                     FOR PUBLICATION

      UNITED STATES COURT OF APPEALS
           FOR THE NINTH CIRCUIT


 AYLA ERLER,                                     No. 14-15362
                  Plaintiff-Appellant,
                                                  D.C. No.
                    v.                       3:12-cv-02793-CRB

 YASHAR ERLER,
           Defendant-Appellee.                     OPINION


        Appeal from the United States District Court
          for the Northern District of California
        Charles R. Breyer, District Judge, Presiding

                 Submitted February 11, 2016*
                   San Francisco, California

                         Filed June 8, 2016

  Before: Mary M. Schroeder and Jacqueline H. Nguyen,
  Circuit Judges, and Lynn S. Adelman,** District Judge.

                  Opinion by Judge Adelman;
                  Dissent by Judge Schroeder


  *
    The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
 **
    The Honorable Lynn S. Adelman, United States District Judge for the
Eastern District of Wisconsin, sitting by designation.
2                         ERLER V. ERLER

                           SUMMARY***


                         Immigration Law

    The panel vacated the district court’s summary judgment
in favor of the defendant in an action to enforce a sponsor’s
duty to provide financial support to an immigrant under an “I-
864 Affidavit of Support.”

    The defendant, a United States citizen, married the
plaintiff, a Turkish citizen, and signed an affidavit of support,
making her eligible for admission to the United States. The
defendant agreed to provide the plaintiff with any support
necessary to maintain her at an income that was at least 125
percent of the Federal Poverty Guidelines for her household
size. The affidavit became a contract between the defendant
sponsor and the United States government for the benefit of
the plaintiff and any entity that administers a means-tested
public benefits program. The parties subsequently divorced,
and their divorce judgment reflected their premarital
agreement that neither would be entitled to alimony or
support from the other.

    Agreeing with the Seventh Circuit, the panel affirmed the
district court’s conclusion that despite the divorce, the
defendant had a continuing obligation to support the plaintiff.
The panel held, however, that the district court erred in
treating the plaintiff and the adult son with whom she lived as
a combined household for purposes of determining whether
the defendant breached that obligation.

  ***
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                           ERLER V. ERLER                                3

     Dissenting, Judge Schroeder wrote that the defendant was
not required to pay support for his former wife, who was
living in a household with income above the poverty level for
its size.


                             COUNSEL

David V. Sanker, Corey R. Houmand, and Melinda S.
Riechert, Morgan, Lewis & Bockius LLP, Palo Alto,
California, for Plaintiff-Appellant.

Yashar Erler, San Carlos, California, pro se Defendant-
Appellee.


                              OPINION

ADELMAN, District Judge:

    This is an action to enforce a sponsor’s duty to provide
financial support to an immigrant under an “I-864 Affidavit
of Support.” See 8 U.S.C. § 1183a.

                                    I.

    Ayla Erler is a Turkish citizen who immigrated to the
United States in November 2008 to marry Yashar Erler.1
Yashar, who is originally from Turkey, is a citizen of the
United States. He is a real estate agent and owns several
rental properties. His net worth exceeds $4.6 million.

  1
    For clarity and simplicity, we will refer to the parties by their first
names.
4                     ERLER V. ERLER

    Ayla married Yashar on April 15, 2009. A short time
later, the couple began proceedings before the Department of
Homeland Security, U.S. Citizenship and Immigration
Services (“USCIS”) to ensure that Ayla could lawfully
remain in the United States. As part of this process, Yashar
signed an “I-864 Affidavit of Support,” in which he agreed to
provide Ayla with “any support necessary to maintain [her]
at an income that is at least 125 percent of the Federal
Poverty Guidelines for [her] household size.” Yashar signed
this affidavit because the Immigration and Nationality Act
forbids admission to the United States of any alien who “is
likely at any time to become a public charge.” 8 U.S.C.
§ 1182(a)(4); 8 C.F.R. § 213a.2(a). Persons who would be
inadmissible for this reason may become admissible if a
sponsor executes the affidavit of support. 8 U.S.C.
§ 1183a(a)(1); 8 U.S.C. § 1182(a)(4)(C)(ii); 8 C.F.R.
§ 213a.2. Once executed, the affidavit becomes a contract
between the sponsor and the U.S. Government for the benefit
of the sponsored immigrant, and of any Federal, State, or
local governmental agency or private entity that administers
any “means-tested public benefits program.” 8 C.F.R.
§ 213a.2(d); see also 8 U.S.C. § 1183a(a)(1) (providing that
affidavit must be “executed by a sponsor of the alien as a
contract”).

