                      In The
                Court of Appeals
  Sixth Appellate District of Texas at Texarkana
          ______________________________

                No. 06-11-00039-CV
          ______________________________


     IN THE MATTER OF THE MARRIAGE OF
KAYVAN KAMALI AND BANAFSHEH SAFAR ALIZADEH
    AND IN THE INTEREST OF K. T. K., A CHILD




     On Appeal from the 307th Judicial District Court
                  Gregg County, Texas
            Trial Court No. 2010-1347-DR




       Before Morriss, C.J., Carter and Moseley, JJ.
               Opinion by Justice Moseley
                                                    OPINION

         Dr. Kayvan Kamali sponsored the immigration of Banafsheh Safar Alizadeh from Iran to

the United States of America and married her. The marriage had lasted only about two and

one-half years when Kamali sought a divorce.1 Under an affidavit for sponsorship of an alien

seeking residency in the United States, the sponsor is required to execute an affidavit pledging to

provide support at a level not less than 125% of the United States poverty level for an unlimited

period, the obligation for support terminating only upon the occurrence of any of five specified

events. 8 U.S.C.A. § 1183a (West, Westlaw current through 2011); 8 C.F.R. 213a.2 (West,

Westlaw current through 2011). In the divorce decree, the trial court acknowledged the existence

of the affidavit for support, but decreed that the obligation for support ended after thirty-six

months from the date of entry of the divorce decree. Alizadeh’s appeal complains the trial court

erred by limiting Kamali’s support payments to a period of thirty-six months. 2 We sustain

Alizadeh’s point of error.

Affidavit of Support

         United States immigration law provides a procedure for a resident of the United States to

sponsor a noncitizen for immigration into the country. As a condition precedent to granting

1
 Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2005). We are
unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant
issue. See TEX. R. APP. P. 41.3.
2
 In the prayer for relief on appeal, Alizadeh also requested a remand to the trial court to determine attorney’s fees on
appeal. However, this issue was not briefed, and this request was withdrawn on oral argument.

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immigration status, the government requires the sponsor to execute an affidavit (Form I-864

Affidavit of Support), wherein the sponsor promises to support the immigrant seeking admission

to the United States at a level not less than 125% of the national poverty level. Id. The sponsor’s

obligation to support the immigrant continues until one of the following circumstances occurs:

(1) either the immigrant or the sponsor dies, (2) the immigrant achieves citizenship, (3) the

immigrant leaves the United States and does not return, or (4) the immigrant maintains

employment that qualifies for Social Security for a total of forty quarters of years. Id.; 8 C.F.R.

213a.2. The instructions for completing the form specifically state that ―[d]ivorce does not end

the sponsorship obligation.‖

         Kamali completed such an affidavit of support in order to secure Alizadeh’s entry into the

United States.3 The parties married in December 2007 and separated in June 2010, precipitating

the filing of a divorce by Kamali that same month. At trial, Alizadeh presented testimony from an

immigration attorney, Jose Sanchez, who explained the workings of the affidavit of support and

discussed caselaw interpreting the document and its statutory authorization. Sanchez explained

that the duty to support a sponsored immigrant expires only upon one of the terminating events

described above, specifically mentioning that a divorce does not terminate a sponsor’s obligation

of support. Alizadeh also presented testimony from an accountant who said that based on the

United States poverty level available from the most recent data, 125% of that level was $1,128.13.

3
 Although neither party could produce the affidavit of support at trial, Kamali did not dispute having executed it; it
appears from the record the parties had requested a copy from the Immigration and Naturalization Service, but had not
received it at the time of trial.

                                                          3
The portion of the divorce decree entered by the trial court which dealt with the obligation of

Kamali to make support payments to Alizadeh reads as follows:

         Affidavit of Support and Other Tort or Contract Claims Asserted by Banafsheh
         Safar Alizadeh

         The Court finds that Kayvan Kamali contractually obligated himself to support of
         Banafsheh Safar Alizadeh, including but not limited to, the claim under Form
         I-864, Affidavit of Support. Kayvan Kamali will pay to Banafsheh Safar Alizadeh
         the sum of $1100.00 per month for a period of 36 months, which sum may be
         prepaid at any time in the total amount of $39,600.00, with the first monthly
         installment being due and payable on December 1, 2010, and a like payment of
         $1100.00 being due and payable on the same day of each month thereafter until the
         expiration of 36 months or until the whole of such sum is paid in full.4

