F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

A Y L A E R L E R , Plaintiff-Appellant

,

v.

Y A S H A R E R L E R , Defendant-Appellee. No. 14-15362

D.C. No. 3:12-cv-02793-CRB

OPI NI ON

Appeal from the United States District Court for the Northern District of California Charles R. B rey er, District J udg e, Presiding

Submitted F ebruary

11, 2016 * San F rancisco, California

F iled J une 8, 2016

B efore: Mary M. Schroeder and J acqueline H. Ng uy en, Circuit J u dg es, and Ly

nn S. Adelman, * * District J udg e.

Opinion by

J udg e Adelman; D issent by

J u dg e Schroeder

* T h e p a n e l u na n im o u sly co n clu d es th is case is su itab le f o r d ecisio n

w ith o u t o ral arg u

m en t. S ee Fed . R. A pp . P . 3 4 (a)(2 ).

** T h e Ho n o rab le L y

n n S. A d elm an , Un ited States District J u d g e f o r th e Eastern District o f

W i sco n s in , sittin g b y

d esig n atio n

.E R L E R V

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SUMMARY * * *

Im m igration Law

The p anel v acated the d istrict c ourt’s summary judg ment in favor of the defenda n t i n a n action to enforce a sponsor’s duty to provide financial support to an immig rant under a n “I

864 Affidavit of Support.”

The defendant, a United Stat e s c i tiz en, married the plaintiff, a Turkish citiz en, and sig n ed an affidavit of support, making her elig ible for a dmission to the United States. The defendant ag r eed to provide the plaintiff with any support necessary to m a i n t ain her at an income that was a t least 125 percent of the F ederal Poverty Guidelines f or her househol d siz e. T he affidavit became a contract between the defendant
sponsor and the United States g overnment for the ben e f i t o f the plaintiff and any entity that administers a means- t es t e d public benefits prog ram. The p arties subsequently divorced, and their divorce judg ment reflected their premarital
ag reement that neithe r w o uld be entitled to alimony o r support from the other.

Ag reeing with the Seventh Circuit, the panel affirmed the district court’s conclusion that despite the divorce

, t h e defendant had a c ontinuing oblig ation to support the plaintiff. T he panel held, however, that the district court e rred i n treating the plaintiff a

nd the adult son with whom she lived a s

a combined household fo r p u rposes of determining whether the defendant breached that oblig ation.

*** T h is su

m m ary co n stitu

tes n o p art o f

th e o p in io n

o f th e co urt. It h as b eenp rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.E R L E R V

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Dissenting

, J udg e Schroeder wrote that the defendant was not required to p ay support for his former w i f e , w h o was living in a household with income above the poverty level for its siz e.

COUNSEL

David V. Sanker, Corey R. Houmand, an d M el i nda S. Riech e rt, Morg a

n, L ewis & B o ckius L L P, Palo Alto, California, for Plaintiff-Appellant.

Yashar Erler, San Carlos, California, pro se D efendantAppellee.

OP INION

ADEL MAN, District J udg e:

This i s a n action to enforce a sponsor’s duty to provide financial support to an immig rant under an “I -86 4 Affidavit of Support.” See 8 U.S.C. § 1183a.

I

. Ay la Erler is a Turkish citiz en who i m m i g rated to the United States in N ovember 2 0 0 8 to marry Yashar Erler. 1 Yashar, w ho is orig inally from T urkey

, is a c itiz en of the United States. He is a real estate ag ent a n d owns several rental properties. His net worth ex c eeds $4.6 million.

