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In Buttany v. Barrackas, 2019 U.S. Dist. LEXIS 190261, *5-6 (E.D. Cal., Nov. 1, 2019), the court concluded that a mother suing on behalf of her minor children, beneficiaries of an I-864, could not assert a breach of contract claim pursuant to the I-864, pro se. (“To the extent that plaintiff may be attempting to set forth a claim for breach of an affidavit of support pursuant to 8 C.F.R. § 213a.2, plaintiff cannot do so as a pro se plaintiff on behalf of minor children.”). This result is somewhat surprising, as parents may often bring claims as a “next friend” for their minor children. It is a good idea not to reach much into the case holding, however, as the litigant was pro se and the Court likely had little briefing before it.

In Anderson v. Anderson, 2019 U.S. Dist. LEXIS 193910 (W.D. Wash., Nov. 4, 2019), following Anderson v. United States, 2017 U.S. Dist. LEXIS 211102 (W.D. Wash., Dec. 22, 2017), the U.S. District Court for the Western District of Washington addressed two main principles of I-864 jurisprudence. First, the decision elaborated upon the definition of “income” as used to evaluate whether a claimant’s income falls below the I-864 federal poverty level. Second, the court clarified that obligations imposed by the I-864 Affidavit are continuing and are not terminated as a result of the parties’ separation or divorce.

Additional notes to be considered in this case are that the court analyzed the plaintiff’s income in relation to 100% of the federal poverty level as opposed to the typical 125% level, and the case is currently pending appeal.

What counts as “income”?

First, the Court explained that “‘[i]ncome,’ for purposes of determining how much support defendant must provide to maintain plaintiff’s income at the federal poverty level, includes not only wages and cash payments to plaintiff, but also property, services, gifts, or educational grants received by plaintiff (unless she paid fair market value for those items).” The Court further indicated that “[i]ncome” also includes constructively-received income.” The Court cautioned that “[i]ncome does not, however, include any loans that the plaintiff will have to pay back, such as cash advances on a credit card or student loans.”

In my opinion, Anderson takes an overly broad view of what qualifies as “income” for the purpose of calculating I-864 damages. The statute and implementing regulations gauge income in relation to taxable federal income. Courts taking a view like the one in Anderson have credited I-864 plaintiffs with things such as the fair market rental value of a home they are living. That is far broader a view of income than is supported by the statute.

Former Spouse’s I-864 Obligations.

Second, the court distinguished a former spouse’s obligations for spousal support (i.e., alimony) as a completely different issue from support a former spouse would be entitled to pursuant to an I-864. For example, the court took special care to emphasize that I-864 obligations continue subject only to specific statutorily created termination events. (Noting that “[t]he I-864 might not be enforceable only if the plaintiff:

(A) becomes a U.S. citizen; (B) has worked, or can receive credit for, 40 quarters of coverage under the Social Security Act; (C) no longer has lawful permanent resident status and has departed the United States; (D) is subject to removal but applies for and obtains, in removal proceedings, a new grant of adjustment of status based on a new affidavit of support if one is required; or (E) dies. Future support obligations also end if defendant dies.”

Lower Federal Poverty Level.

Last, it is important to note that in this Decision, the court analyzed the plaintiff’s claim under a federal poverty level of 100% as opposed to 125%. This is because, although “[t]he support obligation under and I-864 is generally 125% of the federal poverty guidelines, [it] drops to 100% if the sponsor is on active duty in the U.S. Armed Forces and married to the intending immigrant,” which was the case in Anderson.

What will the 9th Circuit decide upon appeal?

This case has been appealed to the 9th Circuit Court of Appeals, the appeal of which is still pending. It appears the Plaintiff has the upper hand if we look at the court’s subsequent Order. In a December 12, 2019 Order from the Court Granting Plaintiff Payment Arrangements, See 2019 U.S. Dist. LEXIS 214498 (December 12, 2019), the court appeared to notice that the plaintiff has a good claim for I-864 enforcement:

Although plaintiff has not specified which discovery, evidentiary, and/or legal rulings she intends to contest on appeal, many of the issues involved in this case were reasonably debatable. Having reviewed the record in this matter, the Court finds that (a) plaintiff is currently proceeding in forma pauperis on appeal, (b) the appeal is not frivolous, (c) the appeal presents substantial questions, and (d) the two pretrial hearings held on April 30, 2019, and July 8, 2019, and the entire trial transcript (including arguments regarding jury instructions and the polling of the jury) are relevant to a full understanding of the decisions plaintiff has appealed. Id (finding jurisdiction appropriate on the ground that the plaintiff’s claim appeared viable.

In a recent ruling, the Ninth Circuit Court of Appeals has held that an I-864 defendant cannot avoid liability by claiming marriage fraud. The decision follows the view that I-864 obligations end only after one of the five terminating events defined by Congress.

Dorsaneo v. Dorsaneo arose in the federal district court for the Northern District of California (No. 3:17-cv-00765-VC). Our lawyers represented the Plaintiff, who was a beneficiary of a Form I-864 signed by the Defendant. The central theme of the Defendant’s case was that he was duped into marriage. He claimed that the Plaintiff lied to him about her background and that he would not have married her if he had known the truth about her background.

In standard contract defenses, it can be a defense to liability if someone entered into the contract due to fraud on behalf of the other party to the contract. If someone offers to install a new work on your house, you might be able to back out of the contract if it turns out the person lied about their experience installing roofs, and in fact, they have never done so before. In Dorsaneo, the Defendant argued that he should not be bound by the terms of the I-864 if his wife didn’t turn out to be the type of person he thought she was.

Like the Defendant in Dorsaneo, most I-864 defendants try to raise the defense of fraud. This is no great surprise. After a marriage has fallen apart – to the extent that one former spouse is suing the other one for financial support – there are bad feelings on both sides. Defendants claim that they would never have married their former spouse if they had known who the person ‘really’ was. The same would probably be said by most unhappy couples who end up seeking a divorce.

