In re Marriage of Kumar ( 2017 )

Filed 7/28/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re the Marriage of ASHLYNE and
VIKASH KUMAR.
ASHLYNE KUMAR,
Appellant,
A145181
v.
VIKASH KUMAR, (San Mateo County
Super. Ct. No. FAM0124046)
Respondent.
In this marital dissolution proceeding, an immigrant spouse seeks to enforce her
contractual right to support based on the affidavit of support which her American spouse
was required to submit to the federal government in connection with his petition to
sponsor her for an immigration visa. As required by the terms of the affidavit of support,
her American spouse promised to support her at an income of at least 125 percent of the
federal poverty line for 10 years.
The issues raised in this appeal appear to be matters of first impression in
California.1 We hold that an immigrant spouse has standing to enforce the support
obligation created by an I–864 affidavit in state court. We further hold that an immigrant
spouse bringing such a claim has no duty to mitigate damages. Because the trial court’s
ruling in this matter conflicts with our holdings, we reverse. We remand to the trial court
to consider the immigrant spouse’s contract claim in accordance with this decision.
1
We granted the application of National Immigrant Women’s Advocacy Project to
file a brief in support of Ashlyne as amicus curiae.
1
FACTUAL AND PROCEDURAL BACKGROUND
Vikash Kumar was born in Fiji and is now a United States citizen. Ashlyne
Kumar is a citizen of Fiji. On September 22, 2012, Vikash, then 27 years old, and
Ashlyne, then 25, married in Fiji in an arranged marriage.2
Vikash filed a form I–130 immigration visa petition for alien relative on behalf of
Ashlyne, and the petition was approved on December 1, 2012. In connection with
bringing his new wife to the United States, Vikash signed a form I–864 affidavit of
support (I–864 affidavit) and submitted it to the federal government in April 2013. The
purpose of an I–864 affidavit is “to ensure that an immigrant does not become a public
charge.” (Younis v. Farooqi (D.Md. 2009) 597 F. Supp. 2d 552, 557, fn. 5.) A form I–864
affiant is usually referred to as a “sponsor.”
Under the heading “Part 8. Sponsor’s Contract,” the I–864 affidavit signed by
Vikash gave the following warning: “Please note that, by signing this Form I–864, you
agree to assume certain specific obligations under the Immigration and Nationality Act
and other Federal laws.” On the same page, the affidavit explained that, by signing the
affidavit, the sponsor agreed to “[p]rovide the intending immigrant any support necessary
to maintain him or her at an income that is at least 125 percent of the Federal Poverty
Guidelines for his or her household size . . . .” The affidavit further stated, “If you do not
provide sufficient support to the person who becomes a permanent resident based on the
Form I–864 that you signed, that person may sue you for this support.”
Ashlyne entered the United States in July 2013, and lived with Vikash and his
family in Daly City. According to Ashlyne, Vikash began abusing her almost
immediately.3 He would not speak to her except to say that he did not want to be with
2
For clarity and brevity, we refer to the parties by first name only. No disrespect
is intended.
3
The facts of this paragraph are taken from Ashlyne’s request for a domestic
violence restraining order filed in the dissolution proceeding, which was granted. In
addition, Vikash and Ashlyne stipulated to a three-year restraining order protecting
Ashlyne and restraining Vikash, which was filed on July 18, 2014.
2
her and that he wanted her to leave and to go back to Fiji. In December 2013, Vikash and
his family “tricked” Ashlyne into going to Fiji with Vikash. After they arrived in Fiji,
Vikash abandoned her there. Ashlyne also discovered that the page with her legal
permanent resident stamp had been torn out of her passport.
Ashlyn 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. In March 2014, Ashlyne filed a response to Vikash’s petition.
She asked the court to deny Vikash’s request for an annulment and grant a dissolution of
marriage. She did not ask for enforcement of the I–864 affidavit at that time. In April
2014, Ashlyne filed a financial statement, in which she indicated she received no salary
or benefits, and she “applied for TANF, SSI, or GA/GR” (i.e., Temporary Assistance for
Needy Families, Supplemental Security Income, or general assistance/general relief,
respectively).
On May 7, 2014, the trial court held a hearing on spousal support. At the start of
the hearing, counsel for Ashlyne informed the court that the parties had agreed to
temporary spousal support for Ashlyne of $675 per month, but Ashlyne disagreed with
Vikash’s request for a “seek work” order and a “Gavron warning” that she was expected
to become self-supporting.4
Ashlyne’s counsel objected to an order that Ashlyne seek work on the ground that
she did not have her current residency card because Vikash had stolen it and “she has no
status currently.” Her counsel also stated that Ashlyne was on general assistance and
living in a shelter. Vikash’s counsel argued that Ashlyne had a duty to become self-
supporting, noting, “This was her choice to come here and stay here.”
