Chong v. Director, U.S. Information Agency

• Decision Date: 11 May 1987
• Docket Number: No. 86-3651,86-3651
• Citation: 821 F.2d 171
• Parties: Daniel Chee-Chung CHONG, Grace Hsiu-Chen Lay Chong, Alice Ai-Hua Chong, William Hsuan-Hua Chong and Christina Chih-Hua Chong, Appellants, v. DIRECTOR, UNITED STATES INFORMATION AGENCY and District Director, Immigration and Naturalization Service, Pittsburgh, Defendants. . Submitted Under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 171

821 F.2d 171

Daniel Chee-Chung CHONG, Grace Hsiu-Chen Lay Chong, Alice

Ai-Hua Chong, William Hsuan-Hua Chong and Christina Chih-Hua Chong, Appellants, v. DIRECTOR, UNITED STATES INFORMATION AGENCY and District

Director, Immigration and Naturalization Service,

Pittsburgh, Defendants.

No. 86-3651.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit Rule 12(6)

May 11, 1987.

Decided June 5, 1987.

Richard D. Steel, Ann A. Ruben, Orlow, Fuller, Rubin & Steel, Philadelphia, Pa., for appellants.

J. Alan Johnson, U.S. Atty., C. Normand Poirier, Acting Gen. Counsel, Joseph A. Blundon, Asst. Gen. Counsel, Carol B. Epstein, Attorney-Adviser, U.S. Information Agency, Washington, D.C., for defendants.

Before GIBBONS, Chief Judge, MANSMANN, Circuit Judge and KATZ, District Judge ^*.

OPINION OF THE COURT

GIBBONS, Chief Judge:

Daniel Chee-Chung Chong, M.D. appeals from an order dismissing his complaint against the Director of the United States Information Agency (USIA) and the District Director of the Immigration and Naturalization Service (INS). The district court held that it did not have subject matter jurisdiction to review the USIA's denial of a favorable recommendation on Dr. Chong's request for a waiver of the two-year home-country residence requirement of 8 U.S.C. Sec. 1182(e) (Supp. III 1985). Chong contends that the USIA's decision not to recommend a waiver is subject to judicial review, albeit a limited one and that the USIA Director abused his discretion in refusing to recommend a waiver in this case because the INS made a finding of extreme hardship and there is no negative impact on foreign policy. While we agree that the decision of the USIA not to recommend a waiver is subject to a circumscribed standard of review under 5 U.S.C. Sec. 706(2)(A) (1982), we disagree that the USIA abused its discretion in not recommending a waiver in this case. Thus, we affirm.

I.

On September 23, 1977, Dr. Daniel Chong with his wife, Grace, and their daughter, Alice, pursuant to 8 U.S.C. Sec. 1101(a)(15)(J) (1982), entered the United States as non-immigrant exchange visitors on J-1 and J-2 visas, respectively. Dr. Chong came from Hong Kong to participate in the Exchange Visitor Program authorized by the USIA under 22 U.S.C. Sec. 2452 (1982), planning to pursue graduate medical training as a resident in general surgery at the University of Massachusetts. He received annual extensions of his visa to continue his residency there through June 30, 1980. Thereafter, Dr. Chong's visa was further extended through June 30, 1982 so that he could complete his fourth- and fifth-year residencies at McKeesport Hospital in McKeesport, Pennsylvania. In the meantime, the Chongs had two other children. Their son, William Hsuan-Hua Chong was born in Worcester, Massachusetts on September 19, 1978, and their daughter, Christina Chih-Hua Chong was born on November 7, 1980 in McKeesport, Pennsylvania. Both William and Christina are therefore citizens of the United States.

Ordinarily, upon completion of his studies, a participant in the Exchange Visitor Program must return to the country of his nationality or of his last residence for at least two years before he may apply for permanent resident status in the United States. 8 U.S.C. Sec. 1182(e). Section 1182(e) provides, however, for the following exceptions:

... upon the favorable recommendation of the Director of the United States Information Agency, pursuant to the request of an interested United States Government agency, or 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 (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, the Attorney General may waive the requirement of such two-year foreign residence abroad in the case of any alien whose admission to the United States is found by the Attorney General to be in the public interest. And provided further, That, except in the case of an alien described in clause (iii), the Attorney General may, upon the favorable recommendation of the Director of the United States Information Agency, waive such two-year foreign residence requirement in any case in which the foreign country of the alien's nationality or last residence has furnished the Secretary of State a statement in writing that it has no objection to such waiver in the case of such alien.

