Immigration & Divorce

Non-citizen and immigrant spouses can add a unique level of complexity to any family law matter. Typically, the citizen spouse has a misguided belief that having the spouse deported is the best option to avoid financial responsibility and to gain an upper hand in custody determinations. It is not this simple.

Attempts to deport a spouse can lead to criminal liability on the part of the citizen spouse.

Additionally, citizen spouses can also have an indefinite support obligation higher, or longer, than what a court would typically award under Colorado’s maintenance statute at C.R.S. 14-10-114. This increased support obligation is often a result of the Form I-864, Affidavit of Support Under Section 213A of the INA. This form is, in effect, a contract between the citizen spouse and federal government that can be enforced in any state or federal court.

In child custody determinations, immigration status may be a factor, but cannot be the sole factor used to deny parenting. If an immigrant spouse returns to his/her home countries and the children are there with them or will travel internationally for parenting time, special considerations and language should be added when crafting parenting time plans to address such travel.

Is an Immigrant a Resident for Divorce Purposes?

Yes. "a person's immigration status under federal law does not in itself preclude a finding of residency or domicile under state law." Munoz-Hoyoz v. de Cortez, 207 P.3d 951 (Colo. App. 2009). In that civil case, a defendant argued that a statute requiring non-residents to post bond applied to non-citizens. The court of appeals disagreed, holding that "Although plaintiff is a non-citizen, the proper determination of her residence for purposes of the cost bond statute was not dependent on her immigration status, but on the evaluation of her place of domicile and her subjective intent." Id. at 953.

Can an undocumented immigrant be a resident? Probably. While that issue was not determined in Munoz-Hoyoz, the court cited favorably holdings from other states where even illegal immigrants were found to be domiciled in the states where they lived.

Petitioning for Spouse/Family Member

Every year, hundreds of thousands of United States citizens petition the federal government for family members to obtain legal permanent residence status. The government breaks down the relationship between the petitioning citizen and sponsored resident into two groups, immediate relatives and family preference.

There are no annual limits on immediate family member visa that can be granted, but there are limits on family preference visas. Spouses of U.S. citizens are obviously “immediate relatives”, so are exempt from limits.

Spouses who immigrate to the United States based upon marriage are given a two year conditional permanent residence status. This status last for two years and is subject to termination if the marriage if found to be a “sham” marriage. Other than being subjected to having their status terminated after two years, conditional resident status recipients are afforded the same legal rights and responsibilities as legal permanent residents. After the two year period they must apply under 8 CFR 216 to have the conditions lifted. If they are unsuccessful in removing the conditions or if their petition is denied, the non-citizen loses his/her status and is subject to deportation.

Ninety-days prior to the anniversary of being granted conditional resident status, the immigrant must file a petition with the INS to remove the conditions on residency by filing an I-751 Form. If the marriage is still intact, the citizen spouse must jointly file the petition. If the marriage has been dissolved then there is a risk that the immigrant spouse can lose their status and become deportable.

Petition for Waiver of Condition

The risk of immigrant spouses remaining in abusive relationships for fear of being deported has led to the government waiving the joint filing requirement and allowing unilateral filing under certain conditions:

1. You entered the marriage in good faith and the spouse died;
2. You entered the marriage in good faith but the marriage was terminated by divorce or annulment;
3. You entered the marriage in good faith but are a battered spouse or have been subjected to extreme cruelty by the citizen spouse; or
4. Termination of your status and removal would result in extreme hardship. Waiver of Condition I-751.

The immigrant spouse must prove he/she entered into the marriage in good faith with evidence, such as birth certificates of children, documentation of joint occupancy/ownership of residence, financial records showing joint liabilities and assets, sworn affidavits of at least two people who knew both spouses since conditional residence was granted and have personal knowledge of your relationship and marriage, etc. The test is whether the marriage entered into in good faith on the date of the marriage, not when then party is filing for the conditions to be removed.

A claim of extreme hardship is a very tough burden to prove and is the least likely to be able to be proven by an immigrant spouse.

Domestic Violence by Citizen Spouse

A battered spouse claim is easier to prove. Immigrant spouses are considered more vulnerable to abuse and cruelty due to the imbalance of power in the relationship: Economic dependency, unfamiliarity with American culture, concerns of deportation, and fear of the legal system often cause immigrant spouses to not report abuse. Due to the concerns surrounding immigrant spouses subjected to abuse, Congress added the abuse provision to I-751 in 1990.

INA section 216 allows conditions on residency to be removed if petitioning spouse can show entered marriage in good faith but spouse either physically abuse the conditional resident or child, or subjected them to extreme mental cruelty. Physical abuse or extreme mental cruelty may include: sexual abuse/exploitation, forced prostitution, incest, rape, psychological abuse/exploitation, forced detention resulting or threatening to result in physical or mental injury, and being the victim of any act of violence. The petitioning immigrant only needs credible evidence of the abuse and a totality of the circumstances are considered. INA regulations provide for confidentiality of the information and documentation submitted in these applications to assist in protecting the applicant.

