The beneficiaries, two half-sisters and a half-brother, were born respectively at Angeles, Pampanga, Philippine Islands, on October 28, 1958, December 6, 1962, and February 12, 1960, out of wedlock to Victoria C. Bucao, a native and citizen of the Philippines, as a result of relationships with three different members of the United States Armed Forces stationed there. They were released to the petitioner and his spouse for adoption and emigration by the natural mother who, it has been established, is unable to care for and support them. The petitioner and his spouse have presented a final adoption decree relating to all three beneficiaries, issued March 30, 1965, by the Municipal Court of San Felipe, Province of Zambales, Philippine Islands. The court is some distance removed from the station of the petitioners and hometown of the beneficiaries.

Article 335 of the Civil Code of the Philippines sets forth:

Art. 335. The following cannot adopt:

(1) Those who have legitimate, legitimated, acknowledged natural children, or natural children by legal fiction; *

(4) Non-resident aliens.

* *

The decree recites the petitioners to be residents of the Province of Zambales, Philippine Islands, and to have no children. The District Director has pointed out that the petitioner and his spouse were admitted to the Philippines in December 1962 pursuant to military orders of the United States Navy in which organization the petitioner has been enlisted since 1954. It was noted that the petitioner and spouse occupied United States Government quarters on the United States Naval Base at Subic Bay and under agreements of long standing with the Government of the Philippines are accorded certain tax exemptions and free of duty importation privileges not ordinarily granted to residents of that country. Nor were members of the United States Armed Forces subject to the criminal jurisdiction of Philippine courts at the time of the adoption. This has lead to the conclusion on the part of the District Director that the petitioner and his spouse are "non-resident aliens", for the purpose of Article 335 cited above. However, the record is silent as to whether members of United States Armed Forces may for adoption purposes be considered by the courts of that country under any circumstances as eligible.

The District Director also notes that the petitioner and spouse are the parents of the sixteen-year-old child, Karen. The petitioners. have related that because of the imminence of their departure for the United States on military orders, and because their attorney was a friend of the judge, the decree was issued and any apparent irregularities therein could have been the result of language difficulties

between themselves, their attorney, and the court. There is not contained in the record the petition of March 3, 1965, apparently presented to the court which resulted in the adoption decree of March 30, 1965. Nor is it shown in the record if the daughter of his spouse has actually been adopted by the petitioner and whether such adoption, or lack of it, if before the court, could have come within an exception to Article 335 cited above. Therefore, without further inquiry, it cannot be concluded that the decree of the court is or is not on all fours with the statute.

The petitioner and spouse, having been informed by the District Director of possible invalidity of the Philippine adoption decree, are presently considering adoption of the children in California. As heretofore stated, the California authorities have certified that they meet the preadoption requirements of that State.

The spouse of the petitioner was revealed to have been arrested on April 11, 1960, by the Los Angeles, California, police and charged with "assault with a deadly weapon". On May 13, 1960, she was convicted in the Los Angeles Municipal Court on the reduced charge of "battery", and sentenced to thirty days in the city jail, suspended, placed on probation for one year, fined $26.25, and ordered to make restitution. The charges appear to have come about following an altercation late one night with a person thought by her to be responsible for impounding her automobile and in which she struck the complainant about the head and wrist with her high-heeled shoe.

United States Naval authorities in the Philippines have reported that the sixteen-year-old daughter of the petitioner and his spouse was a disciplinary problem at the Navy Dependents' School, broke curfew, was found by Naval police in company with adult members of the Marine Corps in bars and night clubs, and required medical treatment at the Naval Hospital from January 20-24 and October 22, 1964, because of her social behavior. It can be fairly concluded that this child did not receive the degree of parental supervision customarily to be expected. There is nothing on which to base a belief that more could or would be extended to the three beneficiaries in spite of assurances by the petitioner and his spouse that Karen is now a much wiser, socially adjusted teen-ager.

The District Director also noted that the affidavit of support executed April 12, 1965, by the petitioner set forth that he owned a house unencumbered by mortgage. It was subsequently ascertained that the house is mortgaged. The petitioner urges only that "as for my real estate statement, there was a misinterpertation (sic) of the fact." However, an examination of the affidavit in question makes

it apparent that he could well have innocently not correctly interpreted the questions involved.

