C ite as 27 I&N Dec. 488 (BIA 2018 ) Interim Decision #3945

488 

### Matter of Sothon SONG

, Respondent

Decided N o vem ber 19 , 2018

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration A ppeals

A n applicant for adjustment of status who wa s admitted on a K

- 1 visa

, fulfill ed the terms
of the vis a by marrying the petitioner

, and was later divorce d must submit an affidavit of support from th e petitioner to establish that he or she is not inadmissible as a public charge under section 212(a)(4) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(4) (2012)

.

FOR RESPONDENT: Eli A. Echols, Esquire, Du lu t h

, Georgia

F OR THE DEPARTMENT OF HOMELAND SECURITY: Hilary Rainone, Assistant
Chief Counsel

BEFORE: Board Panel: GREER and WENDTLAND, Board Members; DONOVAN

, Temporary Board Member

WENDTLAND , Board Member:

In a decision dated July 7, 2017, an Immigration Judge found the respondent removable under section 237(a)( 1)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(B) (2012), as a nonimmigrant who remained in the United States longer than permitted, denied her application for adjustment of status under section 245(a) of the Act, 8 U.S.C. § 1255(a) (2012)

, and ordered her removed

. The respondent has appeal ed from th at
decision. The appeal will be dismissed.



### I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Cambodia who entered the

United States on a K

- 1 nonimmigrant fiancée visa o n November 25, 2011

, and married he r United States citizen fiancé , the visa petitioner

, within

90 days. O n February 3, 2012, the respondent filed an application for adjustment of status with the U.S. Citizenship and Immigration Services ( “ USCIS ” ), along with a Form I

- 864 (A ffidavit of S upport Under Section 213A of the INA) executed by the petitioner. While the application was pending, the marriage broke down, and on July 10, 2012, t he petitioner wrote

to the USCIS to withdraw his affidavit of support. On November 21, 2012,

t he USCIS denied the respondent’s adjustment a pplication , finding that sheC ite as 27 I&N Dec. 488 (BIA 2018 ) Interim Decision #3945

489 was inadmissible under section 212(a)(4) of the Act, 8 U.S.C. § 1182(a)(4) (2012), as an alien who is likely to be come a public charge. The couple divorced on December 20, 2012. The Department of Homeland Security (“DHS”) subsequently initiated removal proceedings. Before the Immigration Judge, the respondent renewed her application

for adjust ment of status and submitted a new affidavit of support from a family friend. Although the Immigration Judge found that the respondent’s

divorce did not render her ineligible for adjustment of status, she was required to provide an affidavit of support from the petitioner , her former

husband , to establish that she was admissible to the United States

. Because the respondent could not do so, the Immigration Judge concluded that she

was inadmissible as an alien who is likely to become a public charge and

denied her adjustment application.



### II. ISSUE

The issue before us is whether a n a pplica n t for adjustment of status who

w a s admitted on a valid K

- 1 nonimmigrant visa

, fulfill ed the terms of th e visa by marrying the petitioner

, and was later divorce d m ust submit an affidavit of support from the petitioner to establish that he or she is not inadmissible as a public charge.



### I I I. ANALYSIS

“The fiancé(e) visa petition and adjustment processes are hybrid in

the sense that they combine both immigrant and nonimmigrant visa

attributes

. . . .” Matter of Le , 25 I&N Dec. 541, 544 (BIA 2011). We have

therefore held that “fiancé(e) visa holders remain similarly situated to

immediate relatives in satisfaction of the s ection 245(a) immigrant visa requirements.” Matter of Sesay , 25 I&N Dec. 431, 439 (BIA 2011). Under section 245(a) of the Act, an alien may be admitted for lawful permanent residence if, among other things, he or she is admissible. An alien is

inadmissi ble under section 212(a)(4)(A) if

, “in the opinion of the Attorney General at the time of application for admission or adjustment of status, [the alien] is likely at any time to become a public charge.” Section 212(a)(4)(B)(i)(IV) of the Act states that in determining whether

an alien is inadmissible as a public charge , “the Attorney General shall

at a minimum consider” various factors, including the alien’s “assets,

resources, and financial status

. ” (Emphasis added.) B ut according to section 212(a) (4)(B)(ii)

, “ the Attorney General may also consider any affidavit of
support

. ” ( E mphas i s added

. ) However, under section 212(a)(4)(C)(ii) of

the Act

, aliens with immediate relative status or family

- based preferenceC ite as 27 I&N Dec. 488 (BIA 2018 ) Interim Decision #3945

490 classification are inadmissible unless “the person petitioning for the alien’s admission . . . has executed an affidavit of support . . . with respect to such

alien.” Although fiancé(e) visa holders differ in certain respects from aliens

in th os e categories, see Matter of Sesay , 25 I&N Dec. at 439

– 40, the governing regulation at 8 C.F.R. § 213a.2(b) (2018) explicitly makes the m subject to the same statut ory requirement . Th at regulation provides :