But in Dorsaneo, the District Court held that these types of allegations are not a defense to liability under the Form I-864. By statute, Congress has clearly defined the five terminating events that end a sponsor’s liability. In short, the sponsor remains liable so long as the I-864 beneficiary remains in the United States until she has worked 40 quarters or becomes a citizen. The entire purpose of the Form I-864 is to make a sponsor responsible for the immigrant’s wellbeing during this sponsorship period. It would undermine that purpose of the sponsor could back out of the contract if, in hindsight, he regretted entering into marriage.

On appeal, the Ninth Circuit agreed with the District Court.

In an unpublished decision (download here) the Ninth Circuit adopted the reasoning of the trial court.

[Defendant] pled and argues that his obligation should never have attached because [Plaintiff] made untruthful representations to him, and those induced him to marry her and sign the I-864 contract. However, nothing in the statutes, the regulations, or the I-864 contract so provides. On the contrary, as we have explained, the very purpose of the statutory scheme “is to prevent the admission to the United States of any alien who is likely at any time to become a public charge.” Erler, 824 F.3d at 1179 (internal quotation marks omitted); see also 8 U.S.C. §§ 1601(1)–(2), (5), 1182(a)(4)(A); H.R. Rep. No. 104-651, at 6, 1327 (1996), as reprinted in 1996 U.S.C.C.A.N. 2183, 2187, 2384. We went on to explain “that purpose is best served by interpreting the affidavit in a way that makes prospective sponsors more cautious about sponsoring immigrants.” Erler, 824 F.3d at 1179. [Defendant] was not sufficiently cautious.

The Court correctly focuses on why the Form I-864 exists. Congress created the I-864 to ensure that recent immigrants would not become dependant on American taxpayers for financial support. To serve that end, Congress imposed a very tough obligation on sponsors. No one is ever required to become a sponsor. But if someone chooses to accept that responsibility, the obligation remains until it concludes under the terms defined by Congress.

The practical result of Dorsaneo will be to limit the issues that a court may consider in I-864 enforcement cases. Dorsaneo stands for the proposition the defendants are not allowed to avoid liability based on any of the defenses typically available in contract litigation, such as unconscionability (the idea that a contract is too unfair to be enforceable). The only defense that a sponsor can raise, under Dorsaneo, is that the contractual obligations have terminated because one of the terminating events has occurred.

Dorsaneo reinforces the view the legal and factual issues in I-864 cases are limited. Typically a Form I-864 sponsor will have to concede that he signed the Form I-864, since denying that would be an act of perjury. After that, the focus of the case is assessing the Plaintiff’s income, and ascertaining how much support has been provided by the sponsor. After that, it is a matter of arithmetic to determine the judgment that should be entered against a sponsor.

It was already the case that virtually all I-864 enforcement cases resolved at the summary judgment stage, or earlier through negotiation. Dorsaneo puts Plaintiffs in an even stronger position to get their claims resolved quickly. Certainly that is the result that Congress intended: that sponsored immigrants have a practical way to enforce their rights rather than spend years trying to do so, as we had to do in Dorsaneo.

A review of all I-864 enforcement cases filed in the federal court system shows that most claimants go to court without a lawyer. Out of all publicly available cases, 54% of plaintiffs tried to represent themselves.

Self-representation – also called “pro se” or “in pro per” representation – is extremely challenging. Successfully representing yourself requires not only knowledge of federal law, but also the complex procedural rules of federal courts.

Our review of federal cases shows that I-864 plaintiffs are more than five times more likely to represent themselves than other civil plaintiffs. Studies show that approximately 10% of plaintiffs are self-represented in the federal courts. With 54% of plaintiffs self-represented in I-864 cases, these individuals are far more likely to have no legal assistance.

Why do I-864 plaintiffs have such a hard time finding lawyers? Although it is hard to know for sure, we believe there are two main factors.

1 – Subject matter expertise.

I-864 cases require a very uncommon combination of legal skills. First, the lawyer obviously needs to understand the law specific to the I-864. He or she needs to understand how a court will calculate the damages (money) that is due to a client. She also needs to know what does and does not qualify as a legitimate defense to liability. It is also very hard to do a good job in these cases without a good familiarity of U.S. immigration law generally.

Second, the lawyer has to understand how to prosecute a civil lawsuit. There are many strategic and procedural considerations to take into account.

The problem is that lots of law firms have knowledge of one of these areas, but not the other. Immigration lawyers may know immigration law backward and forward. But few immigration lawyers are experienced in adversarial civil litigation of this sort. Likewise, there are many general civil attorneys out there. But most of them have never even looked at the immigration statute in their professional lives.

So when most lawyers are approached in these cases, they simply don’t have the experience to take them on. Now, lawyers are sometimes willing to take the time to learn a new skill except that…

2 – Most lawyers don’t want to work for free.

If you have a legal claim under the Form I-864, by definition you don’t have much money. (Your income has to have dipped below 125% of the Federal Poverty Guidelines). If you don’t have any money, how are you going to pay for a lawyer?

The answer is what’s called a “contingency fee” – the lawyer gets paid from what he wins for you in the case. That is how lawyers work in areas such as personal injury. It is also how we work here at Immigration Support Advocates.

Pretend that you are a lawyer who does contract litigation. A recent immigrant comes in the door. She wants you to work for three months to a year. She can’t pay you. You’ve never heard of the immigration thing that she’s talking about. There has never even been one of these cases in your part of the country.

Would you take that case, or say “no thanks, I’d rather not work for a year unless I know I’m going to get paid.”

In order for a law firm to take a contingency case, it has to be very, very confident that it is going to win. Law firms simply can’t afford to do huge amounts of unpaid work – that’s not the way it works. When Immigration Support Advocates takes on a new case, that’s our vote as a team that we believe that we’ll win our client’s case. Defense lawyers get paid no matter how bad of a job they do. We get paid for results.

It is our guess that this second factor is the real reason that I-864 claimants often cannot find good lawyers. That’s why our law firm ends up working with clients all over the country – because no one else will take their case. (And hopefully because they think we are the best law firm in the country for this work).

