Seventh Circuit Holds No Duty to Mitigate Under I-864 Affidavit of Support

August 3rd, 2012

In Liu v. Mund (7th Circuit, June 22, 2012), the Seventh Court Court of Appeals held that there is no duty for the alien to mitigate damages in order to maintain the Form I-864 affidavit of support provisions.  Mund married Liu and he sponsored her for legal permanent residency.  Pursuant to the Immigration and Nationality Act (INA), Mund as the sponsor was required to execute a Form I-864 affidavit of support (8 USC §1182(a)(4)(A)), which is a an enforceable contract between the sponsor and the US government.  Pursuant to this contract, the sponsor must maintain the beneficiary at 125% of the Federal poverty guidelines.  The affidavit of support terminates upon the sponsor’s or the beneficiary’s death, the beneficiary’s being employed for 40 qualifying work quarters or the beneficiary leaving the US permanently.   The statute does not list the alien’s failure to see work or otherwise mitigate his or her damages as an excusing condition.  Mund and Liu divorced and the divorce court held that Mund was not liable under the contract if Liu did not mitigate damages by seeking work.

The Circuit Court held that failure to mitigate damages is not a defense to the support obligation of the affidavit of support.  It found that the statute and the affidavit are silent on the issue and that “neither Congress . . . nor the immigration authorities . . . ever thought about mitigation of damages.”  Id. pp 5-6 (No. 11-1453).  It found that the stated goal of the statute was to “prevent the admission to the United States of any alien who “is likely at any time to become a public charge.”  Id. at 7. It stated that the absence of the duty would benefit the sponsor when the purpose of the duty was to protect the US taxpayers and organizations that provide charity to the poor.  It also found that the duty to support serves the statutory objective of making the prospective sponsors “more cautious about sponsoring immigrants.”  Id.