Matter of Amin

This matter is before the Regional Commissioner on appeal from the denial of the application for waiver of the two-year for- eign residence requirement of section 212 (e) of the Immigration and Nationality Act, as amended, on the ground that exceptional hardship has not been established. The appellant, a married 31-year-old physician, is a native and citizen of India. He was admitted to the United States on August 12, 1962 as an exchange visitor to participate in an exchange pro- gram at Francis Hospital, Poughkeepsie, New York, where he served a one-year rotating internship. He subsequently engaged in residency training in psychiatry at the Husdon River State Hospital, Poughkeepsie, New York from July 1963 until June 1967. On July 27, 1967, the Department of State advised that there is no basis under the Exchange Visitor Program for grant- big the alien any additional extensions of stay. He is the benefici- ary of an approved third preference visa petition filed on August 17, 1967. The record further reflects that the appellant's wife was admit-

本事项由区域专员审理，系对拒绝豁免经修正的《移民与国籍法》第 212(e) 条所规定两年外国居留要求之申请的上诉，理由为未确立特殊困难。 上诉人是一名已婚的 31 岁医生，为印度本土出生公民。他于 1962 年 8 月 12 日作为交流访问者获准进入美国，参加纽约州波基普西 Francis Hospital 的交流项目，在那里完成了一年轮转实习。随后，他于 1963 年 7 月至 1967 年 6 月在纽约州波基普西的 Husdon River State Hospital 接受精神病学住院医师培训。1967 年 7 月 27 日，国务院告知，根据交流访问者项目，没有依据给予该外国人任何额外的停留延期。他是 1967 年 8 月 17 日提交并已获批准的第三优先签证申请的受益人。 记录进一步反映，上诉人的妻子于

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ted to the United States in 3-2 status on May 6, 1963. They had been married in India on June 18, 1962 and have two chil- dren, ages five and one-and-one-half, both born in the United States. The instant waiver request was filed December 26, 1967 under the provisions of section 212 (e) of the Act which states, in pertinent part, as follows : • .. 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 ... In the matter at hand, it has been alleged that compliance with the two-year foreign residence requirement would impose excep- tional hardship on the applicant's two United States citizen chil- dren. It has been claimed that the appellant would be unable to obtain a position as a psychiatrist in India which would provide a salary sufficient to properly support his family; that the children would be subjected there to infectious diseases, poor nutrition, in- adequate health facilities, and a generally lower standard of liv- ing; that the applicant's wife is afflicted with eczematized tinea which affects her ability to perform household duties and care for the children; that treatment for this condition is not readily available in India. In support of the instant application, evidence has been pre- sented that the Government of India has no objection to the ap- plicant's admission for permanent residence; that the children's health would be detrimentally affected by residence in India; that the wife's eczematized tinea of the hands—which is indigenous to India—is resistant to treatment, including superficial radiother- apy, and here return to that country would aggravate her case. At the request of this Service, a more detailed medical report was submitted relative to the wife's condition. Upon review of the medical evidence, the United States Publie Health Service advised that her superficial fungus infection should not contraindicate her return to India; that adequate treatment for this disease should be available in that country. The District Director denied the waiver application November 26, 1968 on the following grounds: The statute provides that a waiver on hardship grounds may be granted only if the exchange visitor has a United States citizen or lawful permanent resident spouse or child and compliance with the foreign residence require- ment would impose exceptional hardship upon such spouse or child. Adjust-

1963 年 5 月 6 日以 3-2 身份获准进入美国。他们于 1962 年 6 月 18 日在印度结婚，有两名子女，分别为五岁和一岁半，均在美国出生。本豁免请求于 1967 年 12 月 26 日根据该法第 212(e) 条的规定提交，相关部分规定如下： • .. 经国务卿根据感兴趣的美国政府机构的请求作出有利建议，或在移民与归化局局长确定离开美国将对外国人的配偶或子女（如果该配偶或子女是美国公民或合法居民外国人）造成特殊困难后，司法部长可以豁免任何外国人须在国外居留两年的要求，只要司法部长认定该外国人进入美国符合公共利益…… 在本案中，据称遵守两年外国居留要求将对申请人的两名美国公民子女造成特殊困难。据称，上诉人在印度无法获得精神病学家的职位，其薪水足以适当供养其家庭；子女将在那里遭受传染病、营养不良、医疗设施不足以及普遍较低的生活水平；申请人的妻子患有湿疹化癣，影响其履行家务和照顾子女的能力；在印度不易获得该病症的治疗。 为支持本申请，已提交证据表明印度政府不反对申请人获准永久居留；子女的健康将因在印度居住而受到不利影响；妻子的手部湿疹化癣——为印度本土病——对治疗（包括浅表放射治疗）具有抵抗力，返回该国将加重她的病情。应本局请求，提交了关于妻子状况的更详细医疗报告。在审查医疗证据后，美国公共卫生局告知，她的浅表真菌感染不应成为其返回印度的禁忌；该国应可获得对该疾病的适当治疗。地区主任于 1968 年 11 月 26 日基于以下理由拒绝豁免申请： 法规规定，只有在交流访问者有美国公民或合法永久居民配偶或子女，且遵守外国居留要求将对该配偶或子女造成特殊困难时，才可以基于困难理由授予豁免。调整

