DE PERIO

                                                 Interim Decision #1975




                           MATTER OF DE PERIO

                     In Section 212 (e) Proceedings
                               A-13981355
                               A-13982621
    Decided by Deputy Associate Commissioner August 1, 1968

"Exceptional hardship" within the meaning of section 212(e) of the Immigration and Nationality Act, as amended, is established by an exchange
  visitor from the Philippines whose United States citizen child has an allergic condition which requires a hyposensitization program and there is
  evidence the child has a heart murmur and cardiac enlargement which
  should be carefully studied for an indeterminate period of time.


   These cases have been certified to the Deputy Associate Commissioner, Travel Control.
   The District Director of this Service at Buffalo denied the applications on February 15, 1968 on the ground that the departure
from the United States of the applicants for a period of two
years would not impose exceptional hardship on their two U. S.
citizen children as contemplated by the statute. The District
Director reopened and reconsidered the case on the applicants'
motion with which the? furnished additional evidence regarding
their son Jeffrey's medical condition. On May 20, 1968 the District Director advised the applicants:
   In accordance with your request, your applications were reopened for consideration of the further medical evidence presented regrding - the health of
your child Jeffrey. These reports have been carefully studied, including consultation with the U.S. Public Health Service. It has again been concluded
that you have not established that travel to the Philippines would be injurious to the child and that the program of hyposensitization you wish him to
undergo cannot be carried out in the Philippines. Accordingly, no change has
been made in the order denying your applications.
   The applicants have made other claims attesting to their belief
that their departure from the United States would impose exceptional hardship upon their children by reason of conditions in the
Philippines, such as the lack of educational facilities; the lack of
adequate health and sanitary conditions; substandard housing;
Interim Decision #1975

and exposure to various diseases. They also contended that remuneration to medical practitioners is lower in the Philippines and
that their children should not be exposed to the cultural changes
involved in living in the Philippines for a period of two years.
 However, a basic issue to he resolved here is whether the additional factor of Jeffrey's physical condition warrants a finding
that residence in the Philippines would constitute for him the exceptional hardship contemplated by the statute. To this end I
have carefully examined the medical statements submitted.
   Dr. John H. Kent, who has been Jeffrey's attending physician
since October 1967, has summarized in a letter dated March 18,
1968 the child's condition with regard to his allergies. He concludes, "In view of the fact that both Jeffrey's parents have allergies, and that he shows definite positive skin tests, there is little
doubt in my mind that Jeffrey is an allergic youngster. He is following a pattern typical in these youngsters starting with repeated upper respiratory tract infections manifested by wheezing
and cough. Often these youngsters will then develop more classical types of bronchial asthma if not treated. It is recomended
that Jeffrey continue on the program of hyposensitization weekly
for the next few months and then monthly for a period of approximately two years."
   In a letter dated February 22, 1968, Dr. Lydia T. Wright
states, "During the course of a physical examination on the above
patient for pharyngitis and bronchitis, a grade 2 ejection heart
murmur was found along with cardiac enlargement. In the presence of this cardiac murmur, the age of the patient and cardiomegaly, I am strongly suspicious of congenital heart disease. The
patient's condition warrants complete and careful study regular
intervals at the Cardiac Center in Buffalo to detect any further
cardiac vascular embarrassment such as with decompensation. I
cannot say when cardiac catheterization will be indicated, but I
am certain that at some time in the near future it will be necessary. This could well indicate surgery in this instance. In view
of the above, this child should not be subjected to the vigors and
excitement of travel to and from the Philippines."
   Other letters in the record included one dated January 30, 1968
from Dr. John F. Hartman stating "Jeffrey De Perio ... has been
under my care since birth. He has a moderately severe, vibratory
ejection heart murmur. This has been studied with elect t.o-cardiograms and x - rays. These show a slightly enlarged hest which
could indicate strain due to congenital heart disease. He will be
restudied this summer. It certainly seems essential that he be