Self-represented I-864 litigants run into serious barriers.

In another post, we will go into some of the specific legal problems that I-864 plaintiffs have faced in federal court.

A recent case shows the risk when immigrants raise the Form I-864 in the context of family law proceedings. Once again, a family law court has enforced the Form I-864… but only sort of.

Can we or can’t we raise the I-864 in divorce court?

The Form I-864 is required in all family immigration cases. That includes cases where the I-130 was filed by a parent, sibling or child. But it tends to be marriage-based cases where the immigrant ends up wanting to enforce her right to support. Very often, the issue comes up when the parties are in the process of getting divorced.

So, the question naturally comes up: “can you enforce the I-864 in divorce court?” Well, maybe.

Some states, like Washington, say no. Under the Marriage of Khan case, it is clear that a family court does not have to enforce the Form I-864 in a divorce case. But other states say yes. In California, the Marriage of Kumar case says that a judge should enforce the I-864 in family law cases.

In California, that seems to make the it clear. If you have a divorce case, and you are the beneficiary of the Form I-864, you should bring that into your divorce case, right? Not so fast.

The risk of under-enforcement.

Marriage of Miller is a recent (unpublished) California appeals case. Marriage of Miller, E067923 (Cal. 4th App. Div. 2, Jun. 11, 2019). There, a Ukranian immigrant used her divorce proceedings to ask for enforcement of a Form I-864 signed by her husband. The Court considered the Form I-864 and ordered payment of $1,480 per month. But only for a limited period of time.

The wife appealed. She argued – and I would have too – that the court made a mistake. The I-864 and federal law is very clear that the support obligation continues potentially forever. It ends only when one of five events occur, such as the death of the immigrant or that she s deported from the United States. For practical terms, it remains enforceable so long as she remains in the United States and is under-employed.

So it’s a bit crazy for a court to say “yes, the I-864 is enforceable, and yes the contract says the obligation continues into the future… but I’m going to limit the duration of support.” But the appeals court in Miller actually agreed with the trial court. It looked to a provision in California law that limits the duration of alimony. A big problem with that approach is that the duration of I-864 support is set by federal law, which supersede California statutes.

Miller isn’t the first family law case to support this weird approach. A similar situation lead to the Marriage of Khan case in Washington State.

Yikes – so what should you do?

I don’t know.

The attractive thing about raising the Form I-864 in a divorce case is that you’re already in court. It seems crazy to start a new lawsuit against a sponsor when you are already litigating a divorce. Plus, family law cases usually move a lot faster than federal court. So you have a good chance of getting payments started more quickly in family law court than you do in federal court.

But by seeking an alimony order based on the I-864 you could end up with an artificially-limited duration of support. Like the wife in Miller, you might end up with only a two years of support, for example, when you might be entitled to four years. That’s a scary proposition for someone facing an uncertain future.

An additional consideration is that federal courts will sometimes refuse to hear a claim under the Form I-864 until a family law case between the same parties has been resolved. This is because of something called federal “abstention” doctrines.

I still encourage folks in California to talk to their family law attorneys about the I-864. For a lot of people, it does make sense to get a temporary maintenance order relatively quickly, rather than to head into federal court. But you have to do this knowing that – like the wife in Miller – you might get less than you really deserve.

The full text of the unpublished decision is below.

Millerv. Miller (In re Marriage of Miller)
E067923 (Cal. Ct. App. Jun. 11, 2019)

MENETREZ J.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.(Super.Ct.No. RID1204312) OPINION APPEAL from the Superior Court of Riverside County. Chad W. Firetag, Judge. Affirmed. Alla Miller, in pro. per., for Appellant. Bradley J. Hague for Respondent.

Keith Miller and Alla Miller married in March 2006. The parties’ son was born in 2008. They separated in September 2012, and Keith petitioned for dissolution of their  marriage that same month. The trial court entered a status-only judgment of dissolution in July 2015 and a judgment on reserved issues in January 2017.

Because the parties share a last name, we will refer to them by their first names to avoid confusion. No disrespect is intended.

Alla appeals from the judgment on reserved issues. She argues that the court wrongly determined spousal support and failed to provide a statement of decision. She also argues that the court violated the California Rules of Court when it ordered Keith’s counsel to prepare certain findings and orders, and it erred when it failed to hear her requests to recalculate child support. We reject her contentions and affirm.

BACKGROUND

Alla and Keith met online while she was living in Ukraine. Keith visited her in Ukraine several times, and they eventually married there. She moved to the United States after their marriage in 2006.

The judgment on reserved issues incorporates findings and orders made on three dates: April 22, 2016, June 10, 2016, and October 3, 2016. On April 22, the court divided the parties’ property and debts. Alla does not challenge those rulings. On June 10, the court determined spousal support and child support. Keith had been paying spousal support for years, most recently at a rate of $1,480 per month. On the basis of the factors in Family Code section 4320, the court ordered Keith to continue paying $1,480 per month, but only until April 2017. The court ordered Alla to pay child support of $78 per month. (Months earlier, the court had given Keith sole legal and sole physical custody of the parties’ son after Keith had filed an ex parte application on the issue.)

Further undesignated statutory references are to the Family Code unless otherwise indicated.

The record does not contain a reporter’s transcript for the October 3, 2016 proceedings, so it is unclear what precisely occurred on that day. But on June 10, the court indicated that it would resolve visitation on October 3, and it was expecting a child custody evaluator to submit a report before then. (See § 3111 [permitting the court to appoint a child custody evaluator in a contested proceeding involving custody or visitation rights, when the court determines it is in the best interests of the child].) The  judgment on reserved issues awarded Keith sole legal and sole physical custody of the parties’ son and gave Alla reasonable supervised visitation at Keith’s discretion. We shall describe additional background as necessary in our discussion of the issues raised by Alla.

DISCUSSION

I. Spousal Support

Alla first challenges the award of spousal support. Keith signed United States Citizenship and Immigration Services form I-864, known as an affidavit of support, in connection with Alla’s immigration to the United States. She contends that the court erred by failing to consider the affidavit of support when awarding spousal support. This argument lacks merit.

