES & TISDALE, Charleston, South Carolina, for Appellant. Henrietta U. Golding, MCNAIR LAW FIRM, Myrtle Beach, South Carolina, for Appellee. ON BRIEF: Jason S. Smith, HELLMAN YATES & TISDALE, Charleston, South Carolina, for Appellant. C. Alan Runyan, Andrew S. Platte, SPEIGHTS & RUNYAN, Beaufort, South Carolina; Charles H. Williams, WILLIAMS & WILLIAMS, Orangeburg, South Carolina; David Cox, BARNWELL WHALEY PATTERSON & HELMS, Charleston, South Carolina, for Appellee.
    Before GREGORY, Chief Judge, MOTZ, Circuit Judge, and Richard D. BENNETT, United States District Judge for the District of Maryland, sitting by designation.
   DIANA GRIBBON MOTZ, Circuit Judge:

This dispute between two clergymen— each claiming to be the Bishop of The Protestant Episcopal Church in the Diocese of South Carolina — comes to us a second time. Bishop Charles G. vonRosen-berg initiated this action, seeking declaratory and injunctive relief. He alleges that Bishop Mark J. Lawrence has violated the Lanham Act by falsely advertising himself to be the Bishop of the Diocese of South Carolina. At Bishop Lawrence’s request, the district court abstained in favor of related state court' proceedings, applying Brillhart v. Excess Insurance Co. of America, 316 U.S. 491, 62 S.Ct. 1173, 86 L.Ed. 1620 (1942), and Wilton v. Seven Falls Co., 515 U.S. 277, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995). On appeal, we vacated that order, concluding that Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), not Brillhart and Wilton, governs abstention decisions in actions where the plaintiff seeks both declaratory and nondeclaratory relief. See vonRosenberg v. Lawrence (vonRosenberg I), 781 F.3d 731 (4th Cir. 2015). On remand, the district court has again abstained, staying the action pending the conclusion of the state proceedings. For the reasons that follow, we must again vacate and remand for further proceedings.

I.

As discussed in our earlier opinion, Bishop vonRosenberg alleges that The- Protestant Episcopal Church in the United States (“the Episcopal Church”) removed Bishop Lawrence from his position as the Bishop of the Diocese of South Carolina and installed Bishop vonRosenberg in his place. Bishop vonRosenberg asserts that, despite Bishop Lawrence’s removal, Bishop Lawrence continues to use the service marks, names, and symbols of the Diocese and continues to hold himself out as the Bishop of the Diocese. For his part, Bishop Lawrence maintains that he was not removed from office. He contends that the Diocese of South Carolina withdrew from the Episcopal Church and now operates independently of the national organization. Accordingly, Bishop Lawrence argues that, although he no longer serves as a Bishop of the Episcopal Church, he is still the Bishop of the Diocese and thus may represent himself as such.

We briefly sketch the course of the state and federal actions that led to the abstention orders in this case.

A.

On January 4, 2018, the Diocese of South Carolina and various churches and parishes loyal to Bishop Lawrence filed suit in South Carolina state court against the Episcopal Church. They argued that the Diocese had dissociated from the Episcopal Church and sought “resolution of their real and personal property rights.” The property at issue included the Diocese’s service marks, which the plaintiffs alleged the Episcopal Church had used in violation of South Carolina law.

The Episcopal Church filed an answer and counterclaims, including claims of trademark infringement and dilution under the Lanham Act. It also sought to add Bishop Lawrence and others as individual counterclaim defendants. In September 2013, the state court denied the request to' add the proposed additional parties, and it repeatedly denied similar requests throughout the litigation. Accordingly, neither Bishop Lawrence nor Bishop vonRo-senberg is a party to the state action. And no Lanham Act false advertising claim against Bishop Lawrence is before the state court.

On February 3, 2015, after more than a year of discovery and a fourteen-day bench trial, the state court issued a final order in favor of the Diocese. It held that the Diocese had validly dissociated from the Episcopal Church and therefore owned the property at issue in the litigation, including the service marks. The state court permanently enjoined the Episcopal Church and its agents from using any of the Diocese’s marks. The Episcopal Church appealed to the South Carolina Supreme Court. That court heard oral argument on September 23, 2015, but has issued no opinion to date.

B.

On March 5, 2013, two months after the Diocese filed suit in state court, Bishop vonRosenberg filed this federal action. In it, Bishop vonRosenberg alleges that Bishop Lawrence violated the Lan-ham Act by engaging in false advertising. Specifically, Bishop vonRosenberg alleges that Bishop Lawrence’s continued assertions that he remains the Bishop of the Diocese creates confusion as to who is the true Bishop. Bishop vonRosenberg asserts that this impairs his ability to perform his ecclesiastical duties and to communicate effectively on behalf of the Diocese.

In response, Bishop Lawrence asked the federal district court to abstain in favor of the state proceeding. In August 2013— before the state court denied the Episcopal Church’s request to add Bishop Lawrence as an individual counterclaim defendant— the district court granted Bishop Lawrence’s motion to abstain and dismissed the case. The court based its decision on the broad discretion to decline jurisdiction over cases seeking declaratory relief that the BrillhartfWilton doctrine provides federal courts.

Bishop vonRosenberg appealed. In our previous opinion in this case, we held that Colorado River, and not BrillhartfWilton, supplied the abstention standard for claims seeking both declaratory and nondeclaratory relief. vonRosenberg I, 781 F.3d at 735. Colorado River establishes a more rigorous abstention standard than the BrillhartfWilton standard. Accordingly, we vacated the district court’s dismissal order and remanded for a determination of whether “exceptional” circumstances justified abstention under the Colorado River standard. Id. at 736.

On remand, the district court once again abstained, staying the federal proceeding until the conclusion of the state action. Bishop vonRosenberg again timely appealed.

II.

“The rule is well recognized that the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction.” McClellan v. Carland, 217 U.S. 268, 282, 30 S.Ct. 501, 54 L.Ed. 762 (1910). However, under the Colorado River doctrine, a federal court may abstain from exercising jurisdiction over a duplica-tive federal action for purposes of “wise judicial administration.” 424 U.S. at 818, 96 S.Ct. 1236. But a court must apply Colorado River abstention “parsimoniously.” Chase Brexton Health Servs., Inc. v. Maryland, 411 F.3d 457, 463 (4th Cir. 2005). This requires recognizing that our task is not “to find some substantial reason for the exercise of federal jurisdiction by the district court; rather, the task is to ascertain whether there exist ‘exceptional’ circumstances, .the ‘clearest of justifications,’ that can suffice under Colorado River to justify the surrender of that jurisdiction.” Moses H. Cone, 460 U.S. at 25-26, 103 S.Ct. 927.

In deciding whether such exceptional circumstances exist, a court must first determine whether the federal and state actions are parallel. State and federal suits are parallel only “if substantially the same parties litigate substantially the same issues in different forums.” New Beckley Mining Corp. v. Int’l Union, United Mine Workers of Am., 946 F.2d 1072, 1073 (4th Cir. 1991). It is not enough for parties in the state and federal actions to be merely aligned in interest.

“[W]e have strictly construed the requirement of parallel federal and state suits, requiring that the parties involved be almost identical.” Chase Brexton, 411 F.3d at 464. For example, in McLaughlin v. United Virginia Bank, we found the state and federal actions not parallel where the state suit involved claims by several corporations and the federal suit involved personal claims by the president of those corporations. 955 F.2d 930, 934-35 (4th Cir. 1992). We held Colorado River abstention not proper even though resolution of the state suit might have had a res judicata effect on some of the claims in the federal action. See id. at 934 n.*.

In addition, even state and federal claims arising out of the same factual circumstances do not qualify as parallel if they differ in scope or involve different remedies. See, e.g., Chase Brexton, 411 F.3d at 464; New Beckley, 946 F.2d at 1074 (“[Sjome factual overlap does not dictate that proceedings are parallel.”). Rather, a federal court may abstain under Colorado River only if it “concludes that the parallel state-court litigation will be an adequate vehicle for the complete and prompt resolution of the issues between the parties.” Moses H. Cone, 460 U.S. at 28, 103 S.Ct. 927 (emphasis added). If there is any serious doubt that the state action would resolve all of the claims, “it would be a serious abuse of discretion” to abstain. Id.

Finally, even if the federal and state suits are duplicative, Colorado River requires a court to balance carefully several other factors before abstaining:

(1) whether the subject matter of the litigation involves property where the first court may assume in rem jurisdiction to the exclusion of others; (2) whether the federal forum is an inconvenient one; (3) the desirability of avoiding piecemeal litigation; (4) the relevant order in which the courts obtained jurisdiction and the progress achieved in each action; (5) whether state law or federal law provides the rule of decision on the merits; and (6) the adequacy of the state proceeding to protect the parties’ rights.

Chase Brexton, 411 F.3d at 463-64. A court must look at these factors holistically, “with the balance heavily weighted in favor of the exercise of jurisdiction.” Moses H. Cone, 460 U.S. at 16, 103 S.Ct. 927.

With these principles in mind, we turn to the facts of the case at hand, reviewing the decision to abstain for abuse of discretion. Chase Brexton, 411 F.3d at 464.

III.

Bishop vonRosenberg argues that the district court’s application of Colorado River abused its discretion because the state and federal actions are not parallel. We must agree.

We recognize that our opinion in vonRo-senberg I focused solely on determining the appropriate abstention standard in cases asking for both declaratory and non-declaratory relief. We expressed no view as to the propriety of abstention under that standard — the one articulated in Colorado River — and we did not analyze the similarity between the state and federal cases.