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went factors will usually be present if the spouse or child proceeds abroad to a country where the customs, language, and mode of living are strange. Similarly, in most cases an exchange alien newly returning abroad to comply with the foreign residence requirement will require a considerable length of time to reestablish himself there and begin earning an income which would enable him to adequately support himself and the members of his family. These factors must then. be considered the usual hardships which might be anticipated by the spouse and children of an exchange visitor who is required to comply with the foreign residence requirement. After very careful consideration, it has been determined that the factors of adjustment and economic hardship which you have set forth constitute the usual hardships which may be anticipated rather than the exceptional hard- ship contemplated by the statute. Furthermore, the medical documentation which you submitted fails to substantiate your claim that your wife will be unable to care for your children in India, Accordingly, your application is denied. On December 17, 1968, counsel submitted a motion to reopen and reconsider this matter. In connection therewith, it has been contended that the applicant's wife suffers from a medical eondi- tion which is more than the usual type of fungus infection inas- much as it does not respond to the usual treatment; that she re- quires X-ray therapy in order to alleviate her condition, the prolonged use of which may result in serious complications; that the recurring nature of the infection necessitates that she avoid, as much as possible, the environment in which she would be sub- jected to the infection; that if she returns to India and her condi- tion worsens, the prospect of dangerous complications from the resultant treatment is so great, the children would be deprived of their mother's constant care and attention; that it is the trea- ment for the infection, not merely the availability of such treat- ment, which creates exceptional hardship. There has been pre- sented in support of the motion another statement from the wife's physician which reiterates the resistance of her case to treatment with fungicidal drugs, the satisfactory resulti obtained by X-ray therapy, the danger of recurrence of the condition in a subtropical climate, and the complications which could result from repeated X-ray treatments. A statement has also been furnished by another doctor which advises against X-ray therapy more often that every two or three years and then only minimum dosage, provided all other treatment is ineffectual. The District Director dismissed the motion to reopen and re- consider on January 28, 1969, concluding that the medical evi- dence presented therewith is essentially the same as the informa- tion previously evaluated by the United States Public Health Service. Attention was further called to the fact that the statute provides a hardship waiver may be granted only if compliance .

因素通常会在配偶或子女前往一个习俗、语言和生活方式陌生的国家时出现。同样，在大多数情况下，新近返回国外以遵守外国居留要求的交流外国人将需要相当长的时间在那里重新立足，并开始赚取足以适当供养自己和家庭成员的收人。因此，这些因素必须被视为交流访问者的配偶和子女在交流访问者须遵守外国居留要求时可能预期的通常困难。 经过非常仔细的考虑，已确定你所提出的调整和经济困难因素构成可能预期的通常困难，而非法规所设想的特殊困难。此外，你提交的医疗文件未能证实你关于妻子将无法在印度照顾子女的主张。因此，你的申请被拒绝。 1968 年 12 月 17 日，律师提交了重新开启和重新考虑本事项的动议。就此，据称申请人的妻子患有一种医学状况，其程度超过通常类型的真菌感染，因为它对通常治疗没有反应；她需要 X 射线治疗以缓解其状况，长期使用可能导致严重并发症；感染的复发性要求她尽可能避免会使其受到感染的环境；如果她返回印度且病情恶化，由此产生的治疗带来危险并发症的前景如此之大，子女将被剥夺母亲持续的照顾和关注；造成特殊困难的是对感染的治疗，而不仅仅是此类治疗的可获得性。为支持该动议，已提交妻子医生的另一份陈述，其中重申其病例对杀真菌药物治疗具有抵抗力、X 射线治疗取得的满意结果、该状况在亚热带气候中复发的危险，以及反复 X 射线治疗可能导致的并发症。另一名医生也提供了一份陈述，建议 X 射线治疗不要比每两到三年更频繁，且届时仅使用最小剂量，前提是所有其他治疗均无效。 地区主任于 1969 年 1 月 28 日驳回重新开启和重新考虑的动议，结论是随附提交的医疗证据与先前由美国公共卫生局评估的信息基本相同。还提请注意，法规规定只有在遵守……时才可以授予困难豁免。