Section 205(b) of the Immigration and Nationality Act provides in part as follows:

... No petition for nonquota immigrant status in behalf of a child as defined in section 101(b) (1) (F) shall be approved by the Attorney General unless the petitioner establishes to the satisfaction of the Attorney General that the petitioner and spouse will care for such child properly if he is admitted to the United States ...

The desired adoption by the petitioner and his spouse and the bringing of these waifs into their home in the United States is indeed a praiseworthy intention. On the basis of the record presented here, the petitioner and his spouse do have the best intentions for these children. However, on the evidence of the results of the guidance, supervision and care of their teen-age child by the petitioner and his spouse, it has not been established that the petitioner and his spouse will properly care for the children if they are admitted to the United States. Therefore, the decision of the District Director that the petitions be denied on that ground is affirmed.

ORDER: It is ordered that the decision of the District Director be affirmed.

MATTER OF MANSOUR

In Section 212 (e) Proceedings

A-13971310

Decided by District Director June 3, 1965

An exchange visitor from Egypt is granted a waiver of the 2-year foreignresidence requirement of section 212(e) of the Immigration and Nationality Act, as amended, because compliance therewith would result in exceptional hardship to his United States citizen wife not only as a result of accompanying him abroad but also as the result of her having to remain in the United States while he fulfills his obligation since due to an existing emotional problem, and according to medical opinion, she would suffer undue mental anguish at this time if deprived of the companionship of her husband.

Discussion: Applicant is a 33-year-old native and citizen of Egypt, who is subject to the requirements of section 212(e) of the Immigration and Nationality Act, as amended, due to his admission as an exchange visitor at New York, New York on November 14, 1958. He has remained in the United States since that time participating in several exchange visitor programs relating to the field of medicine and is presently a Research Fellow in the Department of Anatomy at the Emory University School of Medicine, Atlanta, Georgia. He married Miss Virginia May Spaulding, a citizen of the United States on February 23, 1963 at Cincinnati, Ohio.

Section 212(e) of the Immigration and Nationality Act provides as follows:

No person admitted under section 101 (a) (15) (J) or acquiring such status after admission shall be eligible to apply for an immigrant visa, or for permanent residence, or for a nonimmigrant visa under section 101(a) (15) (H) until it is established that such person has resided and been physically present in the country of his nationality or his last residence, or in another foreign country for an aggregate of at least two years following departure from the United States: Provided, That such residence in another foreign country shall be considered to have satisfied the requirements of this subsection if the Secretary of State determines that it has served the purpose and the intent of the Mutual Educational and Cultural Exchange Act of 1961: 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: And provided further, That the provisions of this paragraph shall apply also to those persons who acquired exchange visitor status under the United States Information and Educational Exchange Act of 1948, as amended.

In determining the merits of an application for a waiver of the foreign residence requirements, we must consider the Congressional intent of the statute. House of Representatives Report No. 721 dated July 17, 1961, prepared by Subcommittee No. 1 of the Committee on the Judiciary, on the "Immigration Aspects of the International Educational Exchange Program" is pertinent. On page 121 of this report, the Subcommittee reiterates and stresses the fundamental significance of a most diligent and stringent enforcement of the foreign residence requirement. The report states, "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 ajudication of waivers, including cases where marriage occuring 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." This application represents a claim by the applicant that his departure would impose exceptional hardship upon his United States citizen spouse. Therefore, it must first be determined whether or not such hardship would occur as the consequence of her accompanying him abroad, which would be the normal course of action to avoid separation. The mere election by the spouse to remain in the United States, absent such determination, is not a governing factor since any inconvenience or hardship which might thereby occur would be self-imposed. Further, even though it is established that the requisite hardship would occur abroad, it must also be shown that the spouse would suffer as the result of having to remain in the United States. Temporary separation, even though abnormal, is a problem many families face in life and, in and of itself, does not represent exceptional hardship as contemplated by section 212(e), supra. Applicant is an obstetrician-gynecologist, who resided in Egypt prior to his admission as an exchange alien. He has been absent from Egypt almost seven years. Although his professional skill would no doubt be in demand in Egypt, his future would be uncertain and his earnings considerably less than at present. His spouse would, conse