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Keywords

plaintiffdefendantattorneymotionsummary judgmentnaturalizationjudicial review
plaintiffdefendantattorneymotionsummary judgmentnaturalizationjudicial review

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Ying 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 and later married Li Hwa, a U.S. citizen, with whom he has a son, Jerry. Chen's exchange visitor status ended in 1971, and he has since been in the U.S. illegally. He applied for a waiver of the two-year foreign residence requirement, claiming exceptional hardship for his family if he were to return to Taiwan. His application was denied by the INS District Director and subsequently by the Regional Commissioner, leading Chen to seek judicial review.

Plaintiff Keh Tong Chen, a Taiwanese citizen, entered the U.S. in 1969 as a nonimmigrant exchange visitor and later married Li Hwa, a U.S. citizen, with whom he has a son, Jerry. Chen's exchange visitor status ended in 1971, and he has since been in the U.S. illegally. He applied for a waiver of the two-year foreign residence requirement, claiming exceptional hardship for his family if he were to return to Taiwan. His application was denied by the INS District Director and subsequently by the Regional Commissioner, leading Chen to seek judicial review.

Issue

Did the Regional Commissioner of the Immigration and Naturalization Service abuse his discretion in denying the plaintiff's application to waive the two-year foreign residence requirement under 8 U.S.C. 212(e)?

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 lawful resident, or if the alien would face persecution upon return to their home country.

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 made by Chen, particularly concerning the impact on his son Jerry. The court noted that the decision lacked explicit consideration of the evidence presented, including a psychiatrist's evaluation that highlighted the potential emotional harm to Jerry from separation from his father. This lack of detailed analysis led the court to conclude that the Regional Commissioner's decision was arbitrary and capricious.

The court found that the Regional Commissioner failed to provide specific findings regarding the exceptional hardship claims made by Chen, particularly concerning the impact on his son Jerry. The court noted that the decision lacked explicit consideration of the evidence presented, including a psychiatrist's evaluation that highlighted the potential emotional harm to Jerry from separation from his father. This lack of detailed analysis led the court to conclude that the Regional Commissioner's decision was arbitrary and capricious.

Conclusion

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

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

Who won?

Plaintiff prevailed in the case because the court found that the defendant's decision was arbitrary and capricious, failing to consider critical evidence regarding the hardship faced by the plaintiff's family.

Plaintiff prevailed in the case because the court found that the defendant's decision was arbitrary and capricious, failing to consider critical evidence regarding the hardship faced by the plaintiff's family.

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