Affidavit of support sponsors. The following individuals must execute an affidavit of support on behalf of the intending immigrant in order for the intending immigrant to be found admissible on public charge grounds:

(1) For immediate relatives and family

- based immigrants. The person who filed a relative, orphan or fiancé(e) p etition , the approval of which forms the basis of the intending immigrant’s eligibility to apply for an immigrant visa or adjustment of status as an immediate relative or a family

- based immigrant, must execute a [sic] an affidavit of support on behalf of t he intending immigrant

. If the intending immigrant is the beneficiary of more than one approved immigrant visa petition, it is the person who filed the petition that is actually the basis for the intending immigrant’s eligibility to apply for an immigrant visa or adjustm ent of status who must file the

an [sic] affidavit of support.

( E mphas e s added

. )

T he respondent argues that, as a matter of policy

, it is unreasonable for Congress to require a fiancé(e) visa holder who complied with the terms of

the visa but was later divorced to provide an affidavit of support only from the petitioner

. T his assertion is inconsistent with the plain language of the

s tatute and regulations. W e find further support for our conclusion in the history and context of the provisions regarding affidavit s of support. For well over 100 years, o ur immigration laws have included a ground

of inadmissibility for persons who ar e likely to become a public charge.

See 84 Interpreter Releases, No. 47, Dec. 10, 2007, at 2 8 49, 2850 & n.3

. However, the concept of a legally binding affidavit of support was only

introduced in 1996 and implemented on December 19, 1997

. Id. at 2 8 51; see also Affidavits of Support on Behalf of Immigrants, 62 Fed. Reg. 54,346 (Oct. 20, 1997) (interim rule implementing section 213A of the Act, 8 U.S.C. § 1183a ( Supp. II 199 6 ) )

. Subsequently, the DHS clarified that although the sponsor of a fiancé(e)

or other alien relative is under no legal obligation to file a visa petition or sign an affidavit of support , if a sponsor choose s to facilitate the immigration

of such a relative

, he or she must comply with the legal requirements for doing so

. See Affidavits of Support on Behalf of Immigrants, 71 Fed. Reg. 35,732, 35,744 (June 21, 2006) (final rule) (Supplementary Information)

. These requirements include the submission of an affidavit of support.

See 8 C.F.R. § 213a.2(b)(1) ; see also Memorandum from Michael Aytes, Acting Dir., Domestic Operations, to USCIS officials 3 (June 27, 2006),C ite as 27 I&N Dec. 488 (BIA 2018 ) Interim Decision #3945

491 https: //www.uscis.gov/sites/default /files/USCIS/Laws/ Memoranda / Static

_ Files

_ Memoranda/Archives%2019 98

- 2008/2006/affsuppafm062706

. pdf (“Aytes Memorandum”)

. Further, to successfully complete the process, the affidavit of support must be valid at the time of filing and at the time the adjustment application is adjudicated. See Aytes Memorandum, supra , at 1

, 13 ; see also 8 C.F.R. § 213a.2(e)

. An affidavit of support is a legally binding contract. See 8 C.F.R. § 213a.2(d). The sponsor assumes the obligation of support when the beneficiary acquires permanent resident status, and that obligation continues

until one of four scenarios has occurred: (1) the alien naturalizes; (2) the alien has “acquired 40 quarters of coverage under the Social Security Act” (that is, he or she has been lawfully employed for approximately 10 years ) ; (3) the alien leaves the United States permanently, abandoning his or her permanent resident status; or (4) the alien or the sponsor dies. 71 Fed. Reg.

at 35

, 740 ; see also section s 213A(a)(2), (3) of the Act

. The commentary to the regulation also addresses the situation where the alien and the sponsor divorce

.

Section 213A of the Act does not provide any basis to say that divorce does, or does not, affect a support obligation under an affidavit of support. [The] sponsored immigrant . . . probably can, in a divorce settlement, surrender his or her right to sue the spons or to enforce an affidavit of support. The sponsored immigrant and the sponsor . . . may not, however, alter the sponsor’s obligations to DHS and to

benefit

- granting agencies.