Exceptional circumstances allowing for abstention under Colorado River do not exist when state and federal cases are not duplicative, but merely raise similar 'or overlapping issues. New Beckley, 946 F.2d at 1074. Moreover, “we must address whether abstention is appropriate based upon the current posture of the state court actions.” Gannett Co. v. Clark Constr. Grp., Inc., 286 F.3d 737, 745 n.6 (4th Cir. 2002) (emphasis added).

Here, events occurring after the district court’s first abstention order and before its second order make clear that the two actions are not parallel — the state action will not resolve every claim at issue in the federal action. Neither Bishop vonRo-senberg nor Bishop Lawrence is a party to the state-action; indeed, the state court has denied the Episcopal Church’s request to add Bishop Lawrence as an individual counterclaim defendant. Furthermore, as the district court noted, the state court has held that the Episcopal Church’s proposed Lanham Act claims were not before it. Nor is Bishop vonRosenberg’s individual false advertising claim, alleging harms to his ecclesiastical authority distinct from the harms of the Episcopal Church, before the state court. See Dixon v. Edwards, 290 F.3d 699, 712-13 (4th Cir. 2002) (recognizing that interference with the exercise of authority an individual possesses by virtue of his or her office as Bishop creates a distinct injury from the injury to power or prestige experienced by the church). Thus, because the state and federal cases involve different parties and different claims, the district court abused its discretion under Colorado River by abstaining in favor of the state court proceedings.

As the district court correctly recognized, however, the state and federal proceedings do involve the resolution of the same underlying issue — whether the Diocese validly withdrew from the Episcopal Church. Moreover, the district court may well be correct that the resolution of the issues in the state court proceeding may have collateral estoppel effect on claims asserted in this litigation. We leave the determination of those questions to the district court.

IV.

Accordingly, we vacate the abstention order and remand for further proceedings consistent with this opinion.

VACATED AND REMANDED

      . We note that Bishop vonRosenberg now argues that, even if the Diocese of South Carolina properly dissociated from the Episcopal Church and Bishop Lawrence is the leader of that dissociated organization, Bishop Lawrence is still violating the Lanham Act. Bishop vonRosenberg argues that Bishop Lawrence "is confusing and misleading the public” into thinking he is still a Bishop of the Episcopal Church and that his services are authorized by that church. This theory differs from that alleged in the complaint. There, Bishop von-Rosenberg pled that Bishop Lawrence falsely represented himself to be the Bishop of the Diocese of South Carolina. Bishop vonRosen-berg’s new argument requires proving a separate set of facts than required to prove his original allegations. “It is well-established that parties cannot amend their complaints through briefing or oral advocacy.” S. Walk at Broadlands Homeowner’s Ass’n v. OpenBand at Broadlands, LLC, 713 F.3d 175, 184 (4th Cir. 2013).

      . It is no barrier to Bishop vonRosenberg’s appeal that the abstention order stays rather than dismisses the case. Contrary to Bishop Lawrence's suggestion, orders staying federal suits under Colorado River are "final for purposes of appellate jurisdiction.” Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 9, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983).

      . Bishop Lawrence’s alternative contention — • that the Anti-Injunction Act, 28 U.S.C. § 2283 (2012), requires us to affirm the district court's abstention order — is meritless.


source: Caselaw Access Project

author: NIEMEYER, Circuit Judge:

license: Public Domain

text:
    Robert G. MARCELLUS; David Williams; Barry Hodge; Timothy Gresham; Powhatan County Republican Committee, Plaintiffs-Appellants, v. VIRGINIA STATE BOARD OF ELECTIONS; James B. Alcorn, in his official capacity as a member and Chairman of the Virginia State Board of Elections; Clara Belle Wheeler, in her official capacity as a member and Vice Chair of the Virginia State Board of Elections; Singleton B. McAllister, in her official capacity as a member and Secretary of the Virginia State Board of Elections, Defendants-Appellees.

      No. 16-1331
    United States Court of Appeals, Fourth Circuit.
    Argued: December 7, 2016
    Decided: February 21, 2017

      ARGUED: Patrick Michael McSweeney, MCSWEENEY, CYNKAR & KACHOU-ROFF, PLLC, Powhatan, Virginia, for Appellants. Joshua D. Heslinga, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees. ON BRIEF: Mark R. Herring, Attorney General of Virginia, Cynthia Hudson, Chief Deputy Attorney General, John W. Daniel II, Deputy Attorney General, Heather Hays Lockerman, Senior Assistant Attorney General, Anna T. Birkenheier, Assistant Attorney General, Stuart A. Raphael, Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees.
    Before NIEMEYER, TRAKLER, and HARRIS, Circuit Judges.
   NIEMEYER, Circuit Judge:

The Powhatan County Republican Committee and four individuals nominated by the Committee to be candidates for election to the Board of Supervisors for Powhatan County, Virginia, commenced this action against the Virginia State Board of Elections to challenge the constitutionality of the portion of Virginia Code § 24.2-613(B) that provides that only candidates in elections “for federal, statewide, and General Assembly offices” may be identified on the ballot by the name of the political party that nominated them or by the term “Independent.” The plaintiffs allege that providing political party identifiers for candidates for federal, statewide, and General Assembly offices, while denying such ballot identifiers for candidates for all local offices, violates their right of association protected by the First and Fourteenth Amendments and their right to equal protection under the Fourteenth Amendment.

On cross-motions for summary judgment, the district court entered judgment in favor of the Virginia State Board of Elections, upholding the constitutionality of the challenged portion of § 24.2-613(B), and we affirm. We conclude that the burden on associational rights imposed by Virginia’s regulation of the use of party identifiers on official ballots is at most minimal and is amply justified by Virginia’s important interests, which include minimizing partisanship at the local government level, promoting impartial governance, and maximizing the number of citizens eligible to hold local office under the Hatch Act, 5 U.S.C. §§ 7321-7326. We similarly conclude that § 24.2-613(B)’s different treatment of local candidates and federal, statewide, and General Assembly candidates with respect to party identifiers on the ballot does not violate the Equal Protection Clause because such treatment is rationally related to legitimate governmental interests.

I. Statutory Scheme

In Virginia, candidates for elected office can generally qualify to be placed on an election ballot either by filing a declaration of candidacy and a petition signed by the requisite number of qualified voters, see Va. Code Ann. § 24.2-506, or by receiving the nomination of a “political party,” as defined by statute, see id. §§ 24.2-101, 24.2-511. The only organizations that currently qualify under the statute’s definition are the Republican Party and the Democratic Party. See Libertarian Party of Va. v. Alcorn, 826 F.3d 708, 712 (4th Cir. 2016).

The form of ballots used in Virginia elections is tightly regulated by statute and by standards prescribed by the Virginia State Board of Elections. See Va. Code Ann. § 24.2-613(A). For example, every ballot, whether printed or presented through an approved electronic voting system, contains a header with the words “Commonwealth of Virginia” and “Official Ballot.” And Virginia’s regulation of the ballot extends to details such as font size and the number of characters per line. Localities are required to submit ballot proofs to the Virginia Department of Elections for verification and approval.

The ballots’ content is also strictly regulated. In 1870, when Virginia formally adopted the use of written ballots, the General Assembly specified that the ballot be “a white paper ticket ... containing ... the names of the persons for whom the elector intends to vote, and designating the office to which each person so named[ ] is intended by him to be chosen.” An Act to Provide for a General Election, ch. 76, § 31, 1869-70 Va. Acts 78, 85. Not until 1970 did the General Assembly amplify the content to include, in connection with candidates for President, a party identifier for each candidate. See Act of April 3, 1970, ch. 462, § 2, 1970 Va. Acts 826, 853 (“No names of political parties shall appear on the ballot, except in presidential elections ... ”). In 2000, the General Assembly again expanded the list of offices for which party identifiers are to be used to include “federal, statewide, and General Assembly offices,” but those offices “only.” Act of April 6, 2000, ch. 514, § 1, 2000 Va. Acts 915, 915. While bills have been introduced since to expand further the list of offices for which identifiers are used, none has been enacted.

Thus, in its current state, Virginia Code § 24.2-613(B) provides that party identifiers are used on the ballot only in connection with candidates for President of the United States, members of the U.S. Senate, members of the U.S. House of Representatives, Governor, Lieutenant Governor, Attorney General of Virginia, members of the Senate of Virginia, and members of the Virginia House of Delegates. Conversely, § 24.2-613(B) prohibits party identifiers for candidates for all local offices, including candidates for county boards of supervisors and city and town councils; local school boards; mayors; clerks of court; Commonwealth’s attorneys; sheriffs;- revenue commissioners; treasurers; and soil and water conservation district directors. This restriction is imposed even though candidates for most local offices are allowed to qualify for placement on the ballot by being nominated by the local chapter of one of the major political parties. See Va. Code Ann. §§ 24.2-509(A), 24.2-511.

When including identifiers, the State Board of Elections uses the name of the political party that nominated the candidate. If the candidate qualified for the ballot by petition, the Board uses the term “Independent,” unless the candidate produces “sufficient and appropriate evidence” that he or she was nominated by a “recognized political party.” Va. Code Ann. § 24.2-613(B). The Board represents these identifiers on the ballot using capital letters — (D) for Democrat, (R) for Republican, (L) for Libertarian, (G) for Green, (IG) for Independent Green, (C) for Constitution, and (I) for Independent.

There is no restriction on any candidate’s advertising his or her party nomination, association, or endorsement. Moreover, voters can learn which candidates were nominated by political parties on the “What is on my Ballot?” section of the Virginia Department of Elections’ website.