    On March 25, 2011, Ayla and Yashar separated. Yashar
subsequently initiated divorce proceedings in California state
court. The divorce was finalized on May 4, 2012. Prior to
their marriage, Ayla and Yashar had entered into a premarital
agreement stating that neither party would be entitled to
alimony or support from the other. The judgment of divorce
reflects this agreement.
                      ERLER V. ERLER                        5

    Following her separation from Yashar, Ayla moved into
an apartment with her adult son, Dogukan Solmaz. Ayla has
not been able to find employment, and she contends that she
has earned no income since her separation from Yashar.
Dogukan earns an income of approximately $3,200 per month
and uses his income to pay rent and other living expenses for
both himself and Ayla. Dogukan’s income exceeds 125% of
the Federal poverty guidelines for a household of two.

    Since their separation in March 2011, Yashar has refused
to provide Ayla with any support. According to Ayla, Yashar
made one payment of $3,500 to assist her with moving
expenses in April 2011 but otherwise has not made any
payments to her since their separation.

    On May 31, 2012, Ayla commenced an action in the
district court against Yashar to enforce his obligations under
the affidavit of support. Yashar, who chose to proceed
without counsel (and who appears without counsel on
appeal), argued that the premarital agreement and divorce
judgment terminated his obligations under the affidavit of
support. Yashar also argued that because Dogukan has been
supporting Ayla at a level that is not less than 125% of the
Federal poverty guidelines for a two-person household,
Yashar has not breached any obligation of support that might
have survived the divorce.

    The district court granted summary judgment to Yashar.
See Erler v. Erler, No. CV-12-2793-CRB, 2013 WL 6139721
(N.D. Cal. Nov. 21, 2013). The court first determined that
the premarital agreement and divorce judgment did not
terminate Yashar’s obligation under the affidavit of support.
However, the court then determined that Yashar had not
breached his continuing obligation to support Ayla because,
6                      ERLER V. ERLER

since the time of the separation, Dogukan had been
maintaining Ayla at an annual income of at least 125% of the
Federal poverty guidelines for a two-person household. Thus,
reasoned the court, Yashar’s duty to support Ayla had not
been triggered.

    Ayla appeals the district court’s conclusion that Yashar
did not breach the affidavit of support. She contends that the
district court erred by including Dogukan and his income
when calculating her household size and income. According
to Ayla, the district court should have measured Yashar’s
support obligation based on a household size of one and
should not have credited her with Dogukan’s income.

    On appeal, Yashar does not explicitly challenge the
district court’s conclusion that his support obligation survives
the divorce. However, in his brief, he expresses some
disagreement with that conclusion. Because Yashar is not
represented by counsel, we will assume that he is seeking
review of that conclusion and will briefly address it before
turning to the question of whether he has breached the
obligation of support.

                              II.

    In the district court, Yashar argued that the parties’
premarital agreement and the California divorce judgment
terminated his obligation under the affidavit of support.
However, the district court correctly rejected these
arguments.

    Under federal law, an affidavit of support remains
enforceable until the sponsored immigrant: (1) becomes a
citizen of the United States; (2) has worked or can be credited
                       ERLER V. ERLER                          7

with 40 qualifying quarters of work under title II of the Social
Security Act; (3) ceases to be a lawful permanent resident and
departs the United States; (4) obtains in a removal proceeding
a grant of adjustment of status as relief from removal; or
(5) dies. 8 C.F.R. § 213a.2(e)(2)(i); see also 8 U.S.C.
§ 1183a(a)(2)–(3). The I-864 Form that Yashar signed
reproduces this information in a section entitled “When Will
These Obligations End?” as follows:

        Your obligations under a Form I-864 will end
        if the person who becomes a permanent
        resident based on a Form I-864 that you
        signed:

        C   Becomes a U.S. citizen;

        C   Has worked, or can be credited with, 40
            quarters of coverage under the Social
            Security Act;

        C   No longer has lawful permanent residence
            status, and has departed the United States;

        C   Becomes subject to removal, but applies
            for and obtains in removal proceedings a
            new grant of adjustment of status, based
            on a new affidavit of support, if one is
            required; or

        C   Dies.

