USCIS Finalizes Streamlining Procedures for H-2B Temporary Non-Agricultural Worker Program

USCIS Finalizes Streamlining Procedures for H-2B Temporary Non-Agricultural Worker Program


WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced today that it has submitted to the Federal Register a Final Rule that will change the requirements affecting H-2B beneficiaries and their employers. The Final Rule will facilitate the process by which employers hire workers to participate in the H-2B program. These changes are being proposed in further fulfillment of the commitment made by President Bush’s Administration in August 2007, after the failure of comprehensive immigration reform in Congress, to address immigration challenges, including review and improvement of temporary worker visa programs using existing authorities. This final rule supplements the extensive reforms of the H-2B program that are included in the Department of Labor’s final rule scheduled to be published on Dec. 19, 2008.

The H-2B nonagricultural temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary nonagricultural jobs for which there is a shortage of available U.S. workers. The Department of Homeland Security (DHS) initially proposed these changes to the H-2B program in a Notice of Proposed Rule Making published in the Federal Register on Aug. 20, 2008. The Final Rule will encourage and facilitate the lawful employment of foreign workers, provide important protections to both U.S. and foreign workers, and further enhance the integrity of the H-2B Program.

Key areas of reform covered in the Final Rule include:

*
Allowing H-2B petitioners to specify only the number of positions sought and not name the individual aliens except where an intended alien beneficiary is already present in the United States; or where an alien is from a country not eligible for participation in the H-2B program;
* Reducing from six months to three months the time an H-2B worker who has spent three years in the United States must reside and be physically present outside the United States before he or she is eligible to re-obtain H-2B status;
* Reducing the period of time spent outside the United States that interrupts accrual towards the 3-year maximum period of stay in H-2B status;
* Prohibiting H-2B employers and recruiters from imposing certain fees on prospective H-2B workers as a condition of securing employment;
* Requiring an approved temporary labor certification in connection with all H-2B petitions;
* Beginning with petitions filed for workers for Fiscal Year 2010, prohibiting H-2B petitioners from requesting an employment start date on the Form I-129, “Petition for a Nonimmigrant Worker,” that is different than the date of need stated on the approved temporary labor certification;
* Amending the definition of “temporary services or labor” to allow U.S. employers and eligible foreign workers the maximum flexibility to complete projects that could be for a specific one-time need of up to 3 years without demonstrating extraordinary circumstances;
* Requiring employers to notify USCIS when H-2B workers fail to show up for work, complete the work more than 30 days early, are terminated, or abscond from the worksite;
* Permitting the approval of H-2B petitions only for nationals of certain countries designated as participating countries by the Secretary of Homeland Security, in consultation with the Secretary of State, and appearing on a list to be published annually in the Federal Register. The initial list of participating countries designated as important to the operation of the program and to be published simultaneously with this Final Rule, includes Mexico, Jamaica, and 26 others. DHS may allow on a case-by-case basis a worker from a country not on the list to be eligible for the
H-2B program if such participation is in the U.S. interest;
* Delegating to the Department of Labor the statutory authority to impose certain administrative remedies and/or penalties where a substantial failure to meet any of the conditions of the H-2B petition or a willful misrepresentations of a material fact in such petition is found; and
* Establishing a land-border exit system pilot program, which requires H-2B workers admitted through a port of entry participating in the pilot program to also depart through a participating port and to present designated biographic and/or biometric information upon departure.

This final rule will become effective 30 days after it is posted in the Federal Register.

Emokah v Mukasey: Visa Fraud - Material Misrepresentation - Inadmissability

Holding

Where an alien whose previous visa application has been denied receives a visa after knowingly providing false information about her identity, that conduct constitutes willful misrepresentation of a material fact for purposes of 8 U.S.C. § 1182(a)(6)(C)(i) (INA 212(i)).

Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney 1 General Michael B. Mukasey is
automatically substituted for former Attorney General Alberto R. Gonzales as a respondent in this case.
1
07-3115-ag
Emokah v. Mukasey
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2007
(Argued: April 7, 2008 Decided: April 22, 2008)
Docket No. 07-3115-ag
STELLA CHUKWUDUMEBI EMOKAH,
Petitioner,
v.
MICHAEL B. MUKASEY, Attorney General
of the United States,1
Respondent.
Before: WALKER, CABRANES AND RAGGI, Circuit Judges.
An immigration judge denied petitioner’s applications for a waiver of inadmissibility
pursuant to 8 U.S.C. § 1182(i) and an adjustment of status under 8 U.S.C. § 1255(a). The Board of Immigration Appeals affirmed. Where an alien whose previous visa application has been denied receives a visa after knowingly providing false information about her identity, that conduct constitutes willful misrepresentation of a material fact for purposes of 8 U.S.C. § 1182(a)(6)(C)(i).
The petition for review is (1) denied as to the agency’s determination that petitioner’s conduct rendered her inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i) and (2) dismissed as to the agency’s denial of petitioner’s application for a waiver of inadmissibility. Section 1182(i), which relates to the “[a]dmission of [an] immigrant inadmissible 2 for fraud or willful misrepresentation of material fact,” states, in relevant part, that “[t]he Attorney General may, in the discretion of the
Attorney General, waive the application of clause (i) of subsection (a)(6)(C) of this section . . . in the case of a VAWA [Violence Against Women Act] self-petitioner, [if] the alien demonstrates extreme hardship to the alien . . .” Section 1182(a)(6)(C)(i) provides that “[a]ny alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this chapter is inadmissible.”
3
Section 1255(a) provides, in relevant part, that: [t]he status of an alien . . . having an approved petition for classification as a VAWA self-petitioner may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.
2

ROBERTO TSCHUDIN LUCHEME,
Glastonbury, CT, for Petitioner.
RUSSELL J.E. VERBY, (Jeffrey S. Buckholtz,
Acting Assistant Attorney General on
the brief, Barry J. Pettinato, Assistant
Director, of counsel), Office of
Immigration Litigation, Civil Division,
U.S. Department of Justice,
Washington, DC, for Respondent.
JOSÉ A. CABRANES, Circuit Judge:

Petitioner Stella Chukwudumebi Emokah, a native and citizen of Nigeria, seeks review of a June 16, 2005 decision of Immigration Judge (“IJ”) Michael W. Straus denying her applications for a waiver of inadmissibility pursuant to 8 U.S.C. § 1182(i)2 and an adjustment of status under 8 U.S.C. § 1255(a).3 See In re Stella Chukwudumebi Emokah, No. A 78-470-777 (Imm. Ct. Hartford June 16, 2005). The Board of Immigration Appeals (“BIA”) affirmed the IJ’s decision in an opinion issued on June 22, 2007. See In re Stella Chukwudumebi Emokah, No. A 78-470-777 (BIA June 22, 2007). On appeal, petitioner contends that she did not need a waiver of inadmissibility to adjust her status because her knowing use of a fraudulent surname to obtain a visa did not amount to a willful misrepresentation of a material fact within the meaning of 8 U.S.C. § 1182(a)(6)(C)(i), see note 2 ante (text of provision). In the alternative, petitioner contends: first, that her possession of an approved
The I-360 petition is a form that relatives of U.S. citizens—4 including abused spouses of such persons—must file in order to obtain immigrant status based on their “qualifying relationship to a citizen,” 8 C.F.R. § 204.1(a)(3). See 8 U.S.C. § 1154(a)(1)(A)(iii)(I) & (II)(aa)(CC)(ccc) (setting forth the procedure for adjustment to immigrant status by an alien whose marriage to a U.S. citizen terminated on account of “battering or extreme cruelty by the United States citizen spouse”); 8 C.F.R § 204.2(c)(1)(i)(E) (same). 5 As we noted in Ibragimov v. Gonzales:
A B-2 visa, often referred to as a “tourist” visa, may be issued to a “visitor for pleasure” so that such a person may remain legally in the United States for a temporary period. The initial period of authorization of a B-2 visa may not exceed one year, but may be extended in increments of six months. 476 F.3d 125, 128 n.2 (2d Cir. 2007) (citing 8 C.F.R. § 214.2(b)(1)).
6

The I-130 petition is a form that a U.S. citizen must file in order to obtain immigrant status for an alien spouse based on their marital relationship. See 8 U.S.C. § 1154 (a)(1)(A)(i) (setting forth the procedure whereby a U.S. citizen may petition for an adjustment to immigrant status for his or her alien spouse); 8 C.F.R. § 204.1(a) (same).
3

I-360 visa petition4 obviated the need for a section 1182(i) waiver; and, second, that if the section 1182(i) waiver was required, her circumstances were such that the waiver should have been granted. We find these arguments to be without merit and write to clarify that, where an alien whose previous visa application has been denied receives a visa after providing false information about her identity, that conduct constitutes willful misrepresentation of a material fact for purposes of 8 U.S.C. § 1182(a)(6)(C)(i).

I. BACKGROUND

Petitioner entered the United States in August 2000, on a B-2 non-immigrant visathat was valid until February 2001. She married Peter Emokah, a U.S. citizen, in October 2000. Emokah filed an I-130 visa petition6 on petitioner’s behalf in December 2000 but withdrew the petition in May 2001 based on suspicions that petitioner was already married to someone else in Nigeria. In June 2001, the then-Immigration and Naturalization Service initiated removal proceedings against petitioner on the basis that she had remained in the United States past the expiration of her nonimmigrant
visa. Four months later, petitioner and Peter Emokah separated and later divorced. In October 2001, petitioner filed an I-360 petition, see ante note 4, on her own behalf. Petitioner then

4

appeared before the IJ for a removal hearing in October 2002 wherein she conceded her
removability but sought a continuance of the removal proceedings to allow for the of
her I-360 petition. The IJ granted petitioner’s request for a continuance on this occasion, in June 2003, and again in January 2004. At a hearing held on June 15, 2004, petitioner’s counsel informed the IJ that the I-360 petition had been approved. The IJ asked whether petitioner’s counsel anticipated any issues with
petitioner’s application for adjustment of status and petitioner’s counsel answered“[p]ossibly one,” relating to “[m]isrepresentation at the embassy” where petitioner obtained her B-2 visa. J.A. 59. The IJ then adjourned proceedings so that petitioner’s counsel could file an application for a waiver of inadmissibility pursuant to section 1182(i), see note 2 ante. At petitioner’s fifth appearance before
the IJ, on May 6, 2005, the IJ noted that petitioner’s counsel had not yet filed the application for a section 1182(i) waiver on her behalf and reminded petitioner’s counsel that petitioner bore the burden of proof on the issue of her admissibility. Petitioner’s counsel agreed to submit the application for a section 1182(i) waiver within ten days. On June 16, 2005, the IJ held a merits hearing on petitioner’s applications for a waiver of admissibility and adjustment of status. At the hearing, petitioner testified that, prior to taking the name of her U.S. citizen husband, her surname was Limogou. She also acknowledged that she had provided a different surname—“Oke”—when applying for her B-2 visa in Lagos, Nigeria. On direct examination, she explained that “Oke” was the surname of a wealthy and well-connected
Nigerian businessman with whom she had been romantically involved for several years. She further explained that she had a child with Oke but was not married to him because he was already married to someone else. Petitioner testified that, to obtain a visa for travel to the United States, she had gone with Oke and their son to the American embassy in Lagos. The consular official in charge of visa interviews called them up as “Ok[e]’s family” and they were interviewed together. J.A. 85. Oke
5

stated that the visa was for him and that he was traveling with his family. According to petitioner, “because of the . . . bank statements[] [and] all the things that he provided, . . . [the embassy officials] did not ask any further questions. Id. They just said, come tomorrow, pick up your passports by 12
noon.” Id. These events occurred in 1994, shortly before petitioner’s first trip to the United States.

