Business Litigation I NOVEMBER 17, 2017

Immigration Support Affidavit Enforceable in Divorce Proceedings

In most cases, a U.S. citizen seeking to “sponsor” a foreign relative must file an affidavit of support on USCIS form I-864. A court in California recently held that a foreign spouse may enforce the affidavit of support in a divorce proceeding.

Vikash Kumar is a United States citizen. Ashlyne Kumar is a citizen of Fiji. On September 22, 2012, Vikash and Ashlyne married in Fiji in an arranged marriage.

Vikash filed A visa petition for alien relative on behalf of Ashlyne. In connection with bringing his new wife to the United States, Vikash signed a form I-864 affidavit of support. The purpose of the I-864 affidavit is “to ensure that an immigrant does not become a public charge.”

Ashlyne entered the United States in July 2013. According to Ashlyne, Vikash began abusing her almost immediately.

In December 2013, Vikash and his family tricked Ashlyne into going to Fiji with Vikash. After they arrived in Fiji, Vikash abandoned her. It got worse. Ashlyne also discovered that the page with her legal permanent resident stamp had been torn out of her passport.

Ashlyne obtained temporary travel documents from the United States Embassy in Fiji, and returned to the United States on December 29, 2013. On January 14, 2014, Vikash filed a petition for annulment and, in the alternative, dissolution of marriage. On September 3, 2014, Vikash filed a request for an order terminating spousal support and dissolving the marriage.

Ashlyne opposed Vikash’s request to terminate spousal support. In her brief, Ashlyne asked the court to enforce the specific support requirements of the I-864 affidavit, requesting an order that Vikash pay support of $1,196.15 per month.

The trial court entered a judgment restoring the parties to single status and terminating spousal support. Ashlyne appealed, and the appellate court reversed.

An I-864 affidavit is a legally enforceable contract between the sponsor and the sponsored immigrant. Shumye v. Felleke, 555 F. Supp. 2d 1020, 1023 (N.D. Cal. 2008). Federal courts have consistently found that a form I-864 constitutes a legally binding and enforceable contract between sponsor and a sponsored immigrant. (Id. at 1024.)

A sponsor’s obligations under an I-864 affidavit terminates only if one of five conditions is met: (1) the sponsor dies, (2) the sponsored immigrant dies, (3) the sponsored immigrant becomes a U.S. citizen, (4) the sponsored immigrant permanently departs the U.S., or (5) the sponsored immigrant is credited with 40 qualifying quarters of work. (See 8 U.S.C. § 1183a(a)(2).) Divorce is not a condition under which the sponsor’s obligations under Form I-864 can be terminated. (Shumye at 1024.)

According to the appeals court, the statute and regulation are clear. A sponsored immigrant has independent standing to enforce the obligations of an I-864 affidavit against her sponsor, and may bring such an enforcement claim in state or federal court.

When Ashlyne’s counsel asked whether her contract claim under the I-864 affidavit was being denied, the trial court responded, “Yes, I’m denying your request because I find the respondent is not using best efforts to find work.”

On appeal, Ashlyne urged the court to follow the Seventh Circuit Court of Appeals, which held that a sponsored immigrant seeking to enforce the support obligation created by an I-864 affidavit has no duty to mitigate damages. (Liu v. Mund, 686 F.3d 418, 420, 422-123 (7th Cir. 2012.)

The Seventh Circuit reasoned that the stated statutory goal is to prevent the admission to the United States of any alien who ‘is likely at any time to become a public charge.’ The only beneficiary of the duty to mitigate would be the sponsor—and it is not for his benefit that the duty of support was imposed; it was imposed for the benefit of federal and state taxpayers and of the donors to organizations that provide charity for the poor.

The appellate court found Liu persuasive, and held that an immigrant spouse seeking to enforce the support obligation of an I-864 affidavit has no duty to seek employment to mitigate damages.

The case is In re: Marriage of Ashlyne and Vikash Kumar, 220 Cal. Rptr.3d 863 (Cal. Ct. App., 2017).