It surprises me that the immigration issues crossing over into the divorce context in Marriage of Kumar (2017) had never before been addressed in the appellate courts of the State of California. One would think these issues surface frequently due to the large immigrant population here.
In Marriage of Kumar, the First Appellate District, Division Two, ruled that the Superior Court of California has subject-matter jurisdiction over contract claims arising from an Affidavit of Support Under Section 213A of the INA (USCIS Form I-864; “Affidavit of Support”). It also held the sponsored immigrant, i.e., the person to receive support under the Affidavit of Support, a legally-enforceable contract between the sponsored immigrant and the sponsor (the person signing the Affidavit of Support), has no duty to mitigate damages (meaning, in this context, no duty to find work). [Note: At page seven of the ten-page Affidavit of Support are listed the specific events which end a sponsor’s obligation to support the sponsored immigrant. Also, it clearly states, “Divorce does not terminate your obligations under Form I-864.”]
The parties, were both born in Fiji. In September 2012, they agreed to an arranged marriage there. At some point, Vikash had become a US citizen and Ashlyne was a still citizen of Fiji. On Ashlyn’s behalf, Vikash filed a U.S. Citizenship and Immigration Services (USCIS) Petition for Alien Relative (USCIS Form I-130), the application required for Ashlyn’s family-based permanent residency (otherwise known as a Green Card). The Petition for Alien Relative was granted in December 2012.
Vikash also completed and signed the Affidavit of Support by which he agreed to provide necessary support to maintain Ashlyne at an income level of at least 125 percent of the Federal Poverty Guideline for her household size. Form I-864 expressly states that if the signer, in this case Vikash, failed to provide support at that income level, then after becoming a permanent resident, the sponsored immigrant, in this case Ashlyne, could sue him for support.
In July 2013, Ashlyne relocated to the US and specifically to Daly City, California to live with Vikash. Vikash began abusing her. At some point early in the marriage, he told Ashlyne he wanted her to go back to Fiji. Then, Vikash and his family tricked Ashlyne into flying with him to Fiji where he left her. Ashlyne found that her permanent residency stamp had been torn out of her passport, which prevented her from easily returning to the United States. She applied for temporary travel papers through the U.S. Embassy and returned to the United States in late December 2013.
In January 2014, Vikash petitioned the family court for an annulment of their marriage or, if that were not possible, for a divorce. In March, Ashlyne filed her response to the petition. She asked that the request for an annulment be denied and that the family court grant the divorce. She did not ask the family court to enforce the Affidavit of Support signed by Vikash.
In April 2014, the family court issued a three-year CLETS domestic violence restraining order against Vikash.
In May 2014, the family court held a hearing on spousal support. At the hearing, Ashlyne presented evidence that she had no salary or wages. She had applied instead for TANF (Temporary Assistance to Needy Families), SSI (Supplemental Security Income) or GA/GR (General Assistance/General Relief). The parties agreed to spousal support of $675.00 per month, but Ashlyne specifically objected to being required to look for work or being legally warned by the family court judge to become self-supporting (known as a Gavron warning). She based her objection on not having her current residency card because Vikash had stolen it and thus she had no Green Card. She also stated she was now on GA and living in a shelter. Vikash’s attorney argued Ashlyne had a duty to become self-supporting and that it was “her choice to come here and stay here.” In surrebuttal, Ashlyne’s attorney argued that Vikash had signed an Affidavit of Support which obligated Vikash to support her until she had worked 40 quarters of coverage under the Social Security Act. Vikash’s attorney countered that the Affidavit of Support was irrelevant in family court.
The family court essentially ignored the Affidavit of Support. The judge ordered temporary spousal support of $675.00 per month and gave Ashlyne a Gavron warning because it was a short-term marriage [as a rule of thumb, defined as a marriage of less than ten-years’ duration through the date of separation]. However, because Ashlyne did not have the legal ability to work in the United States without her permanent residency card, the family court judge denied the request that Ashlyne proactively find work. Instead, the judge ordered her to make reasonable and good faith efforts to obtain the necessary paperwork to be able to find work.
Four months later, in September 2014, Vikash filed a motion to terminate Ashlyne’s spousal support, alleging she had made no effort to become self-supporting. Also, Vikash asked the family court to make a judicial finding that Ashlyne has the ability to work at minimum wage (which would have provided income of over twice the $675.00 in spousal support the parties agreed Vikash would pay). Ashlyne’s responsive papers requested that the family court continue spousal support. Ashlyne stated she could not work because Vikash stole her Green Card and she was still waiting for the replacement papers. She also declared she had been living on cash aid and food stamps until she started receiving court-ordered spousal support. She attached to her responsive declaration a copy of the Affidavit of Support signed by Vikash and declared that Vikash had sworn to the U.S. Government that he would take care of her for 10 years or 40 quarters.
Subsequently, Ashlyne filed a brief asking the family court to increase the support amount to $1,196.15 per month, which was 125% of the Federal Poverty Guideline in 2014 and the amount of support Vikash was required to pay to Ashlyne under the Affidavit of Support. She argued divorce and the length of marriage had no bearing on the Affidavit of Support, Vikash’s contractual with the federal government, and she should be able to litigate the matter in family court as a matter of judicial economy (efficiency). In other words, she should not have to bring a separate civil action to enforce her contract claim.
In March 2015, the family court address Vikash’s request to terminate spousal support payable to Ashlyne and Ashlyne’s request that the family court not only continue spousal support but increase the monthly amount to $1,196.15 per month. Ashlyne acknowledged that she had found work at $9.00 per hour for 15 hours per week.