In response, Ashlyne’s counsel raised the I–864 affidavit. She told the court that
by signing the I–864 affidavit, Vikash “vow[ed] to support [Ashlyne] for 10 years or 40
4
See In re Marriage of Gavron (1988) 203 Cal. App. 3d 705, 712 (Gavron); In re
Marriage of Schmir (2005) 134 Cal. App. 4th 43, 55 [“[A] ‘Gavron warning’ is a fair
warning to the supported spouse he or she is expected to become self-supporting.”].)
3
quarters” and “swore under oath to support her.” Vikash’s counsel took the position
“[t]he affidavit of support is irrelevant in this court.”
At the close of the hearing, the trial court ordered temporary spousal support of
$675 per month as agreed to by the parties. The court also gave a Gavron warning,
explaining it was appropriate because “it has been a short-term marriage.” However, the
court did not issue a seek-work order because “there are some issues she needs to
overcome before she can legally seek work in this country.” Instead, the court ordered
Ashlyne to make reasonable and good faith efforts “to get the necessary paperwork for
her to be able to work in this country if she is intending on remaining here.”
On September 3, 2014, Vikash filed a request for an order terminating spousal
support and dissolving the marriage. Vikash asserted that Ashlyne had made no efforts to
become self-supporting, and he urged the court to impute to her income from a full-time,
minimum wage job.
Ashlyne filed a responsive declaration to Vikash’s request. She stated that she did
not have a work permit because Vikash stole her green card and she was still waiting for
replacement papers. Ashlyne reported that when she tried to apply for jobs, she was
asked for proof of residency, and that after Vikash abandoned her, she was on cash aid
and food stamps until she started receiving spousal support. Ashlyne attached the I–864
affidavit to her response, and asked the court to continue support “because [Vikash]
swore to the US Government he would take care of me for 10 years or 40 working
quarters . . . .”
Subsequently, Ashlyne filed an amended memorandum of points and authorities in
opposition to Vikash’s request to terminate spousal support.5 In this brief, Ashlyne asked
the court to enforce the specific support requirements of the I–864 affidavit, requesting an
order that Vikash “pay support at $1,196.15 per month.” Ashlyne explained that the
poverty guideline for a one-person household for 2014 was $11,670 per year, and she
5
According to the register of actions, Ashlyne’s original memorandum of points
and authority was filed on October 16, 2014. The original memorandum is not part of the
appellate record.
4
claimed Vikash was obligated to support her at $14,354.10 per year or $1,196.175 per
month.
Ashlyne argued that an I–864 affidavit is a binding contract, and the support
obligation of the I–864 affidavit was in addition to any right to spousal support based on
state law. She maintained that divorce did not terminate the support obligation, and the
short length of the marriage did not matter. Ashlyne further argued that requiring her to
bring a separate contract action to enforce the obligation would be contrary to judicial
economy. Therefore, she urged the court to order Vikash to pay support “as per his
obligation under the I–864 affidavit of support, to the amount of $1,196.175 per month.”
On March 18, 2015, the trial court heard argument on Vikash’s request to
terminate temporary spousal support and Ashlyne’s request to enforce the support
requirements of the I–864 affidavit. Ashlyne’s counsel reported that Ashlyne was
working up to 15 hours a week at a Blimpies, making $9 per hour. She was also
attending school, working toward her GED. The trial court terminated temporary spousal
support effective that day.
Ashlyne’s counsel asked the court to address the I–864 affidavit. The court
responded, “I find for the purposes of spousal support under California law she should be
working full time making minimum wage. And so I’m not going to order him to pay her
support because I find she’s not working up to her full potential that she should be based
on her ability and need.” Counsel asked whether the trial court was denying Ashlyne’s
request to enforce the I–864 affidavit. The court responded, “Yes, I’m denying your
request because I find the respondent is not using best efforts to find work. . . .” The
court stated it would enforce the I–864 affidavit if the government sought enforcement
and also told Ashlyne, “File a federal case.”
The same day, the trial court entered a judgment restoring the parties to single
status and terminating spousal support. Ashlyne timely appealed.
