Matter of Tayabji, Interim Decision Number 2994
| Decision Date | 20 September 1985 |
| Docket Number | Interim Decision Number 2994,A-19727885. |
| Citation | 19 I&N Dec. 264 |
| Parties | MATTER OF TAYABJI In Section 246 Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
This matter is before the Board on appeal from the immigration judge's decision of January 10, 1984, rescinding the respondent's adjustment of status to permanent resident pursuant to section 246 of the Immigration and Nationality Act, 8 U.S.C. § 1256 (1982). The appeal will be dismissed.
The respondent is a 37-year-old native and citizen of Tanzania who entered the United States as a nonimmigrant visitor on August 28, 1972, and shortly thereafter obtained a change of nonimmigrant status to a "J-1" exchange visitor under section 101(a)(15)(J) of the Act, 8 U.S.C. § 1101(a)(15)(J) (1982). The respondent's exchange visitor program clearly subjected him to the 2-year foreign residence requirement of section 212(e) of the Act, 8 U.S.C. § 1182(e) (1982), a fact which the respondent has never contested. On March 13, 1976, the respondent married a United States citizen, and on March 25, 1977, a visa petition was approved classifying him as an immediate relative immigrant. The respondent also filed a Form I-612 (Application for Waiver of the Foreign Residence Requirement) as a necessary prerequisite to establishing his eligibility for adjustment of status under section 245 of the Act, 8 U.S.C. § 1255 (1982). See 8 C.F.R. § 245.1(b)(6) (1985). By letter dated September 15, 1978, the district director at Philadelphia informed the respondent that "based upon a finding that exceptional hardship would be imposed on your spouse and the favorable recommendation of the Department of State, you have been granted the waiver of the foreign residence requirement." (Emphasis added.) Accordingly, the respondent filed his application for adjustment of status on September 28, 1978, which was approved on July 24, 1979.
In a Notice of Intent to Rescind dated February 11, 1980, as amended by Notice on February 29, 1980, the district director at Chicago (the Immigration and Naturalization Service office now having jurisdiction over the respondent following his move from Pennsylvania to Illinois in 1978) proposed to rescind the respondent's adjustment of status. The basis for this action was that, contrary to the statement in the notice granting the respondent's section 212(e) waiver, the State Department had recommended that the waiver be denied; this rendered the waiver approval erroneous and invalid, with the result that the respondent was ineligible for adjustment. The respondent then requested a hearing before the immigration judge. See 8 C.F.R. § 246.3 (1985). The rescission hearing commenced on October 7, 1981, and was concluded on February 2, 1982. Introduced into evidence at the hearing was a Form I-613 (Request for State Department Recommendation — Section 212(e) Waiver), which reflects that on June 28, 1978, the State Department in fact recommended that the respondent's section 212(e) waiver application be denied. Other evidence of record shows that the Service (both in Chicago and Philadelphia) thoroughly checked the respondent's records and found no evidence of a favorable State Department recommendation. The immigration judge concluded that, absent this legally required favorable recommendation, the respondent's section 212(e) waiver was erroneously granted and the respondent was thus ineligible for adjustment of status. Accordingly, she ordered the respondent's adjustment rescinded.
Before the immigration judge, and now again on appeal, the respondent has raised three arguments. First, he contends that his waiver under section 212(e) of the Act based on "exceptional hardship" does not require the favorable recommendation of the State Department. After setting forth the general applicability of the 2-year foreign residence requirement, this section provides for waiver of that requirement in certain limited instances, the pertinent one here being as follows:
That upon the favorable recommendation of the Secretary of State, 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), . . . 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.
The respondent contends that the first phrase of this provision should be read to require merely the favorable recommendation of either the Secretary of State or the Commissioner of the immigration and Naturalization Service. Inasmuch as the Service favorably recommended the waiver based upon its finding of exceptional hardship to the respondent's wife, the respondent asserts this was sufficient under the statute to render the section 212(e) waiver approval fully valid. We disagree.
The apparent ambiguity in this provision of section 212(e) has long been recognized. See 2 C. Gordon & H. Rosenfield, Immigration Law and Procedure § 6.8h(3) (rev. ed. 1984). Nevertheless, "the administrative authorities have always read [the statute] as requiring a favorable recommendation of the Secretary of State following the like recommendation of the Commissioner." Id. at 6-72; see also id. at § 6.8h(6). For example, 8 C.F.R. § 212.7(c)(10) (1985) provides that where the district director denies a section 212(e) waiver application, "no appeal shall lie from the denial of an application for lack of a favorable recommendation from the Secretary of State," thereby implicitly acknowledging the necessity of such recommendation. See also Immigration and Naturalization Service Operations Instructions 212.8(e)(2); 22 C.F.R. §§ 514.31, 514.32 (1985); and predecessor provisions 22 C.F.R. §§ 63.6, 63.7 (1972) and 22 C.F.R. §§ 63.31, 63.32 (1978). Furthermore, as early as at least 1965 the Service held that the favorable recommendation of the Secretary of State is a necessary prerequisite to the grant of an exceptional hardship waiver under section 212(e). Matter of Tran, 11 I&N Dec. 395 (D.D. 1965). This view is fully consonant with the legislative history of section 212(e), as comprehensively analyzed and discussed by the court in Silverman v. Rogers, 437 F.2d 102, 105-07 (1st Cir. 1970), cert. denied, 402 U.S. 983 (1971). Finally, every court which has squarely addressed the precise statutory construction argument advanced by the respondent herein has concluded that the favorable recommendation of the State Department is essential to the approval of an application for waiver of the 2-year foreign residence requirement based on the ground of exceptional hardship. Silverman v. Rogers, supra; Nwankpa v. Kissinger, 376 F. Supp. 122 (M.D. Ala. 1974), aff'd, 506 F.2d 1054 (5th Cir. 1975); see also Mendez v. Major, 340 F.2d 128, 130 (8th Cir. 1965) (dictum); Nayak v. Vance, 463 F. Supp. 244 (D.S.C. 1978) (dictum); Gras v. Beechie, 221 F. Supp. 422, 423 (S.D. Tex. 1963) (dictum). We concur with this long-standing administrative interpretation and judicial case law and therefore conclude the respondent's argument to the contrary is without merit. Accordingly, it necessarily follows that the district director's approval of the respondent's waiver application, despite the negative recommendation by the State Department, was improper and invalid.
The respondent's second contention is that the Service must first rescind the section 212(e) waiver approval as a "condition precedent" to bringing rescission proceedings. We disagree. Preliminarily, the fact that the district director instituted these rescission proceedings demonstrates he has concluded the respondent's section 212(e) waiver was erroneously approved due to lack of the requisite favorable State Department recommendation. Had he instead reached this conclusion in some sort of proceeding to revoke the section 212(e) waiver approval, the respondent would have had no recourse to challenge such action inasmuch as 8 C.F.R. § 212.7(c)(10) (1985) allows no appeal from a section 212(e) waiver denial based on lack of the requisite State Department recommendation. In effect, such a revocation would be unilateral on the district director's part, preliminary to his institution of ...
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