71 Fed. Reg. at 35

, 740 . Th is lends support to the understanding that Congress intended the affidavit of support to be a legally binding

commitment

, unaltered by the circumstance of divorce. See Form I

- 864

Instructions ( Instructions for Affidavit of Support Under Section 213A of the INA), at 13 (“Divorce does not end the sponsorshi p obligation.”). Whether because of a divorce or some other circumstance, the sponsor

may withdraw an affidavit of support for the alien at any time up to adjudication of the adjustment application

. See 8 C.F.R. § 213a.2(f); Aytes

Memorandum

, supra
, at 13. However, it is by no means a foregone conclusion that a sponsor will withdraw his or her affidavit of support for a

spouse upon the ir divorce. Conceivably, just as the alien could surrender the right to sue the sponsor to enforce the affidavit of su pport as part of the

divorce settlement , the sponsor might agree not to withdraw the affidavit

. That possibility supports our conclusion that the plain language of the statute and regulations does not pe rmit an exception to the affidavit of support requirements in the event of divorce and that none should be implied. Moreover, the law allow s two explicit exceptions to the affidavit of
support requirement: abuse and death. See USCIS, Affidavit of Support

,C ite as 27 I&N Dec. 488 (BIA 2018 ) Interim Decision #3945

492 www.uscis.gov/greencard/affidavit

- support ( follow When NOT to Submit an Affidavit of Support ) ( last updated June 26, 201 7 ). First, an alien who is or was married to an abusive spouse is not required to provide an affidavit of support from that petitioner. S ection s 204(a)(1)(A) (iii), (iv) of the Act

, 8 U.S.C. § § 1154(a)(1)(A)(iii), (iv) (2012) ; 8 C.F.R. § § 204.1 (a)(3), 204. 2 (c) (2018)

. Second, in cases where the petitioner has died prior to adjudication of the adjustment application, the alien is permitted to substitute the petitioner’s affidavit of support with one from another qualifying relative. Section 213A(f)(5)(B) (i) of the Act. These two exceptions highlight the absence of any other s

. See TRW Inc.

v. Andrews , 534 U.S. 19, 28 (2001) (“Where Congress explicitly enumerates

certa in exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent.” (citation omitted)). Congress could have made an exception for the divorce

of a K

- 1 visa holder and the spon soring petitioner , but it did not. Instead

, by requir ing that “ the person petitioning for the alien’s admission” must be the

individual who executes an affidavit of support

, Congress clearly indicated

its intent that the sponsor w h o brought the alien to the United States must

be financially responsible for the alien through the period of his or her adjustment of status. S ection 212(a)(4)(C)(ii) of the Act ; see also 8 C.F.R. § 213a.2(b)(1) (stating that the person who filed the pet ition upon which the alien’s adjustment is based must file the affidavit of support)

. The respondent argues that we should follow our reasoning in Matter of Sesay

, 25 I&N Dec. at 44 0

– 4 1, where we concluded that the K

- 1 visa holder could adjust his status despite his divorce from the petitioner if he was

otherwise admissible

. However, a s we noted there

, the regulations were silent regarding the consequences of the termination of a valid marriage

. Id. at 439. By contrast, 8 C.F.R. § 213a.2(b)(1) affirmatively state s that a fiancé(e) petitioner must be the person who files an affidavit of support on behalf of the K

- 1 visa holder . Further

, the K

- 1 visa holder is inadmissible as a public cha r ge if the petitioner declines to submit an affidavit of su pport or withdraws it before the alien’s adjustment application has been adjudicated.

See section 212(a)(4)(C)(ii) of the Act; 8 C.F.R. § 213a.2(f). Because the language of both the statute and the regulations is plain and un ambigu ous

, we are bound to follow it

. K Mart Corp. v. Cartier, Inc. , 486 U.S. 281, 291 (1988); Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837,

842

– 43 (1984); Matter of Figueroa , 25 I&N Dec. 596, 598 (BIA 2011)

. In this case, the respondent’s former husband, her petitioning sponsor,

wrote to the USCIS and requested that his affidavit of support for her be withdrawn prior to adjudication of her application for adjustment of status. Although the respondent may still adjust her status, she is inadmissible

on grounds that she is likely to become a public charge unless she providesC ite as 27 I&N Dec. 488 (BIA 2018 ) Interim Decision #3945

493 an affidavit of support from t he petitioner

. S ee s ection 212(a)(4) (C)(ii) of the Act; 8 C.F.R. § 213a.2(b)(1); see also Matter of Sesay , 25 I&N Dec.

at 440

– 41

. Because the re spondent acknowledged that she no longer ha s

an affidavit of support from her former husband

, the Immigration Judge properly found her to be inadmissible and therefore ineligible for adjustment

of status

. Accordingly, because t he respondent conceded remo vability and has presented no other applications for relief

, he r appeal will be dismissed. 

### ORDER: The appeal is dismissed.