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Keywords

lawsuitplaintiffattorneyappealsummary judgmentnaturalization
plaintiffdefendantattorneysummary judgmentwillvisacitizenshipnaturalization

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Li Shan Chen v. U.S. Attorney Gen.

Facts

Plaintiff Keh Tong Chen, a Taiwanese citizen, entered the U.S. in 1969 as a nonimmigrant exchange visitor. He married Li Hwa, a U.S. citizen, in 1979, and they had a son, Jerry, in December 1980. Chen's application for a waiver of the two-year foreign residence requirement was denied by the INS District Director, who found that Chen had not established that his wife or son would suffer 'exceptional hardship' if he returned to Taiwan. Chen appealed the denial to the INS Regional Commissioner, presenting new evidence, but the waiver was again denied, leading to the current lawsuit.

Plaintiff Keh Tong Chen, a 46 year-old Taiwanese citizen, entered this country in 1969 as a nonimmigrant exchange visitor. He studied electrical engineering for two years at Washington University in St. Louis at the expense of the Taiwanese Ministry of Defense. In 1979, Chen married Li Hwa, a Taiwanese native with U.S. citizenship; and in December 1980, they had a son, Jerry. Since 1971, when Chen's exchange visitor status terminated, Chen has been in this country illegally. However, Mrs. Chen has filed an immediate relative visa petition for Chen with the INS, see 8 U.S.C. 1151(b), which was approved in August 1980.

Issue

Whether the Regional Commissioner of the Immigration and Naturalization Service abused his discretion when he denied plaintiff's application to waive the two-year foreign residence requirement established by 212(e) of the Act.

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).

Rule

The Attorney General may waive the foreign residence requirement if the applicant demonstrates that departure would impose exceptional hardship on the alien's spouse or child who is a U.S. citizen or lawfully resident alien.

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.'

Analysis

The court found that the Regional Commissioner failed to provide specific findings regarding the exceptional hardship claims presented by Chen, particularly concerning his son Jerry. The court noted that the decision lacked explicit consideration of the evidence in the record, which included a psychiatrist's evaluation indicating that Chen was Jerry's primary affection-giver. The court emphasized that the failure to consider such evidence constituted an arbitrary and capricious decision.

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.

Conclusion

The court granted summary judgment in favor of the plaintiff, concluding that the Regional Commissioner's failure to demonstrate explicit consideration of evidence regarding exceptional hardship was an abuse of discretion.

Accordingly, the court concluded that it was unwilling to affirm a decision by defendant resulting in the separation of a family when the decision failed to reflect explicit consideration of substantive points in the record.

Who won?

Plaintiff prevailed in the case because the court found that the Regional Commissioner acted arbitrarily and capriciously by failing to consider relevant evidence regarding the hardship faced by the plaintiff's family.

Summary judgment was granted in favor of plaintiff because the failure of the United States Immigration and Naturalization Service to demonstrate explicit consideration of evidence in the record relative to plaintiff's son's hardship claim was arbitrary, capricious and an abuse of discretion.

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