Saturday, December 10, 2011

Contractual Alimony [sort of] under Federal Immigration Law: Ex-husband on the hook indefinitely for sponsoring alien wife’s immigration to the US – Court enforces Affidavit of Support necessary to procure “green card”

This looks like a first-impression-type appellate opinion on an aspect of immigration law that may very well attract some considerable interest as it illustrates that the potential cost of mail-order-brides (or grooms, for that matter) can considerably exceed expections as the sponsoring spouse's support obligation survives divorce.


[AMERICAN HUSBAND] sponsored the immigration of [ALIEN WIFE] from [foreign country] to the United States of America and married her.  The marriage had lasted only about two and one-half years when AMERICAN HUSBAND sought a divorce.[1] 
Under an affidavit for sponsorship of an alien seeking residency in the United States, the sponsor is required to execute an affidavit pledging to provide support at a level not less than 125% of the United States poverty level for an unlimited period, the obligation for support terminating only upon the occurrence of any of five specified events.  8 U.S.C.A. § 1183a (West, Westlaw current through 2011); 8 C.F.R. 213a.2 (West, Westlaw current through 2011). 
In the divorce decree, the trial court acknowledged the existence of the affidavit for support, but decreed that the obligation for support ended after thirty-six months from the date of entry of the divorce decree.  ALIEN WIFE’s appeal complains the trial court erred by limiting AMERICAN HUSBAND’s support payments to a period of thirty-six months.[2]  We sustain ALIEN WIFE’s point of error.

[Note: Names of parties appear in the court’s opinion, but have here been replaced globally with functional descriptors]

Affidavit of Support

United States immigration law provides a procedure for a resident of the United States to sponsor a noncitizen for immigration into the country.  As a condition precedent to granting immigration status, the government requires the sponsor to execute an affidavit (Form I-864 Affidavit of Support), wherein the sponsor promises to support the immigrant seeking admission to the United States at a level not less than 125% of the national poverty level.  Id.  The sponsor’s obligation to support the immigrant continues until one of the following circumstances occurs:  (1) either the immigrant or the sponsor dies, (2) the immigrant achieves citizenship, (3) the immigrant leaves the United States and does not return, or (4) the immigrant maintains employment that qualifies for Social Security for a total of forty quarters of years.  Id.; 8 C.F.R. 213a.2.  The instructions for completing the form specifically state that “[d]ivorce does not end the sponsorship obligation.” 

AMERICAN HUSBAND completed such an affidavit of support in order to secure ALIEN WIFE’s entry into the United States.[3]  The parties married in December 2007 and separated in June 2010, precipitating the filing of a divorce by AMERICAN HUSBAND that same month.  At trial, ALIEN WIFE presented testimony from an immigration attorney, Jose Sanchez, who explained the workings of the affidavit of support and discussed caselaw interpreting the document and its statutory authorization.  Sanchez explained that the duty to support a sponsored immigrant expires only upon one of the terminating events described above, specifically mentioning that a divorce does not terminate a sponsor’s obligation of support.  ALIEN WIFE also presented testimony from an accountant who said that based on the United States poverty level available from the most recent data, 125% of that level was $1,128.13.  The portion of the divorce decree entered by the trial court which dealt with the obligation of AMERICAN HUSBAND to make support payments to ALIEN WIFE reads as follows:

Affidavit of Support and Other Tort or Contract Claims Asserted by  ALIEN WIFE

The Court finds that AMERICAN HUSBAND contractually obligated himself to support of  ALIEN WIFE, including but not limited to, the claim under Form I-864, Affidavit of Support.   AMERICAN HUSBAND will pay to  ALIEN WIFE the sum of $1100.00 per month for a period of 36 months, which sum may be prepaid at any time in the total amount of $39,600.00, with the first monthly installment being due and payable on December 1, 2010, and a like payment of $1100.00 being due and payable on the same day of each month thereafter until the expiration of 36 months or until the whole of such sum is paid in full.[4]

Although we have found no Texas or United States Fifth Circuit cases specifically interpreting or enforcing the affidavit of support,[5]  some federal courts in other circuits across the country have addressed the impact of such an affidavit.  An affidavit of support creates “a legally enforceable contract between the sponsor and both the United States Government and the sponsored immigrant.”  Shumye v. Felleke, 555 F. Supp.2d 1020, 1022–24 (N.D. Cal. 2008) (citing Schwartz v. Schwartz, No. CIV-04-770-M, 2005 WL 1242171 (W.D. Okla. May 10, 2005)).[6]   As stated in the instructions regarding the affidavit, divorce is not among the conditions which terminates a sponsor’s obligation.  Id. at 1024; see also Moody v. Sorokina, 830 N.Y.S.2d 399, 402 (N.Y. App. Div. 2007) (sponsored immigrant’s right to support under Form I-864 affidavit of support is unaffected by a judgment of divorce––the action was transferred to another court, which entered the divorce, then severed it for separate trial on custody and maintenance). 

