United States District Court, N.D. Alabama, Southern Division
K. KALLON, UNITED STATES DISTRICT JUDGE
Belevich came to the United States based on an Affidavit of
Support Klavdia Thomas and her mother Tatiana Kuznitsnyna
signed. Under the relevant law, Thomas and Kuznitsnyna agreed
they would support Belevich while he resided in the United
States if his income fell below 125% of the Federal Poverty
level. Sometime after Belevich arrived in the United States,
his relationship to Kuznitsnyna deteriorated, leading to
divorce proceedings. The Defendants ceased to provide him the
relevant support they promised when they sponsored his entry
into the United States. Consequently, Belevich brings this
action against Thomas and Kuznitsnyna under the Immigration
and Nationality Act, 8 U.S.C. §§ 1101 et
seq. (“INA”) for breach of contract and
intentional infliction of emotional distress. Doc. 1.
Belevich and the Defendants have moved for summary judgment,
docs. 53, 58, and Belevich has moved to strike the
Defendants' reply to their motion, doc. 68. After
reviewing the briefs and carefully considering the evidence,
see docs. 54-57, 59, 61, 65-67, 69, the court finds
that Belevich's motion to strike is due to be granted,
the Defendants' motion is due to be denied, and
Belevich's motion for summary judgment is due to be
granted solely as to his claim for support under the INA for
the August 8, 2015 to December 31, 2017 period.
STANDARD OF REVIEW
Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is proper “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56. “Rule 56 mandates the entry of summary judgment,
after adequate time for discovery and upon motion, against a
party who fails to make a showing sufficient to establish the
existence of an element essential to that party's case,
and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986) (alteration in original). At summary
judgment, the court must construe the evidence and all
reasonable inferences arising from it in the light most
favorable to the non-moving party. Adickes v. S. H. Kress
& Co., 398 U.S. 144, 157 (1970); see also
Anderson, 477 U.S. at 255. Any factual disputes will be
resolved in the non-moving party's favor when sufficient
competent evidence supports the non-moving party's
version of the disputed facts. See Pace v.
Capobianco, 283 F.3d 1275, 1276, 1278 (11th Cir. 2002).
The moving party bears the initial burden of proving the
absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323. The burden then shifts to
the nonmoving party, who is required to “go beyond the
pleadings” to establish that there is a “genuine
issue for trial.” Id. at 324 (internal
quotations omitted). A dispute about a material fact is
genuine “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
simple fact that both sides have filed a motion for summary
judgment does not alter the ordinary standard of review.
See Chambers & Co. v. Equitable Life Assurance
Soc., 224 F.2d 338, 345 (5th Cir. 1955) (explaining that
cross-motions for summary judgment “[do] not warrant
the granting of either motion if the record reflects a
genuine issue of fact”). Rather, the court will
consider each motion separately “‘as each movant
bears the burden of establishing that no genuine issue of
material fact exists and that it is entitled to judgment as a
matter of law.'” 3D Med. Imaging Sys., LLC v.
Visage Imaging, Inc., 228 F.Supp.3d 1331, 1336 (N.D.Ga.
2017) (quoting Shaw Constructors v. ICF Kaiser
Eng'rs, Inc., 395 F.3d 533, 538-39 (5th Cir. 2004)).
“[C]ross motions for summary judgment will not, in
themselves, warrant the court in granting summary judgment
unless one of the parties is entitled to judgment as a matter
of law on facts that are not genuinely disputed.”
Bricklayers, Masons & Plasterers Int'l Union v.
Stuart Plastering Co., 512 F.2d 1017, 1023 (5th Cir.
STATUTORY AND REGULATORY BACKGROUND
the INA, “immigrants who are likely to become a public
charge are ineligible for admission into the United States
unless their applications for admission are accompanied by an
Affidavit of Support Form I-864.” Younis v.
Farooqi, 597 F.Supp.2d 552, 554 (D. Md. 2009) (citing 8
U.S.C. §§ 1182(a)(4), (a)(4)(B)(ii), 1183a(a)(1)).
