in the Matter of the Marriage of Kayvan Kamali and Banafsheh Safar Alizadeh and in the Interest of K. T. K., a Child ( 2011 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-11-00039-CV
______________________________
IN THE MATTER OF THE MARRIAGE OF
KAYVAN KAMALI AND BANAFSHEH SAFAR ALIZADEH
AND IN THE INTEREST OF K. T. K., A CHILD
On Appeal from the 307th Judicial District Court
Gregg County, Texas
Trial Court No. 2010-1347-DR
Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Justice Moseley
OPINION
Dr. Kayvan Kamali sponsored the immigration of Banafsheh Safar Alizadeh from Iran to
the United States of America and married her. The marriage had lasted only about two and
one-half years when Kamali 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. Alizadeh’s appeal complains the trial court
erred by limiting Kamali’s support payments to a period of thirty-six months. 2 We sustain
Alizadeh’s point of error.
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
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, Alizadeh 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 However, this issue was not briefed, and this request was withdrawn on oral argument.
2
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.‖
Kamali completed such an affidavit of support in order to secure Alizadeh’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 Kamali that same month. At trial, Alizadeh 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. Alizadeh 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.
3
Although neither party could produce the affidavit of support at trial, Kamali 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.
3
The portion of the divorce decree entered by the trial court which dealt with the obligation of
Kamali to make support payments to Alizadeh reads as follows:
Affidavit of Support and Other Tort or Contract Claims Asserted by Banafsheh
Safar Alizadeh
The Court finds that Kayvan Kamali contractually obligated himself to support of
Banafsheh Safar Alizadeh, including but not limited to, the claim under Form
I-864, Affidavit of Support. Kayvan Kamali will pay to Banafsheh Safar Alizadeh
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,
4
At oral argument, Alizadeh 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.).
4
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).
Kamali’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
6
The instructions to complete the affidavit also state: ―This form is a contract between a sponsor and the U.S.
Government.‖
5
as an event precipitating a termination of the obligation. The affidavit of support was a contract
between Kamali and the United States government, enforceable by Alizadeh. 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 Banafsheh Safar Alizadeh‖ and substitute the
following in its stead: ―The court finds that Kayvan Kamali contractually obligated himself to
support Banafsheh Safar Alizadeh 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
Kamali is obligated under the terms of his agreement with the federal government concerning
Alizadeh’s immigration. The judgment, as reformed, is otherwise affirmed.
Bailey C. Moseley
Justice
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.
6
Date Submitted: November 16, 2011
Date Decided: December 7, 2011
7