The affidavit of support is supposed “‘to ensure that an immigrant does not become a public charge.'” (In re Marriage of Kumar (2017) 13 Cal.App.5th 1072, 1075.) An affiant such as Keith is typically called a sponsor. (Ibid.) By signing the affidavit of support, 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.'” (Shumye v. Felleke(N.D.Cal. 2008) 555 F.Supp.2d 1020, 1024, quoting 8 U.S.C. § 1183a(a)(1)(A).)

The sponsor’s obligation of support terminates under five conditions, one of which is that the sponsored immigrant “has worked or can be credited with 40 qualifying quarters of work under title II of the Social Security Act.” (Erler v. Erler (9th Cir. 2016)  824 F.3d 1173, 1176; In re Marriage of Kumar, supra, 13 Cal.App.5th at p. 1079.) The 40 quarters of work may be accrued by crediting the immigrant with all of the qualifying quarters worked by the immigrant’s spouse during their marriage. (8 U.S.C. § 1183a(a)(3)(B).) Accordingly, the affidavit of support that Keith signed informed him that his obligation would terminate when the sponsored immigrant “[h]as worked, or can be credited with, 40 quarters of coverage under the Social Security Act.”

We review the court’s spousal support order for abuse of discretion. (In re Marriage of Morrison (1978) 20 Cal.3d 437, 454.) We presume that an order or judgment is correct, and the appellant bears the burden of establishing an abuse of discretion. (Chalmers v. Hirschkop (2013) 213 Cal.App.4th 289, 299.) The appellant must also establish that the claimed abuse of discretion was prejudicial. (In re Marriage of McLaughlin(2000) 82 Cal.App.4th 327, 337.)

Alla has failed to carry her burden in this case. She insists that the court failed to consider the affidavit of support, but it is clear that the court did consider it. At trial, the court explained that when the marriage is not one of “long duration,” section 4320 generally limits spousal support to one-half the length of the marriage. (§ 4320, subd. (l).) The court then asked Alla: “So you had previously filed a motion that said because of a federal affidavit of support, this was the I-864 affidavit of support. That was  a federal document he filed, I think, when you immigrated here from the Ukraine, that he would continue support for you. And you have essentially, I think, argued to me that that document means that he should continue his spousal support obligations longer than one-half the length of the marriage. [¶] Is that why you think he should pay longer than one-half, because he filed or he signed this affidavit of support?” Alla replied that it was because of this and other factors that he should have to pay spousal support.

Presumably, the court was referring to a document filed about eight months earlier, which Alla styled a “supplemental declaration of [Alla] in support of motion for spousal support.” (Capitalization omitted.) In the filing, she argued that because of the affidavit of support, Keith had to continue to support her until she became a citizen, was deported, or “earn[ed] 40 qualifying quarters of wages.”

The court later questioned Keith on the affidavit of support. Keith confirmed that he had signed the affidavit and believed that the affidavit obligated him to support Alla for “[10] years of marriage,” or “40 work credits, whichever.” At the time of trial, he had been supporting her for over 10 years.

When the court gave its oral statement of decision, it addressed the affidavit of support. The court explained that, under section 4320, subdivision (n), it should consider any factors that it determines are “just and equitable” in awarding spousal support. The court reasoned: “I think this goes back to her immigration status or the fact that she came over here from the Ukraine, and what difficulty she must have in terms of trying to find work in a foreign land where she is still learning English. . . . [¶] I also see—and I asked [Keith] this, and he responded well that he did agree to provide for [Alla] as a spouse. He has done so for [10] years . . . .”

When considered in context with the court’s questioning of the parties, the statement of decision reveals that the court considered the affidavit of support but concluded that Keith had satisfied his obligation under it. We therefore reject Alla’s  argument that the court failed to consider the affidavit. Moreover, assuming for the sake of argument that the court had failed to consider the affidavit, Alla does not show that the claimed error was prejudicial. We do not presume injury from an error. (In re Marriage of McLaughlin, supra, 82 Cal.App.4th at p. 337.) She must establish that it was reasonably probable she would have secured a more favorable spousal support order if the court had considered the affidavit of support. (Ibid.) This requires her to demonstrate that Keith’s obligation under the affidavit was more than $1,480 per month or would have continued past the April 2017 termination date ordered by the court. She has not demonstrated either of these things. In short, Alla has not established reversible error with respect to spousal support.

II. Statement of Decision

Alla argues that the court erred by failing to honor her request for a statement of decision. We conclude that this argument also lacks merit.

A court trying a question of fact must issue a statement of decision if a party appearing at trial timely and properly requests such a statement. (Code Civ. Proc., § 632.) The requesting party must specify the principal controverted issues that the party wants the statement to address. (Ibid.) If the trial concludes “within one calendar day or in less than eight hours over more than one day,” the party must request the statement of decision before the matter is submitted for decision. (Ibid.) The court may issue its statement of decision orally if the trial concludes within one calendar day or in fewer than  eight hours over multiple days. (Ibid.) For longer trials, the court must issue a written statement of decision. (Ibid.)

We review de novo the trial court’s interpretation and application of the law governing statements of decision. (See In re Marriage of Left (2012) 208 Cal.App.4th 1137, 1145 [de novo review is applied to questions regarding the proper interpretation of statutes or the proper application of law to uncontested facts].) Any “error in failing to issue a requested statement of decision is not reversible per se, but is subject to harmless error review.” (F.P. v. Monier (2017) 3 Cal.5th 1099, 1108.) Accordingly, appellants must show that the error prejudiced them. (In re Marriage of McLaughlin, supra, 82 Cal.App.4th at p. 337.)

We can see from the register of actions that Alla filed a request for a statement of decision on May 2, 2016. The request, however, does not appear in the record on appeal. Her request came after the April 22 trial on property issues, but before the June 10 trial on spousal and child support. On June 10, the court ruled that to the extent that Alla wanted a written statement of decision, it was denying the request. The court explained that it had already issued an oral statement of decision on April 22, and it intended to give an oral statement of decision again on June 10. And in any event, her request was untimely with respect to the property issues tried on April 22.