8 U.S.C. Sec. 1182(e).

Thus, on June 29, 1982, Dr. Chong applied to the INS for a waiver of the two-year foreign residence requirement, alleging exceptional hardship to his two American-citizen children. Dr. Chong claimed that he would not be permitted to practice medicine in Hong Kong because he lacked the requisite certification from the United Kingdom and submitted a letter from the Medical Council of Hong Kong as proof. On May 6, 1983 the INS, referring to Dr. Chong's claim of hardship, ¹ sent a request for a recommendation of a section 212(e) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1182(e), waiver to the USIA which also contained the following statement: "Subject produced a letter dated May 1982 from the Medical Council Secretary, Hong Kong, which does not conclusively prove that he cannot practice medicine in Hong Kong." Form 1-613 dated May 6, 1983. On July 28, 1983, the USIA declined to make a favorable recommendation, reasoning that "[i]t is not felt the hardship outweighs the intent of Public Law 94-484. The letter that Dr. Chong provided does not conclusively prove that he will not be able to practice medicine." Form 1-613 dated July 28, 1983. Accordingly, on August 25, 1983 the District Director of INS, Pittsburgh, Pennsylvania ² denied the waiver based on the USIA's declination to issue a favorable recommendation.

On January 30, 1984, Dr. Chong requested that the USIA reconsider its position, submitting another letter from the Medical Council of Hong Kong which stated that Dr. Chong would have to obtain full registration from the United Kingdom before he would be eligible to practice medicine in Hong Kong. In response, the USIA orally advised Dr. Chong that it would not change its position.

On April 22, 1985, Dr. Chong filed the instant suit against the USIA Director and the INS District Director in the United States District Court for the Western District of Pennsylvania. Specifically, Dr Chong challenged the USIA's refusal to make a favorable recommendation with respect to his application for a waiver of the two-year foreign residence requirement of 8 U.S.C. Sec. 1182(e). The district court held that the USIA's recommendation function pursuant to section 1182(e) is not judicially reviewable, thereby dismissing Dr. Chong's action for lack of subject matter jurisdiction.

II.

A. Reviewability

On appeal, Dr. Chong alleges that the USIA's decision not to recommend a waiver is subject to judicial review because there is "law to apply" as set forth in the agency's own regulations. In the alternative, Dr. Chong argues that even if this court finds that there is "no law to apply," the USIA decision is nonetheless subject to judicial review under fundamental precepts of administrative law which mandate reasoned decisions, decisions which are consistent with congressional intent and which do not markedly deviate from existing policy unless articulated reasons for the change are given.

This case presents the tension between two provisions in the Administrative Procedure Act (APA). Section 701(a)(2) of Title 5 of the United States Code precludes judicial review of any "agency action [which] is committed to agency discretion by law." 5 U.S.C. Sec. 701(a)(2) (1982). Section 706(2)(A), however, permits judicial review of agency action found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. Sec. 706(2)(A). Recently, in Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), the Supreme Court construed section 701(a)(2) and addressed its apparent conflict with section 706(2)(A):

... even where Congress has not affirmatively precluded review, review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion. In such a case, the statute ("law") can be taken to have "committed" the decisionmaking to the agency's judgment absolutely. This construction avoids conflict with the "abuse of discretion" standard of review in Sec. 706--if no judicially manageable standards are available for judging how and when an agency should exercise its discretion then it is impossible to evaluate agency action for "abuse of discretion."

Heckler v. Chaney, 470 U.S. at 830, 105 S.Ct. at 1655. As the Supreme Court in Citizens to Preserve Overton Park, Inc. v. Volpe, stated "[t]he legislative history of the Administrative Procedure Act indicates that [5 U.S.C. Sec. 701(a)(2) ] is applicable in those rare instances where 'statutes are drawn in such broad terms that in a given case there is no law to apply.' " 401 U.S. 402, 410, 91 S.Ct. 814, 821, 28 L.Ed.2d 136 (1971) (quoting S.Rep. No. 752, 79th Cong., 1st Sess. 26 (1945)). Thus, in order to find that an agency action is not subject to judicial review, we must find that there are no judicially manageable standards against which a court may judge whether an agency abused its discretion. ³

Pointing to the language of the statute in question here, appellees maintain that there is "no law to apply" because section 1182(e) merely states "[t]hat ... upon the favorable recommendation of the Director of the United States Information Agency," 8 U.S.C. Sec. 1182(e), the Attorney General may grant a waiver of the two-year...