Thereafter, whenever petitioner’s visa expired, Oke would fill out a new visa application on her behalf and take it, along with petitioner’s passport, to the American embassy in Lagos. It was in this way that petitioner obtained the visa on which she traveled to the United States in August 2000. Petitioner further testified that Oke had paid for her to visit the United States in 1994, 1997, and 1998. Her August 2000 visit was, however, undertaken without Oke’s knowledge and motivated by her desire to leave him. Shortly after arriving in the United States, she met and
married Peter Emokah. Nevertheless, she continued to call Oke periodically to discuss matters relating to their son, who was living in Nigeria with petitioner’s sister. Petitioner testified that these communications, and the surname “Oke” on her passport, caused Emokah to suspect that a “marriage [had been] contracted” between petitioner and Oke. Id. at 105. In response to these suspicions, Emokah withdrew the I-130 visa petition he had filed on petitioner’s behalf; they separated several months later and subsequently divorced. Petitioner also testified about the hardships she would face if she were returned to Nigeria.

Specifically, she stated that she did not have any prospects for employment and feared retaliation from Oke. She also testified that her “[l]ife would not be safe, generally” based on country conditions. Id. at 94. Petitioner submitted a number of documents to corroborate her testimony. Among these were a letter from her father to Emokah, reassuring Emokah that petitioner was not married to Oke but had used his surname in order to obtain a visa for travel to the United States The letter states, in relevant part: “In the process of seeking answers 7 to your questions, I learn[ed] that way back in 1989 when Stella applied for an American [v]isa and was turned down, she agreed to Mr. Oke’s suggestion to make a fresh application using his name. She subsequently did and was issued the said visa.” J.A. 323.
8
As the IJ observed, petitioner testified that she “changed her name [to ‘Oke’] because her child couldn’t get into school because he was illegitimate.” J.A. 32, 83-84. The IJ, however, “f[ou]nd that [explanation] hard to believe,” noting that it “conflict[ed]” with the explanation provided in the letter from petitioner’s father, which stated that petitioner used the Oke name to secure a visa after failing to secure one in her own name. Id. at 32.
6
after a prior visa application in her own surname had been rejected;7 and a letter from Emokah to the Immigration and Naturalization Service stating that petitioner had told him that “she used . . . Mr Oke’s name to get [her] visa because of financial verification purposes.” Id. at 181. At the close of the hearing, the IJ issued an oral decision finding that (1) petitioner had “committed visa fraud on several occasions by using the name Oke when she, in fact, did not have that name”; and (2) “there is some discrepancy as to why she used the name Oke.”8 See In re
Emokah, No. A 78-470-777, at 6 (Imm. Ct. Hartford June 16, 2005). Evaluating whether petitioner had satisfied the “extreme hardship” requirement for a waiver of inadmissibility pursuant to section 1182(i), the IJ determined that “[c]onsidering all the factors,” petitioner had not presented “sufficient evidence to establish extreme hardship.” Id. Rather, petitioner’s claim of hardship is “generally the hardship that happens based on anyone who departs the United States.” Id. The IJ
also concluded that, “based on the underlying fraud and the clear discrepancies in the [evidence presented by petitioner], . . . the favorable exercise of discretion is not warranted.” Id. at 7.

Accordingly, the IJ denied petitioner’s applications for a waiver of inadmissibility and adjustment of status and ordered petitioner returned to Nigeria.
Petitioner then appealed to the BIA. On appeal she claimed that (1) she did not need to obtain a section 1182(i) waiver of inadmissibility prior to adjusting her status because her use of Oke’s name on her visa application did not constitute misrepresentation or fraud; (2) her possession Section 1182(a)(6)(A) establishes the inadmissibility of “[a]liens present 9 without admission or parole” but recognizes an exception for “battered women,” id. § 1182(a)(6)(A)(ii), who can demonstrate, inter alia, that “there was a substantial connection between the battery [they experienced] . . . and [their] unlawful entry into the United States,” id. §1182(a (6)(A)(ii)(III).
7

of an approved I-360 visa petition rendered her admissible under 8 U.S.C. § 1182(a (6)(A)(ii)(II),

9 obviating the need for a section 1182(i) waiver; and (3) if the section 1182(i) waiver was required, her circumstances were such that the section 1182(i) waiver should have been granted. In an opinion issued on June 22, 2007, the BIA explained that: In our review [of the record], we concur with the Immigration Judge’s finding that [petitioner] committed fraud or a willful misrepresentation within the scope of [8 U.S.C. § 1182(a)(6)(C)(I)] which necessitated a section [1182(i)] waiver. [Petitioner] acknowledged that she used the surname of her child’s father to facilitate her obtaining a visa and . . . signed the visa application knowing the use of the surname. . . [was] a willful misrepresentation. [W]e also concur in the Immigration Judge’s analysis denying [petitioner’s] request for a section [1182(i)] waiver. Although [petitioner] apparently has a lawful permanent resident mother in the United States, the record does not contain evidence of hardship to [the mother] or [petitioner], other than the emotional hardships of separation which are
implied by their separation. [Petitioner] herself does not have a very lengthy residence in the United States and her return to Nigeria will reunite her family there, especially her son. We also concur in the Immigration Judge’s denial of the waiver in the exercise of discretion. In re Emokah, No. A 78-470-777 (B.I.A. June 22, 2007) (internal citations omitted). The BIA rejected petitioner’s claim that she fell within the exception for battered women set forth in section 1182(a)(6)(A (ii)(II) on the basis that “[h]er marital troubles began when her U.S. husband found out about her entry and purported marriage in Nigeria.” Id. Specifically, the BIA concluded that petitioner could not demonstrate a “nexus between her fraudulent entry and her abusive marriage [because] . . . [she] entered prior to even meeting her citizen husband,” id.; nor could she satisfy the requirements of section 1182(a)(6)(A)(ii)(II), see note 6 ante (text of provision), with evidence of “mistreatment of her by the Nigerian father of her son as they were not married,”
id.
Accordingly, the BIA “adopt[ed] and affirm[ed]” the IJ’s decision. Id.
8

II. DISCUSSION

Because the BIA fully adopted the IJ’s decision, we review the decisions of both the BIA and IJ. See, e.g., Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005) (“Where the BIA adopts the decision of the IJ and merely supplements the IJ’s decision, . . . we review the decision of the IJ as supplemented by the BIA.”). Pursuant to Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984), we defer to the agency’s interpretations of ambiguous provisions of the
Immigration and Naturalization Act, unless those interpretations are “arbitrary, capricious, or manifestly contrary to the statute.” See, e.g., Singh v. Gonzales, 468 F.3d 135, 138-39 (2d Cir. 2006). We review an agency’s factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8
U.S.C. § 1252(b)(4)(B). See, e .g., Corovic v. Mukasey, 519 F.3d. 90, 95 (2d Cir. 2008).

A.

The agency’s determination that petitioner’s conduct rendered her inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i) The bar on admissibility established by section 1182(a)(6)(C)(i) applies to “[a]ny alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States . . . .” The agency determined that petitioner misrepresented a fact in her visa application; that her misrepresentation was willful; that the fact in question was material; and that petitioner’s material misrepresentation allowed her to procure a visa for travel to the United States. Accordingly, it concluded that petitioner’s conduct rendered her inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i).

On appeal, petitioner acknowledges that she knowingly used the wrong name in connection with her visa application but contends that her conduct “does not amount to fraud” because she lacked “fraudulent intent.” Petitioner’s Br. 7. Petitioner does not, however, dispute that her conduct amounted to “misrepresentation.” We therefore turn to the question of whether this misrepresentation was (1) willful and (2) material.
“[A]n act is done willfully if [it is] done intentionally and deliberately and if it is not the result of innocent mistake, negligence or inadvertence.” United States v. Dixon, 536 F.2d 1388, 1397 (2d Cir. 1976) (internal quotation marks omitted); see also United States v. Temple, 447 F.3d 130, 137 (2d Cir. 2006) (noting that “‘[w]illful’ repeatedly has been defined in the criminal context as intentional, purposeful, and voluntary, as distinguished from accidental or negligent”); Forbes v. INS, 48 F.3d 439, 442 (9th Cir. 1995) (noting that, for purposes of the INA, “the requirement . . . of fraud or willful misrepresentation is satisfied by a finding that the misrepresentation was deliberate and voluntary[;] [p]roof of an intent to deceive is not required; [r]ather, knowledge of the falsity of a representation is sufficient” (internal citations omitted)). By petitioner’s own admission, her use of
the name “Oke” on her visa application was a deliberate act, “not the result of innocent mistake, negligence or inadvertence.” Dixon, 536 F.2d at 1397 (internal quotation marks omitted). We therefore conclude, as a matter of law, that the evidence was sufficient to support the agency’s finding that petitioner’s misrepresentation was “willful” in nature. “[A] concealment or misrepresentation is material if it ‘has a natural tendency to influence or was capable of influencing, the decision of the decisionmaking body to which it was addressed.’” Monter v. Gonzales, 430 F.3d 546, 553 (2d Cir. 2005) (quoting Kungys v. United States, 485 U.S. 759, 770 (1988)). To obtain a B-2 visa, an alien must satisfy the consular official issuing the visa that the alien qualifies under the provisions of INA 101(a (15)(B), [ 8 U.S.C. § 1101(a)(15)(B)],
and that:
(1) The alien intends to leave the United States at the end of the temporary stay . . .
(2) The alien has permission to enter a foreign country at the end of the temporary stay . . .
(3) Adequate financial arrangements have been made to enable the alien to carry out the purpose of the visit to and departure from the United States. 22 C.F.R. § 41.31(a). To qualify for non-immigrant status under section § 1101(a)(15)(B), an alien must “hav[e] a residence in a foreign country which he has no intention of abandoning and [be]
10

visiting the United States temporarily.” At the time that petitioner applied for her B-2 visa, she was a secretary at the Merchant Bank of Africa with several family members in the United States.
Petitioner’s presentation of herself as the wife of a wealthy businessman with strong ties to Nigeria was, therefore, undoubtedly a misrepresentation “capable of influencing[ ]the decision of the decisionmaking body,” Monter, 430 F.3d at 553, responsible for evaluating her B-2 visa application. Proof that an alien has made a material misrepresentation in the course of applying for an immigration benefit creates a rebuttable presumption that the alien procured the benefit by means of this misrepresentation. Id. at 557-58. To rebut this presumption, the alien must demonstrate that knowledge of his true circumstances would not have led to the denial of the benefit. Id. In other words, for purposes of section 1182(a)(6)(C)(i), an alien has procured an immigration benefit through material misrepresentation when that misrepresentation was determinative to the alien’s success in obtaining the benefit sought. The IJ—noting that (1) petitioner’s submissions revealed “some discrepancy as to why she used the name Oke” and that (2) petitioner’s explanation was “in conflict with her father’s . . . letter”—determined that petitioner had failed to rebut the presumption that she had procured her visa through willful misrepresentation. The record reveals no evidence sufficient to compel a different conclusion. Indeed, petitioner’s inability to secure a visa in her true name reinforces the conclusion that her misrepresentation of her name was both willful and
material.

