FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AYLA ERLER,

Plaintiff-Appellant,

v.

YASHAR ERLER,

Defendant-Appellee.

No. 14-15362

D.C. No.

3:12-cv-02793-CRB

OPINION

Appeal from the United States District Court

for the Northern District of California

Charles R. Breyer, District Judge, Presiding

Submitted February 11, 2016*

San Francisco, California

Filed June 8, 2016

Before: Mary M. Schroeder and Jacqueline H. Nguyen,

Circuit Judges, and Lynn S. Adelman,** District Judge.

Opinion by Judge Adelman;

Dissent by Judge Schroeder

* The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

** The Honorable Lynn S. Adelman, United States District Judge for the

Eastern District of Wisconsin, sitting by designation.
2 ERLER V. ERLER

SUMMARY***

Immigration Law

The panel vacated the district court’s summary judgment

in favor of the defendant in an action to enforce a sponsor’s

duty to provide financial support to an immigrant under an “I864 Affidavit of Support.”

The defendant, a United States citizen, married the

plaintiff, a Turkish citizen, and signed an affidavit of support,

making her eligible for admission to the United States. The

defendant agreed to provide the plaintiff with any support

necessary to maintain her at an income that was at least 125

percent of the Federal Poverty Guidelines for her household

size. The affidavit became a contract between the defendant

sponsor and the United States government for the benefit of

the plaintiff and any entity that administers a means-tested

public benefits program. The parties subsequently divorced,

and their divorce judgment reflected their premarital

agreement that neither would be entitled to alimony or

support from the other.

Agreeing with the Seventh Circuit, the panel affirmed the

district court’s conclusion that despite the divorce, the

defendant had a continuing obligation to support the plaintiff. 

The panel held, however, that the district court erred in

treating the plaintiff and the adult son with whom she lived as

a combined household for purposes of determining whether

the defendant breached that obligation.

 

*** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
ERLER V. ERLER 3

Dissenting, Judge Schroeder wrote that the defendant was

not required to pay support for his former wife, who was

living in a household with income above the poverty level for

its size.

COUNSEL

David V. Sanker, Corey R. Houmand, and Melinda S.

Riechert, Morgan, Lewis & Bockius LLP, Palo Alto,

California, for Plaintiff-Appellant.

Yashar Erler, San Carlos, California, pro se DefendantAppellee.

OPINION

ADELMAN, District Judge:

This is an action to enforce a sponsor’s duty to provide

financial support to an immigrant under an “I-864 Affidavit

of Support.” See 8 U.S.C. § 1183a.

I.

Ayla Erler is a Turkish citizen who immigrated to the

United States in November 2008 to marry Yashar Erler.1

Yashar, who is originally from Turkey, is a citizen of the

United States. He is a real estate agent and owns several

rental properties. His net worth exceeds $4.6 million.

1 For clarity and simplicity, we will refer to the parties by their first

names.
4 ERLER V. ERLER

Ayla married Yashar on April 15, 2009. A short time

later, the couple began proceedings before the Department of

Homeland Security, U.S. Citizenship and Immigration

Services (“USCIS”) to ensure that Ayla could lawfully

remain in the United States. As part of this process, Yashar

signed an “I-864 Affidavit of Support,” in which he agreed to

provide Ayla with “any support necessary to maintain [her]

at an income that is at least 125 percent of the Federal

Poverty Guidelines for [her] household size.” Yashar signed

this affidavit because 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); 8 C.F.R. § 213a.2(a). Persons who would be

inadmissible for this reason may become admissible if a

sponsor executes the affidavit of support. 8 U.S.C.

§ 1183a(a)(1); 8 U.S.C. § 1182(a)(4)(C)(ii); 8 C.F.R.

§ 213a.2. Once executed, the affidavit becomes a contract

between the sponsor and the U.S. Government for the benefit

of the sponsored immigrant, and of any Federal, State, or

local governmental agency or private entity that administers

any “means-tested public benefits program.” 8 C.F.R.

§ 213a.2(d); see also 8 U.S.C. § 1183a(a)(1) (providing that

affidavit must be “executed by a sponsor of the alien as a

contract”).