II. Facts

In May 2015, the Powhatan County Republican Committee nominated Robert Marcellus, David Williams, Barry Hodge, and Timothy Gresham to be Republican candidates for positions on the Powhatan County Board of Supervisors during the November 2015 general election. As provided by Virginia Code §. 24.2-511(B), each of those candidates qualified to have his name appear on his local ballot after the Chairman of the Committee certified his nomination to both the Virginia State Board of Elections and the General Registrar of Powhatan County. Accordingly, the ballots for the November 3, 2015 general election included their names but not any party identifiers next to their names or, indeed, next to the names of any candidate for local office. The ballot did, however, include party identifiers for candidates seeking seats in the General Assembly. Even though the 2015 general election is now passed, these four candidates state that they intend to run for local office in the future as political party nominees.

In their two-count complaint, filed in August 2015, the plaintiffs alleged that they have the right under the First and Fourteenth Amendments “to be associated on the general election ballot with the political party that nominated them to the same extent as federal, statewide, and General Assembly candidates” and that § 24.2-613(B), which denied them “the benefit of party identification,” was “arbitrary, unreasonable and discriminatory” and therefore impermissibly burdened their right of association. They also alleged that § 24.2-613(B) violated their right to equal protection under the Fourteenth Amendment because they were “similarly situated” to candidates for federal, statewide, and General Assembly offices and yet were treated disparately by the statute. The plaintiffs sought a declaratory judgment that § 24.2-613(B) is invalid and an injunction requiring the Commonwealth to include party identifiers on the ballot for candidates for local offices.

On the parties’ cross-motions for summary judgment, the court entered an order and memorandum opinion dated March 4, 2016, granting judgment to the Virginia State Board of Elections: With respect to its jurisdiction, the court concluded that even though the 2015 election had already taken place, the case was not moot, as the challenged action was capable of repetition, yet evading review. On the merits, the court concluded that the plaintiffs’ “constitutional challenges falter no matter which test applies.”

This appeal followed.

III. Associational Rights

The plaintiffs argue that even though “neither political parties nor their nominees have an absolute right to placement of a party identifier on the ballot, they [do] have a First Amendment associational right to nondiscriminatory treatment when the government grants a privilege or benefit related to the election ballot.” They claim in this case that it is the “unjustified discrimination between the statute’s classifications” that defines the impermissible burden on them and their associational rights under the First Amendment. Thus, while the plaintiffs locate their claim within the First Amendment and accept the required analysis of balancing a statute’s burden against its justification, they rely on equal protection principles to argue that the statute’s disparate regulation of party identifiers burdens their associational rights.

The government argues that the Virginia statute imposes no burden on plaintiffs’ associational rights and, alternatively, that any burden that might be identified is “easily” justified by the legitimate governmental purposes served by the statute.

It is well established that “[t]he First Amendment protects the right of citizens to associate and to form political parties for the advancement of common political goals and ideas,” Timmons v. Twin Cities Area New Party, 520 U.S. 351, 357, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997), and that this component of the First Amendment applies to the States through the Fourteenth Amendment, see NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). “It does not follow, however, that ... the right to associate for political purposes through the ballot [is] absolute.” Burdick v. Takushi, 504 U.S. 428, 433, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992) (emphasis added). Rather, “[c]ommon sense, as well as constitutional law, compels the conclusion that government must play an active role in structuring elections,” id. even though election laws “inevitably affect[ ] — at least to some degree — the individual’s right to vote and his right to associate with others for political ends,” Anderson v. Celebrezze, 460 U.S. 780, 788, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983). Indeed, “[t]he States possess a ‘broad power to prescribe the “Times, Places and Manner of holding Elections for Senators and Representatives,” Art. I, § 4, cl. 1, which power is matched by state control over the election process for state offices.’” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 451, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008) (quoting Clingman v. Beaver, 544 U.S. 581, 586, 125 S.Ct. 2029, 161 L.Ed.2d 920 (2005)). Nonetheless, state regulation must be exercised in a way that does not violate other specific provisions of the Constitution. Id.

When analyzing whether a state election law impermissibly impinges on associational rights protected by the First Amendment, we apply the framework developed by the Supreme Court in Anderson and Burdick. See Timmons, 520 U.S. at 358, 117 S.Ct. 1364.

In Anderson, where the Supreme Court was considering an early filing deadline for independent candidates, the Court articulated the applicable analysis:

[A court] must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiffs rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional.

460 U.S. at 789, 103 S.Ct. 1564. And in Burdick, the Court built upon this framework, rejecting the argument “that a law that imposes any burden upon the right to vote must be subject to strict scrutiny.” 504 U.S. at 432, 112 S.Ct. 2059. Instead, as the Court explained, the “rigorousness” of the inquiry “depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights.” Id. at 434, 112 S.Ct. 2059. Specifically, while laws imposing “severe” restrictions must be “narrowly drawn to advance a state interest of compelling importance,” id. (quoting Norman v. Reed, 502 U.S. 279, 289, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992)), “a state election law provision [that] imposes only ‘reasonable, nondiscriminatory restrictions’ upon ... First and Fourteenth Amendment rights” is generally justified by “the State’s important regulatory interests,” id. (quoting Anderson, 460 U.S. at 788, 103 S.Ct. 1564).

Thus, when applying the Anderson-Bur-dick analysis, we consider first “the character and magnitude” of the burden that Virginia Code § 24.2-613(B) imposes on associational rights. In doing so, we observe that the statute has no effect on any candidate’s ability to earn a place on the ballot. Cf. Williams v. Rhodes, 393 U.S. 23, 31, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968) (“The right to form a party for the advancement of political goals means little if a party can be kept off the election ballot ... ”). The statute also does not have any impact on any political organization’s “right to choose [its] ‘standard bearer’ in the form of a nominee.” S.C. Green Party v. S.C. State Election Comm’n, 612 F.3d 752, 756 (4th Cir. 2010) (quoting Eu v. S.F. Cnty. Democratic Cent. Comm., 489 U.S. 214, 224, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989)).

While the plaintiffs agree with these observations, they argue that a burden on their associational rights is imposed by § 24.2-613(B)’s creation of a distinction between candidates seeking a federal, state, or General Assembly office, whose names on the ballot include identifiers, and candidates for all other offices, whose names on the ballot appear without identifiers. This argument is not unlike the one made in Timmons.

In Timmons, the Court was presented with a Minnesota law that “prohibit[ed] a candidate from appearing on the ballot as the candidate of more than one party,” even though the candidate may have been nominated by more than one party. 520 U.S. at 354, 117 S.Ct. 1364. In holding that the law did not violate the First and Fourteenth Amendments, the Court reasoned that while a political party — there, the “New Party” — has the right to select its own candidate, “[i]t does not follow ... that a party is absolutely entitled to have its nominee appear on the ballot as that party’s candidate.” Id. at 359, 117 S.Ct. 1364 (emphasis added). The New Party had argued 'that the law impermissibly burdened “its right ... to communicate its choice of nominees on the ballot on terms equal to those offered other parties.” Id. at 362, 117 S.Ct. 1364. While the Court accepted that the law “prevent[ed] the New Party from using the ballot to communicate to the public that it supports a particular candidate who is already another party’s candidate” and “shut[ ] off one possible avenue a party might use to send a message to its preferred candidate,” id. (emphasis omitted), it was “unpersuaded” by the New Party’s “contention that it has a right to. use the ballot itself to send a particularized message,” emphasizing that “[b]allots serve primarily to elect candidates, not as forums for political expression,” id. at 363, 117 S.Ct. 1364 (emphasis added).

In Washington State Grange, the Court relied upon Timmons when rejecting a First Amendment challenge brought by several political parties to a Washington statute that provided that “candidates for office shall be identified "on the ballot by their self-designated ‘party preference,’” regardless of whether they were nominated by the party they designated. 552 U.S. at 444, 128 S.Ct. 1184. Thus, under the challenged law, “[a] political party [could not] prevent a candidate who [was] unaffiliated with, or even repugnant to, the party from designating it as his party of preference.” Id. at 447, 128 S.Ct. 1184. As a consequence, political parties no longer had any ability to “indicate their nominees on the ballot.” Id. at 453 n.7, 128 S.Ct. 1184. The Court characterized that feature of the law as “unexceptional,” explaining that “[t]he First Amendment does not give political parties a right to have their nominees designated as such on the ballot.” Id. (emphasis added). And, as importantly, the Court stated that “[p]arties do not gain such a right simply because the State affords candidates the opportunity to indicate their party preference on the ballot.” Id.

The jurisprudence of Timmons and Washington State Grange thus makes clear that even though a statute such as § 24.2-613(B) may prevent political parties from indicating on the ballot which local candidates are their nominees, it does not impose a constitutionally cognizable burden on those parties’ assoeiational rights because “[t]he First Amendment does not give political parties a right to have their nominees designated as such on the ballot.” Washington State Grange, 552 U.S. at 453 n.7, 128 S.Ct. 1184. Moreover, that jurisprudence similarly confirms that local candidates themselves have no First Amendment right to use the ballot “as [a] forum[ ] for political expression” in which to communicate to voters their status as a party’s nominee. Timmons, 520 U.S. at 363, 117 S.Ct. 1364.

The plaintiffs seem to accept much of this jurisprudence. They contend, however, in somewhat of a different vein, that they “suffer[ed] a detrimental effect on their assoeiational rights [because] the Commonwealth of Virginia discriminate^] against them and other local candidates by denying them a party identifier next to their names on the ballot while requiring a party identifier on the ballot next to the names of party nominees for General Assembly, statewide[,] and federal offices.” In making this argument, they rely on the Supreme Court’s oft-stated recognition that a State’s “important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions,” Anderson, 460 U.S. at 788, 103 S.Ct. 1564 (emphasis added), and reason that “they have a First Amendment associational right to nondiscriminatory treatment when the government grants a privilege or benefit related to the election ballot.” They argue that § 24.2-613(B) violates that nondiscrimination principle by treating them differently than federal, statewide, and General Assembly candidates.