Accordingly, we conclude that the agency committed no legal error in holding that
petitioner’s conduct rendered her inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i).
B. The agency’s determination that petitioner did not fall within the exception set forth in 8 U.S.C. § 1182(a)(6)(A)(ii). In her submissions to our Court, as before the BIA, petitioner contends that her possession of an approved I-360 visa petition rendered her admissible under 8 U.S.C. § 1182(a)(6)(A)(ii), Petitioner does not allege that she arrived at a time or 10 place not contemplated by her visa, or that she was ever a parolee within the meaning of section 1182(a)(6)(A). Cf. Ibragimov, 476 F.3d at 131 (“‘Parole’ is an administrative practice whereby the government allows an arriving alien who has come to a port-of-entry without a valid entry document to be temporarily released from detention and to remain in the United States pending review of . . . his immigration status.”).

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obviating the need for a section 1182(i) waiver. Section 1182(a)(6)(A) applies to aliens “present in the United States without being admitted or paroled, or who arrive[] in the United States at any time or place other than as designated by the Attorney General.” Id. § 1182(a)(6)(A)(i). Accordingly, we begin our analysis by considering whether the circumstances of petitioner’s entry conform to any of the qualifying circumstances set forth in section 1182(a)(6)(A). Petitioner contends that, if we determine that she obtained her visa through fraud or misrepresentation, we must also conclude “that she was present without admission.”10 Petitioner’s
Br. 6. We disagree. The Immigration and Naturalization Act (“INA”) defines “[t]he terms ‘admission’ and ‘admitted’ [to] mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” 8 U.S.C. §1101(a)(13)(A). Accordingly, an alien who enters the United States after inspection and authorization has been “admitted” even if he was, “at the time of entry . . . within one or more of the classes of aliens inadmissible by the law.” See 8 U.S.C. § 1227(a) & (a)(1). Petitioner traveled to the United States on a B-2 tourist visa issued to her in Nigeria and was permitted entry after
inspection and authorization by an immigration officer in the United States. The manner in which she procured her admission rendered her inadmissible at the time of entry, see supra II.A, but does not change the fact that she was, indeed, admitted. Petitioner is, therefore, plainly outside the exception set forth in section 1182(a)(6)(A)(ii). Even if we were to conclude otherwise, however, we identify no error in the agency’s conclusion that petitioner failed to meet the “substantial connection” requirement set forth in section 1182(a)(6)(A)(ii)(III) between her fraudulent entry and any abuse she may have suffered at
12

the hands of her U.S. citizen husband after her entry. The language of the statute makes clear that it applies where mistreatment somehow prompts or leads to illegal entry, not where a petitioner claims unrelated mistreatment following such entry.

C.

The agency’s denial of petitioner’s application for a waiver of inadmissibility
The IJ denied petitioner’s application for a waiver of inadmissibility pursuant to 8 U.S.C. § 1182(i) upon concluding that petitioner’s evidence did not suggest that (1) petitioner would suffer “extreme hardship” if removed to Nigeria or (2) a favorable exercise of discretion was otherwise warranted. In her submissions to our Court, petitioner contends that the record does not support the agency’s conclusion that she would not suffer severe hardship if removed to Nigeria. She also contends that the agency lacked a valid reason for denying her the benefit of a favorable exercise of discretion.

The determination that an applicant for section 1182(i) relief has failed to meet the “extreme hardship” requirement set forth therein involves “factual and discretionary decisions.” See, e.g., Camara v. Dep’t of Homeland Sec., 497 F.3d 121, 124 (2d Cir. 2007). As we have observed on numerous occasions, “we lack jurisdiction to review challenges to factual and discretionary determinations . . . unless the petitioner raises a constitutional claim or a question of law.” Id. “[Petitioner’s] arguments that the agency’s decision was not supported by substantial evidence and
was clearly erroneous represent ‘quarrels over the [exercise of discretion and the] correctness of the factual findings’ reached by the agency.” Id. (quoting Xiao Ji Chen v. U.S. Dept. of Justice, 471 F.3d 315, 329 (2d Cir. 2006)). Accordingly, we lack jurisdiction to review petitioner’s challenge to the denial of her application for section 1182(i) relief.

III. CONCLUSION

For the reasons given above, the petition for review is (1) denied as to the agency’s
determination that petitioner’s conduct rendered her inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i) and (2) dismissed as to the agency’s denial of petitioner’s application for section 1182(i) relief.

Moody v. Sorokina, I-864 Affidavit of Support Enforced in Divorce Proceedings

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1657
CA 05-00722
PRESENT: SCUDDER, P.J., MARTOCHE, CENTRA, AND PINE, JJ.
JOHN MOODY, PLAINTIFF-RESPONDENT,
V OPINION AND ORDER
SVETLANA SOROKINA, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)
SVETLANA SOROKINA, DEFENDANT-APPELLANT PRO SE.
SCOLARO, SHULMAN, COHEN, FETTER & BURSTEIN, P.C., SYRACUSE (SHARI R.
COHEN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
EUGENE J. LANGONE, JR., LAW GUARDIAN, WATERTOWN, FOR N.M.
Appeal from an order of the Supreme Court, Jefferson County (Hugh A. Gilbert, J.), entered February 25, 2005 in a divorce action. The order, among other things, awarded the parties joint custody of their child with primary placement with plaintiff and visitation with
defendant.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified in the exercise of discretion and on the law by awarding defendant the sum of $8,000 as equitable distribution of the parties’ 2001 Jeep Grand Cherokee and as modified
the order is affirmed without costs, and the matter is remitted to Supreme Court, Jefferson County, for further proceedings in accordance with the following Opinion by PINE, J.:

I

Defendant is a Ukranian national who emigrated to the United States in order to marry plaintiff, and the parties were married in the United States in June 1999. In July 1999 plaintiff executed a federal affidavit of support, Form I-864, in which he agreed, inter
alia, to support defendant at or above 125% of the federal poverty line until the occurrence of a qualifying terminating event. The parties had a child in November 2001, and in May 2002 plaintiff obtained an ex parte temporary order of custody and a temporary Family Court order of protection requiring defendant to stay away from plaintiff and the child. Also in May 2002 plaintiff commenced a divorce action against defendant. Family Court transferred the custody matter to Supreme Court to be addressed in the context of the pending divorce action. A judgment of divorce was entered in October
2004, but the issues of custody, maintenance, support pursuant to the
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federal affidavit of support and equitable distribution were not addressed in that judgment. Following separate trials on custody and the economic issues, Supreme Court issued an order that, inter alia, granted the parties joint custody of the child, with primary physical placement to plaintiff, and determined the issues of maintenance,
support pursuant to the federal affidavit of support and equitable distribution.
We note at the outset that the amended order in appeal No. 2 merely corrected references to the parties, and thus defendant’s appeal from the amended order should be dismissed (see Matter of Kolasz v Levitt, 63 AD2d 777, 779). One of defendant’s contentions on
appeal is that the court erred in determining that defendant was not entitled to seek enforcement of the federal affidavit of support. This contention raises an issue of first impression at the appellate level in New York and, for the reasons that follow, we agree with defendant.
II
Family-sponsored immigrants such as defendant are generally considered “ineligible to be admitted to the United States” unless the immigrant has obtained the status of a spouse or other acceptable classification and “the person petitioning for the alien’s admission .
. . has executed an affidavit of support described in section 1183a” (8 USC § 1182 [a] [4] [C] [ii]; see § 1182 [a] [4] [C] [i]; Cheshire v Cheshire, 2006 WL 1208010, *2 [MD Fla]; Gallagher, Immigration Law- Basics and More: Grounds of Inadmissibility, American Law Institute- American Bar Association Continuing Legal Education, May 6, 1999, SD61
ALI-ABA 265, 277). Before the enactment of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA) (Pub L No. 104-208, 110 Stat 3009-546), which amended Immigration and Nationality Act (INA) §213A, the affidavit of support was Form I-134. That affidavit was held not to constitute a legally enforceable contract against a sponsor by a sponsored immigrant (see Cheshire, 2006 WL 1208010, *2; Tornheim v Kohn, 2002 WL 482534, *3-5 [ED NY]). The IIRIRA, however, “instituted a legally enforceable affidavit of support for most family[-]based immigrant visa applications” (Notkin, 30th Annual Immigration and Naturalization Institute: The New Affidavit of
Support, Practising Law Institute, Oct 1997, 1021 PLI/Corp 309, 311). The new affidavit of support is Form I-864 (see Sheridan, The New Affidavit of Support and Other 1996 Amendments to Immigration and Welfare Provisions Designed to Prevent Aliens from Becoming Public Charges, 31 Creighton L Rev 741, 752). Pursuant to 8 USC § 1183a (a)
(1), “[n]o affidavit of support may be accepted by the Attorney General . . . unless such affidavit is executed by a sponsor of the alien as a contract -- “(A) in which the sponsor agrees to provide
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support to maintain the sponsored alien at an annual income that is not less than 125 percent of the Federal poverty line during the period in which the affidavit is enforceable; “(B) that is legally enforceable against the sponsor by the sponsored alien . . .; and “(C) in which the sponsor agrees to submit to the jurisdiction of any Federal or State court for the purpose of actions brought under subsection (b) (2) of this section[, i.e., actions ‘to compel reimbursement’]” (emphasis added). Pursuant to section 1183a (e) (1), an action to enforce an affidavit of support may be brought in “any appropriate court . . . by a sponsored [immigrant], with respect to financial support . . . .” Thus, the statute expressly permits the sponsored immigrant to bring an action for enforcement of the affidavit of support against the sponsor in any federal or state court (see 8 USC § 1183a [a] [1] [B]; INA § 213A [a] [1] [B]; see also von Sternberg, 31st Annual Immigration & Naturalization Institute: Summary of New Affidavit of Support Requirements, Practising Law Institute, Oct 1998, 1080 PLI/Corp 309, 312; Sheridan, 31 Creighton L Rev at 761; Notkin, 1021 PLI/Corp at 314-315). The enforceability of the affidavit terminates
when, inter alia, the sponsored immigrant “has worked 40 qualifying quarters of coverage as defined under title II of the Social Security Act [42 USC § 401 et seq.]” (8 USC § 1183a [a] [3] [A] [i]). In accordance with 8 USC § 1183a a sponsor is required to sign
Form I-864, which provides in relevant part: “I understand that, under section 213A of the
[INA], as amended, this affidavit of support constitutes a contract between me and the U.S. Government. This contract is designed to protect the United States Government, and State and local government agencies or private entities that provide means-tested public benefits, from having to pay benefits to or on behalf of the sponsored immigrant(s), for as long as I am obligated to support them under this affidavit of support. 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 [Immigration and Naturalization Service] regulations. “. . . “I acknowledge that section 213A (a) (1) (B) of the [INA] grants the sponsored immigrant(s) . . . standing to sue me for failing to meet my obligations under this affidavit of support. I
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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. “. . .
“I acknowledge that a plaintiff may seek specific performance of my support obligation . . . [and that] I may also be held liable for costs of collection, including attorney fees.” The cases that have addressed the enforceability of the Form I- 864 affidavit of support by the sponsored immigrant have found that the form is a legally enforceable contract and that the sponsored immigrant “has independent standing to enforce the sponsor’s obligation” in any federal or state court (Davis v Davis, 2004 WL 2924344, *3 [Ohio App 6 Dist]; see Cheshire, 2006 WL 1208010, *3; Stump v Stump, 2005 WL 1290658, *4-5 [ND Ind]; Schwartz v Schwartz, 2005 WL 1242171, *1-2 [WD Okla]; Ainsworth v Ainsworth, 2004 US Dist LEXIS 18961, *1-2 [MD La]; see also Tornheim, 2002 WL 482534, *3-5). Courts have also held that the sponsored immigrant’s right to support under the Form I-864 affidavit of support is unaffected by a judgment of divorce (see Cheshire, 2006 WL 1208010, *4-5; Schwartz, 2005 WL 1242171, *2; Muir v Muir, 2002 WL 1837964, *3 [CT Super Ct];
Ainsworth, 2004 US Dist LEXIS, *1). We therefore conclude that the court erred in determining that defendant was not entitled to seek enforcement of the federal
affidavit of support on the grounds that the statute was for public benefit only and did not afford defendant a private cause of action.
III
We now address defendant’s remaining contentions on this appeal. Although defendant raises multiple challenges to the temporary orders issued by Family Court, we conclude that those challenges are not properly before this Court. Contrary to defendant’s contention, those nonfinal orders did not necessarily affect the final order before us on this appeal, i.e., the order in appeal No. 1 (see CPLR 5501 [a] [1]; Matter of Cicardi v Cicardi, 263 AD2d 686). In any event, any challenge to those temporary orders has been rendered moot because
they have expired by their terms and have been superseded by the order before us in appeal No. 1 (see Kelly v Kelly, 19 AD3d 1104, 1107, appeal dismissed 5 NY3d 847, rearg denied and lv dismissed and denied 6 NY3d 803; Connolly v Connolly, 48 AD2d 875). Because the order before us followed a full trial of the divorce action in Supreme Court, defendant has received due process (see generally Matter of Harner v County of Tioga, 5 NY3d 136, 140), and there was no violation of Judiciary Law § 21 (cf. Matter of Connelly-Logal v West, 272 AD2d 920; Michel v Michel, 31 AD2d 313, 314-315). Contrary to defendant’s
further contentions, there is no evidence that the court abused its