1 Fo r clarity an d sim

p l icity

, w e w ill ref

er t o t h e p a r t ies by t

h eir f irst

n am es.E R L E R V

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Ay la married Y ashar o n A p r il 15, 2009. A short time later, the couple b eg an proceeding s before the Department o f Homeland Security

, U

. S. Citiz e n ship and I mmig r ation Services (“USCI S”) to ens u r e that Ay la could lawfully remain in the United States. As part of this p rocess, Yashar sig ned an “I -864 Affidavit of Support,” in which he ag reed to provide Ay la with “any support necessary to maintai n [her]
at an i n c o me that is at least 125 percent of the F ederal Poverty Guidelines for [ her] household siz e.” Yashar sig n ed this affidavit because the I mmig ration and Natio n a lity A ct forbids a d m i s s i on to the United States o f any alien w ho “ is likely at any time t o b e c o me a public charg e.” 8 U .S.C. § 1182(a)(4); 8 C.F .R. § 213a.2( a). Persons who would be inadmissible f

or this r eason may become admissible if a sponsor ex ecutes th e a ffidavit of support. 8 U .S.C. § 1183a(a)(1); 8 U.S.C. § 1 1 8 2 (a)(4)(C)(ii); 8 C.F .R. § 213a.2. Once ex ecuted, the affidavit b e c o mes a contract between the sponsor and the U.S. Government for the benefit of the sponsored immig rant, a nd of any Fe d e r al, State, o r local g overnmental ag ency or private entit y that administers
any “means-tested p u blic benefits prog ram.” 8 C.F .R. § 213a.2(d); see also 8 U.S.C. § 1183a(a)(1) (providing that affidavit must be “ex ecuted by a sponsor o f the alien as a contract”).

On March 25, 2011, Ay la and Yashar separated. Yashar subsequently initiated d ivorce proceeding s in California state court. The div o rc e was finaliz ed on May 4, 2012. Prior to their marriag e, Ay la a

nd Yashar had entered into a premarital
ag reement stating that neither party would be ent itled to alimony or support from the o ther. The judg ment of divorce reflects this ag reement.E R L E R V

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F ollowing her separation from Yashar, Ay la moved in to

an apartment with her adult son, Dog ukan Solmaz

. Ay la has
not been able to find employ ment, and she contends that she h as earned n o income since her separation from Yas h a r. Dog ukan earns an income of approx imately $3,200 per month and uses his income to p ay rent and o ther living ex penses for both himself a

nd Ay la. Dog u kan’s income ex ceeds 125% o f the F ederal poverty

g uidelines for a household of two.

Since their separation in March 2011, Yashar has refused
to provide Ay la with a

ny support. According to Ay la, Yashar made o ne pay

ment of $ 3,500 to assist h e r with moving

e x penses in April 2011 but otherwise has not made any pay ments to her since their separation.

On May 31, 2012, Ay la c o mmenced an action in the district court a g ainst Yashar to enforce h is oblig ations under the a ffidavit of support. Yashar, wh o chose to proceed without c ounsel (and wh o ap pears w ithout counsel on appeal), arg ued that the premarital a g reement a nd divorce judg ment terminated his o blig ations u n d e r the affidavit o f support. Y ashar also arg u ed that because Dog ukan has been supporting Ay la at a level t h a t i s not less than 125% of the F ederal poverty g uidelines f o r a two-person household, Yashar has not breached any oblig ation of support that mig ht have survived the divorce.

Th e d istrict court g ranted summary judg ment to Yashar. See Erler v. Erler

, No. CV-12-2793-CRB
, 2013 WL 6139721 (N.D. Cal

. No v

. 2 1, 2013). The court first determined that the p remarital a g reement and divorce judg ment did not terminate Y ashar’s oblig ation u nder the affidavit of support. However, the court then d etermined th a t Ya shar had not breached his continuing oblig ation to support Ay la becau se,E R L E R V

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since the time of t h e separation, Dog ukan had been maintaining Ay la a t a

n annual income of at least 125% of the F ederal poverty g uidelines for a two-person household. Thus, reasoned the court, Y ashar’s duty to support Ay la h ad not been trig g ered.

Ay l a a ppeals the district c ourt’s conclusion that Yashar did not b reach the a ffidavit of support. She contends that the district c o u r t erred by including Dog ukan and his income when calculating her household siz e and income. A ccording
to Ay la, the district court sh o u l d have measured Yashar’s support o b l i ga tion based on a household siz e of one a nd should not have credited her with Dog ukan’s income.