         Although we have found no Texas or United States Fifth Circuit cases specifically

interpreting or enforcing the affidavit of support,5 some federal courts in other circuits across the

country have addressed the impact of such an affidavit. An affidavit of support creates ―a legally

enforceable contract between the sponsor and both the United States Government and the

sponsored immigrant.‖ Shumye v. Felleke, 555 F. Supp.2d 1020, 1022–24 (N.D. Cal. 2008)

(citing Schwartz v. Schwartz, No. CIV-04-770-M, 2005 WL 1242171 (W.D. Okla. May 10,




4
 At oral argument, Alizadeh indicated that the $1,100.00 per month figure representing 125% of the federal poverty
guideline levels at the time of the divorce was not in controversy.
5
 However, one court did decline to address a wife’s claim that the husband should have been ordered to make support
payments to her in the divorce decree; the petition only sought a divorce. The final decree of divorce was modified to
state that nothing in the decree barred the wife from seeking to enforce the affidavit of support executed by the
husband. Varnes v. Varnes, No. 13-08-00448-CV, 2009 Tex. App. LEXIS 2791, at **17–20 (Tex. App.—Corpus
Christi Apr. 23, 2009, no pet.) (mem. op.).


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2005)).6    As stated in the instructions regarding the affidavit, divorce is not among the conditions

which terminates a sponsor’s obligation. Id. at 1024; see also Moody v. Sorokina, 830 N.Y.S.2d

399, 402 (N.Y. App. Div. 2007) (sponsored immigrant’s right to support under Form I-864

affidavit of support is unaffected by a judgment of divorce––the action was transferred to another

court, which entered the divorce, then severed it for separate trial on custody and maintenance).

        Further, the Tennessee Court of Appeals addressed an ex-husband’s argument that he had

no obligation under such an affidavit of support to make payments to his ex-wife until she made a

showing she had received public benefits. The court found that the affidavit establishes a duty to

support the sponsored immigrant without such a showing as a prerequisite, and the duty of the

obligor is enforceable as a contract. Baines v. Baines, No. E2009-00180-COA-R3-CV, 2009

Tenn. App. LEXIS 761, at **12–13 (Tenn. Ct. App. Nov. 13, 2009).

Kamali’s Contractual Duty

        The question before us is whether the trial court’s order complied with the terms of the

contract, i.e., the affidavit of support.

        The obligation for the sponsoring affiant to support the sponsored immigrant clearly ceases

only upon the occurrence of one of a few terminating events enumerated above. See 8 U.S.C.A

§ 1183a; 8 C.F.R. 213a.2(e)(2)(i), (ii). Divorce of the obligor from the obligee is not among those

terminating events; specifically, the instructions to the affidavit of support clearly exclude divorce


6
The instructions to complete the affidavit also state: ―This form is a contract between a sponsor and the U.S.
Government.‖

                                                      5
as an event precipitating a termination of the obligation. The affidavit of support was a contract

between Kamali and the United States government, enforceable by Alizadeh. 7 8 U.S.C.A.

§ 1183a(a)(1)(B). The trial court’s order, limiting payments to an arbitrary period of thirty-six

months, runs afoul of the terms of the contract. Thus, the trial court erred by including the

limiting provision on the length of payments.

        We, therefore, strike the paragraph of the decree of divorce entitled ―Affidavit of Support

and Other Tort or Contract Claims Asserted by Banafsheh Safar Alizadeh‖ and substitute the

following in its stead: ―The court finds that Kayvan Kamali contractually obligated himself to

support Banafsheh Safar Alizadeh under the terms of Form I-864, Affidavit of Support. The

parties do not contest the finding that the payment of $1,100.00 per month satisfies the current

obligation as it existed on December 13, 2010.‖

        Having found error in part, the judgment is reversed in part, and we render judgment that

Kamali is obligated under the terms of his agreement with the federal government concerning

Alizadeh’s immigration. The judgment, as reformed, is otherwise affirmed.




                                                    Bailey C. Moseley
                                                    Justice


7
 It would appear that this is a contract between the United States government and the sponsoring affiant with the
immigrant being the third-party beneficiary of that contract.

                                                       6
Date Submitted:   November 16, 2011
Date Decided:     December 7, 2011




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