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discretion in determining that defendant was not in need of an interpreter (see generally Matter of Mercure, 27 AD3d 857, 858), nor did the court exceed its authority in requiring defendant to surrender her Ukranian passport during her periods of visitation with the
parties’ child (see Anonymous v Anonymous, 120 AD2d 983, appeal dismissed 68 NY2d 808; Kresnicka v Kresnicka, 42 AD2d 607). We reject defendant’s contentions that the court abused its discretion in admitting certain expert testimony and in refusing to admit other expert testimony. The admissibility and scope of expert testimony rests within the sound discretion of the trial court (see De Long v County of Erie, 60 NY2d 296, 307). “ ‘[A] witness may testify as an expert if it is shown that he [or she] is skilled in the profession or field to which the subject relates, and that such skill was acquired from study, experience, or observation’ ” (Karasik v Bird, 98 AD2d 359, 362; see Matott v Ward, 48 NY2d 455, 459). Plaintiff established that his medical expert possessed “the requisite
skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable” (Matott, 48 NY2d at 459). Defendant’s purported expert, however, admitted that she was “not a medical expert” and that she had not reviewed the documents relating to the child’s medical conditions.
Based on the evidence adduced with respect to custody and in view of the great deference accorded the custody determination of the trial court, we conclude that the court’s custody determination is in the best interests of the child (see generally Eschbach v Eschbach, 56 NY2d 167, 173). Contrary to the contention of defendant, the court did not infringe upon her fundamental right to make decisions affecting her child. Defendant’s reliance upon cases addressing the rights of a parent as against a nonparent with respect to decisions concerning a child is misplaced because here we are concerned with the
decision-making rights of the two parents. With respect to the maintenance and equitable distribution awards, we note that, although such awards generally are left to the sound discretion of the trial court (see Smith v Smith, 306 AD2d 908, 909; Boughton v Boughton, 239 AD2d 935), the authority of this Court is as broad as that of the trial court with respect to such awards (see Wipperman v Wipperman, 277 AD2d 1040, 1041; Marino v Marino, 229 AD2d 971, 972). We see no basis to disturb the maintenance award but, in the exercise of our discretion, we conclude with respect to the equitable distribution award that defendant should be awarded the sum of $8,000, representing one half of the value of the parties’ 2001 Jeep Grand Cherokee as of the date of the trial.

IV

Accordingly, in the exercise of our discretion, we conclude that the order in appeal No. 1 should be modified by awarding defendant the sum of $8,000 as equitable distribution of the parties’ 2001 Jeep Grand Cherokee, and the matter should be remitted to Supreme Court to enforce the federal affidavit of support executed by plaintiff. We further conclude that the appeal from the amended order in appeal No.

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2 should be dismissed.

Entered: February 2, 2007 JOANN M. WAHL
Clerk of the Court

Cheshire v. Cheshire - I-864 Affidavit of Support Enforcement in Divorce Action

MARIA VOLODINA CHESHIRE, Plaintiff, vs. WALTER MAXWELL CHESHIRE, Defendant.


Case No. 3:05-cv-00453-TJC-MCR

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA, JACKSONVILLE DIVISION


May 4, 2006, Decided; Nunc Pro Tunc to April 26, 2006

COUNSEL: [*1] Maria Volodina Cheshire, Plaintiff, Pro se, Jacksonville, FL.

For Walter Maxwell Cheshire, Defendant: Sandra K. Haas, Sandra K. Haas, Attorney at Law, Branford, FL.

For Walter Maxwell Cheshire, Counter Claimant: Sandra K. Haas, Sandra K. Haas, Attorney at Law, Branford, FL.

JUDGES: TIMOTHY J. CORRIGAN, United States District Judge.

OPINIONBY: TIMOTHY J. CORRIGAN

OPINION: FINDINGS OF FACT AND CONCLUSIONS OF LAW n1

Pro-se plaintiff, Maria Cheshire, a Russian immigrant living in the United States under permanent resident status, filed her complaint against defendant, Walter Cheshire, her ex-husband and a U.S. citizen, under § 213A of the Immigration and Nationality Act (INA), codified at 8 U.S.C. § 1183a, seeking to enforce two affidavits of support, Form I-134 and Form I-864, signed by defendant on plaintiff's behalf. (Doc. 1.) By the Order denying all pending motions and setting case for final hearing (Doc. 53), the Court determined it has subject matter jurisdiction over this action, predicated upon 8 U.S.C. § 1183a and 28 U.S.C. § 1331.

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n1 Under the E-Government Act of 2002, this is a written opinion and therefore is available electronically. However, it has been entered only to decide the matter addressed herein and is not intended for official publication or to serve as precedent.


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At the March 24, 2006 final hearing, all parties were present, and the Court heard testimony from witnesses for both sides. (See Doc. 56.) In addition to defendant testifying on his own behalf, witnesses Norman Richard Storch and Earl Monroe Frazer testified for defendant at the hearing. Plaintiff was the sole witness testifying on her behalf. After careful consideration of the record and relevant law, this case is ready for decision pursuant to Rule 52(a), Federal Rules of Civil Procedure.

I. Findings of Fact

The facts are derived from the hearing testimony, the parties' filed papers, and the exhibits admitted during the final hearing. In 1997, plaintiff was living in Buenos Aires, Argentina when she first met the defendant. The couple had been communicating with each other prior to this meeting and defendant testified that he went to meet plaintiff in Argentina with the intention of getting married; the two were married there in June 1997. Upon his first attempt to obtain an exit visa for plaintiff to leave Argentina and return with defendant to the United States, defendant had to sign an affidavit of support.. This affidavit [*3] of support, Form I-134, was executed by defendant on August 18, 1997. However, U.S. immigration authorities denied plaintiff admission to the United States at that time. Subsequently, defendant returned to the United States alone, leaving plaintiff, his new wife, in Buenos Aires.

On January 9, 1998, defendant made a second attempt to have plaintiff admitted to the United States. At that time, defendant filled out a packet of immigration paperwork on plaintiff's behalf and executed another affidavit of support, this time on Form I-864. Shortly thereafter, in mid-January 1998, plaintiff was admitted to the United States. On January 25, 1998, plaintiff was issued a permanent resident card by the United States Immigration and Naturalization Service (INS).

Although evidence is conflicting as to the dynamics of the relationship between the parties after the time plaintiff was admitted to the United States, the parties were divorced in 2001. On September 28, 2001, the Circuit Court, Third Judicial Circuit, in and for Suwannee County, Florida issued a Partial Final Judgment of Dissolution of Marriage dissolving the parties' marriage, but reserving all other issues for a final hearing. The [*4] Florida court issued a Supplemental Final Judgment of Dissolution of Marriage on December 20, 2001, making a final determination on support issues between the parties; the court did not award alimony or support to either party, and the state judge did not address the issue of any obligation under the affidavits of support at issue here.

II. Conclusions of Law

A. INA Background

Generally, aliens applying for admission to the United States must present certain documents, such as a valid unexpired immigrant visa and an unexpired passport, in order to enter the country. 8 U.S.C. § 1181(a). However, certain classes of aliens are ineligible to receive visas, to gain admission to the United States, or to seek adjustment of immigrant status. 8 U.S.C. § 1182(a). These classes include, but are not limited to, aliens with specific health-related problems (8 U.S.C. § 1182(a)(1)), aliens with certain criminal backgrounds (8 U.S.C. § 1182(a)(2)), aliens that pose distinct security concerns (8 U.S.C. § 1182(a)(3)), and aliens likely to become public charges (8 U.S.C. § 1182(a)(4) [*5] ). In determining whether an alien is inadmissible as a public charge, the consular officer or the U.S. Attorney General will consider, at a minimum, the alien's age; health; family status; assets, resources, and financial status; and education and skills. 8 U.S.C. § 1182(a)(4)(B)(i). In addition to these factors, the officer or Attorney General may also consider any affidavit of support executed on the alien's behalf. 8 U.S.C. § 1182(a)(4)(B)(ii). For family-sponsored immigrants, as opposed to employment-based immigrants, an immigrant seeking admission or adjustment of immigrant status will be inadmissible unless the alien "has obtained status as a spouse . . . of a United States citizen" or status under another acceptable classification, and "the person petitioning for the alien's admission . . . has executed an affidavit of support described in section 1183a . . . ." 8 U.S.C. § 1182(a)(4)(c)).