Another protection allowed via VAWA (Violence Against Women Act) is a provision that allows the immigrant spouse to self-petition to gain legal permanent resident status. This provision is not the same as a waiver of the joint petition and is extended to spouses, children and in some cases to parents of US citizens. Evidence needing to apply for a self-petition via VAWA are that of: a good faith marriage, qualifying relationship (parent/child relationship with claimant is parent/child), abuse (including physical battery or extreme cruelty), joint residence and good moral character.

Family law attorneys can help victims of abuse and cruelty to obtain evidence of abuse through court transcripts. This evidence cannot only be used to establish a pattern of abuse, but can help obtain protective orders for the abused spouse and assist in obtaining documentation of the relationship that can help establish a bona fide relationship as required by immigration

Effect of Divorce on Pending Immigration Petition

Dissolution of marriage can have a variety of ramifications on a pending immigration petition. At times, threats regarding immigration status are used in dissolution proceedings by the citizen spouse to obtain an advantage in dissolution proceedings. Petitions that are pending but not granted cannot be approved once the marriage is no longer legally viable via legal separation or divorce. What immigrant spouses are typically not aware of is that a pending immigration petition cannot be denied solely on the basis that the parties are separated or have a marriage that is on the rocks.

The first question that INS will examine is whether or not the marriage was entered into in good faith and if in fact there was a bona fide marriage. Typically, the government requires other reasons/basis for the marriage other than immigration benefits, however this benefit combined with others is rarely a reason to find that a good faith intent did not exist.

Once a petition is granted and the immigrant spouse is granted conditional resident status, divorce does not make the immigrant spouse ineligible for legal permanent resident status.

Continuing Obligation of Citizen Spouse that Survives Divorce

When applying for immigration status for a foreign-born spouse, 8 U.S. Code § 1183a requires the citizen to execute execute a Form I-864, Affidavit of Support Under Section 213A of the INA. That form warns the citizen, in black & white, that he/she is agreeing to provide support to the sponsored immigrant at a level of 125% of the federal poverty guidelines, until such time that the spouse becomes a citizen, has worked for 40 quarters, has left the U.S., is subject to removal, or dies.

While Colorado has not ruled on whether the I-864 is an enforceable, several courts outside of Colorado have done so, even when the contract contradicts state maintenance guidelines, including:

• Alaska. Barnett v. Barnett, 238 P.3d 594 (Alaska 2010)
• California. Shumye v. Felleke, 555 F.Supp.2d 1020 (N.D.Cal. 2008)
• Florida. Iannuzzello v. Lovett, 981 So.2d 557 (Fla.App. 2008)
• Kansas. In re Marriage of Sandhu, 207 P.3d 1067 (Kan.App. 2009)
• Maryland. Younis v. Faraooqi, 597 F.Supp.2d 552 (D.Md. 2009)
• New Hampshire. Montgomery v. Montgomery, 764 F.Supp.2d 328, 331 (D.N.H. 2011)
• New Jersey. Naik v. Naik, 944 A.2d 713 (N.J.Super.A.D. 2008)
• Ohio. Davis v. Davis, 970 N.E.2d 1151 (Ohio App. 2012)
• Pennsylvania. Love v. Love, 33 A.3d 1268, 1273 (Pa.Super. 2011)
• Texas. In re Marriage of Kamali & Alizadeh, 356 S.W.3d 544 (Tex.App. 2011)
• Wisconsin. Wenfang Liu v. Mund, 686 F.3d 418 (7th Cir. 2012)

Divorce or legal separation does not terminate the citizen’s obligation to support the immigrant spouse, and the citizen may not withdraw or renounce the obligation. And Kansas has held that an immigrant spouse can raise an enforcement claim in their petition or answer. In re Marriage of Sandhu, 207 P.3d 1067 (Kan.App. 2009). Additionally, remarriage of the immigrant spouse also does not terminate the citizen sponsor's obligation.

This contract can be enforced by a sponsored immigrant or third party (public entity that provides financial assistance to the immigrant spouse). The immigrant spouse is considered a third party beneficiary of the contract between the citizen spouse and federal government thus can seek enforcement based upon basic contract law principles.

Any party seeking enforcement can attempt to have this contract be enforced in any state or federal court that has jurisdiction of a lawsuit against the sponsor. 8 U.S.C. § 1183a(1)(c), Love v. Love, 33 A.3d 1268, 1273 (Pa.Super. 2011); Naik v. Naik, 944 A.2d 713 (N.J.Super.A.D. 2008). This includes the Colorado District Court in dissolution of marriage proceedings. In dissolution of marriage proceedings this contract can provide for support of an immigrant spouse where other support provisions under the Uniform Dissolution of Marriage Act.

For more information, see the article Suing on the I-864 Affidavit of Support.