Just after the bullet points, the form states: “Note that divorce
does not terminate your obligations under this Form I-864.”
8                     ERLER V. ERLER

    Thus, under federal law, neither a divorce judgment nor
a premarital agreement may terminate an obligation of
support. Rather, as the Seventh Circuit has recognized, “[t]he
right of support conferred by federal law exists apart from
whatever rights [a sponsored immigrant] might or might not
have under [state] divorce law.” Liu v. Mund, 686 F.3d 418,
419–20 (7th Cir. 2012). We therefore hold that the district
court correctly determined that Yashar has a continuing
obligation to support Ayla.

                             III.

     To determine whether the district court correctly found
that Yashar has not breached his continuing obligation of
support, we must decide what it means for a sponsor of an
intending immigrant to provide the immigrant “with any
support necessary to maintain him or her at an income that is
at least 125 percent of the Federal Poverty Guidelines for his
or her household size” when the sponsored immigrant no
longer resides in the sponsor’s household. More specifically,
the appeal requires us to decide how to measure the
immigrant’s post-separation household size and the
immigrant’s post-separation income.

     Certain provisions of the Immigration and Nationality Act
and the implementing regulations touch on these questions,
but they do not clearly answer them. For example, the Act
defines “Federal poverty line” as “the level of income equal
to the official poverty line [as published by the Department of
Health and Human Services] that is applicable to a family of
the size involved.” 8 U.S.C. § 1183a(h). However, the Act
does not explain how to identify the “family of the size
involved” when the sponsored immigrant no longer lives in
the same household as the sponsor. Moreover, although
                      ERLER V. ERLER                        9

several provisions of the statutes and the regulations contain
instructions for calculating the sponsor’s income and
household size for purposes of determining whether the
sponsor has the means to support the intending immigrant,
see 11 U.S.C. § 1183a(f)(6)(A)(iii); 8 C.F.R. § 213a.1
(defining “household income,” “household size,” and
“income”); 8 C.F.R. § 213a.2(c)(2), there are no similar
provisions for calculating the sponsored immigrant’s income
and household size for purposes of determining whether the
sponsor has breached his or her duty to support the
immigrant.

    The district court recognized that the applicable statutes
and regulations do not clearly explain how to determine a
sponsored immigrant’s post-separation household size and
income. The court then looked to the purposes of the
affidavit-of-support requirement and found that it must strike
a balance between ensuring that the immigrant’s income is
sufficient to prevent her from becoming a public charge and
preventing unjust enrichment to the immigrant. The court
concluded that the proper balance under the facts of this case
was to find that Dogukan and Ayla constituted a two-person
household for purposes of the affidavit of support, and that
their combined income must be used to determine whether
Ayla’s income was at least 125% of the poverty guidelines.
The court reached this result by reasoning that because
Dogukan was already providing Ayla with the support
necessary to sustain her at 125% of the poverty guidelines,
she would not become a public charge even if Yashar did not
contribute any support. The court also reasoned that
requiring Yashar to provide additional support under these
circumstances would lead to Ayla’s receiving “windfall
benefits.” Erler, 2013 WL 6139721, at *6.
10                    ERLER V. ERLER

    The district court’s approach is not without appeal.
However, in our view, it leads to an untenable result. If a
sponsor’s duty under the affidavit of support is measured by
the immigrant’s post-separation household size and
household income, then the sponsor would have to support all
members of the immigrant’s post-separation household in the
event that the household’s income fell below 125% of the
poverty guidelines for a household of that size. For example,
in this case, the district court determined that Yashar’s duty
of support must be based on a two-person household and that
Ayla must be credited with Dogukan’s income. But what if
Dogukan lost his job and was unable to maintain the
household at 125% of the poverty guidelines for a two-person
household? Under the district court’s approach, if Ayla
continued to live in the same household as Dogukan but
earned no income, then Yashar would be obligated to support
both Ayla and Dogukan. That is, Yashar would be obligated
to make enough payments to Ayla to bring her income above
125% of the poverty guidelines for a two-person household.
Alternatively, assume that Ayla earned enough income to
support herself at 125% of the poverty guidelines for a one-
person household. In this circumstance, Yashar would not be
obligated to provide Ayla with any support. But then assume
that Ayla allows a family member who has no income to join
her household. If Ayla’s income were not sufficient to
support a two-person household at 125% of the poverty
guidelines, then under the district court’s approach, Yashar
would be required to make up the difference.

