Wenfang Liu v. Timothy Mund

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1453
WENFANG LIU,
Plaintiff-Appellant,
v.
TIMOTHY MUND,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 3:09-cv-00500-wmc—William M. Conley, Chief Judge.
ARGUED JUNE 22, 2012—DECIDED JULY 12, 2012
Before POSNER, ROVNER, and WOOD, Circuit Judges.
POSNER, Circuit Judge. Timothy Mund, an American,
married Wenfang Liu, a Chinese woman 19 years
his junior, in China. Two years later the couple decided
to move to the United States. For Liu to be admitted as
a permanent resident on the basis of her marriage to
an American, her husband had to sign an “I-864 affidavit,”
agreeing to support his wife at 125 percent of the
poverty level (approximately $13,500 a year), even if

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2 No. 11-1453
they divorced. They divorced two years later.
Without relying on the affidavit, the divorce court
(a Wisconsin court, because Wisconsin was where
the couple lived) ordered Mund (so far as relates to
this appeal) to support Liu for one year at a rate of $500
a month. But the court made the obligation of
support contingent on her proving that despite actively
seeking work by making at least four job applications
a month, she had not found any work; she is a graduate
of a Chinese college but her spoken English is very
poor. This provision of the divorce decree was consistent
with Wisconsin case law. The court declined to address
the possible bearing of federal law, namely the I-864
affidavit.
Mund refused to provide the support specified in the
federal affidavit, on the ground that his ex-wife wasn’t
looking for work. So she filed the present suit, in federal
district court in Wisconsin, seeking that support and
contending that failure to mitigate damages is not
a defense to the support obligation created by the affidavit.
The Immigration and Nationality Act, 18 U.S.C.
§ 1183a(e), authorizes suit “in any appropriate court…by
a sponsored alien” “to enforce an affidavit of support
executed under” section 1183a(a); see also section
1183(a)(1)(C). The suit thus arises under federal
law, making the federal district court an “appropriate
court” in which to bring the suit. See International Union
of Operating Engineers, Local 150, AFL-CIO v. Ward, 563
F.3d 276, 281 (7th Cir. 2009). There is no contention that
the judgment in the divorce proceeding has a preclusive

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No. 11-1453 3
effect in the present case. The right of support conferred
by federal law exists apart from whatever rights Liu
might or might not have under Wisconsin divorce law.
The district judge held that Liu was not entitled to
support pursuant to the I-864 affidavit during the 160-day
period after she had filed her motion for summary judg-
ment, because she hadn’t actively sought work during that
period. The finding that she hadn’t sought work is well
supported; the only substantial issue presented by her
appeal, and the only one we discuss, is whether in a suit to
enforce the obligation of support created by the federal
affidavit the plaintiff has a legal duty to mitigate damages.
Liu is pro se, Mund represented. We requested a lawyer
to participate in the appeal as an amicus curiae to present
Liu’s position; Liu was unable to do so effectively as a
pro se and refused to be represented by a court-recruited
lawyer. The Justice Department’s Office of Immigration
Litigation has also filed an amicus curiae brief.
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)(A);
see also id., §§ 1601(2)(A), (5). This provision is imple-
mented by requiring a person who sponsors an alien
for admission to “execute an affidavit of support.” 8 C.F.R.
§§ 213a.2(a), (b); see also 8 U.S.C. § 1182(a)(4)(C)(ii).
The affidavit, the contents of which are specified in
8 U.S.C. § 1183a, is in the form of a contract between
the sponsor and the United States, 8 C.F.R. § 213a.2(d),
called Form I-864. Public providers of benefits to indigents
are designated as third-party beneficiaries of the affidavit-

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4 No. 11-1453
contract and are expressly authorized by the Act to sue
a sponsor who defaults on his support obligation. 8 U.S.C.
§ 1183a(a)(1)(B); see also § 1183a(b)(1)(A). So this is not
a case like Astra USA, Inc. v. Santa Clara County, 131
S. Ct. 1342, 1347-48 (2011), in which the Supreme Court
held that the beneficiary of a statute could not “cure”
the statute’s omission of a private right of action by
suing as a third-party beneficiary. The statute in this case
confers an express such right on third-party beneficiaries.
Recall that the obligation is to support the sponsored
alien at 125 percent of the poverty income level; the
affidavit must include this requirement. 8 U.S.C.
§ 1183a(a)(1)(A). The affidavit also, however, specifies
several excusing conditions, such as the sponsor’s death
or the alien’s being employed for 40 quarters (also specified
as an excusing condition in the statute, 8 U.S.C.
§ 1183a(a)(3)(A)). But the list of excusing conditions
does not mention the alien’s failing to seek work or other-
wise failing to mitigate his or her damages.
The private amicus curiae argues that there’s no duty
to mitigate, the Justice Department’s Office of Immigration
Litigation that there is. The statute and the affidavit are
silent on the question. The statute and its implementing
regulations assumed their present form in 1996. See
Illegal Immigration Reform and Immigrant Responsibility
Act of 1996, § 551, Pub. L. 104-208, 110 Stat. 3009-675.
(The version of Form I-864 that Mund signed dates back
to 2001.) Sponsors’ affidavits had existed earlier—perhaps
as early as 1930—but generally had not been understood
to impose a legal duty on the sponsor to support the