B. Form 1-134

In the past, INS used Form I-134 as the statutory affidavit of support necessary to overcome the public charge ground of inadmissability for a sponsored immigrant. Charles Wheeler, The Affidavit of Support [*6] and Sponsorship Requirement, 98-06 Immigr. Briefings 1 (1998). However, Form 1-134 was typically submitted at the discretion of the visa applicant. Id. Form I-134 "provided some limited assurance that a third party was willing to assist the visa applicant so that he or she would not become a public charge," and provided for support of the sponsored immigrant for only three years. Id. However, federal courts have consistently found that Form 1-134 is not a legally enforceable contract against a sponsor by a sponsored immigrant. See, e.g., Tornheim v. Kohn, 2002 U.S. Dist. LEXIS 27914, No. 00 CV 5084(SJ), 2002 WL 482534, at *1, *5 (E.D.N.Y. Mar. 26, 2002) (finding that because defendant signed the affidavit of support on Form 1-134, instead of on Form I-864, defendant had not signed a legally binding contract); Stump v. Stump, No. 1:04-CV-253-TS, 2005 WL 1290658, at *1, *4 (N.D. Ind. May 27, 2005) (finding Form 1-134 to be "a nonenforceable promise by the sponsor to support the alien"). In the case before the Court, though defendant executed Form I-134 on the plaintiff's behalf, it is not a binding contract between the parties; thus, plaintiff, the sponsored immigrant, [*7] cannot enforce its terms. Nevertheless, defendant also executed a second affidavit of support on Form I-864.

C. Form 1-864

Regulations provide that Form 1-864 applies to applications for visas or adjustments of immigrant status filed on or after December 19, 1997. 8 C.F.R. § 213a.2(a)(2)(i). Despite the fact that defendant's signature appears on the Form I-864, defendant testified that he did not "have any recollection" of signing this form. However, after reviewing the signed Form I-864 at the hearing, defendant acknowledged that it was his signature, dated January 9, 1998, appearing on that form and that he had sent in a packet of documents to the authorities about that time to try to get a visa for plaintiff.

The language of Section 1183a prescribes the statutory requirements of the Form I-864 affidavit of support. See 8 U.S.C. § 1183a. Under the statute, an affidavit of support filed on behalf of an immigrant to establish that an immigrant is not excludable as a public charge is enforceable as a contract. 8 U.S.C. § 1183a(a)(1). Section 1183a(a)(1), provides that:
No affidavit of support [*8] may be accepted by the Attorney General or by any consular officer to establish that an alien is not excludable as a public charge under section 1182(a)(4) of this title unless such affidavit is executed by a sponsor of the alien as a contract:
(A) 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 line during the period in which the affidavit is enforceable;

(B) that is legally enforceable against the sponsor by the sponsored alien, the Federal Government, any State . . . or by any other entity that provides any means-tested public benefit . . . ; and

(C) in which the sponsor agrees to submit to the jurisdiction of any Federal or State court for the purpose of actions brought under subsection (b)(2) of this section.


8 U.S.C. § 1183a(a)(1) (emphasis added).

In addition to the statutory language, the express terms of Form 1-864 provide that by signing the form, defendant obligated himself "to provide the sponsored immigrant(s) whatever support is necessary to maintain the sponsored immigrant(s) at an income that is at [*9] least 125 percent of the Federal poverty guidelines." (Doc. 1 at 7, Affidavit of Support Form I-864 at 4.) By executing Form I-864, defendant agreed to its terms, "acknowledging that section 213A(a)(1)(B) of the [INA] grants the sponsored immigrant(s) . . . standing to sue me for failing to meet my obligations under this affidavit of support." (Doc. 1 at 9, Affidavit of Support Form I-864 at 6.) Defendant "agree[d] 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." (Id.) Thus, the very terms of Form I-864 bind defendant to provide plaintiff with the requisite amount of support.

Further, federal courts in other jurisdictions have consistently found that Form 1-864 constitutes a legally binding and enforceable contract between a sponsored immigrant and the sponsor executing the form. See Schwartz v. Schwartz, No. CIV-04-770-M, 2005 WL 1242171, at *1,*2 (W.D. Okla. May 10, 2005) (finding affidavit of support Form I-864 signed by ex-husband sponsor on ex-wife sponsored immigrant's [*10] behalf a valid and enforceable contract); Stump, 2005 WL 1290658, at *1, *10, *11 (finding Form I-864 a binding contract and enforcing its terms, where form was executed by husband sponsor on wife sponsored immigrant's behalf, even where divorce was pending between husband and wife); Ainsworth v. Ainsworth, No. 02-1137-A, 2004 U.S. Dist. LEXIS 28961, at *1, *7-8 (M.D. La. May 27, 2004) (finding affidavit of support Form I-864 an enforceable contract between ex-wife sponsored immigrant and ex-husband sponsor). Both by law and by its terms, Form I-864, signed by defendant, is a valid contract.

D. Enforceability of Form I-864

Defendant asserts that even if the Court finds Form I-864 to be a valid contract between the parties, the contract was entered into under fraud or duress, it is unconscionable, lacks consideration, and plaintiff breached the contract. Where a sponsored immigrant "never intended to enter into a lasting marital relationship, but was merely using the sponsor to gain immigrant status," it could be argued that the marriage was the result of fraudulent inducement on the part of the sponsored immigrant; however, the sponsor has the [*11] burden of proving that the immigrant committed such fraud. Charles Wheeler, Alien vs. Sponsor: Legal Enforceability of the Affidavit of Support, 10-23 Bender's Immigr. Bull. 3 (2005).

After a careful review of the evidence, the Court rejects defendant's argument that he was fraudulently induced into signing Form I-864. The Court finds a lack of evidence adequate to prove that plaintiff defrauded defendant into signing Form I-864 with a promise of marriage that she had no intention of maintaining. While the marriage was beset by problems early on, there is insufficient evidence that plaintiff, from the beginning, had no intention to remain married once she came to the United States.

Similarly, the Court fails to find evidence that the affidavit of support Form I-864 was an unconscionable or illusory contract, that plaintiff breached the contract, or that there was a lack of consideration. Under the terms of the affidavit, the consideration for defendant's promise to support plaintiff was plaintiff being granted entry into the United States. By signing Form I-864, defendant agreed to "submit this affidavit of support in consideration of the sponsored immigrant(s) not being found [*12] inadmissible to the United States . . . and to enable the sponsored immigrant to overcome [the public charge] ground of inadmissibility." (Doc. 1 at 7, Affidavit of Support Form I-864 at 4.) As such, the Court finds insufficient evidence to support any of the asserted defenses against the validity of the Form I-864 that defendant signed.

E. Effect of Parties' Divorce on Support Obligation

Pursuant to the INA and the terms of Form I-864, a sponsor's support obligations to the sponsored immigrant under an affidavit of support terminate only upon the occurrence of one of five circumstances: 1) the sponsor's death, 2) the sponsored immigrant's death, 3) the sponsored immigrant becoming a U.S. citizen, 4) the sponsored immigrant permanently departing the U.S., or 5) the sponsored immigrant being credited with a total of 40 qualifying quarters of work. 8 U.S.C. § 1183a(a)(2), (3); 8 C.F.R. § 213a.2(e); Doc. 1 at 7, Affidavit of Support Form I-864 at 4. "A qualifying quarter is a unit of wages in covered employment," under the Social Security Act. Wheeler, The Affidavit, supra, at 20. The majority of sponsored immigrants will have [*13] to work ten years to meet the 40 quarters requirement, as a maximum of four quarters can be earned in a year. Id. However, sponsored immigrants can be credited with quarters earned by the immigrant's spouse during the marriage, but only if the alien remains married to that spouse, which is inapplicable in this case where the parties are divorced. 8 U.S.C. § 1183a(a)(3)(B)(ii). Neither the statute nor any regulations require that the sponsored immigrant "notify the sponsor when any of the [five] conditions has been satisfied." Wheeler, The Affidavit, supra, at 21. Thus, it is likely difficult for a sponsor to know when his obligations under the affidavit of support end. Id.

Because financial obligations under the affidavit of support terminate only upon the occurrence of one of the five circumstances above, divorce will not invalidate the contract created by the affidavit of support. Id. As such, a spouse sponsoring an immigrant spouse can be liable under the affidavit of support even after divorce. Id. Indeed, instructions accompanying the affidavit of support Form I-864 provide that "divorce does not terminate the obligation" of a sponsor [*14] to support the sponsored immigrant. (Doc. 1 at 10, Affidavit of Support Instructions at 1.) Moreover, federal courts have found that divorce between a sponsored immigrant and a sponsor does not necessarily negate a sponsor's financial liability under an affidavit of support. See, e.g., Schwartz, 2005 WL 1242171, at *2 (finding that "a sponsor and a sponsored immigrant's divorce does not automatically terminate the sponsor's obligations under the affidavit of support," in case where plaintiff, permanent resident alien of the U.S. and defendant's ex-wife, brought suit against ex-husband sponsor seeking to enforce affidavit of support); see also Stump, 2005 WL 1290658, at *10 (holding former husband, sponsor, liable to former wife, sponsored immigrant, for financial support under terms of affidavit of support where parties' divorce was pending); Ainsworth, 2004 U.S. Dist. LEXIS 2896, at *6 (noting that divorce did not end enforceability of affidavit of support contract). Thus, that the parties in this case are divorced does not alleviate defendant's obligation to support plaintiff according to Section 1183a and the terms of Form I-864. [*15]

F. Remedy

Based on the evidence, the Court finds that defendant in fact supported plaintiff up through the parties' divorce in late 2001. Thus, the evidence establishes that defendant honored his support obligation to plaintiff from January 8, 1998, the date defendant signed the affidavit of support, until the 2001 divorce. Defendant testified that he has not provided plaintiff any kind of support since the divorce (he was not required to pay alimony under the divorce decree). As such, the Court finds that defendant is only liable to plaintiff for support after the date of the parties' final divorce resolution on December 20, 2001.

Section 1183a and the terms of Form I-864 provide for the appropriate "measure of damages that would put plaintiff in as good a position as she would have been had the contract been performed." Stump, 2005 WL 2757329, at * 8. Accordingly, from December 20, 2001 forward defendant remains obligated to provide plaintiff with support equal to 125% of the federal poverty guidelines. Pursuant to the Federal Register, for a household size of one person, the poverty guidelines for 2001, 2002, 2003, 2004, 2005, and 2006 are as follows:n2$ 8,590
2002:n3$ 8,860
2003:n4$ 8,980
2004:n5$ 9,310
2005:n6$ 9,570
2006:n7$ 9,800

[*16]

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n2 Annual Update of the HHS Poverty Guidelines, 66 Fed. Reg. 10695 (Feb. 16, 2001).


n3 Annual Update of the HHS Poverty Guidelines, 67 Fed. Reg. 6931, 6932 (Feb. 14, 2002).


n4 Annual Update of the HHS Poverty Guidelines, 68 Fed. Reg. 6456, 6457 (Feb. 7, 2003).


n5 Annual Update of the HHS Poverty Guidelines, 69 Fed. Reg. 7336 (Feb. 13, 2004).


n6 Annual Update of the HHS Poverty Guidelines, 70 Fed. Reg. 8373, 8374 (Feb. 18, 2005).


n7 Annual Update of the HHS Poverty Guidelines, 71 Fed. Reg. 3848 (Jan. 24, 2006).