For several reasons, we reject Alla’s argument that the court erred by failing to provide a statement of decision. First and foremost, the court did in fact issue oral statements of decision on April 22 and June 10, 2016. Alla has not explained why the oral statements constituted error. The court may sever issues and try them separately. (Code Civ. Proc., § 1048; Earp v. Earp(1991) 231 Cal.App.3d 1008, 1012.) Each of the trials concluded within one day, so the court was permitted to issue an oral statement of decision for each. (Code Civ. Proc., § 632.)

Second, the court was correct that her request was untimely with respect to the property issues tried on April 22, 2016. She had to request a statement of decision for the one-day trial before the court took the property issues under submission. (Code Civ. Proc., § 632.) She did not and instead filed her request 10 days later. (Earp v. Earp, supra, 231 Cal.App.3d at p. 1012 [when the court tried one issue in less than a day and reserved remaining issues for a later date, the request for a statement of decision had to be made before the separately tried issue was submitted].)

Third, because the record does not include Alla’s request for a statement of decision, we cannot determine whether she complied with the statutory mandate that she specify the controverted issues as to which she wanted the statement. (Code Civ. Proc., § 632.)

Fourth and finally, even assuming that the court should have issued written statements of decision, Alla has not demonstrated that she was prejudiced by the failure to give them in writing. For all of these reasons, her argument fails.

III. Preparation of Findings and Orders

Next, Alla contends that the court erred by ordering Keith’s counsel to prepare a document incorporating findings and orders from five different hearings. This argument is also meritless.

Alla relies on rule 5.125 of the California Rules of Court. Under this rule, the court may order a party to prepare a proposed order after a hearing. The proposed order should accurately reflect the court’s orders at the hearing. (Rule 5.125(c)(1), (f).) Rule 5.125 sets forth timelines and procedures for preparing, serving, and objecting to proposed orders. (Rule 5.125(b)-(e).) The rule nevertheless permits courts to modify the timelines and procedures “when appropriate to the case.”

All further rule references are to the California Rules of Court unless otherwise indicated. ——–

On April 22, 2016, the court ordered Keith’s counsel to prepare a proposed order incorporating findings and orders from five hearings over the last four months. Alla contends that the court erred by permitting these “late filings.” It is unclear why she believes the proposed orders were late under Rule 5.125. She references subdivision (d)(2), but that merely sets forth a five-day timeline for one party to respond to a proposed order prepared by the opposing party. (Rule 5.125(d)(2).) Nothing in Rule 5.125 prohibits the court from combining proposed orders for several hearings across several months. And even if the court’s actions breached one of the timelines in the rule, the court would have discretion to modify that timeline. This claim of error thus fails.

IV. Child Support

Alla’s last contention relates to child support. She asserts that she asked the court to “re-calculate the erroneous child support” numerous times between June 2014 and July 2016, and each time, the court did not hear her on this matter. She argues that the failure to hold an “adequate hearing” was error. (Boldface omitted.) She has forfeited this argument.

Alla’s opening brief does not describe, with citations to the record, all of the times that she requested a hearing on child support but was denied one. Moreover, even if she had properly described the proceedings and cited the record, and assuming for the sake of argument that the court wrongly denied her a hearing, she still does not explain why this was prejudicial. That is, she does not show that the court erroneously calculated child support and probably would have changed it in her favor if the hearings had occurred. She does not even explain who was paying child support to whom and how much was being paid during the relevant time period. (The judgment on reserved issues gave Keith sole custody of their son, but earlier in the case Alla had custody of the child, and Keith had visitation.) Simply put, she does not identify the particular child support order that she wanted to challenge. And her sole legal citation only explains the abuse of discretion standard of review.

“We are not bound to develop appellants’ arguments for them.” (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830.) Alla was required to cite the record for factual assertions and support each point with reasoned legal argument. (Rule 8.204(a)(1)(B)-(C).) We may treat an argument as forfeited when a party fails to support the argument with the necessary citations to the record, cogent legal argument, or citation to authority. (In re Marriage of Falcone & Fyke, supra, at p. 830; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.) We do so here.

DISPOSITION

The judgment on reserved issues is affirmed. Keith shall recover his costs of appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MENETREZ

J. We concur: SLOUGH

Acting P. J. FIELDS

J.

On June 20, 2019 a judge for the Northern District of Alabama handed down a decision on the first I-864 litigation in that state (whether federal or state court). The order, Belevich v. Thomas, touches on a number of interesting and helpful points of law. Download the decision here.

Background.

The Plaintiff was the beneficiary of Form I-864s signed by both his wife and her mother (as joint sponsor). While he was out of the country, his wife informed him that she would be filing for divorce and canceled his return ticket. The Plaintiff was temporarily homeless after making it back to the United States, until be moved in with a friend. After being irregularly employed and with income under 125% of the Federal Poverty Guidelines, he sued his sponsors for their failure to support him.

The court decision.

The principal matter before the court was cross summary judgment motions by the Plaintiff and Defendants. (Virtually all I-864 cases are resolved at summary judgment, if not earlier – it is extremely unusual for one to proceed to trial).

1. “Subject to removal.”

First, the Court rejected the argument by Defendants that the Plaintiff “became “subject to removal” when an Alabama court issued a protective order against him or, alternatively, when he was charged with aggravated felonies.” Memo. Op. at 10. That assertion is frankly ridiculous, and it is surprising the Court was not harder on the Defendants. “Removal” is a term of art under the Immigration and Nationality Act, and refers to an order of removal issued by an immigration authority (usually the Executive Office of Immigration Review). The notion that any state court has authority to do something that is tantamount to a “removal” order is completely baseless. The Court also correctly noted that even if the Plaintiff had been ordered removed, the order by itself does not terminate obligations under the Form I-864.

2. Calculation of income

Following the Northern District of California, the Court in this case held that income shortfalls are calculated annually, rather than for the entire period for which support is sought. Memo. Op. at 13. That does indeed follow the language of the Form I-864.

