Dipankar Mukherjee, Plaintiff-Appellee/cross-Appellant v. Immigration and Naturalization Service, Defendant-Appellant/cross-Appellee

The INS appeals from the district court’s grant of summary judgment to appellee Dipankar Mukherjee. The INS asserts that the district court erred in holding that the INS is estopped from subjecting Muk-herjee to the two-year foreign residence requirement of 8 U.S.C. § 1182 (e). Muk-herjee cross-appeals the district court’s failure to find that the INS abused its discretion in denying Mukherjee a waiver of the two-year requirement and the district court’s failure to grant Mukherjee permanent resident status. We reverse the grant of summary judgment based on estoppel and affirm the denial of a grant of permanent residence. We remand to the district court for its determination of whether the INS’s denial of a waiver of the two-year requirement was arbitrary, capricious, or an abuse of discretion, and for a statement of its reasons for that determination.

FACTS AND PROCEDURAL HISTORY

The facts are essentially undisputed. Mukherjee is a native and citizen of India. On May 12, 1976, Mukherjee filed a third preference immigrant visa petition at the U.S. embassy in New Delhi, India, seeking to become a lawful permanent resident of the United States on the basis of his profession. The…