No Duty to Mitigate: Immigration Law Mandates Spousal Support

If you sponsor an immigrant spouse for permanent residency and later divorce, you could be on the line for spousal support, regardless of whether your former spouse attempts to find work, according to a recent Seventh Circuit Court of Appeals ruling.

Timothy Mund, an American, married Wenfang Liu in China. Two years later the couple decided to move to the United States. The Immigration and Nationality Act forbids admission of any alien who “is likely at any time to become a public charge,” so Mund had to sign an I-864 affidavit agreeing to support Liu at 125 percent of the poverty level — approximately $13,500 a year — even if they divorced.

They divorced two years later.

A Wisconsin divorce court ordered Mund to support Liu for one year at a rate of $500 a month -- in case you weren't a Mathlete, that's only $6,000 -- and made the support contingent on Liu proving that she was actively seeking, but unable to find, work. The court declined to address the I-864 affidavit.

Liu sued for the affidavit-mandated spousal support under the Immigration and Nationality Act, which establishes federal jurisdiction for an action to enforce an I-864 affidavit of support. The district judge held that Liu was not entitled to support because she hadn't actively sought work during the 160-day period after she had filed her motion for summary judgment.

The only substantial issue for the Seventh Circuit was whether, in a suit to enforce the obligation of support created by the federal affidavit, a plaintiff has a legal duty to mitigate damages.

The I-864 form requires the sponsor to "agree to provide the sponsored immigrant(s) whatever support is necessary to maintain the sponsored immigrant(s) at an income that is at least 125 percent of the Federal poverty guidelines." It also specifies several excusing conditions that would eliminate the spousal support requirement, such as the sponsor's death or the alien's being employed for 40 quarters. The list of excusing conditions does not mention the alien's failing to seek work or otherwise failing to mitigate his or her damages.

Judge Richard Posner, writing for the Seventh Circuit Court of Appeals panel, concluded that Liu had no legal duty to mitigate damages. "If the government is serious about wanting to impose a duty of mitigation, why hasn't it revised Form I-864 to include such a duty?" he asked. He also observed that the feds had revised the affidavit to make it explicit that 'divorce does not terminate your obligations under this Form I-864,' but it didn't add a duty to mitigate.

Judge Posner noted that the stated statutory goal behind the I-864 affidavit is to prevent the admission to the United States of any alien who "is likely at any time to become a public charge," and the absence of a duty to mitigate serves to make prospective sponsors more cautious about sponsoring immigrants.

Related Resources:

• Wenfang Liu v. Timothy Mund (Seventh Circuit Court of Appeals)
• What is the Affidavit of Support? (FindLaw)
• One-Child Policy Opposition Doesn't Prove Political Persecution (FindLaw's Seventh Circuit Blog)