    In our view, these results would be untenable because, in
signing the affidavit of support, Yashar agreed to support
only Ayla, not Ayla and anyone else with whom she might
choose to live. The affidavit of support is a contract, see
8 U.S.C. § 1183a(a)(1); 8 C.F.R. § 213a.2(d), and contracts
                       ERLER V. ERLER                        11

are interpreted to give effect to the reasonable expectations of
the parties, see, e.g., 11 Williston on Contracts § 31:11 (4th
ed. 2012). At the time a sponsor signs an affidavit of support
for a single intending immigrant, he or she would reasonably
expect that, if the immigrant separates from the sponsor’s
household, the obligation of support would be based on a
household size of one. Or, if the sponsor agreed to sponsor
multiple immigrants, such as a parent and child, then the
sponsor would reasonably expect that, in the event of a
separation, the obligation of support would be based on a
household size that includes the total number of sponsored
immigrants living in the household. The sponsor would not
reasonably expect the obligation of support to be based on a
household that includes the sponsored immigrant or
immigrants plus anyone else with whom the immigrant might
choose to live. Thus, in the event of a separation, the
sponsor’s duty of support must be based on a household size
that is equivalent to the number of sponsored immigrants
living in the household, not on the total number of people
living in the household.

    We recognize that our approach will sometimes lead to
imperfect outcomes. As the district court noted, ignoring the
income of others with whom the immigrant chooses to live
will occasionally allow the immigrant to receive more
support than required to prevent him or her from falling
below 125% of the poverty line. However, while the
immigrant may receive more support than required, the
sponsor pays no more than what he or she should have
expected to pay when signing the affidavit of support, i.e., the
amount required to support the immigrant in a one-person
household. Thus, in this situation, the sponsor has no cause
to complain about the immigrant’s receiving a windfall.
12                        ERLER V. ERLER

    In any event, relieving the sponsor of his duty of support
when the immigrant is fortunate enough to find another
person willing to provide the necessary support could itself be
considered a windfall to the sponsor. Because the sponsor is
not an intended beneficiary of the affidavit-of-support
requirement, Liu v. Mund, 686 F.3d 418, 422 (7th Cir. 2012),
we see no reason why the sponsor, rather than the immigrant,
should receive the windfall. To the contrary, allowing the
sponsor to receive the windfall would undermine the purpose
of the affidavit of support, which is to “prevent the admission
to the United States of any alien who ‘is likely at any time to
become a public charge.’” Id. (quoting 8 U.S.C.
§ 1182(a)(4)(A)). As the Seventh Circuit has recognized, that
purpose is best served by interpreting the affidavit in a way
that makes prospective sponsors more cautious about
sponsoring immigrants. Id. Here, Yashar asks the court to
adopt a rule allowing sponsors to escape their support
obligations by withholding payments and waiting for
charitable third parties to pick up the slack. Such a rule
would make sponsors less cautious about sponsoring
immigrants, and thus it would undermine the very purpose of
the support requirement.2

   We also recognize that, under our approach, there will be
cases in which the immigrant will be left living in a


  2
    The district court expressed concern that if an immigrant who received
adequate support from others could nonetheless turn to the sponsor for
support, then the sponsor might unnecessarily become a public charge.
However, before admitting the immigrant based on the sponsor’s affidavit
of support, USCIS would have reviewed the sponsor’s income to make
sure that it was sufficient to support the immigrant. See 8 U.S.C.
§ 1183a(f)(1)(E); 8 C.F.R. § 213a.2(c)(2). So in most cases, enforcing the
sponsor’s support obligation will not result in the sponsor’s becoming a
public charge.
                      ERLER V. ERLER                        13

household that makes less than 125% of the poverty
guidelines, even after the sponsor satisfies his or her support
obligation. For example, if the immigrant chooses to live in
a two-person household, measuring the sponsor’s duty of
support by a one-person household could result in the
immigrant’s total household income falling below 125% of
the poverty guidelines. However, we conclude that this result
coincides with the reasonable expectations of the parties to
the affidavit of support. The sponsor would not reasonably
expect to have to support the immigrant and any others with
whom she chooses to live, and the immigrant would not
reasonably expect to be entitled to such support. Likewise,
the U.S. Government, who is also a party to the contract
created by the affidavit, would not reasonably expect the
sponsor to support any others with whom the immigrant
might choose to live following her separation from the
sponsor.

