In a move that can only be described as OMG, the Court of Appeal 4th district division two has chosen to ignore a mandatory law.
The background of this case is that the Department of child support initiated a case when one parent moved the children to San Bernardino county and placed the children on welfare. There is a major problem with this little scenario as that parent has a drug manufacturing felony and is prohibited from obtaining welfare under the Calworks program pursuant to CAL. WIC. CODE § 11251.3, which the Department is fully aware of.
The other problem is that the San Bernardino Superior Court relied on the Riverside Superior court mediator’s recommendation as the basis of its order, which is void as there was no agreement in writing or at the hearing pursuant to evidence code section 1118-1121 and cannot be used as evidence in any proceeding under evidence code section 1119.
So the Department of child support initiated a case against the other parent who is an immigrant and had obtained a preliminary injunction against the parent who is a party to the child support case to pay a support order as he signed a contract pursuant to 8 U.S.C.A. § 1183a(a)(1)(A), which states “Once a sponsor files an Affidavit of Support, the sponsor agrees to support the sponsored immigrant at an annual rate of “not less than 125 percent of the Federal poverty line ” .
The affidavit of support is a mandatory requirement if an adjustment of status occurs, when certain conditions exist to prohibit the sponsored alien from becoming a public charge on the welfare system, and requires a minimum support to prevent that said immigrant becomes a public welfare charge.
The irony is that to be eligible for welfare assistance in the State of California the maximum income considered to be eligible for welfare is 130 percent of the Federal poverty guideline.
The department of child support in the County of San Bernardino Child support court proceeded with a case against a sponsored immigrant in the full knowledge that she is unable to obtain welfare assistance as she cannot be a public charge and in order to lower her support income to considerably beneath the poverty line. The Attorney General’s office was involved just to ensure that the department of child support has the ability to create deportable offenses against the lowly immigrant who does not have the same rights as US citizens who obtains spousal support when they so helpfully pointed out in their Respondent’s brief: ” The federal immigration and nationality act forbids admission to the United States of any alien who ‘is likely to become a public charge”.
Justice Richli who has a history of striking down laws as demonstrated here http://www.morongobasinombudsman.com/courts/jurists/betty-ann-richli/presumed-correct.html repeated verbatim what the Department of child support put in their brief: ” The federal immigration and nationality act forbids admission to the United States of any alien who ‘is likely to become a public charge’,” in effect recognizing the harmful impact of her opinion.
Justice Richli in her opinion even went one step further and inferred the concept that spousal support should perhaps be attached and should not be considered exempt income for child support cases despite precedent cases, such as In re Marriage of Corman 1997 59 Cal. App. 4Th 1492, and declined to consider the sponsorship affidavit income as spousal support although numerous precedent cases have cited that this income is considered in lieu of or as spousal support and can only be obtained by a spouse or ex spouse who enforces the affidavit of support. Love v. Love, 33 A.3d 1268 (Pa. Super. Ct. 2011) (The Pennsylvania Superior Court Upholds Federal Immigration Law in Spousal Support Matters); Cheshire v. Cheshire, 2006 WL 1208010 (M.D. Fla. 2006) (divorce does not invalidate affidavit of support); Iannuzzelli v. Lovett, 981 So. 2d 557 (Fla. Dist. Ct. App. 2008) (enforceability of affidavit of support survives divorce); Stump v. Stump, 2005 WL 1290658 (N.D. Ind. 2005) (former wife was entitled to enforce affidavit of support against former husband; wife was not required to receive means-tested benefits as a prerequisite to enforcement); Shumye v. Felleke, 555 F. Supp. 2d 1020 (N.D. Cal. 2008) (divorce does not terminate affidavit of support; affidavit may be enforced by immigrant wife); Younis v. Farooqi, 597 F. Supp. 2d 552 (D. Md. 2009) (divorce is not a condition under which sponsor’s obligations arising from affidavit of support can be terminated); In re Marriage of Sandhu, 207 P.3d 1067 (Kan. Ct. App. 2009). Justice Richli also somehow invented two contracts when only one exists.
Discrimination does not describe the concept that Justice Richli has created, which affects millions of immigrants who are subject to a mandatory sponsorship affidavit. She has created a concept that is prohibited by Federal law, State law and contract law in order to ensure that the County of San Bernardino could proceed in action to create illegal deportable offenses, when the parent who is collecting welfare is prohibited from doing so under state law.
The ACLU has expressed a possible interest in becoming involved.