On Appeal from the United States District Court for the Western District of Pennsylvania, D.C. Civ. No. 85-865.
Before: GIBBONS, Chief Judge, MANSMANN, Circuit Judge and KATZ, District Judge*fn*
Daniel Chee-Chung Chong, M.D. appeals from an order dismissing his complaint against the Director of the United States Information Agency (USIA) and the District Director of the Immigration Naturalization Service (INS). The district court held that it did not have subject matter jurisdiction to review the USIA's denial of a favorable recommendation on Dr. Chong's request for a waiver of the two-year home-country residence requirement of 8 U.S.C. § 1182(e) (Supp. III 1985). Chong contends that the USIA's decision not to recommend a waiver is subject to judicial review, albeit a limited one and that the USIA Director abused his discretion in refusing to recommend a waiver in this case because the INS made a finding of extreme hardship and there is no negative impact on foreign policy. While we agree that the decision of the USIA not to recommend a waiver is subject to a circumscribed standard of review under 5 U.S.C. § 706(2)(A) (1982), we disagree that the USIA abused its discretion in not recommending a waiver in this case. Thus, we affirm.
On September 23, 1977, Dr. Daniel Chong with his wife, Grace, and their daughter, Alice, pursuant to 8 U.S.C. § 1101(a)(15)(J) (1982), entered the United States as non-immigrant exchange visitors on J-1 and J-2 visas, respectively. Dr. Chong came from Hong Kong to participate in the Exchange Visitor Program authorized by the USIA under 22 U.S.C. § 2452 (1982), planning to pursue graduate medical training as a resident in general surgery at the University of Massachusetts. He received annual extensions of his visa to continue his residency there through June 30, 1980. Thereafter, Dr. Chong's visa was further extended through June 30, 1982 so that he could complete his fourth- and fifth-year residencies at McKeesport Hospital in McKeesport, Pennsylvania. In the meantime, the Chongs had two other children. Their son, William Hsuan-Hua Chong was born in Worcester, Massachusetts on September 19, 1978, and their daughter, Christina Chih-Hua Chong was born on November 7, 1980 in McKeesport, Pennsylvania. Both William and Christina are therefore citizens of the United States.
Ordinarily, upon completion of his studies, a participant in the Exchange Visitor Program must return to the country of his nationality or of his last residence for at least two years before he may apply for permanent resident status in the United States. 8 U.S.C. § 1182(e). Section 1182(e) provides, however, for the following exceptions:
Thus, on June 29, 1982, Dr. Chong applied to the INS for a waiver of the two-year foreign residence requirement, alleging exceptional hardship to his two American-citizen children. Dr. Chong claimed that he would not be permitted to practice medicine in Hong Kong because he lacked the requisite certification from the United Kingdom and submitted a letter from the Medical Council of Hong Kong as proof. On May 6, 1983 the INS, referring to Dr. Chong's claim of hardship,*fn1 sent a request for a recommendation of a section 212(e) of the Immigration and Nationality Act, 8 U.S.C. § 1182(e), waiver to the USIA which also contained the following statement: "Subject produced a letter dated May 1982 from the Medical Council Secretary, Hong Kong, which does not conclusively prove that he cannot practice medicine in Hong Kong." Form 1-613 dated May 6, 1983. On July 28, 1983, the USIA declined to make a favorable recommendation, reasoning that "it is not felt the hardship outweighs the intent of Public Law 94-484. The letter that Dr. Chong provided does not conclusively prove that he will not be able to practice medicine." Form 1-613 dated July 28, 1983. Accordingly, on August 25, 1983 the District Director of INS, Pittsburgh, Pennsylvania*fn2 denied the waiver based on the USIA's declination to issue a favorable recommendation.
On January 30, 1984, Dr. Chong requested that the USIA reconsider its position, submitting another letter from the Medical Council of Hong Kong which stated that Dr. Chong would have to obtain full registration from the United Kingdom before he would be eligible to practice medicine in Hong Kong. In response, the USIA orally advised Dr. Chong that it would not charge its position.
On April 22, 1985, Dr. Chong filed the instant suit against the USIA Director and the INS District Director in the United States District Court for the Western District of Pennsylvania. Specifically, Dr. Chong challenged the USIA's refusal to make a favorable recommendation with respect to his application for a waiver of the two-year foreign residence requirement of 8 U.S.C. § 1182(e). The district court held that the USIA's recommendation function pursuant to section 1182(e) is not judicially reviewable, thereby dismissing Dr. Chong's action for lack of subject matter jurisdiction.