On March 25, 2011, Ayla and Yashar separated. Yashar

subsequently initiated divorce proceedings in California state

court. The divorce was finalized on May 4, 2012. Prior to

their marriage, Ayla and Yashar had entered into a premarital

agreement stating that neither party would be entitled to

alimony or support from the other. The judgment of divorce

reflects this agreement.
ERLER V. ERLER 5

Following her separation from Yashar, Ayla moved into

an apartment with her adult son, Dogukan Solmaz. Ayla has

not been able to find employment, and she contends that she

has earned no income since her separation from Yashar. 

Dogukan earns an income of approximately$3,200 per month

and uses his income to pay rent and other living expenses for

both himself and Ayla. Dogukan’s income exceeds 125% of

the Federal poverty guidelines for a household of two.

Since their separation in March 2011, Yashar has refused

to provide Ayla with any support. According to Ayla, Yashar

made one payment of $3,500 to assist her with moving

expenses in April 2011 but otherwise has not made any

payments to her since their separation.

On May 31, 2012, Ayla commenced an action in the

district court against Yashar to enforce his obligations under

the affidavit of support. Yashar, who chose to proceed

without counsel (and who appears without counsel on

appeal), argued that the premarital agreement and divorce

judgment terminated his obligations under the affidavit of

support. Yashar also argued that because Dogukan has been

supporting Ayla at a level that is not less than 125% of the

Federal poverty guidelines for a two-person household,

Yashar has not breached any obligation of support that might

have survived the divorce.

The district court granted summary judgment to Yashar. 

See Erler v. Erler, No. CV-12-2793-CRB, 2013 WL6139721

(N.D. Cal. Nov. 21, 2013). The court first determined that

the premarital agreement and divorce judgment did not

terminate Yashar’s obligation under the affidavit of support. 

However, the court then determined that Yashar had not

breached his continuing obligation to support Ayla because,
6 ERLER V. ERLER

since the time of the separation, Dogukan had been

maintaining Ayla at an annual income of at least 125% of the

Federal povertyguidelines for a two-person household. Thus,

reasoned the court, Yashar’s duty to support Ayla had not

been triggered.

Ayla appeals the district court’s conclusion that Yashar

did not breach the affidavit of support. She contends that the

district court erred by including Dogukan and his income

when calculating her household size and income. According

to Ayla, the district court should have measured Yashar’s

support obligation based on a household size of one and

should not have credited her with Dogukan’s income.

On appeal, Yashar does not explicitly challenge the

district court’s conclusion that his support obligation survives

the divorce. However, in his brief, he expresses some

disagreement with that conclusion. Because Yashar is not

represented by counsel, we will assume that he is seeking

review of that conclusion and will briefly address it before

turning to the question of whether he has breached the

obligation of support.

II.

In the district court, Yashar argued that the parties’

premarital agreement and the California divorce judgment

terminated his obligation under the affidavit of support. 

However, the district court correctly rejected these

arguments.

Under federal law, an affidavit of support remains

enforceable until the sponsored immigrant: (1) becomes a

citizen of the United States; (2) has worked or can be credited
ERLER V. ERLER 7

with 40 qualifying quarters of work under title II of the Social

Security Act; (3) ceases to be a lawful permanent resident and

departs the United States; (4) obtains in a removal proceeding

a grant of adjustment of status as relief from removal; or

(5) dies. 8 C.F.R. § 213a.2(e)(2)(i); see also 8 U.S.C.

§ 1183a(a)(2)–(3). The I-864 Form that Yashar signed

reproduces this information in a section entitled “When Will

These Obligations End?” as follows:

Your obligations under a Form I-864 will end

if the person who becomes a permanent

resident based on a Form I-864 that you

signed:

C Becomes a U.S. citizen;

C Has worked, or can be credited with, 40

quarters of coverage under the Social

Security Act;

C No longer has lawful permanent residence

status, and has departed the United States;

C Becomes subject to removal, but applies

for and obtains in removal proceedings a

new grant of adjustment of status, based

on a new affidavit of support, if one is

required; or

C Dies.