The Affidavit of Support is a legally enforceable 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 level during the
period in which the affidavit is enforceable.” 8 U.S.C.
§ 1183a(a)(1)(A); see, e.g.,
Madrid v. Robinson, 218 F.Supp.3d 482, 483 (W.D. Va.
2016). If the petitioning sponsor does not have sufficient
annual income to meet the support requirement, another
individual with sufficient income may accept joint and
several liability for providing the required support.
See 8 U.S.C. § 1183a(f)(5)(A). If the sponsors
fail to provide the required support, the sponsored immigrant
may sue them to enforce the Affidavits of Support.
Id. § 1183a(e)(1). However, a sponsor's
obligations under the Affidavit may terminate as a matter of
law upon the occurrence of any of six conditions stated in
federal regulations and in the Form I-864. Specifically, the
sponsor's obligations terminate if the sponsored
(A) [b]ecomes a citizen of the United States; (B) [h]as
worked, or can be credited with, 40 qualifying quarters of
work under title II of the Social Security Act . . .; (C)
[c]eases to hold the status of an alien lawfully admitted for
permanent residence and departs the United States . . .; (D)
[o]btains in a removal proceeding a new grant of adjustment
of status as relief from removal . . .; or (E) [d]ies.
8 C.F.R. § 213a.2(e)(2)(i); see 8 U.S.C. §
1183a(a)(2)-(3); Erler v. Erler, 824 F.3d 1173, 1176
(9th Cir. 2016) (citing 8 C.F.R. § 213a.2(e)(2)(i));
doc. 54 at 22, 39. Additionally, “the support
obligation under an affidavit of support . . . terminates if
the sponsor . . . or joint sponsor dies.” 8 C.F.R.
§ 213a.2(e)(2)(ii); see doc. 54 at 22, 39
(stating this condition in the Form I-864).
case arises from a dispute over the enforcement of an
Affidavit of Support. In June 2011, Kuznitsnyna, a Russian
immigrant to the United States, and her daughter, Thomas, a
naturalized U.S. citizen from Russia, both executed Affidavit
of Supports to sponsor the immigration of Kuznitsnyna's
husband, Belevich, from Russia. Docs. 54 at 33-40, 16-25; 55
at 18-19; 56 at 12-13.Following approval by the Department of
Homeland Security, Belevich immigrated to the U.S. in March
2012. Docs. 33 ¶ 20; 1 ¶ 20; 56 at 13. From that
time through July 2015, Belevich lived with Kuznitsnyna in
Pelham, Alabama, and Thomas managed the couple's
finances. Docs. 54 ¶ 3. Specifically, Belevich would
give his income to Kuznitsnyna, who then gave this money to
Thomas. Doc. 56 at 14. Thomas also received wire transfers
from her brother and sister-in-law in Russia, which Belevich
and Kuznitsnyna told her came out of their pension accounts
in Russia. Doc. 56 at 9-10. Thomas would then use the income
and funds to pay Belevich's and Kuznitsnyna's bills
and other living expenses. Docs. 54 ¶ 3; 56 at 14.
Thomas also provided Belevich with a credit card and cell
phone, and managed his accounts for both. Doc. 56 at
August 2015, Belevich flew to Russia to visit his mother on a
roundtrip ticket purchased by Thomas. Doc. 54 ¶ 4.
During this trip, Thomas informed Belevich that Kuznitsnyna
was filing for divorce, and that she would mail his personal
belongings to him. Doc. 59 at 8. Kuznitsnyna confirmed this,
and told Belevich over the phone, “Also, when you come
back, don't get close to the house, [sic] if you do,
I'll call the police[.]” Docs. 55 at 21; 59 at 8.
Apparently acting on Kuznitsnyna's instructions, and
without Belevich's consent, Thomas cancelled
Belevich's ticket for his return flight, his cell phone
account, and his credit card account. Doc. 56 at 14, 17.
