Cite as
27 I&N Dec. 488 (BIA 2018) Interim Decision #3945
Matter of Sothon SONG, Respondent
Decided November 19, 2018
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
An applicant for adjustment of status who was admitted on a K-1 visa, fulfilled the terms
of the visa by marrying the petitioner, and was later divorced must submit an affidavit of
support from the 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, Duluth, Georgia
FOR 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 appealed from that
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 on November 25, 2011,
and married her United States citizen fiancé, the visa petitioner, within
90 days. On 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 (Affidavit of Support Under Section
213A of the INA) executed by the petitioner. While the application was
pending, the marriage broke down, and on July 10, 2012, the petitioner wrote
to the USCIS to withdraw his affidavit of support. On November 21, 2012,
the USCIS denied the respondent’s adjustment application, finding that she
488
Cite as 27 I&N Dec. 488 (BIA 2018) Interim Decision #3945
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 become 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 adjustment 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 an applicant for adjustment of status who
was admitted on a valid K-1 nonimmigrant visa, fulfilled the terms of the
visa by marrying the petitioner, and was later divorced must submit an
affidavit of support from the petitioner to establish that he or she is not
inadmissible as a public charge.
III. 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 section 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
inadmissible 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.) But according to section
212(a)(4)(B)(ii), “the Attorney General may also consider any affidavit of
support.” (Emphasis added.) However, under section 212(a)(4)(C)(ii) of
the Act, aliens with immediate relative status or family-based preference
489
Cite as 27 I&N Dec. 488 (BIA 2018) Interim Decision #3945
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 those 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 them
subject to the same statutory requirement. That 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) petition, 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 the 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 adjustment of status who must file the
an [sic] affidavit of support.
(Emphases added.)
The 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. This assertion is inconsistent with the plain language of the
statute and regulations. We find further support for our conclusion in the
history and context of the provisions regarding affidavits of support.
For well over 100 years, our immigration laws have included a ground
of inadmissibility for persons who are likely to become a public charge.
See 84 Interpreter Releases, No. 47, Dec. 10, 2007, at 2849, 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 2851; 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 1996)).
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 chooses 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),
490
Cite as 27 I&N Dec. 488 (BIA 2018) Interim Decision #3945
https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_
Files_Memoranda/Archives%201998-2008/2006/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 sections 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 sponsor 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. This 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 sponsorship 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 their divorce. Conceivably, just as the alien could surrender the
right to sue the sponsor to enforce the affidavit of support 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 permit an exception to the affidavit of support
requirements in the event of divorce and that none should be implied.
Moreover, the law allows two explicit exceptions to the affidavit of
support requirement: abuse and death. See USCIS, Affidavit of Support,
491
Cite as 27 I&N Dec. 488 (BIA 2018) Interim Decision #3945
www.uscis.gov/greencard/affidavit-support (follow When NOT to Submit an
Affidavit of Support) (last updated June 26, 2017). First, an alien who is or
was married to an abusive spouse is not required to provide an affidavit of
support from that petitioner. Sections 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 others. See TRW Inc.
v. Andrews, 534 U.S. 19, 28 (2001) (“Where Congress explicitly enumerates
certain 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 sponsoring petitioner, but it did not. Instead, by
requiring 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 who brought the alien to the United States must
be financially responsible for the alien through the period of his or her
adjustment of status. Section 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 petition 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 440–41, 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, as 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 states 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 charge if the petitioner declines to submit an affidavit of support 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 unambiguous,
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 provides
492
Cite as 27 I&N Dec. 488 (BIA 2018) Interim Decision #3945
an affidavit of support from the petitioner. See section 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 respondent acknowledged that she no longer has
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 the respondent conceded removability and
has presented no other applications for relief, her appeal will be dismissed.
ORDER: The appeal is dismissed.
493