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No. 11-1453 5
sponsored person. See Robert A. Mautino, Comment,
“Sponsor Liability for Alien Immigrants: The Affidavit of
Support in Light of Recent Developments,” 7 San Diego L.
Rev. 314, 316 (1970). Given that 16 years have elapsed since
the sponsor’s support obligation became legally enforce-
able, we’re surprised that there is virtually no case law
interpreting either the obligation or possible defenses,
such as a sponsored person’s failure to mitigate damages.
The I-864 form requires the sponsor to “agree to provide
the sponsored immigrant(s) whatever support is necessary
to maintain the sponsored immigrant(s) at an income
that is at least 125 percent of the Federal poverty guide-
lines” (emphasis added), and it can be argued that provid-
ing that level of support is not necessary if the immigrant
can obtain employment at a wage equal to or above
the specified level. But the next sentence in the form is
that “I understand that my obligation will continue until
my death or the sponsored immigrant(s) have become
U.S. citizens, can be credited with 40 quarters of work,
depart the United States permanently, or die”—a list of
terminating conditions that does not include the immi-
grant’s failing to seek employment diligently. The wording
of the form has been changed slightly since the one
Mund signed—see www.uscis.gov/files/form/i-864.pdf;
also http://www .uscis.gov/files/form/i-864instr.pdf
(both visited June 28, 2012)—but the changes do not
allude to a sponsored immigrant’s duty to mitigate dam-
ages.
So far as we can tell, neither the Congress that enacted
sections 1182 and 1183a of the Immigration and Nationality

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6 No. 11-1453
Act nor the immigration authorities that promulgated
implementing regulations and have drafted successive
versions of Form I-864 ever thought about mitigation of
damages. The government in asking us to read a duty
of mitigation into the form invokes “ancient principles
of law” and specifically the “canon” of statutory construc-
tion that statutory repeals of common law rules are
disfavored, and adds that the failure to impose a duty of
mitigation would be “unfair” to sponsors of immigrants
and discourage the legislative goal of promoting “self-
sufficiency” of immigrants. But the hoary maxim that
statutory repeals of common law rules are disfavored is
a poor guide to legislative meaning, for it is the
fossil remnant of the traditional hostility of English judges
to legislation. Those judges had made up the common
law, which for an age was virtually the entire law of
England, and they resented legislative interlopers. E.g.,
William D. Popkin, Statutes in Court: The History and Theory
of Statutory Interpretation 16 (1999); William Burnham,
Introduction to the Law and Legal System of the United States
52 (4th ed. 2006); Gareth Jones, “Should Judges Be Politi-
cians, The English Experience,” 57 Ind. L.J. 211, 212-13
(1982); Jefferson B. Fordham & J. Russell Leach, “Interpre-
tation of Statutes in Derogation of the Common Law,”
3 Vanderbilt L. Rev. 438, 440-41 (1950). One would hardly
expect legislators to respond by being careful not to
step into the common law flower bed.
What is true is that legislation is rarely complete. Ordi-
narily it’s enacted against a rich background of existing
law, much of it common law; the background supplies
the details that the legislators didn’t bother to specify.

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No. 11-1453 7
The duty to mitigate is a conventional part of the
common law of contracts and can be enforced against a
third-party beneficiary, Cordero Mining Co. v. U.S. Fidelity
& Guarantee Ins. Co., 67 P.3d 616, 626 (Wyo. 2003); Anderson
v. Rexroad, 306 P.2d 137, 147 (Kan. 1957); Januska v. Mullins,
46 N.W.2d 398, 402 (Mich. 1951); Restatement (Second) of
Contracts § 309(4) (1981), because a third-party beneficiary
has the duties as well as the rights of a signatory to the
contract. But the question is whether reading a duty of
mitigation into the immigration statute and the regula-
tions and the affidavit-contract would serve or disserve
statutory and regulatory objectives. Cf. Prudential Ins. Co.
v. Athmer, 178 F.3d 473, 475 (7th Cir. 1999). If it would
disserve them, a common law principle gives way.
The Justice Department argues as we noted that to
impose a duty to mitigate would encourage immigrants to
become self-sufficient. But self-sufficiency, though men-
tioned briefly in the House Conference Report on the
1996 statute as a goal, see H.R. Rep. No. 104-828, p.
241 (1996), is not the goal stated in the statute; the stated
statutory goal, remember, is to prevent the admission
to the United States of any alien who “is likely at any time
to become a public charge.” See also Love v. Love, 33 A.3d
1268, 1276-77 (Pa. Super. Ct. 2011); Kerry Abrams,
“Immigration Law and the Regulation of Marriage,”
91 Minn. L. Rev. 1625, 1704 (2007). The direct path to
that goal would involve imposing on the sponsor a duty
of support with no excusing conditions. Some such condi-
tions are specified; but why should the judiciary add
to them—specifically why should it make failure to
mitigate a further excusing condition? The only beneficiary