On appeal, Yashar does not ex plicitly challeng e the district court’s conclusion that his support oblig ation survives the divorce. However, in his brief, he e x presses some disag reement with that conclusion. Be c ause Yashar is not represented by counsel, we will assume that he is seeking review of that conclusion a n d will briefly a ddress it before turning to the question of whether he has b r eached the oblig ation of support.

I I

.

I n the district court, Yashar arg ued that the parties’ premari tal ag reement a

nd the California divorce judg ment terminated his oblig ation under the affidavit o f s u p p ort. However, the district court c orrectly rejected these
arg uments.

Under federal law, an affidavit o f s upport remains enforceable until the spo n s o r e d immig rant: (1) becomes a citiz en of the U nited States; (2) has worked or can b e creditedE R L E R V

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with 40 qualify ing quarters of w ork under title I I of the Social Security Act; (3) ceases to be a lawful permanent resident a nd departs the United States; (4) obtains in a removal proceeding

a g rant o f a djustment of status a s relief from removal ; o r (5) dies. 8 C.F .R. § 213a.2(e)(2)(i); see also 8 U.S

. C

. § 1 183a(a)(2)–(3). The I -864 F o r m that Yas h a r sig n ed reproduces this information in a section entitled “W h en W ill These Oblig ations End? ” as follows:

Your oblig ations under a F orm I -864 will e nd if t h e person who becomes a permanent resident base d on a F orm I -864 that y ou sig ned:

C B e comes a U.S. citiz en;

C Has worked, or can b e credited with, 40 quarters o f coverag e under the So c i al Security Act;

C No long er has lawful permanent residence status, and has departed the United States;

C Becomes subject to removal, but a pplies for and obtains in r emoval p r oceeding s a

new g rant o f adjustmen t of status, based

on a new affidavi t of support, if one is required; or

C Dies.

J ust a fter the b ullet points, the form states: “Note that divorce does not terminate y our oblig ations under this F orm I -864.”E R L E R V

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Thus, u n d e r f

ederal law, neither a divorce judg ment nor

a p rema r i t a l ag reement may terminate an oblig ation o f support. Rather, as the Seventh Circuit has recog niz e d, “[ t] he rig ht o f support conferred b y federal law ex ists apart from whatever rig

hts [ a sponsored immig rant] mig ht o r mig ht not have under [ state] divorce law.” Liu v. Mund

, 686 F .3d 418, 419–20 (7th Cir. 20 1 2 )

. W e therefore hold that the district
court correctly determined that Yashar has a continuing oblig ation to support Ay la.

I I I

.

To determine w h e t her the district court correctly f ound that Y ashar has not breached his c o n tinuing oblig a tion o f support, we must decide what it means for a sponsor of an intending immig rant to pro vide the immig rant “with any support necessary to maintain him or her at an income that is
at least 125 percent of the F ederal Poverty Guidelines for his

or her household siz e” when the sponsored immig r ant no long er resides in the sponsor’s household. More specifically

, t h e ap peal requires us to decide h ow to measure t h e immig rant’s post-separation hous e h o ld siz e a nd the immig rant’s post-separation income.

Certain provisions of the I mmig r ation and Na t i o nality A ct and the implementing r eg u lations t ouch on these questions, but they do not clearly answer t hem. F or ex ample, the A ct de fi n es “F ederal poverty line” as “the level of income equal
to the official poverty line [ as published by the Department o f Health and Human Services] that is applicable to a family o f the si z e i n v olved.” 8 U.S.C. § 1183a(h). However, the A ct does not e x plain how t o identify the “family of the siz e involved” when the sponsored immig rant n o long er liv e s in the same household as the sponsor. Moreover
, althoug hE R L E R V

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several provisions of the statutes and the reg ulations contain instruc t i o n s for calculating the sponsor’s income a nd household siz e for p urposes of determining wh e ther the
sponsor has the means t o s u pport the intending immig rant,

see 1 1 U.S.C. § 1183a(f)(6)(A)(iii); 8 C.F .R. § 213a.1 (defini n g “household income,” “household siz e,” a nd “in c o m e” ) ; 8 C.F .R. § 213a.2(c)(2), there are no similar provisions for calculating the sponsored immig rant’s income and h ousehold siz e for purposes of d etermining wh e ther the
sponsor has breached his or h er duty to support the immig rant.

