Matter of Gupta

Interim Decision #2022

临时决定第2022号

In Section 212(e) Proceedings

在《移民与国籍法》第212(e)条程序中

A-12151065

A-12151065

The decision of the Regional Commissioner on November 3, 1969, dismissing the appeal from the decision of the District Director denying the subject's application for a waiver of the two-year foreign residence requirement of section 212 (e) of the Immigration and Nationality Act, as amended, on the ground that exceptional hardship had not been established, has been cer- tified to me for review pursuant to 8 CFR 103.4. The applicant, Surendra Kumar Gupta, a thirty-four year old college professor, is a native and citizen of India. He was admit- ted to the United States as a nonimmigrant student on September 20, 1962 and changed his status to that of an exchange alien on December 13, 1962 to participate in a private exchange program sponsored by The Johns Hopkins University as a graduate stu- dent in the History Department. He is married to Swarna Keshi Gupta, a native and citizen of India, who was admitted to the United States as the spouse of an exchange alien. The application for waiver included his wife. They have two United States citizen children, Archana born May 10, 1966 in Baltimore, Maryland and Shailendra born December 19, 1968 in Fort Scott, Kansas. The family now resides in Pittsburg, Kansas. Section 212(e) provides, in part, as follows: . . . upon the favorable recommendation of the Secretary of State, pur- suant to the request of an interested United States Government agency, or

地区专员于1969年11月3日作出的决定，维持地区主任的决定，驳回当事人对放弃《移民与国籍法》经修正的第212(e)条规定的两年外国居留要求的申请，理由是未确立特殊困难；该决定已依据8 CFR 103.4提交我审查。 申请人Surendra Kumar Gupta，34岁，大学教师，印度本土出生并具有印度公民身份。他于1962年9月20日作为非移民学生获准进入美国，并于1962年12月13日改变身份为交流访问者，参加由约翰斯·霍普金斯大学赞助的私人交流项目，作为历史系研究生。他与Swarna Keshi Gupta结婚，后者为印度本土出生并具有印度公民身份，作为交流访问者的配偶获准进入美国。放弃申请包括其妻子。他们有两名美国公民子女：Archana，1966年5月10日出生于马里兰州巴尔的摩；Shailendra，1968年12月19日出生于堪萨斯州斯科特堡。该家庭现居堪萨斯州匹兹堡。 第212(e)条部分规定如下： ……经国务卿根据感兴趣的美国政府机构的请求作出有利推荐，或

477

477

Interim Decision #2022

临时决定第2022号

of the Commissioner of Immigration and Naturalization after he has deter- mined 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 At- torney General to be in the public interest ... The applicant claims that his two United States citizen chil- dren will suffer exceptional hardship if he and his wife are required to depart to India. This claim is based upon medical problems encountered by his daughter, Archana, during a visit to India covering the period from September 16, 1967 to April 6, 1968. A letter from a Dr. Verma in India certifies that he treated Archana during the latter part of 1967 and early 1968 for the following ailments: 1. On September 27, 1967, she had a mosquito bite which resulted in a rash all over the body and was allergic in nature. The allergy appeared to be of a relatively permanent nature and not a passing phenomena due only to the particular mosquito bite. Allergens were administered to Archana to substantiate the fact of the allergy. 2. From November 19th. to November 24th, 1967, Archana suffered an at- tack of allergic bronchitis, fever, cold and wheezing of the chest and inter- mittent diarrhoea. Although the cause of this attack was not determined, it was established that the symptoms were allergic in nature. 3. From March 1st. to March 28th. 1968 she suffered from Pyrexia Unu- man Origin. During this period she was under constant medical treatment mtil Archana and her mother left Dehra Dun. le expressed the opinion that the illnesses were due to food and limatic conditions in India and concluded that owing to the nsuitable climate and the nature of the food available in India, he would have continuing difficulties if she were to reside in ndia. A letter was also presented from a Dr. Agrawal in India ho certified as follows: Baby Archana D/O. Mr. S. K. Gupta was examined by me on ctober 16, 1967 for Urtiarial Rashes and Asthma. The rash was lergic and subsided with usual antihistaminics and Corticoster- ds. Her Asthma, however, proved recalcitrant. Sibilant Rhonchi ere noted at the bases on the last visit of the child on Feb. 1968.