DISCUSSION
A. Standard of Review
5
On appeal, Ashlyne contends the trial court erred in ruling on her contract claim
for enforcement of the I–864 affidavit by incorrectly finding that her failure to mitigate
damages excused Vikash from his contractual obligations. Whether the trial court denied
Ashlyne’s enforcement claim on the ground she failed to mitigate damages or because it
believed she had no right to enforce the contract in state court, the issues presented are
questions of law on undisputed facts, which we review de novo. (Department of Health
Care Services v. Office of Administrative Hearings (2016) 6 Cal.App.5th 120, 141.)
We reject Vikash’s argument that the applicable standard of review is abuse of
discretion. Vikash argues we should review whether the trial court abused its discretion
in terminating temporary spousal support under the considerations set forth in the Family
Code. Ashlyne, however, is not challenging the trial court’s determination that she is not
entitled to additional spousal support under California’s statutory scheme. Her appellate
claim is solely that the trial court erred “in denying enforcement of a contract formed by
an I–864 Affidavit requiring financial support.” Whether Ashlyne could enforce the I–
864 affidavit in state court and whether she had duty to mitigate are questions of law.
B. An I–864 Affidavit is a Contract Enforceable by the Sponsored Immigrant
An I–864 affidavit is a legally enforceable contract between the sponsor and the
sponsored immigrant. (Shumye v. Felleke (N.D.Cal. 2008) 555 F. Supp. 2d 1020, 1023
(Shumye).) “By signing a Form I–864 the ‘sponsor agrees to provide support to maintain
the sponsored alien at an annual income that is not less than 125 percent of the Federal
poverty line during the period in which the affidavit is enforceable.’ (8 U.S.C.
§ 1183a(1)(A).) 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 p. 1024.)
A sponsor’s obligations under an I–864 affidavit “terminate[] 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
6
sponsor’s obligations under Form I–864 can be terminated.” (Shumye, supra, 555
F.Supp.2d at p. 1024.)
Under federal immigration law, an I–864 affidavit 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. § 1183a, subd. (a)(1)(B) & (C).) Federal regulation further provides, “The
intending immigrants and any Federal, state, or local agency or private entity that
provides a means-tested public benefit to an intending immigrant 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. § 213a.2, subd.
(c)(2)(i)(C)(2).)
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. Federal and out-of-state
courts agree with this proposition. (Love v. Love (Pa.Super.Ct. 2011) 33 A.3d 1268, 1273
[contractual obligation of the sponsor’s I–864 affidavit “is enforceable by Wife”]; In re
Marriage of Kamali and Alizadeh (Tex.Ct.App. 2011) 356 S.W.3d 544, 546–547
[enforcing sponsoring husband’s I–864 affidavit in state divorce case]; In re Marriage of
Sandhu (Kan.Ct.App. 2009) 207 P.3d 1067, 1071 [recognizing a sponsored immigrant
has independent standing to enforce an I–864 affidavit]; Naik v. Naik
(N.J.Super.Ct.App.Div. 2008) 944 A.2d 713, 717 [an I–864 affidavit is enforceable by
the sponsored spouse in state court]; Davis v. United States (6th Cir. 2007) 499 F.3d 590,
595 [state court enforcement of an I–864 affidavit by the sponsored immigrant was
“explicitly permitted under the statute”]; (Moody v. Sorokina (N.Y.App.Div. 2007) 40
A.D.3d 14, 18 [“The cases that have addressed the enforceability of the Form I–864
affidavit of support by the sponsored immigrant have found . . . that the sponsored
immigrant ‘has independent standing to enforce the sponsor’s obligation’ in any federal
or state court.’ ”].)
7
Vikash does not dispute that an I–864 affidavit is a legally binding contract
enforceable by Ashlyne. Instead, he argues the trial court acted within its discretion in
terminating the temporary spousal support order under California’s statutory scheme for
providing spousal support. But this is not Ashlyne’s contention. She does not claim she
is entitled to additional spousal support as a matter of state law. She contends that she
has a contract claim for support based on the obligations of the I–864 affidavit, which the
trial court erred in not considering.
