ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
HEMPHILL, District Judge.
Pro se plaintiff Dr. Nayak was born in Mangalore, India December 8, 1942 and came to this country in 1973 as an exchange visitor doctor.1 Seema Nayak, his son, was born in Columbia in 1975.2 The specified term of Dr. Nayak's visit has expired. Exchange visitors such as Dr. Nayak are required to return to their native land for two years or work/reside in another foreign country for two years before they are eligible to apply for permanent residence in this country — unless this two-year foreign residence requirement is waived as provided by law.3
Dr. Nayak sought a waiver4 of the two-year foreign residence requirement from the Immigration and Naturalization Service. The affidavit in support of his application shows:
PERSONALLY appears Genesh Hanumantha Nayak, who, being duly sworn, deposes and says:
(1) This affidavit is given in Support of United States Department of Justice Immiegration sic and Naturalization Service Application for Waiver of the Foreign Residence Requirement of Section 212(e) of the Immigration and Nationality Act, as amended, Form I-612, and Form 1-72 dated 8-13-77, T. E. Minnix, District Director.
(2) If I should have to leave the child, Seema Nayak, a native citizen born in the United States to me and my wife, Mohini Ganesh Nayak, the child would become neglected or be forced to be put out for adoption among strangers.
(3) That it would be to the best interests of said child (United States Citizen) and in the best interests of the United States of America that said child remain a citizen of his native born Country, The United States of America.
(4) That the hardships imposed upon such child and his parents, if required to depart the United States of America would be irreparable and of inestimable harm and hardship in that such child needs his natural parents and needs to absorb the mores and customs of not only his native born land, but need the psychological and financial support which affiant can bring, being an M.D., earning a comfortable living and bringing taxes to America and to the State of South Carolina; that such hardships, coupled with the strange experience of not hearing his parents' native mother tongue would deprive the child of his heritage.
(5) That affiant is applying for permanent residency; that affiant, after the proper efflux of time, intends to and will apply for citizenship for self and spouse to insure the well being of the family unit; that it is more in the interests of the nation of the United States of America that its citizen child have the full protection of his native land than to deprive him of the society and companionship of his natural parents and in learing sic of his heritage, language, history and ethnic mores and customs.
His application was denied by the District Director's decision of January 23, 1978. He appealed this decision to the Regional Commissioner of the Immigration and Naturalization Service. On May 9, 1978 the Regional Commissioner affirmed this decision and dismissed this appeal. This action followed the exhaustion of administrative remedies.5
Plaintiffs claim compelling hardship upon Nayak's "spouse and child". The District Director and Regional Director of the Immigration and Naturalization Service rejected his arguments. This court also rejects and affirms their decision.
In Acosta v. Gaffney, Acting District Director, 558 F.2d 1153 (3rd Cir. 1977) the Third Circuit stated as follows:
. . . The claim of the parents, Carlos and Beatriz, requires little discussion. Essentially they assert that the refusal of the stay of deportation order was an abuse of discretion by the INS in view of the economic hardship to which they will be subjected if Carlos is compelled to return to Colombia and cannot find work there as is likely in view of the economic conditions in that country. However, these facts, even if proved, are not sufficient to establish such extreme hardship as would warrant the stay of a valid order of deportation. See Yeung Ying Cheung v. Immigration and Naturalization Ser., 422 F.2d 43, 46-47 (3d Cir. 1970); Pelaez v. Immigration and Naturalization Service, 513 F.2d 303 (5th Cir.), cert. denied, 423 U.S. 892, 96 S.Ct. 190, 36 L.Ed.2d 124 (1975). Indeed to hold otherwise would tend to open the doors to permanent residence in the United States to any citizen of an underdeveloped country who could get here in one way or another and who desired to remain . . We turn then to consider Lina's claim for relief. Basically it is that she is entitled to a stay of her parents' deportation order because that order, although admittedly valid as against them, will operate, if executed, to deny to her the right which she has as an American citizen to continue to reside in the United States. On her behalf it is argued that she will be deprived of this constitutional right of a citizen because as an infant she must remain with her parents and go with them wherever they go . . .
The constitutional right upon which Lina relies is somewhat broader than she describes it. It is the fundamental right of an American citizen to reside wherever he wishes, whether in the United States or abroad, and to engage in the consequent travel. See Schneider v. Rusk, 377 U.S. 163, 168, 84 S.Ct. 1187, 12 L.Ed.2d 218 (1964); Kent v. Dulles, 357 U.S. 116, 125, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958). It is the right to exercise a choice of residence, not an obligation to remain in one's native country whether one so desires or not, as is required in some totalitarian countries. In the case of an infant below the age of discretion the right is purely theoretical, however, since the infant is incapable of exercising it. As the Court of Appeals for the Fifth Circuit pointed out in Perdido v. Immigration and Naturalization Service, 420 F.2d 1179, 1181 (5th Cir. 1969),
. . . a minor child who is fortuitously born here due to his parents' decision to reside in this country, has not exercised a deliberate decision to make this country his home, and Congress did not give such a child the ability to confer immigration benefits on his parents . . .. It gave this privilege to those of our citizens who had themselves chosen to make this country their home and did not give the privilege to those minor children whose noncitizen parents make the real choice of family residence.
Obviously, as pointed out in the Perdido case, an infant of Lina's tender years cannot make a conscious choice of residence, whether in the United States or elsewhere, and merely desires, if she can be thought to have any choice, to be with her parents. It is true, of course, that Carlos and Beatriz could, as Lina's parents and natural guardians, decide that it would be best for her to remain in the United States with foster parents, if such arrangements could be made. But this would be their decision involving the custody and care of their child, taken in their capacity as her parents, not an election by Lina herself to remain in the United States.
The right of an American citizen to fix and change his residence is a continuing one which he enjoys throughout his life. Thus while today Lina Acosta, as an infant twenty-two months of age, doubtless desires merely to be where she can enjoy the care and affection of her parents, whether in the United States or Colombia, she will as she grows older and reaches years of discretion be entitled to decide for herself where she wants to live and as an American citizen she may then, if she so chooses, return to the United States to live. Thus, her return to Colombia with her parents, if they decided to take her with them as doubtless they will, will merely postpone, but not bar, her residence in the United States if she should ultimately choose to live here.
We conclude that the district court was in error in holding that the INS erred in denying a stay of the deportation order in view of its effect upon Lina Acosta. In so holding we are in accord with the decided cases in other courts of appeals. Mendez v. Major, 340 F.2d 128, 131 (8th Cir. 1965); Enciso-Cardozo v. Immigration and Naturalization Service, 504 F.2d 1252, 1253 (2d Cir. 1974); Cervantes v. Immigration and Naturalization Service, 510 F.2d 89 (10th Cir. 1975); Gonzalez-Cuevas v. Immigration and Naturalization Service, 515 F.2d 1222 (5th Cir. 1975). No contrary cases have been cited to us and we have found none. Indeed a contrary holding would open a loophole in the immigration laws for the benefit of those deportable aliens who have had a child born while they were here. (pp. 1157, 1158) (Emphasis added.)
In Perdido v. Immigration and Naturalization Service, 420 F.2d 1179 (5th Cir. 1969), the Fifth Circuit stated as follows:
Since the Perdidos both entered the United States under the provisions of § 1101(a)(15)(J), they can no longer remain in this country and are required under § 1182(e) to spend two years outside the United States before they are eligible to return on a permanent basis. Section 1182(e) does contain a proviso allowing the waiver of this two-year requirement if it 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 Perdidos applied for such a
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