The judge had little mercy, terminating support because Ashlyne was not working to her full potential based on ability and need. The judge denied Ashlyne’s request to continue and increase support because she was not using her best efforts to find work. As to whether Ashlyne’s contract claim under the Affidavit of Support had merit, the judge had the audacity to tell to Ashlyne, “Go file a federal case.” On the same day, the judge dissolved the marriage.
In her appeal, Ashlyne argued not that she was entitled to spousal support under the Family Code scheme but that she was entitled to it under the Affidavit of Support and she should have been able to enforce it in the family court.
The Superior Court Has Subject-Matter Jurisdiction Under Federal Statute
The Kumar appellate opinion first states that federal courts have “consistently” found the Affidavit of Support to be a legally-enforceable contract between the sponsor and the sponsored immigrant. (Shumye v. Felleke (N.D.Cal. 2008) 555 F.Supp.2d 1020, 1023-1024.) Further, there are five independent conditions with which the sponsor’s obligations under the Affidavit of Support terminate: 1) if the sponsor dies; 2) if the sponsored immigrant dies; 3) if the sponsored immigrant becomes a U.S. citizen; 4) if the sponsored immigrant departs the U.S.; or, 5) if the sponsored immigrant is credited with 40 qualifying quarters of work. (8 U.S.C. sec. 1183a(a)(2).) Divorce is not one of them. (Shumye, supra, 555 F.Supp.2d at 1-24.)
Additionally, under federal immigration law, the Affidavit of Support must be “legally enforceable against the sponsor by the sponsored alien,” and the sponsor must agree “to submit to the jurisdiction of any Federal or State court for the purpose of actions” of enforcement. (8 U.S.C. sec. 1183a(a)(1)(B) & (C).)
Under the Code of Federal Regulations, “[t]he intending immigrants and any Federal, state, or local agency or private entity that provides a means-tested public benefit to an intending benefit are third party beneficiaries of the contract between the sponsor and the other individual or individuals on whose income the sponsor relies and may bring an action to enforce the contract in the same manner as third party beneficiaries of other contracts.” (8 C.F.R. sec. 213a.2(c)(2)(i)(C)(2).) Hence, a sponsored immigrant has independent standing to enforce the obligations of the Affidavit of Support in federal or state court, and the appellate court cited numerous other states’ courts which agree.
Here, under the above-indicated federal statute and regulation, Vikash agreed to submit to state court jurisdiction by signing the Affidavit of Support. “The right of support conferred by federal law apart from whatever rights [a sponsored immigrant] might or might not have under [state] divorce law.” (Erler v. Erler (9th Cir. 2016) 824 F.3d 1173, 1177.) In other words, the family court judge’s admonishment, “Go file a federal case,” was inaccurate at best.
The Kumar appellate opinion also clarifies that the family court is not a distinct court within the Superior Court of the State of California, which by federal statute has subject-matter jurisdiction over contract claims pertaining to the Affidavit of Support. As such, the family court can and should address them in the course of a divorce proceeding.
No Duty to Mitigate Damages
Ashlyne argued the appellate court should follow the Seventh Circuit Court of Appeals’ opinion in Liu v. Mund (7th Cir. 2012) 686 F.3d 418, 420, 422-423 regarding a duty to mitigate damages on such a contract claim.
In the Liu opinion, which the Kumar appellate court found persuasive, the 7th Circuit stated that the “Immigration and Naturalization Act forbids admission to the United States of any alien who is likely to become a public charge” (citing 8 U.S.C. sec. 1182(a)(4)(A); see also id., sec. 1601(2)(A), (5)), which is implemented by requiring the sponsor to sign an Affidavit of Support (citing 8 C.F.R. sec. 213a.2(a), (b); see also 8 U.S.C. sec. 1182(a)(4)(C)(ii)). “Public providers of benefits to indigents are designated as third-party beneficiaries of the affidavit-contract and are expressly authorized by the Act to sue a sponsor who defaults on his support obligation. (8 U.S.C. sec. 1183a(a)(1)(B); see also sec. 1183a(b)(1)(A).)” (Liu, supra, 686 F.3d at 420.) Remembering the stated goal is to prevent an immigrant from becoming a public charge, the Liu court thought “the only beneficiary of a duty to mitigate damages 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.” (Liu, supra, 686 F.3d at 422.)
The Liu appellate court added that the lack of a duty to mitigate “tends to make prospective sponsors more cautious about sponsoring immigrants since the sponsor is the guarantor of the sponsored immigrant’s having enough (though just barely enough) income to avoid becoming a public charge.” (Liu, supra, 686 F.3d at 422.) Further, the Liu appellate court observed that “a sponsored immigrant would have a strong incentive to seek employment even without a court-imposed duty to mitigate, because the support obligation of 125 percent of the federal poverty line is a ‘meager guarantee.’” (Ibid.) The Liu court concluded that it couldn’t “see much benefit to imposing a duty to mitigate on a sponsored immigrant. The cost, besides the sponsor’s diminished incentive to screen the alien for a bad work ethic, would be the increased complication of enforcing the duty of support by giving the sponsor a defense—and not even a defense likely to prevail. If Liu doesn’t want to work, forcing her to make job applications is unlikely to land her a job.” (Liu, supra, 686 F.3d at p. 422–423; [citation].)
The Kumar appellate court followed the Seventh Circuit in Liu and found no duty to mitigate, which meant that Ashlyne had no duty to find work during the 40 qualifying quarters of support.
The Kumar appellate court sent the case back to the family court to address Ashlyne’s breach-of-contract claim against Vikash.