    Accordingly, we hold that when a sponsored immigrant
separates from the sponsor’s household, the sponsor’s
obligation under the affidavit of support is to provide the
immigrant with whatever support is necessary to maintain
him or her at an annual income of at least 125% of the
poverty guidelines for a one-person household. If the sponsor
agreed to support more than one immigrant, and those
immigrants separate from the sponsor’s household and
continue to live together, then the sponsor must provide them
with whatever support is necessary to maintain them at an
annual income of at least 125% of the poverty guidelines for
a household of a size that includes all the sponsored
immigrants. When measuring the immigrant’s income, the
court must disregard the income of anyone in the household
14                        ERLER V. ERLER

who is not a sponsored immigrant.3 Applying this rule to the
present case, we conclude that Yashar has a continuing
obligation to provide Ayla with whatever support is necessary
to maintain her at an income that is at least 125% of the
poverty guidelines for a one-person household. For purposes
of determining whether Yashar has fulfilled this obligation,
the court must not consider Dogukan’s income.

    Before concluding, we note that Yashar argues in his brief
that, even if Ayla is not credited with Dogukan’s income, her
annual income would exceed 125% of the poverty guidelines
for a one-person household. In calculating Ayla’s income,
Yashar includes Ayla’s food-stamp benefits that she receives
from the State of California, and benefits that she receives
under a Turkish pension. The pension benefits are deposited
into a Turkish bank account, and Ayla contends that she
cannot access the funds from within the United States.
Because the district court concluded that Dogukan’s income,
on its own, was sufficient to provide Ayla with the necessary
support, it did not address whether the food stamps and
pension benefits should be treated as Ayla’s income. Nor did
the district court address the ultimate question of whether, for
the years since her separation from Yashar, Ayla’s income
was at least 125% of the poverty guidelines for a one-person
household. Rather than address these questions for the first
time on appeal, we leave them for the district court to address
on remand.




 3
    We do not, however, consider a case where the sponsored immigrant
has remarried. In such a case, it may be appropriate to impute all or part
of the spouse’s income to the sponsored immigrant.
                       ERLER V. ERLER                         15

                              IV.

    For the foregoing reasons, we agree with the district court
to the extent it found that, despite the divorce, Yashar has a
continuing obligation to support Ayla. However, we hold
that court erred in treating Ayla and Dogukan as a combined
household for purposes of determining whether Yashar
breached that obligation. We therefore VACATE the court’s
grant of summary judgment to Yashar and REMAND for
further proceedings consistent with this opinion. Costs shall
be assessed against the defendant.



SCHROEDER, Circuit Judge, dissenting:

    In my view, the district court got this difficult case right.
My colleagues have held that Mr. Erler must pay support for
his former wife, even though she is living in a household with
income above the poverty level for its size. I do not agree.

    The majority’s fear is that taking into account the income
of other persons in her household, though relieving Mr. Erler
of any present obligation, could create a burden for Mr. Erler
in the future, if his former wife were to live in a household
with income below the poverty level. Thus, Mr. Erler is
required to pay now, when her household is not in need, so
that he will not have to pay later, when her household may be
in need. Mr. Erler has not asked for this speculative future
beneficence.

    The district court correctly recognized that requiring him
to pay now creates windfall benefits for Mrs. Erler, and
depletes the sponsor’s income, thereby putting him and others
16                   ERLER V. ERLER

at risk of becoming public charges in the future. Since the
purpose of the Affidavit of Support is to prevent an
immigrant from becoming a public charge, see 8 U.S.C.
§ 1183a(a), the majority’s holding is counterproductive.
Hence this respectful dissent.