Vikash suggests that Ashlyne’s contract claim is procedurally improper, asserting
Ashlyne “has not brought an action to enforce her rights as a third-party beneficiary in
any court of competent jurisdiction,” and she “did not join the Department of Homeland
Security to the state court dissolution action.” Vikash’s undeveloped arguments lack
merit. He offers no authority that a state court lacks jurisdiction over Ashlyne’s contract
claim. Nor does he explain why the Department of Homeland Security must be joined as
a party to a sponsored immigrant’s contract claim based on an I–864 affidavit. As we
have seen, by signing the I–864 affidavit, Vikash agreed to submit to state court
jurisdiction. (8 U.S.C. § 1183a, subd. (a)(1)(C).) And state courts regularly exercise
jurisdiction over contract claims involving I–864 affidavits brought by the sponsored
immigrant alone. (See Love v. Love, supra, 33 A.3d 1268 [Pennsylvania]; In re Marriage
of Kamali and Alizadeh, supra, 356 S.W.3d 544 [Texas]; In re Marriage of Sandhu,
supra, 207 P.3d 1067, 1071 [Kansas]; Naik v. Naik, supra, 944 A.2d 713, 717 [New
Jersey]; Davis v. United States, supra, 499 F.3d 590, 592 [recognizing propriety of
enforcement of I–864 affidavit in Ohio state court]; Moody v. Sorokina, supra, 40 A.D.3d
14 [New York].)
Vikash argues the I–864 affidavit “is not enforceable in an action brought under
state law to enforce support because the Federal Pre-emption Doctrine is not applicable to
state support law.” This argument misses the mark because Ashlyne does not claim that
the field of state support law is completely preempted by the I–864 affidavit. Rather, she
correctly recognizes, “ ‘[t]he right of support conferred by federal law exists apart from
8
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, italics added.)
Vikash urges us to consider the analysis of four out-of-state cases, but three of the
cases support Ashlyne’s position that she may enforce the I–864 affidavit in the current
dissolution proceeding. Barnett v. Barnett (Alaska 2010) 238 P.3d 594, Love v. Love,
supra, 33 A.3d 1268, and Iannuzzelli v. Lovett (Fla.Dist.Ct.App. 2008) 981 So. 2d 557, all
involve immigrant spouses who sought to enforce I–864 affidavits in state divorce
proceedings. In each case, the state court exercised jurisdiction over the immigrant
spouse’s contract claim based on an I–864 affidavit.6
The fourth case Vikash relies on is In re Marriage of Khan (2014) 182 Wash.App.
795. In that case, the wife sought to enforce her husband’s I–864 affidavit in their
divorce proceeding, arguing husband’s “I–864 support obligation was a basis for a
maintenance award.” (Id. at p. 798.) The trial court tried to fashion a compromise
support order, the end result of which seemingly failed to comport with either state law or
the terms of the affidavit.7 The wife appealed. On appeal, the parties agreed that the
6
In Barnett v. Barnett, supra, 238 P.3d 594, the trial court entertained the
immigrant spouse’s contract claim, but found that she was not entitled to support under
the terms of the I–864 affidavit. The Alaska Supreme Court affirmed, holding that the
trial court did not err in interpreting 8 United States Code section 1183a. (Id. at pp. 597–
599.) In Love v. Love, supra, 33 A.3d 1268, the Pennsylvania appellate court held the
trial court erred in refusing to consider the I–864 affidavit. The court concluded, “[W]e
reject the trial court’s conclusion that Wife was precluded from enforcing the affidavit of
support during the support proceedings and its attendant holding that Wife is required to
initiate a separate civil action based upon the Affidavit seeking either compensatory
damages or specific performance.” (Id. at p. 1275.) In Iannuzzelli v. Lovett, supra, 981
So. 2d 557, the Florida state trial court ruled that the I–864 affidavit was an enforceable
contract, but it determined the wife was not entitled to a monetary award under the terms
of the affidavit. (Id. at 559.) On appeal, the wife acceded to the trial court’s factual
finding. (Id. at p. 561.)
7
“The trial court concluded that under state law maintenance was not appropriate
for several reasons. Nevertheless, it awarded [the wife] maintenance of $2,000 per month
through June 2013, three months from the date of the dissolution decree. The trial court
based its maintenance award on a perceived conflict between [the husband’s] I–864
obligation under federal law and Washington dissolution law. It concluded that [the
9
husband owed the wife an ongoing support obligation under the I–864 affidavit. (Id. at p.
801.) The only question was “whether that obligation must be enforced through a
maintenance award in the dissolution proceeding.” (Ibid.) The Washington appellate
court concluded that “a maintenance order need not include enforcement of a person’s I–
864 obligation.” The court offered three reasons for its conclusion, the first of which was
that there was “no ‘conflict’ between federal law regarding I–864 obligations and
Washington dissolution law because they are independent of each other.” (Ibid.)8 The
court’s other two reasons for its conclusion were that state statute governed the award of
maintenance, and that “the beneficiary of an I–864 obligation will not be left without
remedy if that obligation is not included in a maintenance award” because she or he can
bring a separate contract action. (Id. at pp. 802–803.) The Khan court left unresolved the
question whether a Washington state trial court in divorce proceedings could exercise
jurisdiction over a sponsored immigrant’s contract claim under an I–864 affidavit. (Id. at
p. 803, fn. 3 [“Although we hold that a trial court is not required to include the I–864
obligation in a maintenance award, we need not address whether a trial court in the
exercise of its discretion could incorporate the I–864 obligation into a maintenance
award.”].)
