I-864 affidavit creates contractual right to minimum support from sponsor to immigrant . . .
In reversal, First District holds that trial court erred by declining to enforce form I-864 (affidavit of support of immigrant by sponsor) in disso action on the basis that immigrant wife made insufficient efforts to find work; wife had no duty to mitigate damages and had standing to enforce that form in state court
In re Marriage of Kumar
(July 28, 2017)
California Court of Appeal 1 Civil A145181 13 Cal.App.5 th 1072, 220 Cal.Rptr.3d 863, 2017 FA 1800, per Miller, J (Kline, PJ and Stewart, J, concurring). San Mateo County: Franchi, J, reversed and remanded. For appellant: Edwin Steussy, (951) 240-1762. For respondent: Margaret Tillinghast, CFLS, (650) 991-4700. CFLP §§F.110, S.59.50.
Vikash and Ashlyne Kumar were married in Fiji on September 22, 2012, in an arranged marriage. Vikash, a U.S. citizen, then filed a form I-130 petition for an immigrant visa for Ashlyne, a citizen of Fiji. He also signed a form I-864 affidavit of support, which obligated him to support Ashlyne for 10 years at an income of at least 125% of the Federal Poverty Guidelines for his or her household size. That affidavit also provided that Ashlyne would have the right to sue Vikash for support if he failed to pay.
Ashlyne arrived from Fiji in July 2013 and began living in Daly City with Vikash and his family. She would later allege that he "began abusing her almost immediately." Vikash, she said, refused to speak to her except to tell her that he didn't want her and she should go back to Fiji. Ashlyne claimed that Vikash and his family " 'tricked' " her into going to Fiji with them, and once there, Vikash abandoned her. Also, someone tore the legal permanent resident stamp out of her passport, forcing her to obtain temporary travel documents from the U.S. Embassy in Fiji. Ashlyne returned to the U.S. on December 29, 2013.
On January 14, 2014, Vikash filed for an annulment, or alternatively for a disso. In her response, Ashlyne asked the trial court to deny his annulment petition, but to grant a disso judgment. In April, she followed up by filing a financial statement showing that she had applied for TANF, SSI, or GA/GR, but had not received any benefits, and that she had no salary.
At a May 7 hearing on spousal support, Vikash's attorney told that trial court that the parties had agreed that Vikash would pay Ashlyne $650 per month for temporary support, but she would not agree to a " 'seek work' " order or a Gavron warning. Ashlyne's attorney stated that Ashlyne was on general assistance and was living in a shelter, but could not seek work because Vikash had stolen her current residency card. Vikash's attorney countered that it was Ashlyne's " 'choice to come here and stay here,' " thus, she had a duty to become self-supporting. Ashlyne's counsel then asserted that Vikash had signed a form I-864 affidavit that obligated him to support Ashlyne for 10 years or 40 quarters. Vikash's attorney, however, argued that the affidavit was " 'irrelevant in this court.' "
When the hearing concluded, the trial court ordered Vikash to pay $650 a month to Ashlyne for temporary support, per their agreement. The court declined to make a seek work order, but gave a Gavron warning, and ordered Ashlyne to make reasonable good faith efforts to obtain the paperwork needed to enable her to work in the U.S.
On September 3, 2014, Vikash sought an order terminating spousal support and granting a status-only disso judgment. He claimed that Ashlyne had not made the necessary efforts to become self-supporting and asked the trial court to impute the income to her that she could expect to earn from a full-time minimum wage job. In a responsive declaration, Ashlyne stated that Vikash had stolen her green card and she was waiting for replacement papers. She also stated that she received cash aid and food stamps until Vikash began paying her spousal support. She attached the I-864 form to her response and asked the trial court to continue support based on its requirements. She later filed an amended memorandum of points and authorities, asking the trial court to enforce the I-864 support requirements and to order Vikash to pay $1,196 per month in accordance with the poverty guideline for 2014. Ashlyne contended that the affidavit was an enforceable contract that was in addition to any spousal support payable under state law, and that the disso did not wipe out its obligation. She also asserted that she was not required to file a separate contract action to obtain enforcement of the affidavit.
