by Emmanuel S. Tipon, Esq.
May an immigrant’s sponsor be relieved from complying with the sponsor’s obligation to support the immigrant under an affidavit of support where the beneficiary sexually abused the sponsor’s granddaughter?
Kuznitsnyna and her daughter Thomas sponsored Kuznitsnyna’s husband Belevich for admission to the U.S. by executing Form I-864 affidavits. The sponsors promised the U.S. that they would support Belevich at 125% of the poverty income level if the U.S. granted him a visa. Belevich was granted a visa.
Belevich and Kuznitsnyna lived together in the U.S. for several years. Belevich went to visit his mother in Russia. When Belevich returned to the United States, Kuznitsnyna would not allow him back into their home. She then obtained a protection from abuse order against him and filed for divorce. Neither Thomas nor Kuznitsnyna provided Belevich with any financial support after this point. Later, Belevich was criminally charged for abusing Thomas’s minor daughter and possessing child pornography.
Belevich sued to enforce their obligations. The sponsors raised the affirmative defenses of unclean hands, anticipatory breach, and equitable estoppel.
The district court rejected those defenses as a matter of law and awarded damages to Belevich. The sponsors appealed to the Court of Appeals.
The Court of Appeals affirmed, holding that these defenses are foreclosed by the statute and regulation governing Form I-864 and the text of the affidavit itself.
Federal law provides that any alien who “is likely at any time to become a public charge is inadmissible.” 8 U.S.C. § 1182(a)(4)(A). A family-based immigrant is presumptively likely to become a public charge. 8 C.F.R. § 213a.2(a)(1)(i)(A), (a)(2)(i). That presumption can be overcome if a sponsoring relative executes an “affidavit of support.” 8 U.S.C. § 1182(a)(4)(C)(ii), (a)(4)(D). In the Form I-864 affidavit, the sponsor promises the U.S. that such sponsor will support the immigrant “at an annual income that is not less than 125 percent of the Federal poverty line.” 8 U.S.C. § 1183a(a)(1)(A). See Form I-864P for the HHS Poverty Guidelines. https://www.uscis.gov/i-864p
Belevich sued the sponsors for breaching their support affidavits. An affidavit of support is “legally enforceable against the sponsor by the sponsored alien,” U.S.C. § 1183a(a)(1)(B). The statute creates a federal cause of action so that “the sponsored alien, the Federal Government, [or] any State” may enforce a support affidavit against a sponsor. 8 U.S.C. § 1183a(a)(1)(B)–(C), (e); see also 8 C.F.R. § 213a.2(d). This federal cause of action gives the sponsored immigrant enforcement rights that he would not necessarily have under contract law.
The statute provides that the obligation under an affidavit of support ends when the alien is naturalized as a U.S. citizen, or has worked forty quarters. 8 U.S.C. § 1183a(a)(2) and § 1183a(a)(3)(A).
The regulation provides that the sponsor’s obligations terminate “when” the sponsored immigrant becomes a U.S. citizen, works forty qualifying quarters, ceases to hold permanent resident status and departs the United States, obtains a grant of adjustment of status as relief from removal, or dies. 8 C.F.R. § 213a.2(e)(2)(i), or if the sponsor dies. Id. § 213a.2(e)(2)(ii).
The Form I-864 affidavit repeats these same terminating events and expressly notes that divorce is not a terminating event. The regulation also provides that “[o]nce the intending immigrant has obtained an immigrant visa, a sponsor . . . cannot disavow his or her agreement to act as a sponsor” unless the immigrant withdraws the visa petition. Id. § 213a.2(f).
The sponsors allege that Belevich committed various bad acts that have undermined his relationship with his family. But the Court pointed out that the sponsors’ proposed equitable defenses are not comparable to any of the listed reasons for terminating the support obligation. The grounds for terminating support under the statute, regulation, and affidavit concern the beneficiary’s financial position and status in the country, not his relationship with his family. The affidavit expressly tells the sponsor that he or she must continue to support the beneficiary even if their familial relationship is dissolved by a divorce.
The court said that the text of the statute identifies an exclusive list of terminating events. The statute or regulation could have said that the obligation terminates for reasons “including” the enumerated events, thereby indicating an “illustrative, not exhaustive” list. Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 162 (2012). Nothing in this structure contemplates an equitable remedy or defense for the benefit of a sponsor.
The court said that it is not enough that the sponsored immigrant’s conduct—such as committing a crime—could justify a change to the immigrant’s status. The obligation of support remains until the change in status has occurred and the immigrant is no longer likely to become a public charge. The sponsors’ obligations will terminate if Belevich’s prosecution results in a conviction and he is removed from the United States. See, e.g., 8 U.S.C. § 1227(a)(2)(E) (domestic violence is a deportable offense). Belevich v Thomas, Case 19-14668 (CA11) 11 01 21.
RECOMMENDATION: A sponsor in an affidavit of support who is not the immigration petitioner should consider asking the immigration petitioner to execute an indemnification agreement whereby the petitioner agrees to indemnify the sponsor for whatever amounts the sponsor has spent to support the immigrant, plus attorney’s fees and costs incurred if the sponsor sues the petitioner.
ATTY. EMMANUEL S. TIPON was a Fulbright and Smith-Mundt scholar to Yale Law School where he obtained a Master of Laws degree specializing in Constitutional Law. He has a Bachelor of Laws degree from the University of the Philippines. He is admitted to practice before the U.S. Supreme Court, New York, and the Philippines. He practices federal law, with emphasis on immigration law and appellate federal criminal defense. He was the Dean and a Professor of Law of the College of Law, Northwestern University, Philippines. He has written law books and legal articles for the world’s most prestigious legal publisher and writes columns for newspapers. He wrote the best-seller “Winning by Knowing Your Election Laws.” Listen to The Tipon Report which he co-hosts with his son Attorney Emmanuel “Noel” Tipon. They talk about immigration law, criminal law, court-martial defense, and current events. It is considered the most witty, interesting, and useful radio show in Hawaii. KNDI 1270 AM band every Thursday at 8:00 a.m. Atty. Tipon was born in Laoag City, Philippines. Cell Phone (808) 225-2645. E-Mail: firstname.lastname@example.org. Website: https://www.tiponlaw.com.
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