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been withdrawn that morning. The employment agency which had made the arrangement placed the respondent in another job as a sleep-in domestic the next morning and secured another labor certification for her. She is now employed as a sleep-in domestic.
The special inquiry officer found that respondent acted in good faith, and the equities were strong in her behalf; however, he is of the opinion that Matter of Paco, 12 I. & N. Dec. 599, required the respondent to be found deportable as charged. We believe that Paco is distinguishable and respondent is not deportable. Paco involved a sleep-in domestic whose offer of employment was withdrawn before she came to the United States, and who did not find certifiable employment available. (Her job offer may not have been a bona fide one, and there is an indication that she was aware of this.) In the instant case, there is no question but that the respondent acted in good faith; a job was available within the terms of the labor certificate, and she took such a job. The protection the law seeks to give American labor is no way compromised. Proceedings will be terminated.
ORDER: It is ordered that the special inquiry officer's order of July 22, 1968 be and the same is hereby withdrawn.
It is further ordered that the proceedings be and the same are hereby terminated.
MATTER OF AMBE
In Section 212(e) Proceedings
Decided by District Director July 19, 1968
"Exceptional hardship" within the meaning of section 212(e) of the Immi
gration and Nationality Act is established by an exchange visitor whose United States citizen child has a form of chronic dermatitis with skin eruptions which is recognized as a contraindication to vaccination for smallpox, and smallpox is endemic to the country to which the exchange visitor and his family must depart.
The applicant, Kishore Shreepad Ambe, a 38-year-old physician, is a native and citizen of India. He was last admitted to the United States from Canada as an exchange visitor on June 4, 1964. His wife, Mrs. Leela Ambe, their daughter Neeta, both natives and citizens of India, and their son Milind Ambe, a native citizen of Canada were admitted at the same time as members of the family of an exchange visitor. Dr. Ambe had previously been in the United States as an exchange visitor from July 1957 until September 1960, at which time he departed to Canada to study medicine. At the time of his reentry he was destined to The Cottage Hospital in Santa Barbara, California to serve as an intern and he is presently connected with the hospital as a resident physician.
Dr. Ambe and his wife are the parents of a United States citizen son, Rajeev K. Ambe, born on April 1, 1965 in Santa Barbara, California, who is too young to be separated from his parents.
Medical evidence presented establishes that the applicant's United States citizen child, Rajeev, no age three, as well as his Canadian citizen child, Milind, age six, have severe atopic dermatitis. They both have eruptions over their bodies due to this skin condition. The applicant has presented letters from his children's pediatrician and dermatologist stating that it would be dangerous to vaccinate the children for smallpox or any member of the
Ambe family in contact with them, as the virus of the vaccination can provoke severe and even fatal reactions in persons having skin eruptions caused by atopic dermatitis. He stated that this condition may persist for years and is not in itself dangerous or contagious. The applicant submits that without being actively immunized against smallpox his family cannot be taken to India where smallpox outbreaks are frequent.
This Service has been advised by the United States Public Health Service that the presence of any form of chronic dermatitis in the individual to be vaccinated or in a household contact is recognized as a contraindication to vaccination. Vaccination of a child with chronic dermatitis, or infection of such a child by a household contact who has been vaccinated can result in eczema vaccinatum, an exceedingly serious complication which sometimes results in death. The United States Public Health Service has also indicated that smallpox is endemic to Inida. Consequently, persons not vaccinated for smallpox could not go there without endangering their health.
In view of the foregoing, it has been determined that the applicant's compliance with the foreign residence requirement of section 212(e) of the Immigration and Nationality Act, as amended, would impose exceptional hardship on his United States citizen son. This Service is acting as interested agency in behalf of the applicant's two alien children. Mrs. Ambe is included in her husband's application for a waiver. The Secretary of State has reviewed the matter and has recommended that the foreign residence requirement be waived for the applicant, his wife, and, two children. It has been found that the admission of the applicant to the United States would be in the public interest.
ORDER: It is ordered that waivers of the two year foreign residence requirement of section 212(e) of the Immigration and Nationality Act, as amended, be granted to Dr. Kishore S. Ambe, his wife, Mrs. Leela Ambe, and his children, Neeta and Milind Ambe.
MATTER OF HUEY
In Deportation Proceedings
Decided by Board September 16, 1968
The denial by Congress of suspension of deportation, standing alone, is not a
bar to the grant of adjustment of status under section 245 of the Immigration and Nationality Act, as amended. [Matter of Lee, 11 I. & N. Dec. 649, distinguished.]
Order: Act of 1952—Section 241 (a) (2) [8 U.S.C. 1251 (a) (2) ]—Visitor
remained longer. ON BEHALF OF RESPONDENT:
ON BEHALF OF SERVICE: Joseph S. Hertogs, Esquire
Irving A. Appleman 580 Washington Street
Appellate Trial Attorney San Francisco, California 94111
This case is before us on certification from the special inquiry officer for review and final decision. He denied the respondent's application for adjustment of status and ordered only that he be deported to the Republic of China on Formosa. The respondent's application for adjustment of status will be granted.
The respondent is a native and citizen of China, age 33, who has resided in the United States since his arrival at San Francisco, California on or about January 28, 1952. He was admitted as a nonimmigrant visitor for the purpose of proceeding with an action then pending in a United States District Court. His action for a declaratory judgment of United States citizenship was dismissed on April 30, 1962. He has remained in this country without authority since that date.
The special inquiry officer, by order dated October 28, 1963, found that the respondent's deportation, which could only be effected to the Far East, would result in extreme hardship to him. Further finding the respondent eligible for such relief, he granted his application for suspension of deportation. However, the Con
gress did not approve suspension of deportation in this case and the hearing was reopened. The respondent, a laundry worker since at least 1963, submitted an application for status as a permanent resident under the provisions of section 245. Counsel declined to apply for voluntary departure on behalf of the respondent as an alternative form of relief.
The special inquiry officer, by order dated May 7, 1968, noted that the respondent's father had been naturalized subsequent to his earlier decision and had then filed a petition on behalf of the respondent. The latter was accorded a first preference under the quota for China. The special inquiry officer concluded, however, in view of the decision in Matter of Lee, 11 I. & N. Dec. 649, to deny the respondent's application for permanent resident status as a matter of discretion since Congress had disapproved suspension of deportation in this case. In the absence of an application for voluntary departure, he ordered only that the respondent be deported on the charge contained in the order to show cause. Further finding that a question of policy is involved, the special inquiry officer certified this case to the Board for final decision. Neither party filed a brief in this matter.
At oral argument, counsel pointed out the respondent testified that until the time his father actually appeared and made his confession statement to the Service in 1962, "He had no reason to believe his father had not been born in the United States." Further, the respondent has never been to Taiwan and has only been in Hong Kong for a maximum period of about six months while waiting to proceed to this country. The visa petition filed in behalf of the respondent classifies the latter as in the first preference category, now that his father acquired citizenship here in 1967. Counsel contended that with the change in conditions since the Congress acted on the respondent's application for suspension of deportation, he should now be granted adjustment of status as a matter of discretion.
In reply, the Service stated that as of 1965, Congress did not want to grant suspension of deportation to the respondent and the only thing that has happened in the interim is "visa availability.” It was contended that visa availability, standing alone, is not sufficient to justify the grant of permanent resident status in this case. Counsel for the respondent concluded that there is a considerable difference in standards for qualification of an applicant for suspension of deportation as compared with an applicant for adjustment of status under section 245 of the Act.
We have reviewed the entire proceedings in this matter and