The d istrict court recog niz ed that the applic ab l e statutes and reg ulations d o not c learly ex p l a i n how to determine a sponsored immig rant’s post- separation household siz e a nd income. The court then loo k e d t o the purposes of the affidavit-of-support requirement and found that it must strike

a balance between ensuring that the immig rant’s income is sufficient to prevent her from becoming a public charg e and preventing unjust enrichment to the imm i gr a n t

. The court concluded that the proper balance under the facts of this case was to find that Dog ukan and Ayla constituted a two-person household f

or purposes of t h e a ffidavit of support, and that their combin ed income must be used to determine whether Ay la’s income was at least 1 25% o f t h e poverty g uidelines. The court reached this r e s u l t by reasoning that because Dog ukan was already provi d i n g Ay la with the support necessary to su s t a i n h er at 125% o f the poverty g uidelines, she would not become a public charg e 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 Ay la’s receiving “windfall benefits.” Erler

, 2013 W L6139721, at *6.E R L E R V

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The district court’s a p p roach is n ot w ithout appeal. However, in our v iew, it leads to a n u n t e nable result. I f a sponsor’s duty

under the affidavit of support is measured by the immig r an t ’ s post-separation h ousehold siz e a nd household income, then the sponsor would have to support all members of the immig rant’s post-separation h ousehold in the

eve n t t hat the household’s income fell below 1 25% of the poverty g u idelines f

or a household of that siz e. F or ex ample, in this case, the district co u r t determined that Yashar’s duty of support must be b ased on a two-person household and that Ay la must be credited with D ogu k a n ’ s income. B ut what if Dog ukan lost his job and w as u nabl e t o m a intain the household at 125% of the poverty g uidelines f or a two-person household? Under the di s t r i c t court’s approach, if Ay la continued to live i n t h e s ame household as Dog ukan but earned no income, then Yashar would be oblig ated to support both Ay la a

nd Dog ukan. That is, Yashar would be oblig ated
to make enoug h pay

ments to Ay la to b r ing her income above 125% of the p overty

g uidelines for a two-person household. Alternatively

, assume that Ay la e arned enoug h i n c o m e to support herself at 125% of the poverty g uidelines for a oneperson household. I n this circumstance, Yashar would not be oblig ated to p rovide A y la with any support. B ut then a ssume that Ay la allows a family member who has no income to join her household. I f A y l a ’ s income were not sufficient to support a two-person household at 125% of the poverty g uidelines, then under the district court’s approach, Yashar would be required to make up the difference.

I n our view, these r esults would be untenable because, in sig ning the affidavit of su p p o rt, Yashar ag reed to support only Ay la, not Ay la and any one else with whom she mi ght choose to live. The affidavit of sup p o rt is a contract, see 8 U.S.C. § 1 183a(a)(1); 8 C.F .R. § 2 13a.2(d), and contra c tsE R L E R V

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are interpreted to g ive effect to the reasonable ex pectations o f the parties, see, e .g. , 11 Williston on Contracts § 31:11 (4th ed. 2012). At the time a sponsor sig n s an affidavit of support for a sing le intending immig rant, he o r she would reasonably

ex p ect that, if the immig rant separates from the spon s o r’ s h o u s e hold, the oblig ation of support would be based o n a household siz e of one. Or, if the sponsor ag re e d t o sponsor multiple immig rants, such a s a parent and child, then the
sponsor would reasonably ex pect that, in the e v e n t o f a separation, the oblig ation of s u p p o rt would be b ased on a household siz e that includes the total number o f sponsored immig rants living in the household. The sponsor would not reasonably ex pect the oblig ation of support to be based on a household that includes the sponsored immig rant o r immig rants plus any one else with w hom the immig rant mig ht choose to live. Thus, in the e v e n t o f a separation, the sponsor’s duty of support must b e based on a household siz e that is equivalent to the number of s p o n s o red immig rants living in the household, not on the tot al n u m b e r o f people living in the household.