The plaintiffs, however, fail to explain why the statute’s different treatment of candidates based on the offices they seek imposes a burden on their right of association. Under the challenged provision, a Republican candidate for the U.S. Senate may receive a benefit from an identifier indicating that he or she is the Republican Party nominee, while a Republican candidate for county sheriff does not. The county sheriff candidate, however, is hardly affected by the fact that the Senate candidate has an identifier. The candidate for county sheriff is treated like every other candidate for that office, none of whom can have a party identifier under § 24.2-613(B). In that manner, the restriction on party identifiers does not burden the associational rights of any local candidate.

Of course, if a law gives some candidates for the Senate -a party identifier, but not other candidates for the Senate, it would impose a burden on the associational rights of the candidates left unidentified, even though no candidate has an absolute right to be so identified. See Rosen v. Brown, 970 F.2d 169, 171, 174 (6th Cir. 1992) (invalidating an Ohio law that provided a party identifier for candidates nominated by political parties for an office but that prohibited a nonparty candidate for that same office from being labeled as an “Independent”). But one can hardly conclude that a candidate for county sheriff is burdened by the different treatment afforded to a candidate for the Senate.

The plaintiffs might argue to the contrary that the presence of party identifiers next to the names of candidates for the Senate and the absence of such identifiers next to the names of candidates for county sheriff might be misleading as voters might incorrectly infer that none of the candidates for sheriff were nominated by a political party. But, as the district court noted, the Supreme Court found exactly this type of assumption regarding voter confusion insufficient to support a facial challenge to the election law at issue in Washington State Grange. See 552 U.S. at 454, 128 S.Ct. 1184 (“[Respondents’ assertion that voters will misinterpret the party-preference designation is sheer speculation.... There is simply no basis to presume that a well-informed electorate will interpret a candidate’s party-preference designation to mean that the candidate is the party’s chosen nominee' or representative or that the party associates with or approves of the candidate”). Similarly, the plaintiffs might argue that a party-nominated candidate for county sheriff is denied the “coattails” benefit of announcing his association with the same party that is identified as nominating a particular candidate for the Senate. Yet, not only have the plaintiffs failed to demonstrate any such benefit, but conveying such an associational message is not an entitlement they have in connection with the content of Virginia’s official ballots. The plaintiffs would merely be arguing that the law prevents them from relaying the message that they too are party-nominated candidates. The First’ Amendment, however, does not give candidates the right to use the ballot as a forum for political expression in which to communicate to voters their status as a party’s nominee. See Timmons, 520 U.S. at 363, 117 S.Ct. 1364.

While party identifiers do not appear on the official ballot for Virginia’s local candidates, the candidates still have every other avenue by which to inform voters of this information. Political parties and their nominees are entirely free to publicize their association with each other and may even distribute sample “party” tickets on election day, as long as they do not do so within 40 feet of a polling place’s entrance. See Va. Code Ann. § 24.2-604(A). Voters can also directly access this information by visiting the “What is on my Ballot?” section of the Virginia Department of Elections’ website. Thus, if it is a burden on the associational rights of the parties, the nominees, or the voters not to have this information specifically on the ballot— which, it must be recognized, is not designed to be a public forum to convey political information — the burden is at most minimal. See Ohio Council 8 Am. Fed’n of State, Cnty. & Mun. Employees, AFL-CIO v. Rusted, 814 F.3d 329, 338 (6th Cir. 2016) (upholding the constitutionality of an Ohio law that banned the use of party identifiers on general-election ballots for judicial candidates after concluding that the law “places at most only minimal burdens on the First and Fourteenth Amendment rights of political parties, judicial candidates, and voters in Ohio judicial elections”).

In short, we conclude that plaintiffs’ First Amendment associational rights are at most. minimally burdened by the fact that federal, state, and General Assembly candidates have party identifiers placed with their names, whereas local candidates do not.

Assuming there is some minimal burden, we must, under the Anderson-Burdick analysis, then weigh that burden against the governmental interests offered by Virginia as justifications for § 24.2-613(B). Because we conclude that the burden is not “severe,” Virginia’s “asserted regulatory interests need only be ‘sufficiently weighty to justify the limitation’ imposed on [associational] rights.” Timmons, 520 U.S. at 364, 117 S.Ct. 1364 (quoting Norman, 502 U.S. at 288-89, 112 S.Ct. 698).

Virginia has articulated three governmental interests that it claims justify § 24.2-613(B)’s ban on including party identifiers with the names of candidates for local offices. The law, it claims, (1) reduces partisanship in local government; (2) promotes impartial local governance and public confidence in local government; and (3) broadens the pool of citizens who may, consistent with the Hatch Act, serve in local elected offices. While the plaintiffs “do not dispute the legitimacy” of those interests, they challenge whether § 24.2-613(B)’s restriction serves those interests.

With respect to the first two interests, which are closely related, Virginia argues that “[w]ithout restricting the freedom of any parties or candidates, [it] has structured the ballot to avoid emphasizing party affiliation above all other messages with respect to local office candidates,” reasoning that “Virginia’s distinction between local offices, on the one hand, and federal and State offices, on the other, ... makes perfect sense” in light of “the different role of local and non-local office[s].” To this end, it notes that “States have a particular interest in reducing partisanship” — and thus to some degree enhancing both impartial local governance and the public perception of such — with respect to local elected offices like clerk of court and sheriff, as well as essential administrative positions, including treasurer and revenue commissioner. And “[e]ven local offices that are more ‘political’ in nature, such as members of local governing bodies, have a different scope of authority under Virginia law, which supports a conclusion that ‘federal, statewide, and General Assembly offices’ unavoidably touch on national and highly partisan issues, but that local offices deal primarily with non-partisan issues of basic services and community management.”

We agree that Virginia’s interests in minimizing divisive partisanship in local government and in enhancing, to at least some degree, the public’s confidence that the successful candidates will serve the local community as a whole are legitimate and support the form of its regulation in § 24.2-613(B). The plaintiffs argue, nonetheless, that “[i]f the Commonwealth were genuinely concerned about a negative effect of partisanship in local governmental offices, it would have legislated that all local offices must be nonpartisan, which it has not done.” While that approach could indeed have been followed, the Constitution does not, of course, require States to “address all aspects of a problem in one fell swoop.” Williams-Yulee v. Fla. Bar, — U.S. -, 135 S.Ct. 1656, 1668, 191 L.Ed.2d 570 (2015). Rather, rational half measures can be justified. The plaintiffs also posit that Virginia has taken the wrong approach to further the interests it identifies because the lack of a party identifier on the ballot will actually incentivize local .candidates and the parties that have nominated them to heighten their partisan activities “to alert voters to the party affiliation that is not permitted to be shown on the ballot.” Whether any such risk is sufficient to outweigh the statute’s benefits, however, is a legislative judgment for Virginia to make.

Virginia also proffers as a justification for § 24.2-613(B) that it broadens the pool of citizens eligible to run for local offices without violating the Hatch Act, which regulates the political activity of federal executive branch employees.

Although § 24.2-613(B) only marginally advances the ability of Virginians to seek local office without running afoul of the Hatch Act, this effect, albeit small, nonetheless helps justify the law. A federal employee covered by the Hatch Act “may not ... run ... as a candidate for election to a partisan political office.” 5 U.S.C. § 7323(a)(3). The law defines a “partisan political office” to mean “any office for which any candidate is nominated or elected as representing” a national political party. Id. § 7322(2). But banning ballot identifiers still might not avoid triggering the Hatch Act’s prohibitions. According to the U.S. Office of Special Counsel, even without the use of any party identifiers on the ballot, elections in which all candidates qualify by petition could nonetheless lose their status as nonpartisan if “partisan politics actually enter[s] a candidate’s campaign.” Moreover, some Virginia localities have been granted a partial administrative exemption to the Hatch Act. See 5 U.S.C. § 7325; 5 C.F.R. § 733.103. Thus, Virginia’s interest in permitting more citizens to serve in local government consistent with the Hatch Act has potential application only with respect to elected offices in Virginia localities that have not been granted an exemption and for which, by virtue of either state or local law, candidates can only qualify for the ballot by petition, as opposed to by party nomination. We therefore conclude that this interest is only marginally advanced by § 24.2-613(B).

Even so, Virginia and certain of its localities continue to make an effort to require a nonpartisan qualification process for certain local offices, and these laws could be severely undermined if candidates could nonetheless require the Commonwealth to designate their status as party nominees on the ballot. See Va. Code Ann. § 24.2-613(B) (providing that candidates who qualify for the ballot by petition are to be “identified by the term ‘Independent,’ ” unless they “producfe] sufficient and appropriate evidence of nomination by a ‘recognized political party’' to the State Board”).

At bottom, we conclude that any burden that § 24.2-613(B) imposes on the right of association protected by the First and Fourteenth Amendments is outweighed by the important state interests advanced by the law. Therefore, we affirm the district court’s judgment in favor of the defendants with respect to this claim.

IV. Equal Protection Rights

The plaintiffs also contend that § 24.2-613(B) violates the Equal Protection Clause. A lengthy discussion of this claim is not required. The plaintiffs properly concede, for the purposes of the Equal Protection Clause, that § 24.2-613(B) s different treatment with respect to the use of party identifiers for federal, statewide, and General Assembly candidates, on the one hand, and for local candidates, on the other, must be upheld unless there is no rational basis to support it. Because § 24.2-613(B) is rationally related to legitimate state interests, as we discussed in our Andersortr-Burdick analysis, we conclude a fortiori that it does not violate the Equal Protection Clause.

