Matter of Mansour, 11 I & N Dec. 306 (1965)).
Only on reconsideration of his decision did the Associate Commissioner accord even cursory attention to these concerns. Addressing only the clinical psychologist's testimony, he observed that "the applicant's spouse has no extensive history of mental treatment and, in fact, has been said to be currently 'functioning without symptoms.'" A.R. 29. This statement ignored the professional opinion of the psychologist that the two-year separation "would have the real potential to permanently damage [the plaintiffs'] relationship," and that of the medical doctor to the effect that the separation would "indeed represent an undue hardship and be detrimental to his physical and mental well being." A.R. 33, 34.
Considering these statements in conjunction with other concerns raised by plaintiffs,
we are unable to conclude that the INS officials devoted more than conclusory attention to problems associated with the "choice" of temporary separation available to plaintiffs. The record leaves the reviewing court with the distinct sense that INS accorded undue weight to its conclusion, unsupported by evidence, that plaintiffs were aware that the two-year residence requirement would apply to them. On the present record we can only conclude that INS failed to consider, as it must, the "totality of circumstances" germane to the waiver determination. See Slyper, 576 F. Supp. at 560; Ramos v. INS, 695 F.2d 181, 189 (5th Cir. 1983).
Courts have recognized that the "exceptional hardship" standard must be stringently construed lest the waiver exception swallow the salutary two-year residence rule. See Slyper, 576 F. Supp. at 561. We do not disagree. Forceful application of the standard also guards against attempts by applicants to manufacture hardships in order to come within its terms. Chen v. Attorney General, 546 F. Supp. at 1065. There is no evidence in this case, however, of a "sham marriage[s]" consummated "in order to evade the immigration laws," id., or of hardships otherwise fabricated by the applicants. Given the plaintiffs' persuasive showing of hardship and their reliance on official (albeit incorrect) advice by INS officials, we conclude that the agency's decision is arbitrary, capricious, and lacking in evidentiary support. In our opinion, it is an abuse of discretion.
For the foregoing reasons, it is by the court this 16th day of December, 1987
ORDERED that plaintiffs' motion for summary judgment is hereby granted, and it is
ORDERED that defendant's motion for summary judgment is hereby denied, and it is
FURTHER ORDERED that this case is remanded to the Attorney General for proceedings not inconsistent with this opinion.