在移民与归化局局长确定离开美国将对该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，司法部长可以放弃任何外国人两年外国居留的要求，只要司法部长认定该外国人进入美国符合公共利益…… 申请人声称，如果他及其妻子被要求前往印度，他的两名美国公民子女将遭受特殊困难。该主张基于其女儿Archana在1967年9月16日至1968年4月6日访问印度期间遇到的医疗问题。印度Verma医生的一封信证明，他在1967年下半年和1968年初为Archana治疗了以下疾病： 1. 1967年9月27日，她被蚊子叮咬，导致全身皮疹，属过敏性。该过敏似乎具有相对永久性，并非仅因特定蚊虫叮咬而出现的暂时现象。已向Archana施用过敏原以证实过敏事实。 2. 1967年11月19日至11月24日，Archana患过敏性支气管炎、发热、感冒、胸部哮鸣及间歇性腹泻。尽管未确定该次发作的原因，但已确定症状属过敏性。 3. 1968年3月1日至3月28日，她患不明原因发热。在此期间，她一直接受持续医疗，直到Archana及其母亲离开Dehra Dun。 他表达意见认为，这些疾病是由于印度的食物和气候条件所致，并结论认为，由于印度气候不适宜及可获得食物的性质，如果她居住在印度，将继续有困难。还提交了印度Agrawal医生的一封信，证明如下： S. K. Gupta先生之女Archana宝宝于1967年10月16日由我检查，患荨麻疹和哮喘。皮疹为过敏性，经常用抗组胺药和皮质类固醇消退。然而，她的哮喘难以控制。1968年2月最后一次就诊时，在肺底部闻及哮鸣音。

Since a proper coverage of the drugs was not possible due to her too fre- est visits from one city to another, she had three such attacks during her y in Mathura. The child also suffered from frequent Gastro-intestinal upsets which, I rsonally feel, were due to the non-availability of the food she was aecus- ned to in States. Evidence has been submitted to establish that Archana has had medical problems while in the United States. On June 27,

由于她过于频繁地从一个城市前往另一个城市，无法适当覆盖药物，她在Mathura逗留期间有三次此类发作。 该儿童还经常患胃肠不适，我个人认为，这是由于无法获得她在美国习惯食用的食物。 已提交证据证明Archana在美国期间有医疗问题。1969年6月27日，

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Interim Decision #2022

临时决定第2022号

1969, Dr. E. G. Kettner of Kansas City, a designated United States Public Health Service Doctor, certified that he had physi- cally examined Archana and that chest x-ray was negative, that he had reviewed her medical history and that he could see no reason why she should have to remain in the United States. It is self-evident that a child of tender age such as Archana would have to accompany her parents if they departed from the United States. Her parents have no one with whom to leave her in the United States nor the funds to support a separated family. The basic issue to be resolved is whether Archana's departure to and residence in India would impose upon her the exceptional hardship contemplated by the statute. As may be noted from the foregoing, the Service is faced with a divergency of medical opin- ion on this issue. On the basis of the medical certifications, it is determined that Archana did suffer exceptional hardship while in India in 1967 and 1968 because of lack of availability of food to which she was accustomed and because of the climatic conditions in India. It appears reasonable to assume that her return to India would again impose exceptional hardship upon her. In view of the foregoing, it has been determined that compli- ance with the foreign residence requirement of section 212(e) by Surendra and Swarna Gupta would impose exceptional hardship upon their United States citizen child, Archana. The Secretary of State has recommended that the foreign residence requirement be waived. It is found that the admission of the applicants would be in the public interest. ORDER: It is ordered that the application of Surendra Kumar Gupta for a waiver of the two-year foreign residence requirement of section 212 (c) of the Immigration and Nationality Act, as amended, for himself and his wife Swarna be granted.

1969年，堪萨斯城的E. G. Kettner医生，一位指定的美国公共卫生服务医生，证明他曾对Archana进行体格检查，胸部X光检查结果为阴性，他已审阅了她的病史，并且他认为没有理由让她必须留在美国。不言自明的是，像Archana这样年幼的孩子如果父母离开美国，就必须随同父母一起离开。她的父母在美国没有人可以托付她，也没有资金维持一个分离的家庭。需要解决的基本问题是，Archana前往印度并在印度居留是否会给她造成法规所设想的特殊困难。从上文可以看出，移民局在这一问题上面对分歧的医学意见。根据医学证明，确定Archana在1967年和1968年在印度期间确实遭受了特殊困难，原因是缺乏她习惯食用的食物以及印度的气候条件。有理由假定她返回印度将再次给她造成特殊困难。鉴于上述情况，已确定Surendra和Swarna Gupta遵守第212(e)条的外国居留要求将给他们的美国公民子女Archana造成特殊困难。国务卿已建议豁免外国居留要求。认定申请人的入境将符合公共利益。命令：兹命令批准Surendra Kumar Gupta为其本人及其妻子Swarna提出的豁免《移民与国籍法》第212(c)条（经修正）规定的两年外国居留要求的申请。