In sum, we hold that when Virginia amended § 24.2-613(B) in 2000 to expand the categories of offices for which official ballots would include party identifiers while continuing to ban party identifiers for candidates for local offices, it did not violate the right to association protected by the First and Fourteenth Amendments or the Equal Protection Clause of the Fourteenth Amendment.

Accordingly, the judgment of the district court is

AFFIRMED.

      . The Hatch Act provides that "[t]he Office of Personnel Management may prescribe regulations permitting employees” living in communities in and around the Washington, D.C., metropolitan area — including some political subdivisions in northern Virginia — to participate in certain local political activities that would otherwise be prohibited. 5 U.S.C. § 7325. Pursuant to that authority, federal employees living in designated localities may r'[r]un as independent candidates for election to partisan political office in elections for local office in the municipality or political subdivision.” 5 C.F.R. § 733.103(b)(1).

      . We have previously applied the Anderson-Burdick analysis to consider equal-protection-based challenges to state election laws when such claims have been asserted in conjunction with claims under the First and Fourteenth Amendments. See Libertarian Party, 826 F.3d at 714, 716-17; Pisano v. Strach, 743 F.3d 927, 930, 934 (4th Cir. 2014). Here, however, because of the manner in which the plaintiffs have presented their arguments and for analytical clarity, we find it useful to consider this claim separately.


author: PAMELA HARRIS, Circuit Judge:

text:
    Juraluk UPATCHA, Petitioner, v. Jefferson B. SESSIONS, III, Attorney General, Respondent.
    No. 15-1270
    United States Court of Appeals, Fourth Circuit.
    Argued: October 28, 2016
    Decided: February 22, 2017

      ARGUED: Benjamin Winograd, IMMIGRANT & REFUGEE APPELLATE CENTER, LLC, Alexandria, Virginia, for Petitioner. Arthur Leonid Rabin, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, Julie M. Iversen, Senior Litigation Counsel, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
    Before TRAXLER, DIAZ, and HARRIS, Circuit Judges.
   PAMELA HARRIS, Circuit Judge:

Facing deportation, petitioner Juraluk .Upatcha, a citizen of Thailand, sought a hardship waiver that would allow her to stay in the country despite the fact that her marriage to a United States citizen had ended in divorce. An immigration judge (“IJ”) denied the request, concluding that Upatcha failed to demonstrate that she entered into her marriage in good faith, as required by 8 U.S.C. § 1186a(c)(4)(B). The Board of Immigration Appeals (“BIA” or “Board”), reviewing for clear error only, affirmed.

We hold that the BIA applied the wrong standard of review. Whether Upatcha established that her marriage was entered into in good faith under § 1186a(c)(4)(B) is a mixed question of fact and law, and the IJ’s ultimate conclusion that the credited evidence did not meet the good faith standard is a legal judgment subject to de novo review. Accordingly, we grant Upatcha’s petition and remand so that the Board may review the IJ’s determination under the proper standard.

I.

While living in Thailand, Upatcha was introduced by her sister to Sergio Gonzalez, a naturalized United States citizen living in South Carolina. Because of the distance between them, Upatcha and Gonzalez courted primarily through emails and phone calls..But Gonzalez also made a one-week trip to Thailand to visit Upat-cha, and during that trip Upatcha accepted his marriage proposal. Upatcha entered the United States on a flaneé visa on July 13, 2008, and five days later she married Gonzalez.

As a result of her marriage to a United States citizen, Upatcha became a lawful permanent resident on a conditional basis. See 8 U.S.C. § 1186a(a)(l) (2013). After a period of two years, that condition would expire, allowing Upatcha to stay in the country permanently, if Upatcha and her husband submitted a joint petition swearing that their marriage was legal, remained in effect, and was not entered into for immigration purposes. Id. § 1186a(c)(l); 8 C.F.R. § 216.4(a)(1). But Upatcha could not file that joint petition in 2010 because on October 20, 2008 — approximately three months after entering the country — she initiated divorce proceedings against Gonzalez. That divorce, which became final in February 2009, ended Upatcha’s conditional residency and poten-, tially subjected her to removal.

So instead of a joint petition, Upatcha filed for a “hardship waiver,” which allows the Secretary of Homeland Security, at his discretion, to “remove the conditional basis of [] permanent residence status” for a noncitizen whose marriage has ended if the noncitizen demonstrates that the marriage “was entered into in good faith.” See 8 U.S.C. § 1186a(c)(4). The Department of Homeland Security (“DHS”) denied Upat-cha’s petition, citing discrepancies between the couple’s divorce decree and the evidence provided by Upatcha. As a result, DHS terminated Upatcha’s conditional permanent resident status and charged her with deportability.

Upatcha appeared for removal proceedings before an IJ, where she conceded the charge of deportability and renewed her petition for a good faith marriage waiver under § 1186a(c)(4)(B). After conducting an evidentiary hearing during which Upat-cha, Gonzalez, and other witnesses testified, the IJ denied Upatcha’s petition.

As the IJ recognized, the “critical inquiry” in determining whether the good faith standard has been met is “whether the parties intended to establish a life together at the inception of the marriage.” A.R. 65 (citing Laureano, 19 I. & N. Dec. 1, 2-3 (B.I.A. Dee. 12, 1983)); see Chhay v. Holder, 407 Fed.Appx. 656, 657 (4th Cir. 2011) (unpublished) (same). And in applying that standard, a judge “shall consider evidence relating to the amount of commitment by both parties to the marital relationship,” including documentation concerning the intermingling of finances, the length of time of cohabitation, and birth certificates of any children. A.R. 63; 8 C.F.R. § 1216.5(e)(2). Considering Upat-cha’s testimony, the testimony of other witnesses, and the documentary evidence submitted, the IJ concluded that Upatcha had failed to meet her burden of establishing a good faith marriage under § 1186a(c)(4)(B).

The IJ began by finding that Upatcha’s testimony was not credible. That credibility determination rested primarily on what the IJ deemed to be material inconsistencies between Upatcha’s account of her marriage and information from other sources, including Gonzalez’s testimony. The IJ then went on to analyze other relevant evidence, including the brevity of the couple’s one-week in-person courtship, the fact that the couple married without any family members present, the duration of the couple’s marriage, and the absence of documentary records showing a joint bank account or other jointly held property. Based on the “totality of the evidence,” the IJ held, Upatcha could not show that she had entered into her marriage in good faith, and therefore should be removed. A.R. 70.

In a single-member decision, the BIA dismissed Upatcha’s appeal. After describing the governing statutory framework, the Board identified the applicable standard of review: “Whether a marriage was entered into in good faith is a factual question, and therefore the Immigration Judge’s decision denying a section [1186a(c)(4)(B) ] waiver on the merits is reviewed by this Board for clear error.” A.R. 4 (citing 8 C.F.R. § 1003.1(d)(3)(i)). As to the IJ’s credibility finding, entitled to a “high degree of deference,” id., the BIA found no clear error. The Board separately reviewed 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). A.R. 5.

Upatcha timely petitioned this court for review.

II.

Upatcha argues that the Board applied the wrong standard of review to the IJ’s ultimate conclusion that her evidence did not meet the good faith standard. 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. Turkson v. Holder, 667 F.3d 523, 527 (4th Cir. 2012). And for the reasons given below, we agree with Upatcha: While the BIA properly reviewed the IJ’s credibility determination for clear error, it should have reviewed de novo the IJ’s ultimate legal judgment that the undisputed facts and credited evidence did not meet the good faith standard of § 1186a(c)(4)(B).

Board review of IJ decisions is governed by regulation. Prior to 2002, those regulations provided for de novo review of all aspects of IJ decisions. See In re S-H-, 23 I. & N. Dec. 462, 463-64 (B.I.A. Sept. 12, 2002). In 2002, however, new regulations established a bifurcated standard of review. Under the amended regulations— which continue in force today — BIA review of findings of fact and credibility determinations is limited; such IJ findings may be reversed for clear error only. 8 C.F.R. § 1003.1(d)(3)® (“Facts determined by the immigration judge, including findings as to the credibility of testimony, shall be reviewed only to determine whether the findings of the immigration judge are clearly erroneous.”). But the Board continues to review de novo “all other issues in appeals from decisions of immigration judges,” including “questions of law, discretion' and judgment.” Id. § 1003.1(d)(3)(h).

In commentary accompanying the 2002 amendments, the Department of Justice emphasized 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). On a “mixed question of law and fact,” on the other hand, while “defer[ring] to the factual findings of the immigration judge unless clearly erroneous,” Board members 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 (emphasis added) (internal quotation marks omitted).

In Turkson, we applied that bifurcated standard of review to an IJ’s holding that a noncitizen likely would face torture in his native country, making him eligible for deferral of removal under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, or “CAT.” 667 F.3d at 525-26. That holding, we concluded, involved both purely factual determinations and also a legal judgment. Id. at 528. 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)®. Id. 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). Id. In other words, while the Board largely defers to the IJ’s findings of historical facts and the likelihood of a future occurrence, “the legal significance of [those] facts” and the “ultimate conclusions to which [they] lead” are matters on which the BIA “exercise[s] its independent judgment” under de novo review. Id. at 527.

