Belevich v. Thomas

          MEMORANDUM OPINION

          ABDUL K. KALLON, UNITED STATES DISTRICT JUDGE

         Valentin 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.

         I. STANDARD OF REVIEW

         Under 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 (1986).

         The 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. 1975).

         II. STATUTORY AND REGULATORY BACKGROUND

         Under 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 immigrant:

(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).^[1]

         III. FACTUAL BACKGROUND

         This 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.^[2]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 14.^[3]

         In 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.

         Belevich 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.

         IV. ANALYSIS

         Three 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;^[4] and (3) Belevich's motion for summary judgment on both claims, doc. 53. The court addresses each of these motions in turn.

         A. Belevich's Motion to Strike

         Belevich 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.

         “District 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.^[5]

         B. The Defendants' Motion for Partial Summary Judgment

         The 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.

         Moreover, 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).^[6] 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)).^[7] 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 be denied.

         C. Belevich's Motion for Summary Judgment

         Belevich has moved for summary judgment on both of his claims. The court addresses each of these claims separately.

         1. Breach of Contract

         Belevich 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 relevant years.

         a. Whether Belevich's Income Includes His Pension from ...