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09/04/87 Arnold H. Slyper, v. Attorney General; Marco

September 4, 1987

ARNOLD H. SLYPER, APPELLANT IN NO. 86-5331

v.

ATTORNEY GENERAL; MARCO BAQUERO, APPELLANT IN NO. 86-5335

v.

ATTORNEY GENERAL, ET AL. 1987.CDC.380



Before RUTH B. GINSBURG, BUCKLEY, and DOUGLAS H. GINSBURG, Circuit Judges.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Appeals from the United States District Court for the District of Columbia, D.C. Civil Action Nos. 82-3048 & 86-0692.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BUCKLEY

BUCKLEY, Circuit Judge:

The question before us in these consolidated cases is a narrow one; namely, whether the district court has jurisdiction to review a decision by the United States Information Agency not to recommend that two foreign doctors receiving training in the United States be granted a waiver of a statutory requirement that they return to their countries of origin for two years before being allowed to apply for foreign residency status in the United States. We affirm the district court's conclusion that it has no jurisdiction to hear the cases because there is no law for the court to apply. I. BACKGROUND

These cases involve foreign medical graduate students who are in the United States under the auspices of the Exchange Visitor Program authorized by the United States Information Agency . 22 U.S.C. 2452 (1982). Each student has married a United States citizen and seeks permanent resident status in this country through the waiver of a statutory requirement that he first return to his country of origin. Appellants claim that such a return will impose extraordinary hardship on their wives. These cases are governed by 8 U.S.C. ยง 1182(e) (1982), which requires, as one of the conditions for the grant of a waiver, that it be favorably recommended by the Director of the USIA.

In the first case, the USIA denied appellant Slyper's request for a favorable recommendation because "[i]t is considered that what hardship may exist does not outweigh the program and policy considerations of the Exchange Visitor Program or the congressional intent of Public Law 94-484." Denial of Waiver Request (May 21, 1984) (Joint Appendix at 16). This denial was subsequently reaffirmed without further elaboration in two letters from USIA's General Counsel to Slyper's attorney. Letters from Richard Fruchterman to Charles Gordon (Sept. 4 and 10, 1984). (J.A. at 22 and 23).

Slyper brought suit alleging that the USIA's refusal to make a favorable recommendation was "arbitrary, unreasonable, and an abuse of discretion." Amended Complaint for Slyper Para. 22 (J.A. at 12). The district court dismissed the action because the statute vested the USIA with so "broad and vague" a mandate that it had "no law to apply." Slyper v. Attorney General, No. 82-3048, Memorandum Order at 4-5 (D.D.C. Mar. 26, 1986) (quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971)).

The district court dismissed appellant Baquero's complaint for the same reason. "The Court can find no significant factual difference in this case which might distinguish it from Slyper or otherwise provide this Court with jurisdiction in spite of the Overton Park doctrine." Baquero v. Attorney General, No. 86-0692, Memorandum Order at 3 (D.D.C. Mar. 27, 1986). II. ARGUMENT

A. The Statute and the Regulation

The Immigration and Nationality Act, as amended, provides in pertinent part:

No person . . . [who] came to the United States . . . in order to receive graduate medical education or training, shall be eligible to apply for an immigrant visa, or for permanent residence, or for a nonimmigrant visa . . .until is is established that such person has resided and been physically present in the country of his nationality for his last residence for an aggregate of at least two years following departure from the United States: Provided, That

[1] upon the favorable recommendation of the Director of the United States Information Agency,

[2] pursuant to the request of . . . the Commissioner of Immigration and Naturalization after he has determined that departure from the United States would impose exceptional hardship upon the alien's spouse or child (is such spouse or child is a ...


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