W e r ecog niz e that our approach will sometimes lead to imperfect outcomes. As the district c ourt noted, ig noring the i n c o m e of o thers with whom the immig rant chooses to li v e wi l l o c casionally allow the immig rant to receive more supp o r t than r equired to prevent him or her from falling below 125% of the poverty l ine. However, while the immig rant may receive more su pport than r equired, the
sponsor pay s no m o r e than what he or she should have

ex p ected to pay when sig n ing the affidavit of support, i.e.
, the
amount required to s u p p o r t the immig rant in a one-person household. Thus, in this situation, the sponsor has no cause to complain about the immig rant’s receiving a windfall.E R L E R V

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I n any e vent, relieving the sponsor of his duty o f support when the immig rant is fortunate e n o u gh to f ind another
person willing to provide the necessary support could itself be considered a windfall to the sponsor. B ecause the sponsor is
not an intended beneficiary o f the affidavit-of-support requirement, Liu v. Mund

, 686 F .3d 4 18, 422 (7th Cir. 2012),

we see no reason why the sponsor, rather than the immig rant, should receive t h e 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 w ho ‘is likely at a ny time to become a public charg e.’” I d. (quoting 8 U

. S.C. § 1182(a)(4)(A)). As the Seventh Circuit has recog niz ed, that
purpose is best served by in t e rp r e t i ng the a ffidavit in a way that makes p rospective s p o nsors more cautious about sponsoring immig r ants. Id. Here, Yashar asks the c o u r t to adopt a rule allowing sponsors to e s c a pe their support oblig ation s b y withholding pay ments and waiting for charitable third parties to p ick up the slack. Such a rule

wo u l d make sponsors less cautious about sponsoring immig rants, and thus it would undermine the very purpose o f the support requirement. 2

W e also recog niz e that, under o ur approach, there w ill be

ca s es in which the immig rant will be left living in a

2 T h e d istrict co urt ex pressed co n cern th at if an im m ig ran t w h o receiv ed ad eq u a t e su

p po rt f ro m o th ers co u ld n o n eth eless turn to th e sp on so r f or

su p p o rt, t h en th e sp o nso r m ig h t u

n n ecessarily b eco m e a p u b lic ch arg e. Ho w ev er, bef

o re ad m i ttin g th e im

m ig ran t b ased o n th e sp o n so r’ s af f id av i t

o f su p p ort, USC I S w o u ld h av e rev iew ed th e sp o n so r’ s in co m e to m ak e

su re th at it w as su f

f icien t to su

p p o rt th e im

m ig ran t. S

ee 8 U.S.C. § 11 8 3 a(f )(1 )(E); 8 C.F.R. § 2 13 a.2 (c)(2 ). So in m o st cases, en f o rcin g th e sp o n so r’ s su

pp o rt o b lig atio n w i ll n o t resu lt in th e sp o n so r’ s b eco m in g a p u b lic ch arg e.E R L E R V

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household that ma k e s less than 1 2 5% of the poverty g uidelines, even after the sponsor satisfies his o r her support oblig ation. F or ex ample, if the immig rant chooses to live in

a two-person household

, m e a suring the sponsor’s duty o f support by a one-person household c o u l d result in the i m m i g rant’s total household income falling below 1 25% of the p o verty g uidelines. However, we conclude that this result coincides with the reasonable ex pectations of the parties to the affidavit o f s u pport. T he sponsor would not reasonably

ex p ect to have to support the immig r ant and any others with whom she chooses to live, and the i mmig rant w ould not reasonably ex pect to b e entitled to such support. L ikewise, the U.S. Government, w h o i s also a p arty to the contract created by the affidavit, would n o t reasonably ex pect the
sponsor to support any others with whom the immig rant mig ht choose to live follo w i n g her separation from the
sponsor.