In re Marriage of Khan does not help Vikash, either. It does not stand for the
proposition that enforcement of an I–864 affidavit preempts state law. To the contrary,
the Khan court held that a maintenance award ordered pursuant to Washington state law
cannot be based solely on the non-statutory factor of the affidavit. (In re Marriage of
wife’s] I–864 rights preempted state law and limited its ability to impute income to [the
wife] based on her earning capacity and education, and stated that in awarding
maintenance it was balancing federal and state law.” (In re Marriage of Khan, supra,
182 Wash.App. at p. 798.)
8
The appellate court, thus, implicitly rejected the trial court’s determination that
enforcing the I–864 affidavit involved preemption of state law.
10
Khan, supra, 182 Wash.App. at p. 802.)9 Nor did the Khan court hold that a state court
lacks jurisdiction over a sponsored immigrant’s contract claim based on an I–864
affidavit.
Finally, in response to the argument of amicus curiae that a sponsored immigrant
must be permitted to enforce an I–864 affidavit in family law proceedings, Vikash takes
the position that an I–864 affidavit simply is not enforceable in a dissolution action. He
argues, “The place for enforcement is in a civil trial court where the sponsored spouse or
governmental agency seeking reimbursement brings a cause of action to enforce the I–
864 against the signing sponsor, thereby fulfilling its purpose of making the government
whole, not to create a right of support.” This argument is unavailing. First, there is no
separate “family court” jurisdiction. “In practice, the superior court exercising
jurisdiction under the Family Code is known as the ‘family court’ (or ‘family law court’).
But there is no separate ‘family court’ per se. Rather, ‘family court’ refers to the
activities of superior court judicial officers handling litigation arising under the Family
Code. The ‘family court’ is ‘not a separate court with special jurisdiction, but is instead
the superior court performing one of its general duties.’ ” (Hogoboom & King, Cal.
Practice Guide: Family Law (The Rutter Group 2016) ¶3:3.10, p. 3-3.) There is no
reason a superior court hearing a divorce case cannot exercise jurisdiction over an
immigrant spouse’s contract claim based on an I–864 affidavit. Second, there is no
authority for Vikash’s argument that an I–864 affidavit does not “create a right of
support.” Based on our discussion of the law above, the affidavit obviously does create a
contractual right to minimum support owed by the sponsor to the sponsored immigrant.
In sum, an I–864 affidavit is an enforceable contract, and a sponsored immigrant
has standing to bring an action to enforce it in state court. To the extent the trial court
denied Ashlyne’s contract claim on the ground she lacked standing to enforce the I–864
affidavit, this was incorrect.
9
Once again, we observe that Ashlyne does not argue she was entitled to support
based on state law. As a result, we see no inherent conflict between our decision and the
result in In re Marriage of Khan.
11
C. A Sponsored Immigrant Seeking to Enforce an I–864 Affidavit Has No Duty to
Mitigate Damages
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 urges us 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 (7th Cir. 2012) 686
F.3d 418, 420, 422–423 (Liu).) In Liu, the sponsored immigrant Liu and her husband
Mund divorced, and Liu brought an action in federal district court for support based on
Mund’s I–864 affidavit. The only issue on appeal was whether Liu had a duty to mitigate
damages. (Id. at p. 420.)
The Seventh Circuit began its analysis by considering the purpose of the I–864
affidavit. “The Immigration and Nationality Act forbids admission to the United States
of any alien who ‘is likely at any time to become a public charge.’ (8 U.S.C.
§ 1182(a)(4)(A); see also id., § 1601(2)(A), (5).) This provision is implemented by
requiring a person who sponsors an alien for admission to ‘execute an affidavit of
support.’ (8 C.F.R. § 213a.2(a), (b); see also 8 U.S.C. § 1182(a)(4)(C)(ii).) The affidavit,
the contents of which are specified in 8 U.S.C. § 1183a, is in the form of a contract
between the sponsor and the United States (8 C.F.R. § 213a.2(d)) called Form I–864.