Belevich experienced “severe stress and anxiety,
” which caused him to suffer a minor heart attack,
hospitalizing him for twelve days. Doc. 54 ¶ 6; 59 at
12. Afterwards, Belevich returned to the United States on a
ticket purchased by his son. Doc. 53 ¶ 7.
was temporarily homeless upon his return because the
Defendants did not allow Belevich to return to his former
home in Pelham, but he subsequently moved into the home of
his friend and former employer. Docs. 56 at 18; 54 ¶ 8;
59 at 4. Since 2016, Belevich has only worked
“occasional job[s], ” such as cutting grass or
repairing lawnmowers for neighbors. Doc. 59 at 16. However,
since the end of July 2015, the Defendants have not provided
any money or financial support to Belevich. Docs. 55 at 22;
56 at 18. Consequently, Belevich filed this lawsuit, alleging
breach of contract and the tort of outrage, and seeking
damages, specific performance, and attorney's fees and
other costs of collection. See doc. 1.
motions are before the court: (1) Belevich's motion to
strike the Defendants' “reply” brief and
attached exhibits, doc. 68; (2) the Defendants' partial
motion for summary judgment solely on the breach of contract
claim, doc. 58; and (3) Belevich's motion for summary
judgment on both claims, doc. 53. The court addresses each of
these motions in turn.
Belevich's Motion to Strike
asks the court to strike the Defendants' brief and
accompanying exhibits, styled as a “Reply to
Plaintiff's Response in Opposition to Defendants'
Motion for Summary Judgment.” Docs. 68, 67. The
Defendants' “reply” brief contends, based on
previously undisclosed evidence, that Belevich lied about his
income, employment, and home address. See doc. 67 at
2-4. However, as Belevich notes, the Defendants did not raise
these issues in their motion for summary judgment, and
Belevich did not raise these issues in his response to the
Defendants' motion. See docs. 68 at 4-5; 58; 65.
Rather, the “reply” brief responds to
Belevich's contentions in his motion for summary judgment
regarding his income, see doc. 53 at 6-12, to which
the Defendants had already responded without raising these
issues, see doc. 66 at 4-11.
courts, including this one, ordinarily do not consider
arguments raised for the first time on reply[, ]” and
the court declines to do so here, where there is no apparent
explanation for the untimeliness of the newly raised
contentions and evidence. Pennsylvania Nat. Mut. Cas.
Ins. Co. v. J.F. Morgan Gen. Contractors, Inc., 79
F.Supp.3d 1245, 1256 (N.D. Ala. 2015) (quoting
parenthetically White v. ThyssenKrupp Steel, USA,
LLC, 743 F.Supp.2d 1340, 1357 (S.D. Ala. 2010)).
Alternatively, in light of the content of the Defendants'
“reply” brief, the court construes the brief as a
supplementary response to Belevich's motion for summary
judgment, for which the Defendants did not seek leave to
file. See Finch v. City of Vernon, 845 F.2d 256, 258
(11th Cir. 1988) (noting that “the style of a motion is
not controlling”). “[O]rdinarily, sur-replies can
only be filed with leave of court and are ordinarily stricken
if no such leave is requested or received.”
Scottsdale Ins. Co. v. Calhoun Hunting Club and
Lounge, 360 F.Supp.3d 1262, 1268 n.3 (M.D. Ala. 2018)
(citation and quotation marks omitted). Therefore, the brief
and its attachments are due to be stricken.
The Defendants' Motion for Partial Summary
Defendants have moved for summary judgment solely on the
breach of contract claim, contending that their obligations
under the Affidavits of Support have terminated. See
doc. 58. Specifically, the Defendants argue that their
obligations terminated because Belevich became “subject
to removal” when an Alabama court issued a protective
order against him or, alternatively, when he was charged with
aggravated felonies. Doc. 58 at 2-5 (citing docs. 58-1 at 30,
39-47). The Defendants appear to rely on the following
language from the Form I-864:
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: . . .
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; . . .