We followed the same bifurcated approach in Massis v. Mukasey, 549 F.3d 631, 636 n.6 (4th Cir. 2008), this time with respect to BIA review of an application for cancellation of removal under the “exceptional and extremely unusual hardship” standard of 8 U.S.C. § 1229b(b)(2). When it comes to a factual determination of “what happened,” we explained, the BIA reviews the findings of an IJ under the clearly erroneous standard, consistent with 8 C.F.R. § 1001.1(d)(3)(i). Massis, 549 F.3d at 636 n.6 (quoting 67 Fed. Reg. at 54,888-90). But “application of the law to those facts” is different, and an IJ’s assessment of “whether those facts amount to ‘exceptional and extremely unusual hardship’ ” as required by law is to be reviewed by the BIA de novo. Id.

The good faith marriage determination, we conclude, falls into the same category, presenting a mixed question of law and fact subject to a hybrid standard of review. The IJ in Upatcha’s case made a series of factual determinations, first as to the credibility of Upatcha’s testimony, but also regarding, for instance, the amount of money sent to Upatcha by Gonzalez and the degree to which the couple’s finances were intermingled, the details of their long-distance courtship, and the events that immediately preceded their separation. Those factual determinations — the “what happened” of the case, see id. — are subject to clearly erroneous review by the BIA. But just as in Turkson and Massis, the IJ also made a legal judgment, applying the legal standard for good faith marriage to the facts and deciding whether that standard was met. See 667 F.3d at 528; 549 F.3d at 636 n.6. Under 8 C.F.R. § 1003.1(d)(3)(h), that “ultimate conclusion ]” of law, Turkson, 667 F.3d at 527, is to be reviewed de novo by the Board.

Our conclusion, we note, is consistent with the position we have taken in an unpublished decision, see Chhay, 407 Fed. Appx. at 657 (applying de novo review to finding that petitioner’s “evidence failed to satisfy the legal standard of what constitutes a good faith marriage”), as well as the position taken by the BIA itself in unpublished decisions, see, e.g., Courtney Malcolm, AO56-106-237, at *2 (B.I.A. Oct. 7, 2011) (“Whether a marriage was entered into in good faith is not a purely factual question.... [T]he [IJ’s] conclusion ... as to whether or not the respondent met his burden to show that his marriage was entered into in ‘good faith’ is a legal question which we review de novo.”). It also conforms to the majority view of the circuit courts that for jurisdictional purposes, the ultimate determination of whether credited evidence meets the statutory standard for good faith marriage is a question of law, reviewable by the courts under 8 U.S.C. § 1252(a)(2)(D). 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); Fynn v. U.S. Att’y Gen., 752 F.3d 1250, 1252 n.1 (11th Cir. 2014) (collecting authority). In this context, too, that is, the courts have bifurcated their analysis of the good faith marriage inquiry, deeming credibility determinations and the weighing of evidence unreviewable but exercising jurisdiction over the distinct legal question of whether the “evidence ultimately credited and deemed weighty” by the agency meets the good faith standard. Cho v. Gonzales, 404 F.3d 96, 102 (1st Cir. 2005); Fynn, 752 F.3d at 1252-53.

Indeed, the government does not really contest this analysis, conceding that the Board should review de novo an IJ’s ultimate legal determination of whether an applicant has marshaled sufficient evidence to satisfy the good faith standard of § 1186a(c)(4)(B). Br. for Resp’t at 25. Instead, the government argues that this case falls outside the general rule: Because here the IJ relied solely on an adverse credibility determination, and the BIA reviewed only that credibility determination, the government urges, the clear error standard applies under 8 C.F.R. § 1003.1(d)(3)(i) (credibility findings subject to clear error review).

We cannot agree with the government’s reading of the agency proceedings. First, it is clear from the face of the opinions that neither the IJ nor the Board focused exclusively on Upatcha’s credibility. It is true that the IJ’s opinion devotes an entire section — “Credibility”—to the finding that Upatcha’s testimony is not credible. A.R. 63-64. But that section is followed by another — “Bona Fide Marriage,” A.R. 65-69 — in which the IJ expressly and at length considers not only Upatcha’s testimony but also “the evidence submitted,” A.R. 65. 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, A.R. 70 — precisely the analysis that the government concedes must be reviewed de novo. See Br. for Resp’t at 25. And the Board, for its part, evidently reads the IJ’s opinion the same way, because its opinion perfectly tracks the IJ’s two-part analysis: The Board first reviewed the IJ’s credibility determination, finding no' clear error, and then went on to consider separately the evidentiary record as a whole — the testimony of witnesses other than Upat-cha, documentary evidence, and uncontested facts — before concluding that the IJ did not clearly err in determining that Upat-cha failed to establish a good faith marriage under § 1186a(c)(4)(B).

Second, even if it could be reconciled with the language of the opinions, the government’s credibility-only gloss on the agency proceedings would raise its own set of difficulties. We have held, for instance, that an IJ may not deny relief solely on the basis of incredible testimony and without also considering corroborating evidence, including documentary evidence. Kourouma v. Holder, 588 F.3d 234, 241 (4th Cir. 2009). Similarly, 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.

In short, while the Board properly reviewed the IJ’s credibility determination and findings of fact for clear error only, whether the credited evidence meets the good faith marriage standard is á legal question subject to de novo review. We of course express no opinion on that ultimate legal issue. Instead, we grant Upatcha’s petition and remand this matter to the Board so that it may “exercise its independent judgment” in evaluating the “legal significance” of the facts found by the IJ and the application of the good faith marriage standard to those facts. See Turkson, 667 F.3d at 527.

III.

For the foregoing reasons, we grant Upatcha’s petition for review, reverse the Board’s order denying Upatcha’s appeal, and remand this matter to the BIA for further proceedings consistent with this opinion.

PETITION FOR REVIEW GRANTED; REVERSED AND REMANDED

         Because the dispute in this case centers on the nature of the agency proceedings and not the dictates of 8 C.F.R. § 1003.1 (d)(3)(i) and (ii), we have no occasipn to consider whether a single-member Board decision construing an agency regulation should be accorded deference under Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997). See Mar-linez v. Holder, 740 F.3d 902, 909-10 (4th Cir. 2014) (holding that single-member Board decisions are not entitled to Chevron deference). All parties, that is, agree on the proper reading of the governing regulation; what is contested is only how to characterize the findings of the IJ and Board in this case.


text:
    Riaz MAHMOOD, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
    No. 16-1438
    United States Court of Appeals, Fourth Circuit.
    Argued: January 24, 2017
    Decided: February 22, 2017

      ARGUED: Bradley Bruce Banias, BARNWELL, WHALEY, PATTERSON, AND HELMS, LLC, Charleston, South Carolina, for Petitioner. Tiffany L. Walters, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, Anthony C. Payne, Assistant Director, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
    Before NIEMEYER, TRAXLER, and DIAZ, Circuit Judges.
   NIEMEYER, Circuit Judge:

Riaz Mahmood, a native and citizen of Pakistan who was granted asylum in the United States in 1997, voluntarily applied in 2011 for adjustment of his asylum status to the status of a lawful permanent resident, pursuant to 8 U.S.C. § 1159(b). His application was granted in 2012. The Attorney General thereafter sought to deport Mahmood for having, over the years, obtained several immigration benefits by fraud.

The immigration judge found by clear and convincing evidence that Mahmood deliberately misrepresented material facts in order to obtain travel documents and his lawful permanent resident status and ordered that Mahmood be removed from the United States to Pakistan.

The Board of Immigration Appeals (“BIA”) affirmed, rejecting Mahmood’s argument that he could not be removed unless his asylum status had first been terminated pursuant to 8 U.S.C. § 1158(c). Mahmood argued that, as an “adjusted asylee,” he “retain[ed] the protections of asylum after obtaining [lawful permanent] residency, and therefore [could] not be removed without first having asylum terminated via the procedures outlined in [§ 1158(c)(2) ] and 8 C.F.R. § 1208.24.” In rejecting Mahmood’s argument, the BIA relied on its precedential decision in Matter of 26 I. & N. Dec. 284 (BIA 2014), which held that aliens who adjust to lawful permanent resident status under § 1159(b) do not retain their asylum status.

On appeal, we conclude that the BIA’s interpretation of § 1159(b) is the best interpretation of the statute and that, in any event, it deserves deference under Chevron, USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Accordingly, we affirm the BIA’s decision and deny Mahmood’s petition for review.

I

Some nine years after Mahmood was granted asylum in the United States, he applied in March 2006 for a refugee travel document in order to leave the country, stating that he sought to travel to Bangkok, Thailand, to visit his wife and children. In his application, Mahmood indicated that, since being granted asylum in 1997, he had neither returned to Pakistan nor “applied for and/or obtained a national passport, passport renewal or entry permit” from Pakistan. As it turned out, however, Mahmood had departed the United States in March 2003 using a Pakistani passport and reentered the United States in July 2005 using a U.S. visa. The Department of Homeland Security (“DHS”) was unaware of Mahmood’s 2003 trip and granted Mahmood’s application for the refugee travel document in July 2006. Mah-mood then departed the United States in February 2007 using a Pakistani passport with a number different from that which he had used in 2003 and returned in July 2007 using his U.S.-issued refugee travel document.

In December 2007, Mahmood applied for another refugee travel document, again purportedly to visit his wife and children in Bangkok, and, as in his first application, he denied having returned to Pakistan or having obtained or renewed a Pakistani passport since his grant of asylum. While his application for this second refugee travel document was pending, Mahmood departed the United States using the same Pakistani passport that he had used on his 2007 trip and returned a few months later, using the second refugee travel document that had since been granted. N

Mahmood left the United States for a fourth time in March 2009, using a Pakistani passport with yet a third number. Mahmood claims that he traveled to Dubai, where he met his wife and children, and that they subsequently flew to Russia, Cuba, and finally Mexico, where he tried to bring his family across the border with the intent that they would apply for asylum in the United States “because their lives were in danger in Pakistan.” He and his family were apprehended after crossing into the United States, and, in August 2009, the DHS charged Mahmood with removability on the ground that he had entered the country without inspection.