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The following figures represent 125% of the above federal poverty levels, calculated by a pro rata amount for 2001, based on the date of the parties' divorce, on December 20, 2001, and calculated for the 2006 year-to-date, April 26, 2006:2001:$ 10,737.50 - (10,737.50 x 354/365) = $ 323.60
2002:$ 11,075
2003:$ 11,225
2004:$ 11,637.50
2005:$ 11,962.50
2006:$ 12,250 x 116/365 = $ 3,893.15

[*17]

Total of 125% of federal poverty level for 2001-2006 = $ 50,116.75

A sponsor's financial obligation under the affidavit of support should be reduced by the amount of any income or benefits the sponsored immigrant receives from other sources. Wheeler, The Affidavit, supra, at 7. Moreover, the express terms of Form I-864 provide that a "sponsored immigrant's assets may also be used in support of [a sponsor's] ability to maintain income at or above 125 percent of the poverty line if the assets are or will be available in the United States for the support of the sponsored immigrant(s) . . . ." (Doc. 1 at 7, Affidavit of Support Form I-864 at 4.) As such, the Court will reduce the total amount of support ($ 50,116.75) defendant owes plaintiff by the total amount of plaintiff's income and benefits earned since the date of the parties' divorce in 2001. Although both parties did a poor job of providing evidence of these amounts, after careful review of all the evidence, the Court finds that plaintiff has received the following income and benefits since the date of the divorce:

1. $ 371 in gross wages from Florida Times-Union earned from December 19, 2001 through December 28, 2001 (pay [*18] date of January 3, 2002). (Doc. 1 at 20.) n8

2. $ 11,088 in gross wages in 2002 based on plaintiff's calculation in her motion for summary judgment prayer for relief. (Doc. 43 at 4.)

3. $ 11,088 in gross wages in 2003 based on plaintiff's calculation in her motion for summary judgment prayer for relief. (Doc. 43 at 4.) n9

4. $ 4,804.79 in gross wages from North Florida Chiropractic & Rehabilitation Center in 2004. (Plaintiff's Composite Exhibit, 2004 W-2.)

5. $ 7,835.75 in gross wages from Shivers Trading and Operating Company in 2004. (Plaintiff's Composite Exhibit, 2004 W-2.)

6. $ 6,608 in gross wages from Morris Publishing Group in 2004. (Doc. 1 at 21.) n10

The total amount of income received from these sources (items 1-6) is $ 41,795.54. n11 Accordingly, plaintiffs total damages are calculated as follows:

Total of 125% of federal poverty level for relevant dates from 2001-2006 = $ 50,116.75

Total adjusted for income received: $ 50,116.75 - $ 41,795.54 = $ 8,321.21

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n8 At the final hearing, plaintiff testified that she worked for the Florida Times-Union for more than three years and that she had a part-time job at a rate of $ 7. It appears that this figure of $ 371, as provided on a 2002 pay stub, supports plaintiff's testimony. [*19]



n9 In plaintiff's motion for summary judgment (Doc. 43 ), plaintiff asserted that she had a job from 2001-2004 in which she calculated earnings at $ 11,088.00 per year. (Id. at 4.)


n10 Neither party has provided evidence as to any income or benefits plaintiff received in 2005 or in the 2006 year-to-date.


n11 There is limited evidence that plaintiff received food stamps during the period after the parties' divorce. However, there is no direct evidence as to the value of the food stamps. As such, the Court cannot determine the amount of set-off from any food stamps.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -



III. Conclusion

Based upon the above figures, defendant owes plaintiff $ 8,321.21 for past support accumulated between the date of the divorce and April 26, 2006. Judgment will be entered against defendant in that amount. Defendant's obligation to sponsor plaintiff will continue until such time as the obligation expires by law. Under the language of 8 U.S.C. § 1183a, only the happening of one of the five outlined events will terminate defendant's obligation of support. n12 Thus, until [*20] one of the events transpires, defendant must continue to maintain plaintiff at 125% of the current federal poverty level.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n12 While the Court recognizes that plaintiff has worked some, there is no requirement that plaintiff continue to work or that she obtain 40 qualifying quarters to relieve defendant of his obligation. See 8 U.S.C. § 1183a; Doc. 1 at 4-9, Form I-864.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

At the final hearing, defendant testified that at his present income level, he does not have adequate financial resources to pay his support obligations to plaintiff. Although the Court finds some evidence of defendant's inability to pay plaintiff under this judgment, the issue of whether defendant can pay is irrelevant to the issue of defendant's liability. The judgment is against defendant; however, it is up to plaintiff to use lawful methods to try to collect the judgment. n13

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n13 By signing the affidavit of support, defendant "acknowledge[d] that [] plaintiff may seek specific performance of [the] support obligation." (Doc. 1 at 9, Affidavit of Support Form I-864 at 6.) The terms of Form I-864 provide that "any money judgment against [a sponsor] based on this affidavit of support may be collected through the use of a judgment lien under 28 U.S.C. 3201, a writ of execution under 28 U.S.C. 3203, a judicial installment payment order under 28 U.S.C. 3204, garnishment under 28 U.S.C. 3205, or through the use of any corresponding remedy under State law." (Doc. 1 at 9, Affidavit of Support Form I-864 at 6.) A sponsor "may also be held liable for costs of collection, including attorney's fees." (Doc. 1 at 9, Affidavit of Support Form I-864 at 6.) Because plaintiff represented herself, there are no attorney's fees.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

[*21]

Accordingly, it is hereby

ORDERED:

1. The Clerk is directed to enter judgment in favor of plaintiff, Maria Cheshire, and against defendant, Walter Cheshire, in the amount of $ 8,321.21, nunc pro tunc to April 26, 2006. Defendant's future obligation to support plaintiff at 125% of the then existing federal poverty guidelines shall continue until such time as the obligation expires by law. 8 U.S.C. § 1183a(a)(2), (3); 8 C.F.R. § 213a.2(e).

2. Defendant's Motion to Strike Plaintiff's March 27, 2006 Miscellaneous Motion (Doc. 58) is GRANTED because plaintiff's motion was an unauthorized post-hearing submission. Plaintiff's Miscellaneous Motion (Doc. 57) is hereby STRICKEN and removed from the files of the Court. The Court directs the Clerk to return plaintiff's Miscellaneous Motion and attached exhibits to her.

DONE AND ORDERED at Jacksonville, Florida this 4th day of May, 2006, nunc pro tunc to April 26, 2006.

TIMOTHY J. CORRIGAN

United States District Judge

SCHWARTZ v. SCHWARTZ - I-864 Affidavit of Support in Bankruptcy Proceeding/Rooker-Feldman/Divorce

FOR PUBLICATION
UNITED STATES BANKRUPTCY APPELLATE PANEL
FOR THE FIRST CIRCUIT
_______________________________
BAP NO. MB 08-001
_________________________________
Bankruptcy Case No. 06-13696 WCH
Adversary Proceeding No. 07-01016 WCH
_________________________________
STEVEN SHEA SCHWARTZ,
Debtor.
________________________________
MICHAL SAIDON SCHWARTZ,
Plaintiff-Appellant,
v.
STEVEN SHEA SCHWARTZ,
Defendant-Appellee.
_______________________________
Appeal from the United States Bankruptcy Court
for the District of Massachusetts
(Hon. William C. Hillman, U.S. Bankruptcy Judge)
_______________________________
Before
Haines, Votolato and Tester,
United States Bankruptcy Appellate Panel Judges.
_______________________________
Michal Saidon Schwartz, pro se, on brief for Plaintiff-Appellant.
Jacob A. Esher, Esq., on brief for Defendant-Appellee.
_________________________________
August 26, 2008
_________________________________
The bankruptcy court’s decision is reported at Schwartz 1 v. Schwartz (In re Schwartz),
376 B.R. 364 (Bankr. D. Mass. 2007).
2 The requirement for such an affidavit is set forth in 8 U.S.C. § 1182(a)(4)(c) and § 1183a.
2
Tester, U.S. Bankruptcy Appellate Panel Judge.
INTRODUCTION
The appellee, Steven Shea Schwartz (“Appellee”), is a Chapter 7 debtor. In January,
2007, Michal Saidon Schwartz (the “Appellant”) commenced an adversary proceeding against the Appellee seeking a determination that (1) the Appellee is liable to her under the terms of a Form I-864 “Affidavit of Support Under § 213A of the Immigration and Nationality Act,” and
(2) the alleged liability is nondischargeable as a domestic support obligation under the U.S. Bankruptcy Code. On October 18, 2007, the bankruptcy court entered an order dismissing the adversary complaint for lack of subject matter jurisdiction under the Rooker-Feldman doctrine.1
The bankruptcy court also denied the Appellant’s subsequent motions for reconsideration. The Appellant appealed. For the reasons discussed below, we AFFIRM.

