The opinion of the court was delivered by: GREEN
This matter is before the Court on Defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment; Plaintiff's opposition thereto and Cross-Motion for Summary Judgment; and Defendant's reply and response. For the reasons set out below the Court denies Defendant's Motion, and remands the matter to the District Director of the Immigration and Naturalization Service.
Wei-Jhai Chang came to America from his native Taiwan in August 1976 on an exchange visitor visa (a student visa) under 8 U.S.C. § 1101(a)(15)(j). Mr. Chang enrolled as a student at Virginia Military Institute, and graduated from VMI in 1980.
At the time of his arrival, Mr. Chang was on active duty as a military cadet for the Republic of China, and as such was required to return to Taiwan upon the completion of his course of study. He did not return to Taiwan, but instead married a U.S. citizen, Ai-Dee Li, in 1983. The Changs' daughter, Claudia Lynn Chang, was born in Fairfax, Virginia, in 1984. The couple divorced in 1989; and both Mr. and Mrs. Chang continued to reside in Northern Virginia. The divorce decree designates Mrs. Chang as custodial parent.
In affidavits included in the administrative record of this case, both Mrs. and Mr. Chang state that he pays some $ 500 per month in child support for Claudia, that Claudia is covered under his health care insurance plan, and that he has helped Mrs. Chang pay for her car insurance.
In October 1993 the INS issued an Order to Show Cause and Notice of Hearing to Mr. Chang for overstaying his student visa. The Order required him to appear before an immigration judge and show cause why he should not be deported.
In December 1993, Mr. Chang applied for permanent resident status in the U.S., pursuant to 8 U.S.C. § 1255, by filing an application on behalf of his employer (Cheng's Oriental Restaurant) for an alien labor certification. Such certification is mandatory for the adjustment of status under 8 U.S.C. § 1182(a)(5). In February 1994 his application for labor certification was granted by the U.S. Department of Labor. Also in February, Mr. Chang applied for a waiver of his two-year foreign residency requirement, on the grounds that it would impose extreme hardship on his U.S. citizen daughter, Claudia. In support of his application for waiver he included affidavits from himself and his ex-wife regarding his role in his daughter's life and his financial support of her, an extract of the Armed Forces Code of the Republic of China (which showed Mr. Chang faced a penalty of five years' incarceration for abandoning his military service in failing to return to Taiwan following his graduation from VMI), and a psychologist's report on his relationship with his daughter Claudia including her recommendation against a prolonged separation of father and daughter.
In March 1994, Mr. Chang filed with the Immigration and Naturalization Service an immigrant petition for alien worker -- which sought adjudication of Mr. Chang's entitlement to a preference for permanent resident status as a skilled worker under 8 U.S.C. § 1153(b). Mr. Chang's petition was approved by the INS Eastern Regional Service Center in April 1994. This approval made Mr. Chang eligible for permanent residency -- except for waiver of the two-year foreign residency requirement.
On May 24, 1994, the District Director of the INS denied Mr. Chang's application for a waiver. In his written opinion, the District Director said that tax returns requested from Mrs. Chang had not been made available, and that Mr. Chang's tax returns (showing an income of between $ 9,700 and $ 16,000 between 1990 and 1993) did not indicate deductions for child support or alimony payments. The District Director intimated that on such an income, Mr. Chang would have been left with very little money on which to live, had he made the child support payments in the amount both Mr. and Mrs. Chang stated he had made in their affidavits. The District Director said that "there is no persuasive evidence that [Mr. Chang] has provided any substantial economic support to either his ex-wife or to his nine year old daughter. No child support deductions appear on his income tax returns." The opinion went on to say that the divorce decree, which was not submitted, would "show custody and child support or other settlement." The District Director added that the major factor weighing against Mr. Chang's waiver application was that he had not returned to Taiwan following his education at VMI, and that Mr. Chang had chosen instead to become "a deserter from the military and a defector from his country." The District Director said that he denied Mr. Chang's application for waiver based on these reasons.
On September 2, 1994, Mr. Chang moved the District Director to reopen the denial, and offered new documentation in support of his application in the form of Mrs. Chang's tax returns and the couple's divorce papers -- the lack of which the District Director had mentioned as part of the basis of his initial denial of Mr. Chang's application back in May. The following day, the District Director granted Mr. Chang's motion to reopen, but again denied his application, repeating his observation that deductions for alimony or child care did not appear -- this time on Mrs. Chang's tax returns. He did not mention the divorce decree, which does not spell out terms of any settlement or child support arrangements. Mr. Chang timely appealed the District Director's decision to the Administrative Appeals Unit.
Mr. Chang also moved the immigration judge on October 5th to stay any deportation proceedings during the pendency of his appeal before the AAU. The immigration judge denied that motion on October 11, 1994, and gave Mr. Chang until April 30, 1995 to voluntarily depart from the U.S. or face deportation to the Republic of China. Mr. Chang appealed that ruling to the Board of Immigration Appeals. On April 27, 1995, the BIA dismissed Mr. Chang's appeal and granted him an additional 30 days in which to leave the U.S. voluntarily.
On August 1, 1995, as part of his appeal of the District Director's decision, Mr. Chang's counsel filed a brief with the AAU. On July 17, 1996, the AAU denied Mr. Chang's appeal, stating that there was no evidence that Mr. Chang would be prosecuted for desertion if he returned to Taiwan, ignoring the portion of the Armed Forces Code of the Republic of China that was part of the record at that time.
Meanwhile, Mr. Chang had left the U.S. pursuant to the order of the immigration judge, going first to Honduras, and later to Hong Kong, where in June of 1996 he was arrested, and remains in custody of the authorities there. The government was aware of Mr. Chang's foreign arrest no later than October 28, 1996 -- as evidenced in a memorandum from Senior Special Agent Robert M. Trent.
On April 18, 1997, the INS mailed two notices to Mr. Chang's address in Northern Virginia.
The notices purported to inform Mr. Chang that he had to appear before the INS to discuss his current immigration status on May 5, 1997, at 9:00 a.m., and that he would forfeit his bond if he did not show up. A handwritten notation on the hearing document indicates that Mr. Chang was, not surprisingly, a no-show on May 5th.
On May 18, 1997, Mr. Chang's counsel filed this action ...