3. The 5 terminating events really are the only way to avoid liability.

Citing a case litigated by Immigration Support Advocates, the Court followed the view that the only defenses available in I-864 cases are the 5 terminating conditions listed in the contract. Memo. Op. at 22. The Court also included as a sixth terminating event the death of the sponsor. But, the Court held, alleged negligence by the Plaintiff would not be a defense to liability. This directly follows the Seventh Circuit’s holding in Liu v. Mund that a Form I-864 Plaintiff has no duty to mitigate damages by seeking employment.

4. Prejudgment interest.

The final interesting holding in the case is that a Form I-864 plaintiff is entitled to pre-judgment interest on his claims. Memo. Op. at 23. That is an issue that has not been squarely raised in I-864 cases. But it is helpful to have a clear decision on that topic.

The White House announced today that it will be creating new rule about enforcement of the Form I-864. These new rules will relate to the obligation of the Form I-864 sponsor to repay the cost of means-tested benefits (“welfare”) paid to a sponsored immigrant. (The full text of the announcement is below).

Note: These rules do not directly relate to lawsuits by immigrants under the Form I-864. There are two distinct promises in the I-864: (1) to repay the cost of welfare given to the immigrant; and (2) for the immigrant to have an ensured income level. These rules relate only to number (1).

The new rules will do two main things.

First, they will create consistent rules across federal agencies for enforcement of the Form I-864. As it stands, there are no global rules governing how and when agencies demand reimbursement from sponsors. Now, agencies will have some form of centralized information sharing so that they will know when a welfare recipient is a sponsored immigrant, and will then be required to demand reimbursement from the Form I-864 sponsor. They will also create new procedures for seeking reimbursement from the sponsor, which presumably means rules for when and how they will sue the sponsor.

Second, there will be new rules about sponsorship deeming. This confusing idea is basically that when a Form I-864 beneficiary applies for welfare, she will be treated as though she has access to the income from her Form I-864 sponsor. So, even if the immigrant has no income of her own, she will be treated as though she has substantial income from her sponsor. (The only reason this is even arguably fair is that the immigrant has her own right to sue the sponsor for financial support, since the idea behind the Form I-864 is that the sponsor should bare the cost of supporting the new immigrant). It looks like the new rules will make the standards for “deeming” more consistent between programs.

What does this mean for I-864 beneficiaries?

The new rules announced today have no direct impact on I-864 beneficiaries who are trying to recover support from their sponsor. But there are a number of ways they could be relevant:

1. The rules underscore the importance of “public charge” doctrine. Rules about preventing immigrants from becoming public charges have been a part of U.S. immigration law since its earliest days.

2. Collection could be an additional challenge. One of the greatest challenges in lawsuits under the Form I-864 is ensuring that the sponsored immigrant actually gets paid. A court judgment isn’t worth anything if the sponsor doesn’t have the ability to pay it. If state/federal agencies start to sue under the Form I-864, that could create a “judgment priority” issue. If the government agency “gets in line” before the immigrant, then Uncle Sam might get reimbursed before the immigrant ever sees a dollar of support.

Here is the full text of the announcement:

Memorandum on Enforcing the Legal Responsibilities of Sponsors of Aliens

May 23, 2019

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1.  Purpose.   A key priority of my Administration is restoring the rule of law by ensuring that existing immigration laws are enforced.  The immigration laws currently require that, when an alien receives certain forms of means-tested public benefits, the government or non-government entity providing the public benefit must request reimbursement from the alien’s financial sponsor.  These laws also require that, when an alien applies for certain means-tested public benefits, the financial resources of the alien’s sponsor must be counted as part of the alien’s financial resources in determining both eligibility for the benefits and the amount of benefits that may be awarded.  Financial sponsors who pledge to financially support the sponsored alien in the event the alien applies for or receives public benefits will be expected to fulfill their commitment under law.

Several major means-tested public benefits programs — including the Supplemental Nutrition Assistance Program (SNAP), Medicaid, and Temporary Assistance for Needy Families (TANF) — require updated procedures and guidance to ensure that the requirements of existing law are enforced.  The purpose of this memorandum is to direct relevant agencies to update or issue procedures, guidance, and regulations, as needed, to ensure that ineligible non-citizens do not receive means-tested public benefits, in better compliance with the law.

Sec. 2.  Background. Since December 19, 1997, the Congress has required an alien’s sponsor to sign an affidavit of support under section 213A of the Immigration and Nationality Act (INA) pledging financial support for the sponsored alien in the event the sponsored alien applies for or receives means-tested public benefits.

Section 213A of the INA (8 U.S.C. 1183a) also requires that upon notification that a sponsored alien has received any means tested public benefit, the appropriate government or non government entity that provided such benefit shall request reimbursement from the sponsor in an amount equal to the unreimbursed cost of such benefit.

Section 421 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1631) states that when an alien with an affidavit of support under section 213A of the INA applies for any benefit under a Federal means-tested public benefits program, the income and resources of the sponsor and the sponsor’s spouse are deemed to be income and resources of the alien for purposes of determining both the alien’s eligibility for the benefits and the amount of public benefits that may be awarded to the alien.

These deeming and reimbursement requirements are subject to several important statutory exceptions for aliens who have been battered or subjected to extreme cruelty (8 U.S.C. 1631(f)) or who would be unable to obtain food and shelter without the public benefits (8 U.S.C. 1631(e)), for children and pregnant women who are lawfully residing in the United States and receiving medical assistance from a State under the Children’s  Health Insurance Program or Medicaid (42 U.S.C. 1396b(v)(4)), and for aliens receiving SNAP benefits who are members of the sponsor’s household or are under 18 years old (7 U.S.C. 2014(i)(2)(E)).

Currently, agencies are not adequately enforcing these requirements.  Some agencies have insufficient procedures and guidance for implementing these reimbursement and deeming requirements of the immigration laws.  For example, the Department of Health and Human Services has not adequately issued guidance on either sponsor reimbursement or sponsor deeming for the Medicaid program.  Even in cases in which some guidance exists — such as for the Supplemental Security Income, TANF, and SNAP programs — increased oversight and updates to current data collection efforts will ensure more effective compliance.

