Slyper v. Meese

Justice White,

dissenting.

This case presents the issue whether the decision of the United States Information Agency (USIA) to recommend against waiver of the requirement that a foreign doctor in this country for graduate medical training return to his or her foreign residence for two years prior to applying for permanent residence status here is subject to judicial review for abuse of discretion. See 8 U. S. C. § 1182 (e) (1982 ed., Supp. IV). A waiver from the 2-year foreign residence requirement can be obtained on “hardship” grounds, one condition for which is that the Director of the USIA make a favorable recommendation concerning the waiver. The Court of Appeals held that because neither the relevant statute nor implementing regulation provided a standard against which to assess the Director’s exercise of discretion, the decision was one committed to the agency’s discretion by law and accordingly not reviewable under the Administrative Procedure Act, 5 U. S. C. § 701 (a)(2). 264 U. S. App. D. C. 170, 172-173, 827 F. 2d 821, 823-824 (1987). In so holding, the court reached the same conclusion as the Second and Ninth Circuits, Dina v. Attorney General, 793 F. 2d 473, 476 (CA2 1986) (per curiam); Abdelhamid v. Ilchert, 774 F. 2d 1447, 1449-1450 (CA9 1985), and rejected the contrary conclusion of the Third Circuit, Chong v. Director, USIA, 821 F. 2d 171 , 176 (1987). I would grant certiorari to resolve the conflict among the Circuits over this question of federal law.