Just after the bullet points, the form states: “Note that divorce

does not terminate your obligations under this Form I-864.”
8 ERLER V. ERLER

Thus, under federal law, neither a divorce judgment nor

a premarital agreement may terminate an obligation of

support. Rather, as the Seventh Circuit has recognized, “[t]he

right of support conferred by federal law exists apart from

whatever rights [a sponsored immigrant] might or might not

have under [state] divorce law.” Liu v. Mund, 686 F.3d 418,

419–20 (7th Cir. 2012). We therefore hold that the district

court correctly determined that Yashar has a continuing

obligation to support Ayla.

III.

To determine whether the district court correctly found

that Yashar has not breached his continuing obligation of

support, we must decide what it means for a sponsor of an

intending immigrant to provide the immigrant “with 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” when the sponsored immigrant no

longer resides in the sponsor’s household. More specifically,

the appeal requires us to decide how to measure the

immigrant’s post-separation household size and the

immigrant’s post-separation income.

Certain provisions of the Immigration and NationalityAct

and the implementing regulations touch on these questions,

but they do not clearly answer them. For example, the Act

defines “Federal poverty line” as “the level of income equal

to the official poverty line [as published by the Department of

Health and Human Services] that is applicable to a family of

the size involved.” 8 U.S.C. § 1183a(h). However, the Act

does not explain how to identify the “family of the size

involved” when the sponsored immigrant no longer lives in

the same household as the sponsor. Moreover, although
ERLER V. ERLER 9

several provisions of the statutes and the regulations contain

instructions for calculating the sponsor’s income and

household size for purposes of determining whether the

sponsor has the means to support the intending immigrant,

see 11 U.S.C. § 1183a(f)(6)(A)(iii); 8 C.F.R. § 213a.1

(defining “household income,” “household size,” and

“income”); 8 C.F.R. § 213a.2(c)(2), there are no similar

provisions for calculating the sponsored immigrant’s income

and household size for purposes of determining whether the

sponsor has breached his or her duty to support the

immigrant.

The district court recognized that the applicable statutes

and regulations do not clearly explain how to determine a

sponsored immigrant’s post-separation household size and

income. The court then looked to the purposes of the

affidavit-of-support requirement and found that it must strike

a balance between ensuring that the immigrant’s income is

sufficient to prevent her from becoming a public charge and

preventing unjust enrichment to the immigrant. The court

concluded that the proper balance under the facts of this case

was to find that Dogukan and Ayla constituted a two-person

household for purposes of the affidavit of support, and that

their combined income must be used to determine whether

Ayla’s income was at least 125% of the poverty guidelines. 

The court reached this result by reasoning that because

Dogukan was already providing Ayla with the support

necessary to sustain her at 125% of the poverty guidelines,

she would not become a public charge even if Yashar did not

contribute any support. The court also reasoned that

requiring Yashar to provide additional support under these

circumstances would lead to Ayla’s receiving “windfall

benefits.” Erler, 2013 WL 6139721, at *6.
10 ERLER V. ERLER

The district court’s approach is not without appeal. 

However, in our view, it leads to an untenable result. If a

sponsor’s duty under the affidavit of support is measured by

the immigrant’s post-separation household size and

household income, then the sponsor would have to support all

members of the immigrant’s post-separation household in the

event that the household’s income fell below 125% of the

poverty guidelines for a household of that size. For example,

in this case, the district court determined that Yashar’s duty

of support must be based on a two-person household and that

Ayla must be credited with Dogukan’s income. But what if

Dogukan lost his job and was unable to maintain the

household at 125% of the poverty guidelines for a two-person

household? Under the district court’s approach, if Ayla

continued to live in the same household as Dogukan but

earned no income, then Yashar would be obligated to support

both Ayla and Dogukan. That is, Yashar would be obligated

to make enough payments to Ayla to bring her income above

125% of the poverty guidelines for a two-person household. 