While that charge was pending, Mah-mood filed a Form 1-485 application in August 2011, seeking to adjust his asylee status to that of lawful permanent resident, pursuant to 8 U.S.C. § 1159(b). In his application, Mahmood certified under the penalty of perjury that he had never “by fraud or willful misrepresentation of a material fact, ever sought to procure, or procured, a visa, other documentation, entry into the United States, or any immigration benefit.” He further certified that he had never “knowingly encouraged, induced, assisted, abetted, or aided any alien to try to enter the United States illegally.” While this application was pending, the DHS dropped the illegal entry charge against him and subsequently, in December 2012, granted his application for ad: justment to the status of a lawful permanent resident.

In September 2013, however, the DHS commenced another removal proceeding against Mahmood, alleging that he had sought to procure an immigration benefit by fraud or by willful misrepresentation of a material fact. Specifically, the DHS claimed that Mahmood’s alleged misrepresentations regarding his unreported, travel and possession of Pakistani passports made him inadmissible at the time of his application for adjustment, which in turn rendered him removable under the Immigration and Nationality Act (“INA”). See 8 U.S.C. §§ 1182(a)(6)(C)®, 1227(a)(1)(A).

An immigration judge held a removal hearing and found that the DHS had proven, by clear and convincing evidence, that Mahmood had obtained his lawful permanent resident status and his two refugee travel documents by fraud. Specifically, the immigration judge found that Mah-mood’s travel pattern “represented a concerted effort by him to avoid using his authorized travel documents to return to Pakistan, which he denied was his intention when he applied for them,” and that his use of three Pakistani passports showed that he made misrepresentations on his application for travel documents. The immigration judge also found that Mahmood was ineligible for a waiver of inadmissibility under 8 U.S.C. § 1159(c). As a result, the judge ordered that Mah-mood be removed to Pakistan.

Mahmood appealed the immigration judge’s decision to the BIA, at first on the sole ground that the immigration judge had erred in denying his application for waiver of inadmissibility. After Mahmood filed his initial brief, however, the Fifth Circuit issued a decision finding that the INA was ambiguous as to whether an asy-lee who adjusted his status to lawful permanent resident could be removed without first having his asylum status terminated under § 1158(c) and remanding the case to the BIA to resolve that question in the first instance. See Ali v. Lynch, 814 F.3d 306, 312 (5th Cir. 2016). Relying on that decision, Mahmood filed a supplemental brief before the BIA, arguing that because he “retained his asylum status” after his adjustment to lawful permanent resident status, the immigration judge erred in ordering his removal without first conducting an asylum termination proceeding under 8 U.S.C. § 1158(c).

With a one-member decision, the BIA rejected Mahmood’s arguments and dismissed his appeal. As relevant here, it held that the immigration judge properly ordered Mahmood’s removal without first conducting an asylum termination proceeding. The BIA relied on its precedential decision in Matter of C-J-H-, 26 I. & N. Dec. 284, in which it had concluded that “aliens whose status was adjusted from asylee to lawful permanent resident no longer qualify as asylees,” id. at 285, and it “declined to revisit [that] decision.”

' From the BIA’s order dated March 29, 2016, Mahmood filed this petition for review.

II

Mahmood contends that even though he applied for and obtained the status of a lawful permanent resident, “he is still an asylee,” and, as an asylee, he has “the right to not be returned to a country where. [he] would be persecuted, threatened, or harmed.” He argues that this treaty-based right is recognized and preserved in 8 U.S.C. § 1158(c), which provides that “in the case of an alien granted asylum ... the Attorney General ... shall not remove or return the alien to the alien’s country of nationality” unless his asylum status is first terminated. See also 8 C.F.R. § 1208.22 (providing that “[a]n alien who has been granted asylum may not be deported or removed unless his or her asylum status is terminated pursuant to procedures set forth in 8 C.F.R. § 1208.24”). Mahmood’s argument thus rests on his claimed continuing status as an asylee and the statutory requirement that the Attorney General cannot terminate the status of an asylee without pursuing the procedure set forth in § 1158(c) and in the regulations promulgated under it. Because the Attorney General has not pursued those procedures, he argues, he cannot now be deported, and the BIA erred as a matter of law in concluding otherwise.

The government does not dispute Mah-mood’s recital of law relating to asylees. Rather, it argues, because of Mahmood’s voluntary action of changing his status from an alien granted asylum to a lawful permanent resident under § 1159(b), he is no longer an asylee with rights under § 1158; Focusing on the language of § 1159, under which Mahmood obtained an adjustment of status to a lawful permanent resident, the government maintains that “the term ‘adjust’ necessarily describes a change in status, not the acquisition of an additional status” and that therefore Mah-mood “no longer retains asylee status.” Under this argument, it reasons, Mah-mood, as a lawful permanent resident, may be deported as any other lawful permanent resident under §§ 1227(a)(1)(A) and 1182(a)(6)(C) for procuring an immigration benefit by fraud or willful misrepresentation of a material fact.

It is undisputed that Mahmood, while an asylee, submitted an application in 2011 to the DHS to adjust his status to that of a lawful permanent resident under § 1159(b) and that the DHS granted his application in 2012. We therefore must focus on the consequence of this adjustment of status. To be sure, if Mahmood remains an asylee, his ■ status cannot be terminated by the Attorney General without following the process afforded by § 1158(c). On the other hand, if Mahmood is no longer an asylee by reason of his adjustment of status to a lawful permanent resident, he no longer enjoys the rights of asylum status. Thus, we must determine whether an asylee who successfully pursues an adjustment of status under § 1159(b) nonetheless retains the benefits of an alien granted asylum.

The text of § 1159(b) appears to answer this question. Section 1159(b) provides that “the Secretary of Homeland Security or the Attorney General ... may,” upon application of the alien and satisfaction of specified statutory conditions, “adjust to the status of an alien lawfully admitted for permanent residence the status of any alien granted asylum.” This text thus contemplates two statuses — an “alien granted asylum” and an “alien lawfully admitted for permanent residence.” Moreover, it describes a process of “adjustment” from the former “to” the latter. A provision that addresses two statuses and provides for.the adjustment from one “to” the other appears clearly to indicate a change to and not an accretion of the second status. See Adams v. Holder, 692 F.3d 91, 97 (2d Cir. 2012) (“[Pjlainly, then adjustment of status ... references some change in that status corresponding to a change in the alien’s relationship to this country” (second emphasis added)).

Under this reading, therefore, Mahmood simply no longer holds the status of an “alien granted asylum.” Rather, he holds the status to which he was adjusted, ie., an alien lawfully admitted for permanent residence. In his new status, he is, like every other lawful permanent resident, subject to removal for procuring an immigration benefit by fraud or willful misrepresentation of a material fact. See 8 U.S.C. §§ 1227(a)(1)(A), 1182(a)(6)(C).

Mahmood contends, however, that focusing only on § 1159(b) paints an incomplete picture. He argues that because he was an asylee at the time he adjusted his status, we must focus on § 1158(c)(2)’s restrictions on the removal of asylees. As he points out, § 1158(c) allows the Attorney General to terminate asylum status for five listed reasons, none of which includes an adjustment of status under § 1159(b). Mahmood also points to DHS regulations providing that an asylee may not be removed absent termination of his asylum status under provided procedures. See 8 C.F.R. §§ 1208.22, 1208.24. And he argues that an adjustment of status under § 1159(b) cannot substitute for a formal termination of his asylum status pursuant to § 1158(c) and the regulations promulgated under that section.

Mahmood’s argument, however, is premised on unwritten assumptions. First, it presumes that because the Attorney General cannot terminate an asylee’s status except by following the specified procedures of § 1158(c) and its regulations, the alien cannot voluntarily give up the asylee status in favor of another. Second, he equates his voluntary surrender of his •asylum status through his adjustment under § 1159(b) with the involuntary loss of his asylum status through the Attorney General’s termination of it under § 1158(c). The two, however, are clearly not the same. The office of § 1158 protects an asylee from having his asylum status terminated against his will by the Attorney General except for the reasons given in § 1158. In contrast, the office of § 1159 authorizes an asylee to voluntarily give up his asylum status in favor of the status of a lawful permanent resident. In this fashion, § 1158 does not appear to limit § 1159, as Mahmood seems to argue. On the contrary, § 1158 and § 1159 can easily be read harmoniously, with the former governing asylees while they retain that status and the latter serving as a bridge to an entirely different status with different rights and responsibilities. Thus, even though an asylee is protected from deportation and removal except as provided in § 1158(c), he can voluntarily seek adjustment of his status under § 1159(b) and thereby withdraw from the protections of asylum status to attain the benefits of being a lawful permanent resident.

Those benefits are different from asylee benefits and are significant. An asylee who adjusts his status under § 1159(b) gains a direct path to naturalized citizenship, 8 U.S.C. § 1427(a); he gives his family a better chance to obtain lawful permanent residency, id. § 1153(a)(2); and he obtains the right to travel outside of the United States without the advance permission of a refugee travel document, id. § 1101(a)(13)(C). An asylee who adjusts to lawful permanent resident status also un-tethers the fate of his immigration status from the tumultuous conditions of his home country, because his status as an asylee may, after all, be terminated if he no longer has “a well-founded fear of persecution.” 8 U.S.C. § 1101(a)(42) (defining “refugee”); see id. § 1158(c)(2)(A) (allowing for termination if an alien granted asylum no longer meets INA’s definition of “refugee”). Thus, Congress, with the enactment of § 1159, can be seen as deciding sensibly that, where an alien voluntarily seeks adjustment under § 1159(b) and gains the advantages of lawful permanent residency, he gives up the absolute right to have the protections of his asylum status adjudicated before removal.

