Silverman v. Rogers, No. 7687.

• Decision Date: 30 December 1970
• Docket Number: No. 7687.
• Parties: Charles A. SILVERMAN and Ulku Silverman, Plaintiffs, Appellees, v. William P. ROGERS, Secretary of State of the United States, John N. Mitchell, Attorney General of the United States, Raymond F. Farrell, Commissioner of Immigration and Naturalization, and J. A. Hamilton, Jr., District Director of the Immigration and Naturalization Service, Department of Justice, Boston, Massachusetts, Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

437 F.2d 102 (1970)

Charles A. SILVERMAN and Ulku Silverman, Plaintiffs, Appellees, v. William P. ROGERS, Secretary of State of the United States, John N. Mitchell, Attorney General of the United States, Raymond F. Farrell, Commissioner of Immigration and Naturalization, and J. A. Hamilton, Jr., District Director of the Immigration and Naturalization Service, Department of Justice, Boston, Massachusetts, Defendants, Appellants.

No. 7687.

United States Court of Appeals First Circuit.

December 30, 1970.

George W. Masterton, Atty., Department of Justice, with whom Herbert F. Travers, Jr., U. S. Atty., Mary M. Brennan, Asst. U. S. Atty., Will Wilson, Asst. Atty. Gen., and Paul C. Summitt, Atty., Department of Justice, were on the brief, for appellants.

Herbert S. Swartz, Brookline, Mass., for appellees.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

McENTEE, Circuit Judge.

The principal issue raised by this appeal is one of statutory construction. The relevant facts are not in dispute and may be stated briefly as follows. In July 1964 Ulku Gurkan, an unmarried Turkish citizen, came to the United States as an exchange visitor¹ under the auspices of the Agency for International Development (AID)². Her purpose in coming here was to study psychiatric nursing in order to qualify as an instructor at the Florence Nightingale School of Nursing in Istanbul. She obtained several extensions of her original visa which enabled her to complete her studies and obtain a master's degree in psychiatric nursing from Boston University. The last extension expired on January 30, 1969. On March 9, 1969, she married Charles A. Silverman, an American citizen, and on April 24th of the same year applied to the Immigration and Naturalization Service (INS) for a waiver of the statutory two-year foreign residence requirement which normally she would have to meet before being allowed to return to the United States. 8 U.S.C. § 1182(e) (1964). In her application for the waiver she stated that to require her to leave this country would impose exceptional hardship on her husband because of his ill health. The relevant statutory waiver provision upon which she relies reads as follows:

"Provided further, 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; * * *" 8 U.S.C. § 1182(e) (1964).

Despite strenuous objection from AID, the INS found that the applicant's compliance with the two-year foreign residency requirement would impose exceptional medical hardship on her new husband and requested that the Secretary of State recommend whether the waiver should be granted.³ The Secretary recommended that the waiver not be granted.⁴ On December 11, 1969, INS notified Mrs. Silverman, inter alia, that both the State Department and INS had carefully reviewed the facts in her case; that the State Department had recommended against granting her waiver; that accordingly her application had been denied and that she must arrange to leave the United States on or before a specified date.

On January 30, 1970, the Silvermans brought the instant suit to enjoin the commencement of deportation proceedings against Mrs. Silverman and for a judgment instructing the defendants to issue the waiver. They argued that under the statute only the INS was authorized to make the decision in hardship waiver applications and that the Secretary of State's recommendation was a mere matter of form. Alternatively, they contended that to deny Mrs. Silverman residency in the United States would deprive both plaintiffs of their right to liberty under the Fifth Amendment. The defendants moved for dismissal of the complaint or in the alternative for summary judgment. The district court took jurisdiction of the case⁵ and decided for the plaintiffs, granting a preliminary injunction on February 25, 1970, 309 F.Supp. 570, and a final injunction on March 9, 1970. The Government appealed.

The district court construed the statutory waiver proviso set out above "to provide that decision by the Attorney General whether to waive the foreign residence requirement may be based either upon the favorable recommendation of the Secretary of State or upon that of the INS Commissioner after determination of exceptional hardship." The court then went on to say,

"This construction seems to be required by the plain language of the proviso, especially the punctuation and the word `of\' as underlined in the following excerpt, `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 * * *.\'" Silverman v. Rogers, 309 F.Supp. 570, 574 (D. Mass.1970).

The court noted that its decision was "at odds" with regulations implementing the exchange-visitor program⁶ but felt that its interpretation guarded "the interest obviously underlying the particular proviso, to wit, protection of a United States citizen against exceptional hardship, which interest ordinarily conflicts with considerations of foreign policy of prime concern to the Secretary of State."⁷

We start with the thought that in spite of some awkwardness in its structure, the statute lends itself to a construction unfavorable to appellees. It also lends itself to a construction favorable, but we cannot agree with the district court's view that this latter is "required by the plain language." 309 F. Supp. at 574. The question is, which clause modifies which. The ultimate provision for the waiver of the two-year foreign residence requirement may be read to be conditioned upon, (a) the favorable recommendation of the Secretary of State pursuant to the request of an interested United States Government agency, or (b) the request of the Commissioner of Immigration and Naturalization after he has determined hardship. However, it is equally possible to read the statute as authorizing waiver conditioned upon the recommendation of the Secretary of State when he (a) has received a request of a government agency, or (b) has received a request of the Commissioner after he had determined hardship.

In the light of this ambiguity it becomes important to examine the legislative history. The proviso in question was added by the 1961 revision of the statute. It was derived from a then-existing provision which read,

"upon request of an interested Government agency and the recommendation of the Secretary of State, the Attorney General may waive such two-year period of 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." Act of June 4, 1956, ch. 356, 70 Stat. 241.

Although the 1956 statute did not make any provision for hardship cases, the State Department's regulations took them into account. 22 Fed.Reg. 10840 (1957).⁸ Between June 1956 and the end of 1960, the State Department approved 2104 waiver applications out of 2674 such applications received, and 1812 of those approved were hardship cases.⁹ This liberal policy¹⁰ was strongly disapproved by Subcommittee No. 1 of the House Committee on the Judiciary.¹¹ The subcommittee stated:

"It is believed to be detrimental to the purposes of the program and to the national interests of the countries concerned to apply a lenient policy in the adjudication of waivers including cases where marriage occurring in the United States, or the birth of a child or children, is used to support the contention that the exchange alien\'s departure from this country would cause personal hardship." H.R.Rep. No. 721, 87th Cong., 1st Sess. 121 (1961) (emphasis in original).

In light of this, the subcommittee proposed language in place of the then-existing proviso, which is substantially similar to that finally adopted, to wit:

"Provided further, That upon the favorable recommendation of the Secretary of State, pursuant to the request of a Government agency desiring to obtain the alien\'s services for the prospective benefit to the national defense, economy, welfare or cultural interest, 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." Id. at 122.

The House Committee on Foreign Affairs specifically adopted this suggestion for the 1961 bill. 1961 U.S.Code Cong. & Admin.News, p. 2773. In particular, it noted that it was reenacting and amplifying the earlier proviso — and it also noted that it made only one "important change" in the existing law, namely, to allow the Secretary of State to approve variances in the place where the two-year foreign residence requirement could be fulfilled. Id. at 2774. The House approved the committee language as reported. 107 Cong.Rec. 18281 (1961).

The Senate version would have kept the language of the then-existing proviso, Act of June 4, 1956, ch. 356, 70 Stat. 241. It should be noted that the Senate report on the bill stated that "The waiver is subject to a request by an interested agency of the Federal Government and recommendation by the Secretary...