Alternatively, assume that Ayla earned enough income to

support herself at 125% of the poverty guidelines for a oneperson household. In this circumstance, Yashar would not be

obligated to provide Ayla with any support. But then assume

that Ayla allows a family member who has no income to join

her household. If Ayla’s income were not sufficient to

support a two-person household at 125% of the poverty

guidelines, then under the district court’s approach, Yashar

would be required to make up the difference.

In our view, these results would be untenable because, in

signing the affidavit of support, Yashar agreed to support

only Ayla, not Ayla and anyone else with whom she might

choose to live. The affidavit of support is a contract, see

8 U.S.C. § 1183a(a)(1); 8 C.F.R. § 213a.2(d), and contracts
ERLER V. ERLER 11

are interpreted to give effect to the reasonable expectations of

the parties, see, e.g., 11 Williston on Contracts § 31:11 (4th

ed. 2012). At the time a sponsor signs an affidavit of support

for a single intending immigrant, he or she would reasonably

expect that, if the immigrant separates from the sponsor’s

household, the obligation of support would be based on a

household size of one. Or, if the sponsor agreed to sponsor

multiple immigrants, such as a parent and child, then the

sponsor would reasonably expect that, in the event of a

separation, the obligation of support would be based on a

household size that includes the total number of sponsored

immigrants living in the household. The sponsor would not

reasonably expect the obligation of support to be based on a

household that includes the sponsored immigrant or

immigrants plus anyone else with whom the immigrant might

choose to live. Thus, in the event of a separation, the

sponsor’s duty of support must be based on a household size

that is equivalent to the number of sponsored immigrants

living in the household, not on the total number of people

living in the household.

We recognize that our approach will sometimes lead to

imperfect outcomes. As the district court noted, ignoring the

income of others with whom the immigrant chooses to live

will occasionally allow the immigrant to receive more

support than required to prevent him or her from falling

below 125% of the poverty line. However, while the

immigrant may receive more support than required, the

sponsor pays no more than what he or she should have

expected to pay when signing the affidavit of support, i.e., the

amount required to support the immigrant in a one-person

household. Thus, in this situation, the sponsor has no cause

to complain about the immigrant’s receiving a windfall.
12 ERLER V. ERLER

In any event, relieving the sponsor of his duty of support

when the immigrant is fortunate enough to find another

person willing to provide the necessarysupport could itself be

considered a windfall to the sponsor. Because the sponsor is

not an intended beneficiary of the affidavit-of-support

requirement, Liu v. Mund, 686 F.3d 418, 422 (7th Cir. 2012),

we see no reason why the sponsor, rather than the immigrant,

should receive the windfall. To the contrary, allowing the

sponsor to receive the windfall would undermine the purpose

of the affidavit of support, which is to “prevent the admission

to the United States of any alien who ‘is likely at any time to

become a public charge.’” Id. (quoting 8 U.S.C.

§ 1182(a)(4)(A)). As the Seventh Circuit has recognized, that

purpose is best served by interpreting the affidavit in a way

that makes prospective sponsors more cautious about

sponsoring immigrants. Id. Here, Yashar asks the court to

adopt a rule allowing sponsors to escape their support

obligations by withholding payments and waiting for

charitable third parties to pick up the slack. Such a rule

would make sponsors less cautious about sponsoring

immigrants, and thus it would undermine the very purpose of

the support requirement.2

We also recognize that, under our approach, there will be

cases in which the immigrant will be left living in a

2 The district court expressed concern that if an immigrant who received

adequate support from others could nonetheless turn to the sponsor for

support, then the sponsor might unnecessarily become a public charge. 

However, before admitting the immigrant based on the sponsor’s affidavit

of support, USCIS would have reviewed the sponsor’s income to make

sure that it was sufficient to support the immigrant. See 8 U.S.C.