BACKGROUND

The relevant facts are not in dispute. The Appellant, who was a citizen of Israel, and the Appellee were married in 1996. In order to obtain permanent resident status for the Appellant, the Appellee filed a Form I-864 Affidavit of Support (“Affidavit of Support”) with the Immigration and Naturalization Service.2 The Affidavit of Support provided:
I submit this affidavit in consideration of the sponsored immigrant(s) not being found inadmissible to the United States under section 212(a)(4)(C) . . . and to enable the sponsored immigrant(s) to overcome this ground of inadmissibility. I agree to provide the sponsored immigrant(s) whatever support is necessary
to maintain the sponsored immigrant(s) at an income that is at least
3
125 percent of the Federal poverty guidelines. 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.
The Appellant was granted permanent resident status in June, 2001. None of the terminating conditions set forth in the Affidavit of Support have occurred.
On January 6, 2003, the Appellee filed for divorce from the Appellant in the Oklahoma
District Court for Payne County (“Oklahoma State Court”). On December 18, 2003, the
Oklahoma State Court issued a Decree of Divorce allocating the assets and liabilities of the parties. The Decree of Divorce specifically provided that:
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that [Appellee’s] obligation to support the [Appellant] shall terminate as of 12:00 noon on June 1, 2004, and from and after such time and date [Appellee] shall have no further obligation to provide any
support whatsoever to [Appellant].
The Decree of Divorce did not specifically identify or address the Affidavit of Support or the status of the Appellee’s obligations thereunder.
In June, 2004, the Appellant brought suit against the Appellee in the United States
District Court for the Western District of Oklahoma seeking specific performance of the Affidavit of Support and damages in the amount of past due support. The Appellee moved to dismiss on the grounds that the Appellant had not yet received any means-tested public benefits, the Affidavit of Support was not a legally binding contract, and the Decree of Divorce terminated his obligations under the Affidavit of Support as of June 1, 2004. The district court denied the motion to dismiss, concluding that the Appellant could maintain the action regardless of whether she had obtained any benefits, the Affidavit of Support was an enforceable contract, and the
That same month, the Appellant also filed a motion with the 3 Oklahoma State Court seeking to modify the Decree of Divorce “in accordance with the Affidavit.” The state court docket reflects numerous continuances of a hearing on the motion, with the last entry setting the matter for hearing on November 15, 2007. There are no further docket entries regarding the status or disposition of that
motion; however, the Appellant has suggested that the state court was awaiting the outcome of the adversary proceeding.
4
Decree of Divorce did not automatically terminate the Appellee’s obligations under the Affidavit of Support. Thereafter, the Appellant filed a motion for partial summary judgment. The Appellee did not file a response; instead, he filed his Chapter 7 petition in October, 2006. Due to the bankruptcy filing, the district court proceeding was “administratively closed” without prejudice to the rights of the parties to reopen the proceeding for good cause after termination of the bankruptcy proceeding.
In January, 2007, the Appellant commenced an adversary proceeding seeking a
determination that the Appellee is liable to her pursuant to the Affidavit of Support, and that the alleged liability is nondischargeable as a domestic support obligation under the terms of the Bankruptcy Code.3 The Appellant moved for partial summary judgment on the issue of the Appellee’s liability under the Affidavit of Support, with damages to be determined at a later hearing.
The Appellee opposed the summary judgment motion and requested that judgment be
entered in his favor. In his opposition, the Appellee argued that his support obligations to the Appellant terminated on June 1, 2004, in accordance with the terms of the Decree of Divorce, and that the Appellant’s claims against him are barred by the doctrine of “claims preclusion” because they had been “conclusively adjudicated by the State Court.” He also argued that any
5
liability under the Affidavit of Support would not constitute a domestic support obligation under 11 U.S.C. § 101(14A) and, therefore, would be dischargeable.
The bankruptcy court held a hearing on August 15, 2007, and took the matter under
advisement. On October 18, 2007, the bankruptcy court entered an order dismissing the
adversary proceeding for lack of subject matter jurisdiction under the Rooker-Feldman doctrine (“Dismissal Order”). In its Memorandum Decision, the bankruptcy court stated:
In the facts before me, it is clear that the Affidavit was submitted to the divorce court. The Decree of Divorce does not specify the reasoning behind its support order. The Plaintiff here seeks an order declaring the Affidavit to be a domestic support obligation and any claims arising thereunder to be nondischargeable. She is, in essence, seeking review of the Decree of Divorce. Under the Rooker-Feldman doctrine, I lack jurisdiction to review the Decree of Divorce.
Thereafter, the Appellant filed multiple motions, including a motion for reconsideration on October 29, 2007, and an amended motion for reconsideration on November 27, 2007. The Appellee opposed both motions. On December 5, 2007, the bankruptcy court issued an endorsement order denying the motion for reconsideration for failure to bring forth “newly discovered evidence.” The bankruptcy court also issued an endorsement order denying the amended motion for reconsideration as “moot.”
The Appellant filed a Notice of Appeal from “the judgment, order, or decree of the
bankruptcy judge . . . entered in this proceeding . . . on the 18th day of October, 2007, and 5th of December, 2007.” Because there are multiple orders dated December 5, 2007 (and “entered” on December 6, 2007), the Appellee questions which orders are properly part of this appeal. However, reading the Notice of Appeal in conjunction with the Appellant’s Statement of Issues, we conclude that there are three orders to review on appeal: (1) the October 18, 2007 Dismissal
6
Order; (2) the December 5, 2007 order denying the Appellant’s motion for reconsideration; and (3) the December 5, 2007 order denying the Appellant’s amended motion for reconsideration.

JURISDICTION

As a preliminary matter, a bankruptcy appellate panel is duty-bound to determine its
jurisdiction before proceeding to the merits. See In re George E. Bumpus, Jr. Constr. Co., 226 B.R. 724 (B.A.P. 1st Cir. 1998). A bankruptcy appellate panel may hear appeals from “final judgments, orders and decrees [pursuant to 28 U.S.C. § 158(a)(1)] or with leave of the court, from interlocutory orders and decrees [pursuant to 28 U.S.C. § 158(a)(3)].” Fleet Data Processing Corp. v. Branch (In re Bank of New England Corp.), 218 B.R. 643, 645 (B.A.P. 1st Cir. 1998). “A decision is final if it ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’” Id. at 646 (citations omitted). The bankruptcy court’s order dismissing the Appellant’s adversary complaint for lack of
subject matter jurisdiction is a final order. See Mills v. Harmon Law Offices, P.C., 344 F.3d 42 (1st Cir. 2003) (reviewing district court’s dismissal of case for lack of subject matter jurisdiction under Rooker-Feldman doctrine). In addition, the orders denying the Appellant’s motion to reconsider and amended motion to reconsider are also final, appealable orders. See Eresian v. Koza (In re Koza), 375 B.R. 711, 717 (B.A.P. 1st Cir. 2007) (citations omitted); Camacho v. Doral Fin. Corp. (In re Camacho), 361 B.R. 294, 298 (B.A.P. 1st Cir. 2007) (explaining that an
order denying reconsideration is appealable if the underlying order was final and, if together, the order denying reconsideration and the underlying order end the litigation on the merits).
7

STANDARD OF REVIEW

The Panel generally reviews findings of fact for clear error and conclusions of law de novo. See TI Fed. Credit Union v. DelBonis, 72 F.3d 921, 928 (1st Cir. 1995); Western Auto Supply Co. v. Savage Arms, Inc. (In re Savage Indus., Inc.), 43 F.3d 714, 719 n.8 (1st Cir. 1994).
Generally, a court’s order dismissing a complaint for lack of subject matter jurisdiction is subject to de novo review. See Davis v. United States, 499 F.3d 590, 593 (6th Cir. 2007). A bankruptcy court’s order denying a motion for reconsideration of a previous judgment is reviewed for abuse of discretion. See Koza, 375 B.R. at 727 (citing Mariani-Giron v. Acevedo-Ruiz, 945 F.2d 1, 3 (1st Cir. 1991)). A bankruptcy court abuses its discretion if it ignores a material factor deserving
of significant weight, relies upon an improper factor, or makes a serious mistake in weighing proper factors. See id. (citations omitted).

DISCUSSION

I. The Affidavit of Support
Under the express terms of the Affidavit of Support, the Appellee, by signing the form, obligated himself to provide the Appellant “whatever support is necessary to maintain [her] at an income that is at least 125 percent of the Federal poverty guidelines.” Federal courts in many jurisdictions have held that a Form I-864 Affidavit of Support constitutes a legally binding and enforceable contract between a sponsor and the sponsored immigrant. See Shumye v. Felleke, 555 F. Supp. 2d 1020 (N.D. Cal. 2008); Cheshire v. Cheshire, 2006 WL 1208010, at *3 (M.D. Fla. May 4, 2006); Stump v. Stump, 2005 WL 1290658, at *6 (N.D. Ind. May 27, 2005); Ainsworth v. Ainsworth, 2004 WL 5219037, at *1 (M.D. La. May 27, 2004). In addition, the
8
statute expressly permits the sponsored immigrant to bring an action for enforcement of the Affidavit of Support in any federal or state court. See 8 U.S.C. § 1183a(a)(1)(B). A sponsor’s obligation under the Affidavit of Support terminates only if one of five conditions is met: (1) the sponsor dies, (2) the sponsored immigrant dies, (3) the sponsored immigrant becomes a U.S. citizen, (4) the sponsored immigrant permanently departs the U.S., or (5) the sponsored immigrant is credited with 40 qualifying quarters of work. See 8 U.S.C. §1183a(a)(2). Divorce is not listed as an event that terminates the sponsor’s obligations under the Affidavit of Support. Consequently, federal courts have held that a spouse sponsoring an immigrant spouse can be financially liable under the Affidavit of Support even after divorce. See
Shumye v. Felleke, 2008 WL 930781, at *2; Cheshire, 2006 WL 1208010, at *5; Ainsworth, 2004 WL 5219037, at *6.
It appears from the record before us that none of the terminating conditions set forth in the Affidavit of Support have occurred and the divorce itself did not automatically terminate the Appellee’s obligations under the Affidavit of Support. See id. Accordingly, the Appellant argues that the Appellee remains obligated under the Affidavit of Support to support her despite the divorce. Moreover, the Appellant argues that the Affidavit of Support was not adjudicated as part of the divorce proceedings and, therefore, that the bankruptcy court erred in concluding that
it lacked subject matter jurisdiction over her claims under the Rooker-Feldman doctrine.
The Appellee does not dispute that the Affidavit of Support was validly executed or that the Appellant, as the sponsored immigrant, had standing to enforce his support obligations.
Rather, he argues that all support obligations, including his obligations under the Affidavit of Support, terminated on June 1, 2004, pursuant to the express terms of the Decree of Divorce.
The doctrin 4 e is derived from two Supreme Court decisions: Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). Rooker held that federal statutory jurisdiction over direct appeals from state courts lies exclusively in the U.S.
Supreme Court and is beyond the original jurisdiction of federal district courts. See 263 U.S. at 415-16. Feldman held that this jurisdictional bar extends to particular claims that are “inextricably intertwined” with those a state court has already decided. See 460 U.S. at 486-87.
9
Moreover, the Appellee argues that because the Affidavit of Support was adjudicated as part of the divorce proceedings, the bankruptcy court correctly determined that it lacked subject matter jurisdiction over the Appellant’s claims under the Rooker-Feldman doctrine.

