Asilonu v. Okeiyi

673 F.Supp.3d 776

Anoruo U. ASILONU, Plaintiff, v. Esther OKEIYI, Defendant.

1:19-CV-1122

United States District Court, M.D. North Carolina

Signed May 15, 2023

Gregory H. McLawsen, Immigration Support Advocates, Seattle, WA, Valeria Cesanelli, Morgan & Cesanelli Law PLLC, Carrboro, NC, for Plaintiff.

Jocelyn Davis Singletary, Singletary Law Firm, PLLC, Cornelius, NC, Mary Nnene Okeiyi, The Singletary Law Firm, Charlotte, NC, for Defendant.

MEMORANDUM OPINION AND ORDER

Catherine C. Eagles, District Judge.

The plaintiff, Anoruo Asilonu, alleges that the defendant, Dr. Esther Okeiyi, signed a Form I-864 to serve as a financial sponsor for Mr. Asilonu, who sought to immigrate to the United States. If she did sign and submit this form, then by statute she assumed a contractual obligation to maintain the plaintiff at an annual income of at least 125% of the federal poverty line. See 8 U.S.C. § 1183a(a)(1). The plaintiff has sued the defendant for breaching her promise to support him during 2017, 2018, and 2019.

The plaintiff contends that "income" means federally taxable income. See Doc. 185 at 1; Doc. 166 at 6-7. The defendant, on the other hand, contends that "income" means "gross income," Doc. 187 at 2-4, and "any and all income," Doc. 190 at 2, taking into account "income from wages and employment, educational scholarships and grants, alimony, housing subsidies, and any other direct financial benefits received." Doc. 167 at 26. Each side has filed a motion in limine seeking to exclude evidence inconsistent with or admit evidence consistent with their view of the law. See Docs. 184, 186. This dispute also shows up in the parties' proposed jury instructions. See Docs. 166-167.

I. The Statute, Regulations, and Case Law

In evaluating requests to enter this country, Congress has provided that "[a]ny alien who . . . is likely at any time to become a public charge is inadmissible." 8 U.S.C. § 1182(4)(A). In determining whether an alien is likely to become a public charge, the deciding official may consider, among other things, an "affidavit of support," if one is filed. 8 U.S.C. § 1182(4)(B)(ii). The deciding official may not accept an affidavit of support unless the "affidavit is executed by a sponsor of the alien as a contract in which the sponsor agrees to provide support to maintain the sponsored alien at an annual income that is not less than 125 percent of the Federal poverty line" and the affidavit "is legally enforceable against the sponsor by the sponsored alien." 8 U.S.C. § 1183a(a)(1)(A)-(B) (cleaned up). The purpose "of the sponsorship-scheme is to guarantee that aliens will be self-sufficient and not impose any meaningful burden on the public." CASA de Md., Inc. v. Trump, 971 F.3d 220, 243 (4th Cir. 2020) (cleaned up).¹

In other words, by signing an affidavit of support, the sponsor—Dr. Okeiyi, as alleged here—agrees to support the immigrant—Mr. Asilonu here—at "an annual income" of 125% of the federal poverty line for the relevant time period. See, e.g., Younis v. Farooqi, 597 F. Supp. 2d 552, 554 (D. Md. 2009); Song v. Garland, 54 F.4th 233, 234 n.2 (4th Cir. 2022).

The specific statute creating the sponsorship scheme uses but does not explicitly define the word "income," 8 U.S.C. § 1183a(a)(1)(A), nor does the general definitions section define the word "income." See 8 U.S.C. § 1101.² And while the statute refers to "the Federal poverty line," 8 U.S.C. § 1183a(a)(1)(A), the regulations that establish the poverty line do not define the word "income." Indeed, the regulatory notices setting the poverty line for the relevant years explicitly say they do not define "income" because of the "considerable variation in defining" the term "among the different programs that use the guidelines."³ The notices state that questions such as "[i]s income counted before or after taxes?" or "[s]hould a particular type of income be counted?" will arise but "should be directed to the entity that administers . . . the program, since that entity has the responsibility for defining such terms as 'income' " if it is "not already defined for the program in legislation or regulations."⁴ Unfortunately, the applicable regulations for sponsorship affidavits do not explicitly define the word "income" either, at least not as it concerns the sponsored immigrant. See 8 C.F.R. § 213a.1.

