Echon et al v. Sackett et al

Filing 116

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE that 106 MOTION for Summary Judgment filed by Justin Echon, Maribel Echon, Esmeraldo Villanueva Echon, Jr. be GRANTED IN PART and DENIED IN PART. By Magistrate Judge Nina Y. Wang on 9/20/2017. (Attachments: # 1 - (7) Unpublished case law) (nywlc1)

Schwartz v. Schwartz, Not Reported in F.Supp.2d (2005)
2005 WL 1242171

2005 WL 1242171
Only the Westlaw citation is currently available.
United States District Court,
W.D. Oklahoma.
Michal Saidon SCHWARTZ, Plaintiff,
v.
Steven Shea SCHWARTZ, Defendant.
No. CIV-04-770-M.
|
May 10, 2005.
Attorneys and Law Firms

the following grounds: (1) plaintiff has not received any
means-tested public benefits and, therefore, cannot bring
the instant action; (2) the Affidavit of Support is not a
legally binding contract; and (3) the parties' divorce decree
ended support alimony obligations as of June 1, 2004.
When reviewing a motion to dismiss for failure to state
a claim under Rule 12(b)(6), a court accepts “as true
all well-pleaded facts, as distinguished from conclusory
allegations, and view[s] those facts in the light most
favorable to the nonmoving party.” Maher v. Durango
Metals, Inc., 144 F.3d 1302, 1304 (10 th Cir.1998). “A
complaint may be dismissed pursuant to Fed.R.Civ.P.
12(b)(6) only if the plaintiff can prove no set of facts
to support a claim for relief.” David v. City and County

R. Mark Solano, R. Mark Solano PLLC, Tulsa, OK, for
Plaintiff.

of Denver, 101 F.3d 1344, 1352 (10 th Cir.1996) (internal
quotations and citations omitted).

David L. Sobel, David L. Sobel PC, Tulsa, OK, for
Defendant.

The Immigration and Nationality Act provides that an
Affidavit of Support is a contract legally enforceable
“against the sponsor by the sponsored alien....” 8 U.S.C. §
1183a(a)(1)(B). The Act further provides that an action to
enforce an Affidavit of Support “may be brought against
the sponsor in any appropriate court-(1) by a sponsored
alien, with respect to financial support....” 8 U.S.C. §
1183a(e).

ORDER
MILESLAGRANGE, J.
*1 Before the Court is defendant's Motion to Dismiss,
filed December 9, 2004. On January 11, 2005, plaintiff
filed her response. Based upon the parties' submissions,
the Court makes its determination.

I. Introduction
Plaintiff is a permanent resident alien of the United
States of America and is defendant's ex-wife. On or about
January 29, 2001, defendant filed on behalf of plaintiff, his
then wife, an Affidavit of Support with the Immigration
and Naturalization Service. On June 24, 2004, plaintiff
filed the instant action alleging that defendant failed
to comply with his obligations under the Affidavit of
Support and seeking specific performance of the Affidavit
of Support and damages in the amount of the past due
support.

II. Discussion
Defendant, pursuant to Federal Rule of Civil Procedure
12(b)(6), has moved to dismiss this action for failure to
state a claim upon which relief can be granted. Specifically,
defendant asserts that this action should be dismissed on

Additionally, the regulations promulgated pursuant to the
Act provide, in pertinent part:
Legal effect of affidavit of
support. Execution of a Form
I-864 under this section creates
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. The sponsored
immigrant, or any Federal, State,
or local governmental agency or
private entity that provides any
means-tested public benefit to
the sponsored immigrant after
the sponsored immigrant acquires
permanent resident status, may
seek enforcement of the sponsor's

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

1

Schwartz v. Schwartz, Not Reported in F.Supp.2d (2005)
2005 WL 1242171

obligations through an appropriate
civil action.
*2 8 C.F.R. § 213a.2(d) (2005) (emphasis added).
The Affidavit of Support itself also provides, in pertinent
part: “I understand that the sponsored immigrants ... are
entitled to sue me if I fail to meet my obligations under
this affidavit of support as defined by section 213A and
INS regulations.” Affidavit of Support at 5, attached as
Exhibit B to plaintiff's response. The Affidavit of Support
further provides:
I acknowledge that section 213A(a)
(1)(B) of the Act grants the
sponsored immigrant(s) ... standing
to sue me for failing to meet my
obligations under this affidavit of
support. I agree to submit to the
personal jurisdiction of any court of
the United States or of any State,
territory, or possession of the United
States if the court has subject matter
jurisdiction of a civil lawsuit to
enforce this affidavit of support.
Affidavit of Support at 6.
Finally, the instructions for the Affidavit of Support
provide, in pertinent part:

40 qualifying quarters of work, departs the United
States permanently, or dies. Divorce does not terminate
the obligation. By signing this form, you, the sponsor,
agree to support the intending immigrant and any
spouse and/or children immigrating with him or her and
to reimburse any government agency or private entity
that provides these sponsored immigrants with Federal,
State, or local means-tested public benefits.
Instructions at 1, attached as Exhibit B to plaintiff's
response.
Having carefully reviewed the Complaint, the parties'
submissions, and the applicable statutes and regulations,
the Court finds that plaintiff has stated a claim upon which
relief can be granted. Specifically, the Court finds that
plaintiff, a sponsored immigrant, can maintain an action
against defendant, a sponsor, to enforce defendant's
obligations under the Affidavit of Support regardless of
whether means-tested public benefits have been provided.
The Court further finds that an Affidavit of Support is a
legally enforceable contract. Finally, the Court finds that
a sponsor and sponsored immigrant's divorce does not
automatically terminate the sponsor's obligations under
the Affidavit of Support. The Court, therefore, finds that
this action should not be dismissed.

III. Conclusion
For the reasons set forth above, the Court DENIES
defendant's Motion to Dismiss [docket nos. 8, 10, and 12].
IT IS SO ORDERED.

Sponsor's obligation
The person completing this affidavit is the sponsor.
A sponsor's obligation continues until the sponsored
immigrant becomes a U.S. citizen, can be credited with
End of Document

All Citations
Not Reported in F.Supp.2d, 2005 WL 1242171

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

2