II. Subject Matter Jurisdiction

A. Rooker-Feldman Doctrine
The Rooker-Feldman doctrine4 prohibits lower federal courts, including bankruptcy
courts, from reviewing final state court judgments. See New Eng. Power & Marine, Inc. v. Town of Tyngsborough (In re Middlesex Power Equip. & Marine, Inc.), 292 F.3d 61 (1st Cir. 2002); see also Heghmann v. Indorf (In re Heghmann), 316 B.R. 395, 403 (B.A.P. 1st Cir. 2004); In re Zambre, 306 B.R. 428 (Bankr. D. Mass. 2004); Gomes v. Limieux (In re Limieux), 306 B.R. 433, 442 (Bankr. D. Mass. 2004); Xytest Corp. v. Mitchell (In re Mitchell), 255 B.R. 97, 106(Bankr. D. Mass. 2000); Halvorsen v. Mendez (In re Mendez), 246 B.R. 141, 145 (Bankr. D.P.R. 2000). Courts in the First Circuit interpreting the doctrine have held that it forecloses lower federal court jurisdiction where the issues in the case are “inextricably intertwined” with
questions previously adjudicated by a state court. See Mills, 344 F.3d at 44 (citing Hill v. Town of Conway, 193 F.3d 33, 39 (1st Cir. 1999)); Sheehan v. Marr, 207 F.3d 35, 39-40 (1st Cir. 2000); Mendez, 246 B.R. at 145 (bankruptcy court may not exercise jurisdiction over dispute “if, by so doing, it would be granting federal review of a state court determination or of an issue that
10
is ‘inextricably intertwined’ with a state court judgment.”). A federal claim is “inextricably intertwined” with state court claims “if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it.” Sheehan, 207 F.3d at 40 (citing Hill v. Town of Conway, 193 F.3d at 39). Therefore, the Rooker-Feldman doctrine precludes a federal action if the relief requested in the federal action “would effectively reverse the state court decision or
void its holding.” Mendez, 246 B.R. at 146 (quoting Snider v. City of Excelsior Springs, Mo., 154 F.3d 809, 811-12 (8th Cir. 1998)).
Concerned that some lower courts were construing the doctrine too broadly and that it
was beginning to evolve beyond the scope originally intended, the U.S. Supreme Court
reemphasized the narrow scope of the Rooker-Feldman doctrine in Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283-84 (2005) (discussing the broad scope applied in Moccio v. N.Y. State Office of Court Admin., 95 F.3d 195, 199-200 (2d Cir. 1996)). In Exxon Mobil, the Supreme Court declared that the Rooker-Feldman doctrine “should be confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Id.
at 284. The Exxon Mobil Court also held that the doctrine “does not otherwise override or supplant preclusion doctrine or augment the circumscribed doctrines that allow federal courts to stay or dismiss proceedings in deference to state-court actions.” Id.
Attempting to clarify the limited scope of the Rooker-Feldman doctrine after Exxon
Mobil, the Second Circuit set forth a four-part test for federal courts to apply when determining whether Rooker-Feldman deprives them of subject matter jurisdiction. See Hoblock v. Albany
11
County Bd. of Elections, 422 F.3d 77, 85 (2d Cir. 2005). Hoblock holds that Rooker-Feldman applies only if four conditions are met:
1. the federal-court plaintiff must have lost in state court;
2. the plaintiff must complain of injuries caused by a state-court judgment;
3. the plaintiff must invite district court review and rejection of that judgment; and
4. the state-court judgment must have been rendered before the district court proceedings commenced -- i.e., Rooker-Feldman has no application to federal-court suits proceeding in parallel with ongoing state-court litigation.
Id.
Moreover, Hoblock instructs that if the requirements outlined in Exxon Mobil are met,
then the claim asserted in federal court is “inextricably intertwined” with the claim raised in state court; if, however, the Exxon Mobil requirements are not met, the plaintiff must be said to have raised an “independent claim” in federal court. See McKithen v. Brown, 481 F.3d 89, 96 n.7 (2d Cir. 2007) (interpreting Hoblock and Exxon Mobil).

B. Rooker-Feldman and State Divorce Decrees

A number of courts have held that the Rooker-Feldman doctrine, as refined by Exxon
Mobil, bars federal court review of final state divorce decrees. See, e.g., Colassi v. Looper, 2008 WL 2115160, at *3 (D.N.H. May 20, 2008) (dismissing plaintiff’s challenge to the divorce decree for lack of subject matter jurisdiction under Rooker-Feldman); Jackson v. Davidson, 272 Fed. Appx. 722 (10th Cir. 2008); Davis v. United States, 499 F.3d 590, 595 (6th Cir. 2007); Kwasnik v. LeBlon, 228 Fed. Appx. 238, 242 (3d Cir. 2007). In determining that it lacked subject matter jurisdiction in this case, the bankruptcy court relied primarily on the Sixth Circuit’s decision in Davis v. United States, 499 F.3d 590.
12
In Davis, the husband executed an Form I-864 Affidavit of Support on behalf of his wife and her two teenaged sons. The husband filed for divorce a year later, and the wife counterfiled for legal separation. The trial court granted the petition for legal separation and awarded her $830 in monthly spousal support for eight years, but declined to specifically enforce the Affidavit of Support. She appealed and the state appellate court remanded the matter back to the trial court with instructions to enforce the Affidavit of Support. Id. at 592. On remand, the trial court
ordered the husband to pay the wife $900 per month for a period of ten years, without explaining how it arrived at that amount. Id. The husband then filed suit in federal district court seeking to clarify his obligations under the Affidavit of Support. Id. at 592-93. The district court dismissed the case for lack of subject matter jurisdiction. Id. at 593.
On appeal, the husband argued that there was subject matter jurisdiction because his
complaint sought an interpretation of federal law rather than domestic relations law. Id. at 595. The court of appeals disagreed, stating that the husband was, in fact, seeking “federal review of a state court’s order enforcing the Affidavit of Support in his divorce case. His questions about the calculation of the support level are properly directed to the state court that ordered enforcement
of the Affidavit of Support, not to a federal court.” Id. In so holding, the court of appeals stated:
Moreover, § 1183a authorizes exactly the kind of support order that the Ohio court issued in this case as a means of enforcing the Affidavit of Support. “Remedies available to enforce an affidavit of support . . . include an order for specific performance . . . and include corresponding remedies available under State law.” 8 U.S.C. § 1183a(c). Specific performance of the Affidavit as ordered by the Ohio Court of Appeals is thus explicitly permitted under the statute. We therefore conclude that the district court did not err when it dismissed Davis’s complaint for the lack of subject matter jurisdiction.
13
Id. at 594-95.
Relying on Davis, the bankruptcy court concluded that it lacked subject matter
jurisdiction over the Appellant’s claims under Rooker-Feldman since it was “clear that the Affidavit was submitted to the divorce court.” On the record before us, it is unclear whether the Affidavit was submitted in the divorce proceedings or whether the Oklahoma State Court intended to encompass the Appellant’s claims under the Affidavit of Support when it adjudicated the assets and liabilities of the parties in the Decree of Divorce. The Oklahoma State Court did not set forth the rationale behind its decision in the Decree of Divorce, and the parties dispute whether the Affidavit of Support was submitted as evidence. But if, in fact, the Affidavit of
Support was submitted in the divorce proceedings, the bankruptcy court lacked subject matter jurisdiction over the Appellant’s claims under the Rooker-Feldman doctrine. Moreover, even if the Appellant did not submit the Affidavit of Support in the divorce proceedings, the end result is the same because the Appellant’s claims were still barred by the doctrine of res judicata.

III. Res Judicata

The doctrine of res judicata prohibits all parties and their privies from relitigating issues which were raised or could have been raised in a previous action, once a court has entered a final judgment on the merits in the previous action. See FDIC v. Shearson-Amer. Express, Inc., 996 F.2d 493, 497 (1st Cir. 1993) (citations omitted). The res judicata doctrine is generally used to refer to claim preclusion. See Grella v. Salem Five Cent Sav. Bank, 42 F.3d 26, 30-31 (1st Cir.
1994) (citing Dennis v. Rhode Island Hosp. Trust Nat’l Bank, 744 F.2d 893, 898 (1st Cir. 1984)).
The essential elements of res judicata are: (1) a final judgment on the merits in an earlier action; (2) an identity of parties or privies in the two suits; and (3) an identity of the cause of action in
14
both suits. Id. (citing Aunyx Corp. v. Canon U.S.A., Inc., 978 F.2d 3, 6 (1st Cir. 1992)). Once these elements are established, the parties are barred not only from relitigating previously disputed matters, but also from introducing any related matters that could have been offered in the original action. See id. (citing Dennis, 744 F.2d at 898). All of the elements of res judicata are present here. First, the Decree of Divorce is a final state court judgment in a proceeding between the Appellant and Appellee. Under Oklahoma law, “the adjudication of any issue” in a divorce case is “enforceable when pronounced by the court,” see Okla. Stat. tit. 12, § 696.2(E), and a divorce is final at the date of rendition where there has not been an appeal from the status determination of divorce. See Whitmire v. Whitmire, 78 P.3d
556 (Okla. Civ. App. 2003) (citing Okla. Stat. tit. 43, § 127 (1991)). In this case, neither party appealed the Decree of Divorce in this case, and, therefore, the Decree of Divorce is a final state court judgment.
In addition, there is an identity of the cause of action in both proceedings. The divorce proceedings clearly involved the Appellant’s claims for support from the Appellee. As Davis demonstrates, a party’s support claims under an Affidavit of Support can be adjudicated as part of a party’s claims for support in a divorce proceeding. Although it is unclear whether the Appellant actually submitted the Affidavit of Support in the divorce proceedings, she clearly could have done so. Therefore, since the Appellant could have pursued her support claims under
the Affidavit of Support in the divorce proceedings, she is barred from pursuing those claims in the Appellee’s bankruptcy case under the doctrine of res judicata.
5 To be considered under Rule 59(e), the motion for reconsideration must be filed within ten days of the order appealed from or, if (as here) the tenth day is a weekend day or federal holiday, then on the next day that is not a weekend day or federal holiday. See Fed. R. Bankr. P. 9006(a).
15

IV. Motions for Reconsideration

Although the Appellant asked the bankruptcy court for reconsideration in her motions, it is a well-settled policy in this circuit that a motion which asks the trial court to a modify its earlier disposition of a case is properly treated as a motion to alter or amend the judgment under Rule 59(e) (made applicable by Fed. R. Bankr. P. 9023), or as a motion for relief from judgment under Fed. R. Civ. P. 60 (made applicable by Fed. R. Bankr. P. 9024). See Aguiar v. Interbay Funding, LLC (In re Aguiar), 311 B.R. 129, 135 n.9 (B.A.P. 1st Cir. 2004) (citations omitted).
Because the Appellant’s motion for reconsideration was filed within ten days after entry of the bankruptcy court’s Dismissal Order, it was properly treated as a motion for relief from judgment under Rule 59(e).5 See Appeal of Sun Pipe Line Co., 831 F.2d 22, 24 (1st Cir. 1987); see also Aybar v. Crispin-Reyes, 118 F.3d 10, 14 n.3 (1st Cir. 1997) (regardless of how it is characterized, post-judgment motion made within ten days of entry of judgment that questions correctness of judgment is properly construed under Rule 59(e)).
To meet the threshold requirements of a successful Rule 59(e) motion, the motion “must demonstrate the reason why the court should reconsider its prior decision and must set forth facts or law of a strongly convincing nature to induce the court to reverse its earlier decision.” Lopez Jimenez v. Pabon Rodriguez (In re Pabon Rodriguez), 233 B.R. 212, 219 (Bankr. D.P.R. 1999), aff’d, 17 Fed. Appx. 5 (1st Cir. 2001). In order to be successful on a Rule 59(e) motion, the moving party must establish a manifest error of law or fact or must present newly discovered evidence. Id.; see also Landrau-Romero v. Banco Popular De P.R., 212 F.3d 607, 612 (1st Cir.
16

2000). The moving party cannot use a Rule 59(e) motion to cure its procedural defects or to offer new evidence or raise arguments that could and should have been presented originally to the court. See Rodriguez, 233 B.R. at 219. Rule 59(e) motions are generally denied because of the narrow purpose for which they are intended. Id. at 220. As noted above, the Appellant was barred from pursuing her claims under the Affidavit of Support pursuant to either the Rooker-Feldman doctrine or the doctrine of res judicata.
Therefore, the bankruptcy court did not make a manifest error of law when it dismissed the adversary complaint. Moreover, the Appellant simply rehashed prior arguments and did not offer any “newly discovered evidence” warranting the relief requested in her motions for reconsideration. Therefore, we conclude that the bankruptcy court did not abuse its discretion in denying those motions.

CONCLUSION

For the reasons set forth above, we AFFIRM the bankruptcy court’s order dismissing the
adversary complaint, and the orders denying the Appellant’s motion for reconsideration and the
amended motion for reconsideration.