§ 1183a(f)(1)(E); 8 C.F.R. § 213a.2(c)(2). So in most cases, enforcing the

sponsor’s support obligation will not result in the sponsor’s becoming a

public charge.
ERLER V. ERLER 13

household that makes less than 125% of the poverty

guidelines, even after the sponsor satisfies his or her support

obligation. For example, if the immigrant chooses to live in

a two-person household, measuring the sponsor’s duty of

support by a one-person household could result in the

immigrant’s total household income falling below 125% of

the poverty guidelines. However, we conclude that this result

coincides with the reasonable expectations of the parties to

the affidavit of support. The sponsor would not reasonably

expect to have to support the immigrant and any others with

whom she chooses to live, and the immigrant would not

reasonably expect to be entitled to such support. Likewise,

the U.S. Government, who is also a party to the contract

created by the affidavit, would not reasonably expect the

sponsor to support any others with whom the immigrant

might choose to live following her separation from the

sponsor.

Accordingly, we hold that when a sponsored immigrant

separates from the sponsor’s household, the sponsor’s

obligation under the affidavit of support is to provide the

immigrant with whatever support is necessary to maintain

him or her at an annual income of at least 125% of the

poverty guidelines for a one-person household. If the sponsor

agreed to support more than one immigrant, and those

immigrants separate from the sponsor’s household and

continue to live together, then the sponsor must provide them

with whatever support is necessary to maintain them at an

annual income of at least 125% of the poverty guidelines for

a household of a size that includes all the sponsored

immigrants. When measuring the immigrant’s income, the

court must disregard the income of anyone in the household
14 ERLER V. ERLER

who is not a sponsored immigrant.3 Applying this rule to the

present case, we conclude that Yashar has a continuing

obligation to provide Ayla with whatever support is necessary

to maintain her at an income that is at least 125% of the

poverty guidelines for a one-person household. For purposes

of determining whether Yashar has fulfilled this obligation,

the court must not consider Dogukan’s income.

Before concluding, we note that Yashar argues in his brief

that, even if Ayla is not credited with Dogukan’s income, her

annual income would exceed 125% of the poverty guidelines

for a one-person household. In calculating Ayla’s income,

Yashar includes Ayla’s food-stamp benefits that she receives

from the State of California, and benefits that she receives

under a Turkish pension. The pension benefits are deposited

into a Turkish bank account, and Ayla contends that she

cannot access the funds from within the United States. 

Because the district court concluded that Dogukan’s income,

on its own, was sufficient to provide Ayla with the necessary

support, it did not address whether the food stamps and

pension benefits should be treated as Ayla’s income. Nor did

the district court address the ultimate question of whether, for

the years since her separation from Yashar, Ayla’s income

was at least 125% of the poverty guidelines for a one-person

household. Rather than address these questions for the first

time on appeal, we leave them for the district court to address

on remand.

 

3

 We do not, however, consider a case where the sponsored immigrant

has remarried. In such a case, it may be appropriate to impute all or part

of the spouse’s income to the sponsored immigrant.
ERLER V. ERLER 15

IV.

For the foregoing reasons, we agree with the district court

to the extent it found that, despite the divorce, Yashar has a

continuing obligation to support Ayla. However, we hold

that court erred in treating Ayla and Dogukan as a combined

household for purposes of determining whether Yashar

breached that obligation. We therefore VACATEthe court’s

grant of summary judgment to Yashar and REMAND for

further proceedings consistent with this opinion. Costs shall

be assessed against the defendant.

SCHROEDER, Circuit Judge, dissenting:

In my view, the district court got this difficult case right. 

My colleagues have held that Mr. Erler must pay support for

his former wife, even though she is living in a household with

income above the poverty level for its size. I do not agree.

The majority’s fear is that taking into account the income

of other persons in her household, though relieving Mr. Erler

of any present obligation, could create a burden for Mr. Erler

in the future, if his former wife were to live in a household

with income below the poverty level. Thus, Mr. Erler is

required to pay now, when her household is not in need, so

that he will not have to pay later, when her household may be

in need. Mr. Erler has not asked for this speculative future

beneficence.

The district court correctly recognized that requiring him

to pay now creates windfall benefits for Mrs. Erler, and

depletes the sponsor’s income, therebyputting him and others
16 ERLER V. ERLER

at risk of becoming public charges in the future. Since the

purpose of the Affidavit of Support is to prevent an

immigrant from becoming a public charge, see 8 U.S.C.

§ 1183a(a), the majority’s holding is counterproductive. 

Hence this respectful dissent.