Courts have addressed the absence of an explicit definition in different ways. But most courts agree that loans do not qualify as income,⁵ that gross income is not the appropriate test and that any expenses the immigrant incurred to earn money should be deducted,⁶ and that division of marital property does not qualify as income.⁷

Courts have reached different results in considering whether other items qualify as income.⁸ Courts largely follow one of two approaches: one, adopting the definition of "income" in the regulations that establish how to calculate whether the sponsor makes enough money to support the immigrant, or two, deciding whether particular items should or should not count as "income" on a case-by-case basis, typically in a more expansive manner than that in the regulation applicable to sponsors.⁹

As to the first approach, there are specific regulations governing affidavits of support such as the one Dr. Okeiyi signed here. 8 C.F.R. § 213a.1 et seq. To determine whether a citizen has sufficient means to sponsor an immigrant, those regulations define income as "an individual's total income¹⁰ . . . for purposes of the individual's U.S. Federal income tax liability." 8 C.F.R. § 213a.1. In the absence of an explicit definition for determining the immigrant's income, several courts have applied this definition.¹¹

The second approach is to define income without reference to the definition in the regulations and to determine whether particular resources should be considered as income in light of the statute's purpose of preventing immigrants from becoming public charges. In applying this more policy-based approach, some courts have explicitly rejected the § 213a.1 definition, noting that § 213a.1 only applies to determine whether a citizen is eligible to sponsor an immigrant and should not be used to calculate the sponsored immigrant's annual income.¹² But other courts, including district courts in this circuit, have not mentioned the definition in § 213a.1, much less explicitly rejected it.¹³

The only circuit court authority on the definition of income comes from the Ninth Circuit, which has addressed the issue three times. In a reported case, the Ninth Circuit reviewed the district court's grant of summary judgment to a defendant-sponsor. Erler v. Erler (Erler I), 824 F.3d 1173 (9th Cir. 2016). The district court concluded that the sponsor had not breached his obligation to support the immigrant because the immigrant moved in with her adult son who had an annual income greater than 125% of the federal poverty line. Id. at 1175-76. The Ninth Circuit vacated the court's order, holding in part that "[w]hen measuring the immigrant's income, the court must disregard the income of anyone in the household who is not a sponsored immigrant." Id. at 1180. The court noted that while § 213a.1 defines income for the sponsor, it does not define income for the sponsored immigrant. Id. at 1177. But the court did not specifically address whether it would be appropriate to adopt the definition in § 213a.1.

Later in the same case, appealed again after remand, the Ninth Circuit in an unpublished opinion reviewed the district court's decision to reduce the defendant's liability by amounts the immigrant received in food stamps and from a foreign pension. Erler v. Erler (Erler II), 798 F. App'x 150 (9th Cir. 2020) (unpublished memorandum). The immigrant argued in part that the food stamps and foreign pension did not qualify as income because they were non-taxable under § 213a. Id. at 150-51. The Ninth Circuit rejected her argument, concluding that § 213a "applies only to determine whether a sponsor's household income is sufficient to sponsor an immigrant, not to calculate the sponsored immigrant's income." Id. at 150. The court held that the pension was income without much discussion other than to reject the plaintiff's argument and to note that the plaintiff had control over the pension. Id. at 151. The court also held that food stamps were income since the statute specifically states that the entity providing the public benefits can seek reimbursement from the sponsor for the value of the benefits provided to the sponsored immigrant. Id.

Finally, in another unpublished opinion, the Ninth Circuit reviewed a district court's jury instructions on how to calculate a sponsored immigrant's income. Anderson, 840 F. App'x 92. The district court instructed the jury "that in addition to wages and cash payments," "income includes property, services, gifts, or educational grants and constructively-received income." Id. at 94 (cleaned up). The Ninth Circuit agreed that income appropriately includes educational grants but held that the district court erred by including "constructively-received income," and that health insurance benefits and a judgment the sponsor had obtained against the immigrant should not have been considered as income. Id. at 95. The court "recognize[d] the lack of precedential authority defining 'income' in this context," but it found that "establishing a uniform definition [was] unnecessary to resolve this appeal" and declined the plaintiff's "invitation to restrict 'income' to the definition set forth in 8 C.F.R. § 213a.1." Id.

Since Anderson and Erler II, district courts in the Ninth Circuit have gone both ways. One court recently concluded that the definition in § 213a.1 should apply, finding that Anderson and Erler II are not precedential authority and that there was no compelling reason to discard the regulatory definition. See Flores, 590 F. Supp. 3d at 1381-82. A different judge on the same court concluded later that the definition in § 213a.1 should...