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7th Circuit

Liu v. Mund (7th Circuit, July 12, 2012)

POSNER, Wood, Rovner

Summary:  Mund, an American citizen, married Liu, a Chinese citizen, in China. Both moved to the United States. Mund had to sign an “I-864” affidavit for Lui to be admitted as a legal permanent resident on the basis of her marriage. See 8 U.S.C. § 1183(a); 8 C.F.R. § 213a.2(d). Under the affidavit, a sponsor promises to support his or her spouse at 125 percent of the poverty line (approximately $13,500 per year), even in divorce. Mund and Liu divorced two years later. The divorce court ordered Mund to support Lui, but conditioned the support on Liu’s active pursuit of employment. Liu sued Mund after he refused to support her. The district court held that Lui was not entitled to support because she had not actively sought work during the period in question.

The Seventh Circuit, affirming in part and reversing in part, held that there is no duty to mitigate damages by seeking employment to receive support under an “I-864” affidavit. The court found the statute and legislative history were silent regarding mitigation, but noted that mitigation was not among the “terminating conditions” listed on the affidavit itself. The court also found that the Government, despite several revisions to the affidavit, had failed to include mitigation among the conditions. In addition, the court found the absence of duty was consistent with the I-864 affidavit’s statutory purpose. The court found the I-864 affidavit was “for the benefit of state and local taxpayers,” not sponsors. The absence of a duty to seek employment, the court continued, “tends to make prospective sponsors more cautious about sponsoring immigrants,” and therefore advances the purpose of the statutory scheme: to prevent aliens from becoming “a public charge.” 8 U.S.C. § 1182(a)(4)(A). Finally, the court noted that absence of any similar federal common law duty supported its holding that aliens admitted pursuant to an I-864 affidavit had no duty to mitigate by seeking employment.

Read the opinion here.