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with the foreign residence requirement would impose exceptional hardship upon a United States citizen or lawful resident spouse or child; that consideration has been given to the condition of the applicant's wife only because it was alleged it might hinder her ability to adequately care for her United States citizen children; that no evidence has been submitted which would show that her condition in the past has hindered her performance of household work or that recurrence of the skin condition could not be pre- vented with proper management. The District Director found it has not been established that the welfare of the applicant's "jnited States citizen children would be jeopardized by two years residence in India if they accompanied their parents to that coun- try. On appeal from the dismissal of the motion, counsel has con- tended the following : The decision of the District Director is unreasonable, and unfair, since evidence has been submitted which would indicate that the medical condition of Mrs. Amin could not only severely incapacitate her ability to perform household work, and that recurrences of skin condition could not be prevented with proper management, but also continuous treatment of the disease would result in disability of Mrs. Amin, or fatal illness. Therefore, exceptional hardship has been established to the children of Dr_ Amin, should he be required to comply with the foreign residence requirement. District Director failed to consider and follow the opinion of the Deputy Associate Commis- sioner for Travel Control in the matter of Drs. Jose and Virginia DePerio, file numbers Ala 981 355 and A13 982 621, dated August 1, 1968. We have'very carefully reviewed the entire record and consid- ered the applicability of the Deputy Associate Commissioner's decision in the above-cited case. It was found therein that some degree of hardship would be imposed upon all the applicants' chil- dren if they were to accompany their parents to the Philippines. However, the finding of exceptional hardship was predicated upon the physical condition of the one United States citizen child with a history of heart disorders and the adverse effect such for- eign residence would have upon him. In the instant matter, we are confronted with a different situation. The hardship claim rests essentially on the medical condition of the appellant's J-2 spouse. We agree with the District Director's conclusion that the record fails to satisfactorily establish that her skin infection has impaired her ability to properly tare for her children to the ex- tent that it has caused or may be expected to cause them excep- tional hardship. Although the recommended therapy for her con- dition may differ from that of other types of fungus infections and the possibility of recurrence may be somewhat greater in subtropic climates, the fact remains that X-ray treatment is available in India. The hazards inherent in such therapy, assum-

如果要求其遵守外国居留要求，将给美国公民或合法居民配偶或子女造成特殊困难；之所以考虑申请人的妻子的状况，仅是因为据称这可能妨碍她充分照顾其美国公民子女的能力；未提交任何证据表明她过去的状况妨碍了她履行家务，或表明通过适当管理可以防止皮肤状况复发。地区主任认定，尚未证明如果申请人的“美国公民子女”随父母前往印度，他们在印度居住两年会使他们的福利受到危害。在对驳回动议的上诉中，律师提出以下主张： 地区主任的决定不合理且不公平，因为已提交的证据表明，Amin夫人的医疗状况不仅可能严重损害她履行家务的能力，而且通过适当管理无法防止皮肤状况复发，并且对该疾病的持续治疗会导致Amin夫人残疾或致命疾病。因此，如果Amin博士被要求遵守外国居留要求，已为其子女确立了特殊困难。地区主任未能考虑和遵循旅行控制副助理专员在Drs. Jose and Virginia DePerio一案（档案号Ala 981 355和A13 982 621，日期1968年8月1日）中的意见。 我们非常仔细地审查了整个记录，并考虑了副助理专员的决定在上述引用案件中的适用性。该案认定，如果所有申请人的子女随父母前往菲律宾，将给他们造成某种程度的困难。然而，特殊困难的认定是基于一名有心脏病史的美国公民子女的身体状况以及这种外国居留将对其产生的不利影响。在本案中，我们面临不同的情况。困难主张基本上取决于上诉人的J-2配偶的医疗状况。我们同意地区主任的结论，即记录未能令人满意地证明她的皮肤感染已损害她适当照顾子女的能力，以致已造成或可能预期会造成他们特殊困难。尽管针对其状况的推荐疗法可能不同于其他类型的真菌感染，并且在亚热带气候中复发的可能性可能稍大，但事实仍然是印度可获得X射线治疗。假设疾病复发，这种疗法固有的危险显然可以通过调节治疗频率来控制。在这种情况下，我们认定尚未令人满意地证明两年外国居留会给美国公民子女造成法规意义上的特殊困难。因此，地区主任的决定将予维持。 兹命令：驳回根据经修订的《移民和国籍法》第212(e)条两年外国居留要求豁免申请的请求，并特此维持。

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ing that there is a recurrence of the disease, apparently can be controlled by regulating the frequency of treatment. Under the circumstances, we do not find it has been satisfactorily estab- lished that two years foreign residence would impose exceptional hardship on the United States citizen children within the mean- ing of the statute. Accordingly, the decision of the District Direc- tor will be affirmed. It is ordered that the denial of the application for waiver of the two-year foreign residence requirement of section 212 (e) of the Immigration and Nationality Act, as amended, be and same is hereby affirmed.

假设疾病复发，这种疗法固有的危险显然可以通过调节治疗频率来控制。在这种情况下，我们认定尚未令人满意地证明两年外国居留会给美国公民子女造成法规意义上的特殊困难。因此，地区主任的决定将予维持。 兹命令：驳回根据经修订的《移民和国籍法》第212(e)条两年外国居留要求豁免申请的请求，并特此维持。