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8 No. 11-1453
of the duty would be the sponsor—and it is not for his
benefit that the duty of support was imposed; it was
imposed for the benefit of federal and state taxpayers and
of the donors to organizations that provide charity for
the poor. And Mund can’t argue that Form I-864 confused
him, for there is no reference in it to a duty of the spon-
sored immigrant (Liu) to mitigate the damages caused her
by the sponsor’s (Mund’s) breach of his duty of support.
The absence of such a duty serves the statutory objective
in a second way: it tends to make prospective sponsors
more cautious about sponsoring immigrants. The sponsor
is the guarantor of the sponsored immigrant’s having
enough (though just barely enough) income to
avoid becoming a public charge. The more extensive—the
less qualified—the guaranty, the less likely is an irresponsi-
ble immigrant to obtain sponsorship. Liu and Mund had
an awful marriage. Had he known that by bringing her
to the United States he would be assuming a virtually
unconditional obligation to support her indefinitely even
if they later divorced, he might not have signed the affida-
vit, and the couple might have remained in China—and
perhaps divorced there, ending her right to become a
permanent resident of the United States.
The support obligation that the law imposes on the
sponsor is limited. The poverty-line income is meager,
even when enhanced by 25 percent, and a sponsored
immigrant has therefore a strong incentive to seek employ-
ment, quite apart from having any legal duty to do
so in order to secure the meager guaranty. It is true
that the duty of support acts as a heavy tax on earned

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No. 11-1453 9
income: if Liu earned $15,000 a year, she would be
working full time for a year for a net gain of only $1,500
($15,000 - $13,500, the latter being the approximate amount
of the support obligation, which she would give up if she
had a higher income). But she might be able to get, or
work her way up to, a much better job than one
that pays $15,000, which is barely minimum wage.
College educated, she may just need to improve her spoken
English to get a good job. Most Chinese immigrants
nowadays do very well in the United States. Pew Research
Center, “The Rise of Asian Americans” 38-39 (June 2012),
www.pewsocialtrends.org/files/2012/06/SDT-The-Rise-of-
Asian-Americans-Full-Report.pdf (visited June 30, 2012).
In sum, we can’t see much benefit to imposing a duty to
mitigate on a sponsored immigrant. The cost, besides
the sponsor’s diminished incentive to screen the alien for
a bad work ethic, would be the increased complication
of enforcing the duty of support by giving the sponsor
a defense—and not even a defense likely to prevail. If
Liu doesn’t want to work, forcing her to make job ap-
plications is unlikely to land her a job. It is easy enough
for an applicant to make herself an unattractive hire.
Mund’s interposition of the defense may be motivated
more by spite than by greed. The last thing federal courts
need is to be dragged into domestic-relations disputes.
There is also the question of what body of law we would
look to for the contours of a duty to mitigate in a case like
this. The duty is federal and so would presumably be
defined by federal common law. We are not pointed to any
federal common law duty of mandatory job search, so the

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10 No. 11-1453
federal courts would have to create one for I-864 cases
(should the courts ever see another one—which would be
likely if we upheld the district court). It hardly seems
worth the effort.
Another objection is the proposal’s lack of authorita-
tive sponsorship. The government’s amicus curiae brief
is signed only by Justice Department lawyers. There is no
indication of consultation with the Department of Home-
land Security, the frontline enforcer of the nation’s immi-
gration laws. And if the government is serious about
wanting to impose a duty of mitigation, why hasn’t it
revised Form I-864 to include such a duty? It revised the
affidavit subsequent to the version Mund signed to make
explicit that “divorce does not terminate your obligations
under this Form I-864” (boldface in original), which
before had merely been implicit.
The judgment of the district court is reversed so far as
concerns the court’s imposition of a duty of mitigation, and
otherwise is affirmed.
7-12-12

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