Ensuring compliance with the rule of law requires renewed efforts to enforce these requirements and the issuance of appropriate guidance so agency practices and enforcement can be aligned with Federal law.

Sec. 3.  Issuance of Guidance and Procedures; Implementation.   (a)  No later than 90 days after the date of this memorandum, the Secretaries of Agriculture and Health and Human Services shall take all appropriate steps to enforce section 213A of the INA.  Such enforcement efforts shall include:

(i)   establishing or updating, as appropriate, procedures and guidance on the reimbursement obligations of sponsors; and

(ii)  providing such procedures and guidance to all entities involved in enforcement effort actions, including the Federal and State officials responsible for administering any means-tested public benefit programs under the respective purview of each Secretary.

(b)  The guidance issued pursuant to subsection (a) of this section should include, as appropriate and consistent with law:

(i)    procedures for recovering reimbursement from an alien’s financial sponsor for means-tested public benefit payments made to an alien;

(ii)   procedures for notification to the sponsor of amounts owed in reimbursement and any procedures related to appeal, payment plans, non-response, and non-reimbursement;

(iii)  procedures for notifying the Attorney General and Secretary of Homeland Security of sponsor’s non payment and procedures for requesting that the Attorney General bring a civil action against the sponsor;

(iv)   procedures for data sharing with Federal agencies, as appropriate and consistent with law;

(v)    procedures for how the income and resources of the sponsor and the sponsor’s spouse will be deemed attributable to the alien in determining eligibility for the means-tested public benefit and the amount of benefits that may be awarded; and

(vi)   procedures for determining whether any exceptions to the deeming or reimbursement requirements apply to the alien.

(c)  No later than 180 days after the date of this memorandum, the Secretaries of Agriculture and Health and Human Services shall each submit a report to the President, through the Director of the Office of Management and Budget and the Assistant to the President for Domestic Policy, detailing:

(i)    all actions taken to establish or update the procedures and guidance described in section 3(a) of this memorandum;

(ii)   the methods used to track deeming and reimbursement actions and the results; and

(iii)  all actions taken to share information with other Federal agencies pursuant to section 5 of this memorandum.

Sec. 4.  Notification of Sponsor Reimbursement Reponsibilities. (a)  By the end of fiscal year 2019, the Secretaries of Agriculture and Health and Human Services shall provide the appropriate and respective Federal and State officials described in section 3(a)(ii) of this memorandum with the procedures and guidance described in section 3 of this memorandum for notifying sponsors of reimbursement obligations for means-tested public benefits, as required by law.

(b)  The Secretaries of State and Homeland Security, in consultation with the Secretaries of Agriculture and Health and Human Services, shall advise the following parties about how the reimbursement and deeming requirements will be enforced:

(i)    all current sponsors and those seeking to become sponsors who have signed or plan to sign an affidavit of support;

(ii)   others who, under applicable provisions of law, may become liable for reimbursing the cost of public benefits paid to a sponsored alien; and

(iii)  all current sponsored aliens and those seeking to become sponsored aliens.

Sec. 5.  Collection, Record-Keeping, and Non-Reimbursement.   (a)  No later than 180 days after the date of this memorandum, the Secretaries of Agriculture and Health and Human Services and the Commissioner of Social Security shall coordinate with the Secretaries of State and Homeland Security to:

(i)   establish and maintain records regarding each financial sponsor’s reimbursement obligations and status, as appropriate and consistent with law; and

(ii)  establish information-sharing procedures to ensure that records regarding each sponsor’s reimbursement obligations and reimbursement status are made available to the Secretaries of State and Homeland Security for consideration for the administration and enforcement of all applicable immigration laws and regulations, as appropriate and consistent with applicable law.

(b)  No later than 180 days after the date of this memorandum, the Secretaries of State and Homeland Security shall issue guidance on the eligibility of a sponsor who is delinquent on the sponsor’s reimbursement obligation to continue to serve as a sponsor or to sponsor additional aliens.

(c)  To the extent appropriate and consistent with law, the Secretaries of Agriculture and Health and Human Services and the Commissioner of Social Security shall coordinate with the Secretary of the Treasury to establish information-sharing procedures with the Treasury Offset Program (31 CFR 285.5) to ensure collection is ordered by letters of reimbursement.

(d)  The Secretary of the Treasury and the Secretary of Homeland Security shall refer all cases in which financial sponsors fail to satisfy their statutory reimbursement obligations to the Attorney General for enforcement of such statutory reimbursement obligation (8 U.S.C. 1183a(b)(2), (e)).

Sec. 6.  Protecting the American Taxpayer and Preventing Abuse of the Immigration System. (a)  The Secretaries of the Treasury, Agriculture, Commerce, Labor, Health and Human Services, Housing and Urban Development, Transportation, and Education shall each submit a report to the President, through the Assistant to the President for Domestic Policy and the Director of the Office of Management and Budget, within 30 days of the date of this memorandum, that includes:

(i)    their review of their respective guidance and regulations governing the issuance of Federal public benefits to non-citizens;

(ii)   steps they have taken to comply with the eligibility requirements set forth in 8 U.S.C. 1611(a);

(iii)  an explanation of whether the Federal public benefits that they administer are means-tested public benefits within the meaning of 8 U.S.C. 1183a and whether additional Federal public benefits they administer, if any, should be regarded as means-tested public benefits; and

(iv)   their review of any additional regulations or guidance that should be updated to align with applicable statutes.

(b)  The report described in subsection (a) of this section should include, where applicable, coordination with the Secretary of Homeland Security.

Sec. 7.  Definitions. For purposes of this memorandum, the following definitions shall apply:

(a)  The term “sponsor” shall have the meaning set forth in section 213A(f) of the INA (8 U.S.C. 1183a(f)), including any joint sponsor authorized by section 213A(f)(5)(A) (8 U.S.C. 1183a(f)(5)(A)) or member of household under section 213A(f)(5)(B) (8 U.S.C. 1183a(f)(5)(B)).