Standard for Amount of Award

The purpose of the contractual obligation by a citizen spouse under the Immigration and Nationality Act is to support an immigrant spouse at or above 125% of the federal poverty guidelines applicable to the size of her household, is to prevent the immigrant spouse from becoming a public charge. 8 U.S.C. § 1183a(1)(B). By setting a floor of 125% of the federal poverty guidelines the federal government has established where the determination of support begins. However, the language “at or above” clearly indicates discretion in the amount to be set by the Court. Love v. Love, 33 A.3d 1268, 1273 (Pa.Super. 2011); Naik v. Naik, 944 A.2d 713 (N.J.Super.A.D. 2008); Davis v. Davis, 970 N.E.2d 1151 (Ohio App. 2012); Shumye v. Felleke, 555 F.Supp.2d 1020 (N.D.Cal. 2008).

Many courts have followed Naik in determining how much support a sponsor owes to a sponsored spouse. In Naik, the Court held that if a sponsored immigrant’s sources of support exceed 125% of the federal poverty guidelines applicable to the size of her household, then no I-864 support is mandated by the INA. Additionally, if there are other sources of support (ie. income of the immigrant spouse or property owned by the immigrant spouse), a sponsor’s support is limited to cure the deficiency between the sponsored immigrant’s income and the appropriate guideline amount. See also Younis v. Faraooqi, 597 F. Supp.2d 552 (D.Md. 2009); Shumye v. Felleke, 555 F.Supp.2d 1020 (N.D.Cal. 2008); Barnett v. Barnett, 238 P.3d 594 (Alaska 2010).

In enforcement of the I-864, the Court must consider the sponsor's assets which are deemed available to help meet their obligation. Property of the immigrant spouse is also considered and may reduce the amount of contractual support awarded. Whether or not the immigrant spouse is working is also a consideration in the enforcement of the contract. Case law throughout the country has provided that if the immigrant spouse is actually working, the citizen spouse is entitled to a credit for the immigrant spouse's earnings against their obligation. Love v. Love, 33 A.3d 1268, 1273 (Pa.Super. 2011), Wenfang Liu v. Mund, 686 F.3d 418 (7th Cir. 2012). Conversely, other courts, such as the Naik Court, have held that an immigrant is expected to engage in gainful employment to mitigate the damages and potential support obligation owed under the I-864. Colorado is one of the states which has not established how to calculate the amount of an award and whether or not an immigrant spouse has a duty to mitigate damages.

Under 8 U.S. Code §1183a(c), if enforcement of the I-864 through court action is necessary, the sponsor may be required to pay immigrant spouse’s attorney fees and costs.

Family Law Considerations Dealing With Immigrant Spouse

In addition to the “usual” considerations in a family law case, a case concerning an immigrant spouse requires the family law attorney to dig deeper to determine whether there is an I-864 support obligation, including looking at:

• How the foreign born national has assimilated to their community
• General physical and mental health of the parties
• English language skills of the immigrant spouse
• Currency skills of the immigrant spouse
• Education of the immigrant spouse
• Experience in local job market
• Adaptation to local cultural and social climate
• Differences in foreign education and work experience which is usually not transferable to the American job market

Additionally, family law attorneys should look for ancillary evidence in the I-864, if a financial affidavit of assets filed by the citizen spouse with the federal government that has all of the citizen spouse's assets itemized. That affidavit can provide valuable information, especially when comparing it to the sworn financial statement filed by that same spouse in a dissolution case.

The I-864 can be obtained via a FOIA request from the federal government, but such requests take 6 months to 2 years to obtain! (They may be expedited if there is a demonstrated special circumstance that relates to the need to obtain it, so consider filing a motion for a court order to produce the I-864 ASAP.

Can I have My Spouse Deported?

No.

When a marriage breaks down, citizen spouses often times look for quick ways to get rid of their alien spouse and diminish their exposure of financial support to the immigrant spouse or to gain leverage over parenting time issues.

A citizen spouse may contact ICE to request that their spouse be deported based upon marriage fraud. In most cases, this action is not helpful to either spouse and rarely achieves the desired results. Citizen spouses must be aware that they could face criminal liability under 18 U.S. Code § 1001, if they knowingly participated in a “sham” marriage.

Additionally, there is a provision in the Violence Against Women Act which allows for an immigrant spouse to stay in the United States if they have been subjected to cruelty or abuse. Sometimes the very vehicle that you have used to attempt to get your spouse deported can be used against you to establish a reason why the spouse should be granted legal status within the United States.

If true fraud exists, this is a valid reason to pursue an Invalidity of Marriage action in Colorado, and there is case law to that effect.

Do You Need a Divorce Lawyer in Colorado Springs?

The family law attorneys at Graham.Law have years of experience helping clients through the Colorado legal system. We know Colorado family laws, inside and out, from divorce to legal separation, from annulments to military divorce issues. While Graham.Law represents spouses of all nationalities, we are not immigration specialists, and you should consult with an immigration specialist for your specific situation.. For more information about our El Paso County family law firm, click on:

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