At a hearing on March 18, 2015, the trial court heard argument on Vikash's request to terminate spousal support and Ashlyne's request to enforce the affidavit. Ashlyne's attorney told the court that Ashlyne was working part-time at Blimpies for $9 per hour, and taking courses to obtain her GED. The trial court terminated temporary spousal support effective immediately. When Ashlyne's counsel asked for a ruling on enforcement of the affidavit, the lower court responded that it declined to order spousal support because Ashlyne failed to work up to her full potential. Moreover, the trial court went on, it was declining to enforce the affidavit because Ashlyne failed to use her best efforts to find work, and told her to file a federal action. That same day, the trial court entered the parties' status-only disso judgment and an order terminating spousal support.
Ashlyne appealed, and the First District reversed and remanded.
Which is which . . .
The justices quickly disposed of Vikash's contention that the issue was whether the trial court abused its discretion by terminating Ashlyne's temporary spousal support payments. They pointed out that she was not challenging that order, but rather the trial court's refusal to enforce the provisions of the I-864 affidavit on the basis that she should have been trying to find work and that she should seek enforcement in federal court, both subject to de novo review. Moreover, she was not seeking to enforce the affidavit in accordance with state statutes re spousal support. She wanted enforcement in accordance with the support provisions in the applicable federal law.
Parsing the provisions . . .
The justices explained that the I-864 affidavit is "a legally enforceable contract between the sponsor and the sponsored immigrant." Its provisions relieve the sponsor of his or her support obligation only if the sponsor or the immigrant dies, the immigrant becomes as U.S. citizen, the immigrant leaves the U.S. permanently, or the immigrant "is credited with 40 qualifying quarters of work." Clearly, they noted, divorce is not a condition that relieves the sponsor from his or her support obligation. Moreover, per 8 USC §1183a, sub (a)(1)(B) & (C), an action to enforce the I-864 affidavit may be brought in either federal or state court. The panel could find, and Vikash had not cited, any statutory basis for his contention that Ashlyne should have joined the Department of Homeland Security in the disso action. And, the justices were similarly unpersuaded that the Federal Pre-emption Doctrine barred her from seeking enforcement in state court. They pointed out that Ashlyne's right to support under the I-864 affidavit was separate from whatever right she had to spousal support under state law.
She doesn't have to, but she may want to . . .
The justices then turned to the question of whether Ashlyne was obligated to mitigate damages by using her best efforts to find work. No so, the panel said. They noted that in Liu v. Mund (7 Cir 2012) 686 F.3d 418, 2012 CFLR 12197, 2012 FA 1546, the circuit court held that the sponsored immigrant had no duty to mitigate damages, nor did the I-864 affidavit contain a seek-work requirement, and they declined to add one to a statute that was clear. Those justices reasoned that the purpose of the affidavit was to ensure that the immigrant would not become a public charge and also, to make the sponsor "more cautious about sponsoring immigrants." And, they thought that the immigrants themselves would have a strong incentive to seek work, given that they would receive support at 125% of the poverty line. The panel found that reasoning persuasive and held that Ashlyne had no duty to mitigate damages by seeking employment. Accordingly, the lower court erred by declining to enforce the affidavit. They reversed and remanded for the trial court to consider Ashlyne's claim in accordance with this opinion.
The justices find that this is an issue of first impression in California. Thus, they rely on the 7 th Circuit's opinion in Liu . We thought it might be good give readers an expanded version of that case. There, an American citizen married a much younger Chinese woman in China. When they decided to move to the U.S., the husband learned that his wife could not be admitted to this country as a permanent resident unless he signed an affidavit of support under 8 USC §1183a. He signed the affidavit, and the couple moved to Wisconsin. When they were divorced in that state two years later, the trial court ordered the husband to pay the wife $500 per month for one year; however, in accordance with Wisconsin case law, the court made support contingent on proof that the wife had made at least four job applications per month without finding work. The Wisconsin court did not mention the application of federal law. After the husband failed to pay spousal support, the wife filed suit in the U.S. District Court for the Western District of Wisconsin, seeking to enforce his obligation under the federal affidavit of support. The district court found, however, that the wife was not entitled to support under the affidavit because she had failed to look for work. On appeal, the Seventh District reversed that order. The panel pointed out that the list of conditions that excuse the support obligation under the statute do not include an immigrant's failure to seek work or otherwise mitigate damages caused by the spouse's failure to provide support. Furthermore, adding such a requirement would not serve the statute's purpose of preventing immigrants from becoming public charges.