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KEH TONG CHEN v. AG OF THE UNITED STATES

August 13, 1982

KEH TONG CHEN, Plaintiff,
v.
ATTORNEY GENERAL OF THE UNITED STATES, Defendant



The opinion of the court was delivered by: BRYANT

 BRYANT, District Judge.

 This case is before the court on the Attorney General's motion for summary judgment. Jurisdiction is founded on 28 U.S.C. § 1331 and § 279 of the Immigration and Nationality Act ("the Act"), 8 U.S.C. § 1329 (1976).

 The issue before the court is whether the Regional Commissioner of the Immigration and Naturalization Service ("INS") abused his discretion when he denied plaintiff's application to waive the two-year foreign residence requirement established by § 212(e) of the Act, 8 U.S.C. § 1182(e). The court finds that because the Regional Commissioner's decision may cause separation of a family, the Regional Commissioner's failure to set forth specific findings in support of his conclusion about "exceptional hardship" was arbitrary, capricious, and an abuse of discretion. The court denies the Attorney General's motion for summary judgment and enters summary judgment for plaintiff.

 * * *

 Under the provisions of § 212(e) of the Act, exchange visitors are required to return to their native lands for two years before they are eligible to apply for permanent residence in this country. This requirement encourages exchange students to return to their own countries to impart their impressions of the United States. S. Rep. No. 1068, 84th Cong., 2d Sess. (1956), reprinted in [1956] U.S. Code Cong. & Ad. News 2662, 2663. It also encourages students whose educations have been financed by their native countries to contribute their newly-acquired knowledge to their countries' development. Yu v. Marshall, 312 F. Supp. 229, 233 (S.D. Tex. 1970). However, § 212(e) allows the Attorney General to waive the foreign residence requirement when, among other requirements, the applicant demonstrates to the INS Commissioner that "departure from the United States would impose exceptional hardship upon the alien's spouse or child (if such spouse or child is a citizen of the United States or a lawfully resident alien), or that the alien cannot return to the country of his nationality or last residence because he would be subject to persecution on account of race, religion, or political opinion." *fn2"

 Chen applied for a waiver of the two-year residence requirement on a number of grounds. Chen claimed that he would be persecuted in Taiwan because of his political opinions. He alleged that his wife would experience "exceptional hardship" in Taiwan because of her chronic tonsilitis, gout, allergy, hemorrhoids, otitis media, and thyroid disfunction. And Chen asserted that his son Jerry would experience "exceptional hardship" were Jerry separated from his father for a two-year period. This assertion was supported by a letter from a child psychiatrist who characterized Chen as Jerry's "primary affection-giver," Record (R.) at 35, and concluded that "the loss of Dr. Chen, as his son's love object, would be a major loss to the infant." Id.

 Chen's application for a § 212(e) waiver was denied initially by the INS District Director, who found that Chen had not established that his wife would encounter "exceptional hardship" if he returned to Taiwan, or that Chen would be subject to persecution there. *fn3" Chen appealed that denial to the INS Regional Commissioner, to whom Chen presented new arguments and evidence, based partially on Jerry's birth. The Regional Commissioner found that Chen had not met his burden of showing that his wife or son would suffer "exceptional hardship" if he returned to Taiwan for two years, and that Chen had not established that he would be persecuted. The Regional Commissioner also denied the requested waiver. Chen filed a complaint in this court seeking review of the Regional Commissioner's denial; and the government filed a motion for summary judgment.

 Chen opposes the government's motion for summary judgment because Chen claims that this case presents genuine issues of material fact relevant to his claims of "exceptional hardship" and fear of persecution based on political grounds. Chen's opposition does not acknowledge the court's limited scope of review in suits for review of administrative action taken pursuant to § 212(e). Where, as in this case, Congress simply provides for review, without setting forth the standards to be used or the procedures to be followed, the reviewing court's consideration is confined to the administrative record. United States v. Carlo Bianchi & Co., 373 U.S. 709, 715, 10 L. Ed. 2d 652, 83 S. Ct. 1409 (1963); Doraiswamy v. Secretary of Labor, 180 U.S. App. D.C. 360, 555 F.2d 832, 839 (D.C. Cir. 1976). Thus the task before the court is to determine whether the Regional Commissioner's findings of fact underlying his action pass the substantial evidence test, and whether the Regional Commissioner's action was capricious, arbitrary, or an abuse of discretion. Mendez v. Major, 340 F.2d 128, 132 (8th Cir. 1965); Talavera v. Pederson, 334 F.2d 52, 58 (6th Cir. 1964). Since there is substantial evidence in the record to support the Regional Commissioner's finding that Chen would not be subject to political persecution in Taiwan, *fn4" the court will consider in detail only the Regional Commissioner's "exceptional hardship" determination.

 * * *

 Section 212(e) and other similar provisions of the immigration laws have often been attacked on the grounds that they interfere with citizens' constitutional rights to maintain the family unit and to live in the United States. In every case presenting these challenges, however, courts have upheld the constitutionality of the legislation at issue. *fn5" The general themes which emerge from these rulings are, first, that the legislation does not directly interfere with citizens' rights, but only imposes indirect hardships upon citizen-relatives of aliens; and second, that the power to expel or exclude aliens is "a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control." Fiallo v. Bell, 430 U.S. 787, 792, 52 L. Ed. 2d 50, 97 S. Ct. 1473 (1977), quoting Shaughnessy v. Mezei, 345 U.S. 206, 210, 97 L. Ed. 956, 73 S. Ct. 625 (1953).

 Courts deciding § 212(e) cases have consistently emphasized the Congressional determination that it is "detrimental to the purposes of the program and to the national interests of the countries concerned to apply a lenient policy in the adjudication of waivers including cases where marriage occurring in the United States, or the birth of a child or children, is used to support the contention that the exchange alien's departure from this country would cause personal hardship. H.R. Rep. No. 721, 87th Cong., 1st Sess. 121 (1961) ("H.R. Rep. No. 721"). Courts have effectuated Congressional intent by declining to find exceptional hardship unless the degree of hardship expected was greater than the anxiety, loneliness, and altered financial circumstances ordinarily anticipated from a two-year sojourn abroad. See Mendez v. Major, 340 F.2d 128, 132 (8th Cir. 1965); Talavera v. Pederson, 334 F.2d 52, 58 (6th Cir. 1964).

 Although separation of families following non-waiver of the foreign residence requirement is constitutional, and often may result from the considered effectuation of Congressional intent, nevertheless, "the family and relationships between family members occupy a place of central importance in our nation's history and are a fundamental part of the values which underlie our society. See Moore v. City of East Cleveland, 431 U.S. 494, 52 L. Ed. 2d 531, 97 S. Ct. 1932 (1977)." Bastidas v. Immigration & Naturalization Service, 609 F.2d 101, 105 (3d Cir. 1979). The significance traditionally accorded the family in American life warrants that where the applicant alleges that denial of a waiver will result in separation from both a citizen-spouse and a citizen-child, a finding of "no exceptional hardship" should not be ...


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