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studied at regular intervals for comparison and for the possibility
of further test (sic) which might be necessary. This usually requires a cardiac center such as we have here in Buffalo at Children's Hospital."
   There is also a letter dated June 12, 1967 from Dr. Arno R.
Hohn, Cardiologist, Children's Hospital, Buffalo in which he
states, "At the conclusion of the examination in view of the questionable cardiomegaly and presence of a heart murmur I could
not definitely exclude a congenital cardiovascular malformation of
the heart. Accordingly, it is my recommendation that this child
be periodically observed and re - evaluated from a cardiac standpoint. Currently there need not be any special diets or medications given to this child and activity need not be restricted."
  Consultation was had on three occasions with the U. S. Public
Health Service. On July 5, 1967, Dr. Peter C. Kelly, Chief Medical Officer of that Service at Buffalo stated, "Dr. Hohn is unable
to make a diagnosis of organic heart disease. He does not feel
that any dietary or activity restrictions are indicated. Hence, Jeffrey's cardiac murmur does not preclude travel to the Philippines." On March 6, 1968 Dr. Kelly wrote; "Dr. Arno Hohn's report of June 2, 1967 (letter dated June 12, 1967 referred to above
relates to this report) represents the best evaluation of Jeffrey
De Perio's heart murmur. The reports of Dr. Lydia Wright and
Dr. John Hartman do not contain any new evidence. Hence, there
is no reason to believe that travel would be injurious to Jeffrey's
heart. Dr. John Kent's report of October 19, 1967 indicates that
Jeffrey has an allergic condition which could make travel to the
Philippines dangerous. I request that Jeffrey be re-examined by
Dr. Kent. It is of special importance to know if hyposensitization
has been completed. In addition, Dr. Kent should indicate the
effectiveness of hyposensitization." On April 8, 1968 Dr. Kelly
wrote, "Doctor Kent's summary of Jeffrey De Perio's case has
been helpful. He indicates that Jeffrey is an allergic youngster
who requires a hyposensitization program. I do not believe it a
hardship to carry out such a program in the Philippines. Hence,
it would not be difficult or dangerous to travel to the Philippines
for two years."
   Section 212 (e) of the Immigration and Nationality Act requires that an alien who has been admitted to the United States
as an exchange visitor must reside abroad for an aggregate period of at least two years before he may apply for an immigrant ,
visa or adjust his status to permanent residence unless the foreign residence requirement is waived by the Attorney General.
                               9.75
Interim Decision #1975

That section also charges the Commissioner of Immigration and
Naturalization with responsibility for determining whether the
exchange visitor's departure from the United States would impose exceptional hardship upon the alien's U. S. citizen or lawfully resident alien spouse or child. In arriving at such a determination consultation may be had with the U,. S. Public Health
Service when a basis for the claimed hardship is the medical condition of the spouse or child and an advisory opinion solicited.
Such consultation was had in the instant case and as a result the
Service is faced with a divergency of opinions.
   In the instant case there is evidence that the child, Jeffrey, has
an allergic condition which requires a hyposensitization program
which has just begun and may continue for perhaps another two
years. Also there is evidence that Jeffrey has a heart murmur and
cardiac enlargement which should be carefully studied fryr an indeterminate period of time. Two of the consulting physicians recommend that such observation be conducted at a cardiac center
such as the one at Children's Hospital in Buffalo. On the other
hand, a medical opinion has been received to the effect that it
would not be dangerous for Jeffrey to travel to the Philippines
and remain there with his parents for two years.
   If Jeffrey's parents are required to return to the Philippines
their children would of course accompany them. In the Philippines the applicants' financial resources will be sharply reduced.
Whether or not adequate medical facilities are available in the
Philippines and whether or not the applicants will be able to pay
for such treatment, the fact remains that in the United States excellent facilities are present and are being utilized and the applicants can well afford to ensure that their child obtains the proper
treatment. American facilities are generally regarded to be superior to those found in the Philippines.
   As I have indicated above, some degree of hardship would be
imposed on the applicants' children if their parents were required
to reside in the Philippines for the requisite two year period regardless of their health. Jeffrey cannot be said to be a normal,
healthy child. Hence, the hardship to him would be considerably
more severe by reason of his physical condition and, in my opinion should properly be regarded as exceptional. Accordingly, I
conclude that the applications for waiver should be granted and
enter the following order.
   It is ordered that the applications for waiver of the foreign
residence requirement of section 212 (e) of the Act be, upon the
favorable recommendation of the Secretary of State, granted.

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