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. § 1183a(a)(1)(B); see also § 1183a(b)(1)(A).)” (Liu,
supra, 686 F.3d at p. 420.)
“[T]he obligation is to support the sponsored alien at 125 percent of the poverty
income level; the affidavit must include this requirement. (8 U.S.C. § 1183a(a)(1)(A).)
The affidavit also, however, specifies several excusing conditions, such as the sponsor’s
death or the alien’s being employed for 40 quarters (also specified as an excusing
condition in the statute (8 U.S.C. § 1183a(a)(3)(A)). But the list of excusing conditions
12
does not mention the alien’s failing to seek work or otherwise failing to mitigate his or
her damages.” (Liu, supra, 686 F.3d at p. 420.)
The court reasoned: “[T]he stated statutory goal, remember, is to prevent the
admission to the United States of any alien who ‘is likely at any time to become a public
charge.’ [Citations.] The direct path to that goal would involve imposing on the sponsor
a duty of support with no excusing conditions. Some such conditions are specified; but
why should the judiciary add to them—specifically why should it make failure to
mitigate a further excusing condition? The only beneficiary of the duty 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. And Mund can’t argue that Form I–864 confused him,
for there is no reference in it to a duty of the sponsored immigrant (Liu) to mitigate the
damages caused her by the sponsor’s (Mund’s) breach of his duty of support.” (Liu,
supra, 686 F.3d at p. 422.)
The court determined that “[t]he absence of such a duty serves the statutory
objective in a second way: it tends to make prospective sponsors more cautious about
sponsoring immigrants. The sponsor is the guarantor of the sponsored immigrant’s
having enough (though just barely enough) income to avoid becoming a public charge.
The more extensive—the less qualified—the guaranty, the less likely is an irresponsible
immigrant to obtain sponsorship. Liu and Mund had an awful marriage. Had he known
that by bringing her to the United States he would be assuming a virtually unconditional
obligation to support her indefinitely even if they later divorced, he might not have
signed the affidavit . . . .” (Liu, supra, 686 F.3d at p. 422.) Further, the 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 court concluded: “In sum, we can’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
13
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; see also Zhu v. Deng (N.C.Ct.App.
2016) 794 S.E.2d 808, 812–813 [sponsored immigrant “has no affirmative duty to
mitigate her damages under” the I–864 affidavit].)
We find Liu persuasive, and hold that an immigrant spouse seeking to enforce the
support obligation of an I–864 affidavit has no duty to seek employment to mitigate
damages.10 Accordingly, we conclude it was error to deny Ashlyne’s contract claim on
the ground she had failed to use best efforts to mitigate damages.
DISPOSITION
The judgment is reversed. The case is remanded for the trial court to consider
Ashlyne’s contract claim based on the I–864 affidavit in accordance with our decision.
We express no opinion on the merits of Ashlyne’s contract claim. Ashlyne shall recover
her costs on appeal.
10
We recognize there are cases that assume there is a duty to mitigate. But in
those cases, it does not appear that the issue whether the support obligation of an I–864
affidavit imposes a duty to mitigate upon the sponsored immigrant was squarely raised.
(E.g. Younis v. Farooqi, supra, 597 F.Supp.2d at p. 556 [“Assuming the plaintiff has an
obligation to mitigate her damages by seeking employment, she need not apply for every
available job in order to mitigate her losses; she need only make reasonable efforts.”];
Love v. Love, supra, 33 A.3d at p. 1278 [finding the sponsor-husband failed to raise the
affirmative defense of failure to mitigate, the court observed, “Although the Affidavit
does not create a duty for Wife to mitigate her damages associated with Husband’s
breach, we acknowledge Wife’s common law duty to mitigate.”].)
14
_________________________
Miller, J.
We concur:
_________________________
Kline, P.J.
_________________________
Stewart, J.
A145181, Kumar v. Kumar
15
Trial Court: Superior Court of San Mateo County
Trial Judge: Hon. Don Franchi
Attorneys for Appellant J. Neel Chatterjee
Edwin Steussy
Orrick Herrington & Sutcliffe LLP
Erin C. Smith
Jennafer D. Wagner
Shuray Ghorishi
Family Violence Appellate Project
Protima Pandey
Bay Area Legal Aid
Attorneys for Respondent Margaret Sharon Tillinghast
Attorneys for Amicus Curiae David Ginsberg
National Immigrant Women’s Harsh Parikh
Advocacy Project Judy Choi
in support of appellant
A145181, Kumar v. Kumar
16