Doc. 54 at 22, 39 (emphasis added). However, even assuming
the Defendants' obligations terminated due to either of
the alleged terminating events, the Defendants could still be
held liable for any breach of their obligations that occurred
prior to the termination. As the regulations state
unequivocally, “[t]he termination of the sponsor's
. . . or joint sponsor's obligations under an affidavit
of reimbursement obligation . . . that accrued before the
support obligation terminated.” 8 C.F.R. §
213a.2(e)(3). Thus, the alleged termination of their
obligations does not shield them from liability.
the Defendants' argument misconstrues the cited
terminating condition. Even though the Form I-864 adds
language not contained in the regulation-that the sponsored
immigrant must become “subject to removal” and
“appl[y] for” a new grant of adjustment of
status-this condition is substantively indistinguishable from
the one described in 8 C.F.R. §
213a.2(e)(2)(i)(D). See Erler, 824 F.3d at 1176-77
(noting that the Form I-864 “reproduces” the
conditions enumerated in 8 C.F.R. §
213a.2(e)(2)(i)). According to the regulation-and also under
the plain language of the Form I-864-that a sponsored
immigrant becomes “subject to removal” does not
terminate the sponsors' obligations: rather, termination
requires that the sponsored immigrant “obtain in a
removal proceeding a new grant of adjustment of status . .
.” 8 C.F.R. § 213a.2(e)(2)(i)(D); see
doc. 54 at 22, 39. However, the Defendants have not cited any
evidence that Belevich is under a removal proceeding, let
alone that he has obtained a new grant of adjustment of
status. As this court has previously noted, that Belevich was
subject to a protective order and currently faces
“pending charges is irrelevant to this court's
inquiry regarding whether the Defendants are obligated to
provide support to Belevich as they represented to the
Government that they would do when they sponsored him.”
Doc. 45 at 2. Therefore, the Defendants' motion is due to
Belevich's Motion for Summary Judgment
has moved for summary judgment on both of his claims. The
court addresses each of these claims separately.
Breach of Contract
contends that the Defendants have been in breach of their
obligations under the Affidavit of Support since August 8,
2015. Doc. 53 at 8-10. The Defendants concede this point,
albeit they contend they no longer have an obligation to
provide support to Belevich. Docs. 55 at 18-19, 22; 56 at
12-13, 18. However, this admission alone does not establish
liability: Belevich must also show that his income was below
the 125% poverty threshold during the relevant period.
See Celotex, 477 U.S. at 323; Shumye, 555
F.Supp.2d at 1029 (finding plaintiff had burden to establish
his income for relevant period under I-864 Affidavit for
Support). Courts have employed two different approaches in
calculating the sponsored immigrant's income and the 125%
poverty threshold to determine liability and damages: some
compare the immigrant's aggregate income for the relevant
period with the sum of the 125% poverty thresholds during
those years, see Allen v. Goard, No. 14-61147-CIV,
2015 WL 11110863, at *3 (S.D. Fla. Apr. 1, 2015), while
others compare the immigrant's annual income for each
year at issue with the 125% poverty threshold for each year,
see Younis, 597 F.Supp.2d at 554; Shumye v.
Felleke, 555 F.Supp.2d 1020, 1024-25 (N.D. Cal. 2008).
The court believes that the latter “annual”
approach is more faithful to the statute, which requires
sponsors to maintain the sponsored immigrant “at an
annual income” that is not less than the 125%
poverty threshold, 8 U.S.C. § 1183a(a)(1)(A) (emphasis
added), and defines “Federal poverty line” as
“the level of income equal to the official poverty line
(as defined by the Director of the Office of Management and
Budget, as revised annually by the Secretary of
Health and Human Services, in accordance with section 9902(2)
of Title 42) that is applicable to a family of the size
involved, ” id. § 1183a(h) (emphasis
added). Applying this approach, the court now turns to the
issue of calculating Belevich's annual income for the
Whether Belevich's Income Includes His Pension from ...