Sponsor an Alien, Be Prepared to Support Her

CHICAGO (CN) - Under federal immigration law, a U.S. citizen who sponsors an alien's application for permanent residency has a duty to support him or her financially even if the alien is not actively seeking employment, the 7th Circuit ruled.

Timothy Mund, a U.S. citizen, married Chinese citizen Wengfang Liu in 2005 while living in China. The couple moved to Madison, WI two years later.

Mund agreed to sponsor Liu's application for permanent residency. Under the Immigration and Nationality Act, Mund was required to sign an I-846 affidavit agreeing to support his wife at 125 percent of the poverty level even if they divorced.

The only two exceptions to the support obligation specified in the affidavit are the sponsor's death or alien's continued employment for more than 40 quarters. A sponsor is only responsible for making up any difference between the alien's income and the required support amount.

When the couple divorced in 2008, Mund refused to pay on the ground that his wife wasn't looking for work.

Liu sued for the approximately $13,500 per year support payments.

U.S. District Judge William Conley ruled in Mund's favor, denying Liu the support because she had not attempted to mitigate the damages. Liu appealed.

"So far as we can tell, neither the Congress that enacted... the Immigration and Nationality Act nor the immigration authorities that promulgated implementing regulations and have drafted successive versions of Form I-864 ever thought about mitigation of damages," Judge Richard Posner wrote.

"The question is whether reading a duty of mitigation into the immigration statute and the regulations and the affidavit-contract would serve or disserve statutory and regulatory objectives."

The court rejected the argument made by the Department of Justice's Office of Immigration Litigation, which filed an amicus curiae brief, that the act includes a duty to mitigate in order to promote immigrant self-sufficiency.

"But self-sufficiency... is not the goal stated in the statute; the 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,'" Posner wrote, noting that imposing a duty of support on the sponsor with no excusing conditions would be the direct path to that goal.

"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."

Even without a duty to mitigate, the immigrant has a strong incentive to seek work because of the meager nature of the poverty-line."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 the duty of support by giving the sponsor a defense-and not even a defense likely to prevail," Posner concluded.

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