(b)  The term “sponsored alien” means an individual who was required under section 212(a)(4)(C) or 212(a)(4)(D) of the INA to have a sponsor execute an enforceable affidavit of support and whose sponsor’s obligations under section 213A of the INA have entered into effect.

(c)  The term “means-tested public benefit” shall have the meaning set forth in 8 CFR 213a.1.

(d)  The term “Federal public benefit” shall have the meaning set forth in 8 U.S.C. 1611(c).

Sec. 8.  General Provisions.  (a)  Nothing in this memorandum shall be construed to impair or otherwise affect:

(i)    the authority granted by law to an executive department or agency, or the head thereof;

(ii)   the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals; or

(iii)  existing rights or obligations under international agreements.

(b)  This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c)  This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Another U.S. federal court has ruled that Form I-864 sponsors cannot avoid liability by alleging that they were defrauded into signing the Form I-864. In Anderson v. USA, et al, Judge Robert Lasnik dismissed a long list of affirmative defenses and counterclaims advanced by the defendant. 2:17-cv-00891-RSL (W.D. Wash. Feb. 25, 2019) (Order Regarding Affirmative Defenses and Counterclaims).

Most defendants in I-864 litigation try to escape liability by arguing that they were tricked into signing the Affidavit of Support. They normally argue that the plaintiff “never really loved them” and was just using the defendant for a green card. In Anderson, Judge Lasnik categorically rejected that defense:

The parties disagree as to whether plaintiff misrepresented facts or otherwise defrauded defendant into signing the I-864 contract and obligating himself to provide financial support in perpetuity. Defendant alleges that plaintiff misstated her interest in partnering with him and instead simply sought to gain admittance to the United States with a guaranteed source of income. A disputed issue of fact is not enough to save these defenses, however, because they are not legally viable. Defendant entered into a binding agreement with the United States for the benefit of plaintiff, a sponsored immigrant. *Allegations of pre-contract impropriety on plaintiff’s part do not make defendant’s promises to the United States void or voidable. See Dorsaneo v. Dorsaneo, 261 F. Supp.3d 1052, 1054 (N.D. Cal. 2017) (“Permitting a sponsor to evade his support obligation by asserting a defense of fraud in the inducement is inconsistent with the purpose of the I-864 requirement, because it would place lawful permanent residents at risk of becoming dependent on the government for subsistence.”).

The Dorsaneo case cited here was litigated by Immigration Support Advocates and our co-counsel in California. The case is currently on appeal to the Ninth Circuit and oral arguments are expected this summer.

The Anderson Court definitely got this one right. The Immigration and Nationality Act gives five – and only five – events that terminate a sponsor’s obligation under the Form I-864. The entire Congressional purpose of the I-864 was to shift the financial risk of new immigrants away from the American public and onto the shoulders of the immigration petitioner. Joe/Jane American tax payer gets so say whatsoever in deciding whether Ms. Anderson, or any other family sponsored immigrant, should be issued a green card. By contrast, her immigration petitioner was the very person who decided to bring her to the U.S. Given the choice of Jane/Joe Taxpayer and the immigration petitioner, it seems fair that the petitioner should bare the risk that the immigrant has bad intentions; he is the one in the best position to assess the situation, and has the opportunity to decide against petitioning.

Anderson is the most recent in a series of decisions that prevent sponsors from avoiding liability with traditional affirmative defenses. The defendant in this case asserted 25 affirmative defenses and six counterclaims. Remember that a plaintiff in an I-864 lawsuit is by definition living in poverty. Should such a person have to muster the resources to fight off 31 complex legal theories for why the sponsor doesn’t have to live up to his I-864 duty? Anderson joins a number of strong decisions that say clearly, “no.” The I-864 is harsh, and it’s meant to be. It was the sponsor’s choice to sign the contract with the federal government and there are very, very limited ways that he can avoid the resulting liability.

Immigration Support Advocates is now hiring a part-time Advocacy Liaison. Help our national legal team connect community advocacy groups with resources that will help their immigrant clients.

Advocacy Liaison

**Apply here**

About us.

We are a law firm that helps vulnerable green card holders transition to self-sufficiency. We do this by helping our clients recover financial support from their visa sponsors. Many of our clients are survivors of domestic abuse or other trauma. Our clients come from all walks of life and from many different countries. Learn more about our work at www.i-864.net.

Position description.

The Advocacy Liaison is responsible for building relations with community partners whose clients could benefit from our work. Such partners include organizations addressing issues of domestic violence who serve immigrant communities. The Advocacy Liaison will serve as a primary point of contact to develop our partners’ understanding about their clients’ potential right to immigration financial support. The Liaison will coordinate trainings by our lawyers and maintain awareness by our partners. Work will be performed either in downtown Bellevue or remotely.

Responsibilities.

• Research/identify potential community partners in Washington State and beyond.
• Initiate contact with community partners to offer educational resources and training.
• Coordinate on-site or web-based by our lawyers.
• Develop and implement system for maintaining contact with community partners.
• Research/identify opportunities for publication in outlets relevant to our community partners.

Experience.

• Experience in non-profit setting serving domestic abuse survivors (paid or volunteer).
• (Preferred) Experience in non-profit setting serving immigrant populations (paid or volunteer).

 

Qualifications.

• (Strongly preferred) Bachelor’s or associate’s degree (completed or in progress).  
• Demonstrated commitment to serving vulnerable populations, especially recent immigrants.
• Excellent professional comportment.
• Keen attention to detail and ability to follow detailed instructions.
• Excellent communication skills in person and by digital media.
• Proficiency with Microsoft Office. 
• Familiarity with Google products (gmail, voice, calendar, tasks).
• Proficiency with social media.

 Hours.

This position will begin at 8 hours per week, with an opportunity to expand hours based on demonstrated results.

 Compensation.

Depends on experience.

How to apply.

Please complete this online form.