In an effort to diminish the importance of the text of § 1159 and its apparent relationship to § 1158, Mahmood argues that Congress cannot have intended the practical consequences that flow from the BIA’s interpretation. For one, he claims that allowing removal of a former asylee without termination will incentivize the government to “manipulate immigration benefits” by liberally granting adjustments to aliens it wishes to deport and then immediately initiating removal proceedings against them. But this argument entirely ignores the fact that the adjustment process is voluntary and that, moreover, § 1159(b) has its own limitations, such as those that require that the alien be admissible before granting the adjustment or obtain a waiver of inadmissibility. See 8 U.S.C. § 1159(b), (c). An alien simply need not apply for adjustment if he wishes to retain the protections of asylum. On the other hand, as we have explained, there are numerous benefits to be gained by forgoing the protections of asylum and seeking the status of a lawful permanent resident.

Moreover, an alien’s status as a lawful permanent resident does not leave the alien fully exposed to removal to a dangerous country even if he conducts himself in a manner that gives rise to his removal. “Any alien who is physically present in the United States ... irrespective of such alien’s status, may apply for asylum.” 8 U.S.C. § 1158(a)(1). And, in some circumstances, the INA explicitly prohibits the Attorney General from removing an otherwise removable alien. See 8 U.S.C. § 1231(b)(8)(A) (prohibiting removal to a country where the Attorney General finds that “the alien’s life or freedom would be threatened”); 8 C.F.R. § 1208.16(c) (prohibiting removal under the Convention Against Torture if applicant shows that torture in country of removal is “more likely than not”).

At bottom, the most reasonable reading of § 1159(b) leads to the conclusion that once an asylee has adjusted his status to that of lawful permanent resident, the alien is then fully considered a lawful permanent resident and not an asylee. And, in his status as a lawful permanent resident, the alien may be removed without a requirement that the Attorney General conduct an asylum termination proceeding under § 1158(c)(2).

Even so, Mahmood urges that we should remand this case to the BIA to resolve the ambiguity existing between § 1158 and § 1159 because neither section explicitly takes the other into account. He maintains that Congress may have intended to grant overarching protections to asylees until the asylee’s status is terminated pursuant to § 1158(c), regardless of whether the asylee subsequently adjusts his status to lawful permanent resident.. And because § 1158(c) does not list adjustment of status as a ground allowing for termination of asylum status, he argues that his reading of the statute would bar removal in his circumstances. See Ali, 814 F.3d at 311 (finding the INA ambiguous in this regard). Moreover, Mahmood notes, the BIA in this case construed only § 1159, never addressing the protections given to asylees by § 1158.

While we conclude that Mahmood’s reading of the INA is not the best one, it is at least plausible, thus suggesting ambiguity. See, e.g., Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 410, 417, 113 S.Ct. 2151, 124 L.Ed.2d 368 (1993) (noting that a provision with two plausible meanings is ambiguous for purposes of applying Chevron deference).

Under the assumption that § 1159(b) is indeed ambiguous, it then becomes appropriate to defer to the BIA’s interpretation of the INA in resolving the issue. As it is well understood, when the question of whether the BIA erred turns on statutory interpretation of the INA, “principles of Chevron deference” apply to our review of the decision because the BIA is responsible for administering th.e statute. See Negusie v. Holder, 555 U.S. 511, 516, 129 S.Ct. 1159, 173 L.Ed.2d 20 (2009) (quoting INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999)).

Under Chevron, we must follow the plain meaning of the statute where “Congress has directly spoken to the precise question at issue.” Chevron, 467 U.S. at 842, 104 S.Ct. 2778. But if the statute is ambiguous, we must defer to the agency’s permissible construction of that ambiguity made through its published, precedential decisions. See Aguirre-Aguirre, 526 U.S. at 424, 119 S.Ct. 1439; Hernandez v. Holder, 783 F.3d 189, 192 (4th Cir. 2015).

In this case, the BIA relied on its precedential decision in Matter of C-J-H-, 26 I. & N. Dec. at 284, in holding that Mahmood could be removed without an asylum termination proceeding. Thus, even though the BIA’s one-member decision in this case was not precedential and therefore not itself entitled to Chevron deference, it controls so long as C-J-H-, on which its decision rested, permissibly construed an ambiguity in the INA. See Hernandez, 783 F.3d at 192. In other words, the BIA’s position in C-J-H- “prevails if it is a reasonable construction of the statute, whether or not it is the only possible interpretation or even the one a court might think best.” Holder v. Martinez Gutierrez, 566 U.S. 583, 132 S.Ct. 2011, 2014, 182 L.Ed.2d 922 (2012).

In C-J-H-, as in the case before us, an alien who had been granted asylum subsequently adjusted his status to that of a lawful permanent resident pursuant to § 1159(b). 26 I. & N. Dec. at 284. The alien was then charged with removability after being convicted of conspiracy to traffic in counterfeit goods, a crime involving moral turpitude. 'Id. During his removal proceedings, the alien conceded removability but applied for a readjustment of status under § 1159(b), which, again, allows “any alien granted asylum” to adjust his status. Id. at 284-85. The BIA concluded, however, that the alien was not eligible for a readjustment of status. It reasoned that, by its “plain terms” § 1159(b) applied only “to asylees seeking to adjust status to that of a lawful permanent resident,” and that “[ojnce [the alien] became a lawful permanent resident, he no longer had the status of an asylee.” Id. at 285 (emphasis added). The BIA based this conclusion in part on its prior holding that “a refugee admitted as a lawful permanent resident is subject to removability even though his refugee status has not been terminated.” Id. (citing Matter of Smirko, 23 I. & N. Dec. 836, 841 (BIA 2005)).

Mahmood argues that C-J-H- does not warrant deference because the BIA there “failed to interpret section 1159(b) or section 1158(c)(2)” and because, in relying on its prior decisions outside the context of asylum, the BIA improperly “equated refugees and asylees.” We do not find these arguments persuasive. For one, C-J-H- s failure to analyze the effect of § 1158(c) does not imply that its analysis was insufficient. Rather, it implies that the BIA understood adjustment as a categorical shift from asylum to lawful permanent residency — a shift that left no continued role for the INA’s provisions, such as § 1158, that apply to asylum status. C-J-H-, 26 I. & N. Dec. at 286 (“[Ajliens who have adjusted from their status as asylees have no status that would authorize them to readjust under [§ 1159(b) ]”). The BIA’s analysis perhaps would have been tighter had it made this point expressly, but we are not persuaded that a remand is necessary. With respect to the BIA’s discussion of refugee cases in reaching its conclusion, we similarly reject that this fact somehow undercuts C-J-H-. The BIA in C-J-H- did not rest its holding on the similarities of those two categories but rather on the reasonable conclusion that the .language of § 1159(b) provides that once an alien adjusts to lawful permanent resident status, he no longer holds the status of an asylee.

On a larger scale, Mahmood’s challenge to the BIA’s decision in C-J-H- on the basis of its reasoning ignores the limited nature of our review under Chevron. The Supreme Court has held that in reviewing an agency’s interpretation of a statute, we will not remand solely because the agency engaged in a mode of reasoning other than that which we would have preferred. See Aguirre-Aguirre, 526 U.S. at 431, 119 S.Ct. 1439 (rejecting the Ninth Circuit’s conclusion that the BIA was required to address certain factors and, as a result, vacating the court’s order of remand). Rather, because we are simply conducting a reasonableness review, we treat the BIA’s interpretation as controlling unless it has reached a conclusion that is “arbitrary, capricious, or manifestly contrary to the statute.” Amos v. Lynch, 790 F.3d 512, 518 (4th Cir. 2015) (quoting Chevron, 467 U.S. at 843-44, 104 S.Ct. 2778). In this case, we cannot conclude that the BIA’s conclusion regarding § 1159 was arbitrary, capricious, or manifestly contrary to the statute. To the contrary, as we have pointed out, the BIA in C-J-H- reached a reasonable conclusion in holding that, with adjustment, the alien relinquished his asylum status. Accepting the BIA’s conclusion in C-J-H- as reasonable, it then follows that Mahmood is not subject to the protections of § 1158(c), which by their terms apply only “[i]n the case of an alien granted asylum.”

Of course, • strong policies underlie the INA’s protection of aliens granted asylum, as Mahmood points out, temporarily prohibiting, except in carefully delineated circumstances, their return to a country where they would be persecuted. But strong policies also underlie the INA’s authorization to asylees to change their status and eventually to become naturalized citizens of the United States. These policies serve different purposes, either of which an alien in Mahmood’s position may invoke. But the statute does not provide for both statuses to apply simultaneously. Asylum status is a transient status that is conditioned on the fear of persecution in the country of origin. Lawful permanent resident status, on the other hand, focuses on a future permanent status in the United States. Nonetheless, as we have noted, even in the circumstance where an asylee has adjusted his status to a lawful permanent resident and thereby relinquished his asylum status, the lawful permanent resident can, after obtaining that status, still object to deportation by requesting asylum if the conditions in his country at that time justify such a request.

As it stands, the BIA in this case held simply that because Mahmood adjusted his status from an alien granted asylum to a lawful permanent resident, he no longer has protections based on his original asylum status, and we affirm this holding. Accordingly, we deny Mahmood’s petition for review.

PETITION DENIED