According ly

, we hold that when a sponsored immig rant separates f

r o m the sponsor’s household, the sponsor’s oblig ation under the affidavit of su p port is to provide the immig rant with whatever support is necessary to m a intain him or her at an annu a l income of at least 125% of the poverty g u idelines for a one-person household. I f the sponsor ag reed to support more th an one immig rant, and those immig rants separate f

rom the sponsor ’ s h ousehold a nd continue to live tog ether, then the sponsor must provide them with whatever support is n ecessary to maintain t h em at an annual income of a t least 125% of the poverty g uidelines for

a household of a siz e that includes all the spo n s ored immig rants. W hen measuring the immig rant’s inc o m e, the
court must disreg ard the i ncome of a ny one in the h ouseholdE R L E R V

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who is not a sponsored immig rant. 3 Apply ing this rule to the present c ase, we conclude that Yasha r h as a continuing oblig ation to provide Ay la with whatever support is necessary to maintain her at an i n c o m e that is at least 125% of the poverty g uidelines for a o ne-person h ousehold. F o r purposes of determining whether Yashar has fulfilled this obl i ga t i on, the court must not consider Dog ukan’s income.

B e fore concluding

, we note that Y ashar arg ues in h is brief that, even if Ay la is not credited w ith Dog ukan’s income, her annual income would ex ceed 125% of the poverty g uidelines for a one-person household. I n calculating Ay l a ’ s income, Yashar includes Ay la’s food-stamp benefits that she receives from the Sta t e o f California, and benefits that she receives under a Turkish p ension. The p ension benefits are d eposited into a Turkish b ank a ccount, and Ay la contends that she
cannot access the funds from with i n the United States. B ecause the d istrict court concluded that Dog u k an’s income,

on its own, was sufficient to provide Ay la with the necessary support, it did not a d d

ress whether the food st a mps a nd pension benefits should be treated as Ay la’s income. Nor did the district court a ddress the ultimate question of whether, for the y ears since her separation from Yashar

, A y l a’s income

was at least 125% of the poverty g uidelines for a one-person household. R ather than address these questions for the first time on appeal, we leave them f or the district court to address on remand.

3 W e d o n o t, h o w ev er, co n sid er a case w h ere th e sp o n so red im

m ig ran t h as rem arried

. In su cha case, it m ay b e ap pro p riate to im p u te all or p art

o f th e sp o u se’ s in co m e to th e sp o n so red im m ig ran t.E R L E R V

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I V.

F or the f oreg oing reasons, we ag ree with the district court to the ex ten t i t found that, despite the divorce, Yashar has a continuing oblig ation to support Ay la. However, w e h o ld that court erred in treating Ay la and Dog ukan a s a combined household for purposes of determini n g whether Yashar breached that o blig ation. W e therefore VACATE the court’s
g rant of summary judg ment to Yashar a n d REMAND for further proceeding s consistent with this opinion. Costs shall be assessed ag ainst the defendant.

SCHROEDER, Circuit J udg e, dissenting :

I n my view, the district court g ot this difficult case rig ht. My colleagu es have held that Mr. Erler must pay support for his former wife, even thoug h she is living in a household with income above the poverty level for its siz e. I

do not ag ree.

The majority ’s fear is that taking into account the income of other persons in her h ousehold, thoug h relieving Mr. Erler of any present oblig ation, could create a burden for Mr. Erler in the future, if his fo r m e r wife were to live in a h ousehold with income below t h e poverty level. Thus, Mr. Erler is required to pay now, when h er household is not i n need, so that he will not have to pay later, when her household may be i n n e e d

. Mr. Erler has not asked for this speculative futur e beneficence.

The district court correctly recog niz e d that requiring him
to pay now cr eates windfall benefits for Mrs. Erler, a nd depletes the sponsor’s income, thereby putting him and othersE R L E R V

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at risk of becomi ng public charg es in the future. Since the
purpose o f the Affidavit of Supp o r t i s to prevent an immig rant from b ec o m i n g a public charg e, see 8 U .S.C. § 1183a(a), the majority ’ s holding is counterproductive. Hence this respectful dissent.