Further, the Tennessee Court of Appeals addressed an ex-husband’s argument that he had no obligation under such an affidavit of support to make payments to his ex-wife until she made a showing she had received public benefits.  The court found that the affidavit establishes a duty to support the sponsored immigrant without such a showing as a prerequisite, and the duty of the obligor is enforceable as a contract.  Baines v. Baines, No. E2009-00180-COA-R3-CV, 2009 Tenn. App. LEXIS 761, at **12–13 (Tenn. Ct. App. Nov. 13, 2009).  

AMERICAN HUSBAND’s Contractual Duty

The question before us is whether the trial court’s order complied with the terms of the contract, i.e., the affidavit of support.

The obligation for the sponsoring affiant to support the sponsored immigrant clearly ceases only upon the occurrence of one of a few terminating events enumerated above.  See 8 U.S.C.A § 1183a; 8 C.F.R. 213a.2(e)(2)(i), (ii).  Divorce of the obligor from the obligee is not among those terminating events; specifically, the instructions to the affidavit of support clearly exclude divorce as an event precipitating a termination of the obligation.  The affidavit of support was a contract between AMERICAN HUSBAND and the United States government, enforceable by ALIEN WIFE.[7]  8 U.S.C.A. § 1183a(a)(1)(B).  The trial court’s order, limiting payments to an arbitrary period of thirty-six months, runs afoul of the terms of the contract.  Thus, the trial court erred by including the limiting provision on the length of payments. 

We, therefore, strike the paragraph of the decree of divorce entitled “Affidavit of Support and Other Tort or Contract Claims Asserted by  ALIEN WIFE” and substitute the following in its stead:  “The court finds that AMERICAN HUSBAND contractually obligated himself to support  ALIEN WIFE under the terms of Form I-864, Affidavit of Support.  The parties do not contest the finding that the payment of $1,100.00 per month satisfies the current obligation as it existed on December 13, 2010.”

Having found error in part, the judgment is reversed in part, and we render judgment that AMERICAN HUSBAND is obligated under the terms of his agreement with the federal government concerning ALIEN WIFE’s immigration.  The judgment, as reformed, is otherwise affirmed.

                                                                        Bailey C. Moseley


Date Submitted:          November 16, 2011

Date Decided:             December 7, 2011


[1] Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts.  See Tex. Gov’t Code Ann. § 73.001 (West 2005).  We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue.  See Tex. R. App. P. 41.3.

[2] In the prayer for relief on appeal, ALIEN WIFE also requested a remand to the trial court to determine attorney’s fees on appeal.  However, this issue was not briefed, and this request was withdrawn on oral argument.

[3] Although neither party could produce the affidavit of support at trial, AMERICAN HUSBAND did not dispute having executed it; it appears from the record the parties had requested a copy from the Immigration and Naturalization Service, but had not received it at the time of trial.

[4] At oral argument, ALIEN WIFE indicated that the $1,100.00 per month figure representing 125% of the federal poverty guideline levels at the time of the divorce was not in controversy.

[5] However, one court did decline to address a wife’s claim that the husband should have been ordered to make support payments to her in the divorce decree; the petition only sought a divorce.  The final decree of divorce was modified to state that nothing in the decree barred the wife from seeking to enforce the affidavit of support executed by the husband.  Varnes v. Varnes, No. 13-08-00448-CV, 2009 Tex. App. LEXIS 2791, at **17–20 (Tex. App.—Corpus Christi Apr. 23, 2009, no pet.) (mem. op.).

[6] The instructions to complete the affidavit also state:  “This form is a contract between a sponsor and the U.S. Government.”  

[7] It would appear that this is a contract between the United States government and the sponsoring affiant with the immigrant being the third-party beneficiary of that contract.

SOURCE:  TEXARKANA COURT OF APPEALS - 06-11-00039-CV – 12/7/11 (descriptive labels substituted for names) 

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