A federal district court in California has issued an important ruling in an I-864 enforcement case brought by Immigration Support Advocates. In a five-page ruling issued today, the Court held that the defendant could not avoid his I-864 support obligation by arguing that he was fraudulently induced to marry his wife. (Download the decision).
The ruling states in part:
Fraud in the inducement cannot be a defense to an I-864 enforcement action. 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 statute and implementing regulations show that the purpose of the support obligation is to ensure that family-sponsored immigrants do not become a “public charge.” 8 U.S.C. § 1183a. The support obligation terminates only after the immigrant has obtained citizenship or circumstances have changed such that the immigrant no longer requires support. See 8 C.F.R. § 213a.2(e) […]. Furthermore, the support obligation cannot be disavowed unless the sponsor submits the disavowal in writing “before the decision on the adjustment application.” Id. § 213a.2(f). A Congressional committee report describes the affidavit support requirement as a plan to “discourage[e] welfare-based immigration” and “to provide for the economic well-being of the members [that families] bring into the United States.” H. Comm. On Budget, Welfare and Medicaid Reform Act of 1996, H.R. Rep. 104-651, at 6 (1996). It also explains that the sponsorship agreement “would be made legally binding and would apply until the immigrant becomes a citizen.” Id. at 1327. These requirements, and this history, show that the support obligation, once undertaken, cannot be excused unless there is no longer a risk that the I-864 beneficiary will become a public charge.
This important ruling means that a sponsor cannot avoid his obligation by raising arguments about the immigrant’s subjective intentions in getting married. The decision will make it easier for immigrants to move their cases to completion and get the support needed to build self-sufficient lives.
This victory was due to the outstanding efforts of local California co-counsel Jody Winters, along with Jennifer Panicker.
The California Court of Appeals (First District) has handed down an extremely important decision affirming rights under the Form I-864, Affidavit of Support. The case decided is Kumar v. Kumar, A145181 (Cal. App. Div. II, July 28, 2017), available here.
First, I express my appreciation to the outstanding legal team that handled this appeal. Edin Steussy, an attorney at Orrick Herrington & Sutcliffe LLP, took this matter on a pro bono basis. He was assisted by Erin Smith, Jennafer Wagner and Shuray Ghorishi of the Family Violence Appellate Project. Protima Pandey of Bay Area Legal Aid also assisted, as well as the National Immigrant Women’s Advocacy Project, which provided an amicus brief.
Why is this case so important?
The appellant, A.K., was a Fijian citizen who immigrated to the U.S. on a marriage-based visa. After immigrating to the U.S., her husband/sponsor began abusing her almost immediately. (Sadly, a disproportionate number of those enforcing rights under the I-864 are domestic abuse survivors). The husband tricked her into traveling to Fiji, where he tried to abandon her without proof of her U.S. residency status, but she was able to return to the States.
The husband filed an annulment and dissolution case in California. A.K. did not make a formal request to enforce the Form I-864, but she later raised the issue to the trial court. She told the trial court that she had been unable to work since her husband stole her green card and she was waiting for a replacement. The court ultimately refused to fully enforce the Form I-864 contract, held that A.K. had a duty to seek work, and imputed income to her that she wasn’t actually earning. A.K. filed an appeal.
First, the Court of Appeals held squarely that the Form I-864 is an enforceable contract and that A.K. had the ability to enforce it for her benefit. (That’s no surprise – every other court to consider the issue has ruled the same way). It next made very clear that A.K. was seeking financial compensation as a contractual right, not under California’s maintenance/alimony rules. The Court also rejected the husband’s argument that the trial court lacked jurisdiction over A.K.’s claims, since the federal statute makes clear that the husband “submitted” to the court’s jurisdiction by signing the Form I-864.
The appellate court also addressed a second, critical issue.
When sued, I-864 sponsors frequently argue that a beneficiary like A.K. has a legal responsibility to seek work. They argue that if the person could theoretically be working then the court should impute income to her. In effect, the argument is that someone like A.K. can’t receive support under the I-864 if she is alleged to be voluntarily unemployed. In legal jargon, this is called the “duty to mitigate damages.” But the appeals court rejected the approach.
The California court followed the leading decision on this topic, which is Liu v. Mund. 686 F.3d 418 (7th Cir. 2012). As in Mund, the Court looked to the congressional purpose behind the Form I-864, which is to ensure that vulnerable immigrants have actual financial support if needed. That goal is undermined by counterfactual guessing games about whether an immigrant might theoretically be able to work, even though she isn’t working.
Under the Kumar case, Califonia joins the growing list of states where the “duty to mitigate” simply does not apply to immigrants enforcing the Form I-864. This makes the immigrant’s right to damages under the Form I-864 very clear. If she is unemployed, then the sponsor is required to pay $1,226/month in support, period. (More if she has other qualifying household members).
We again thank the outstanding team who represented A.K. This case further solidifies rights under the Form I-864 and will provide an important resource to vulnerable green card holders.
The Form I-864, Affidavit of Support is signed in virtually all family-based immigration cases. If you became a lawful permanent resident (LPR) through a spouse, parent or child, chances are the Form I-864 was signed.
By signing the Form I-864, the sponsor promises to ensure you have income at or about 125% of the Federal Poverty Guidelines – roughly $1,226 for a household of one. If your monthly income is below that amount, the sponsor is required to make up the difference. So – for example – if you earned $1,000 for a given, month, the sponsor would owe you $226.
So how do actually get financial compensation from the sponsor? Most basically, these cases proceed in four steps.
1. Case assessment.
We begin by assessing how much support is owed to our clients. First, we meet with our clients to make a careful assessment of the overdue support that is owed to our clients – referred to as arrears. For example, let’s say that our client has been separated from her sponsor for six months and has been unemployed. In that case her arrears would be $7356 (12 x $1,226).
Next, we assess how much future support the client is likely to need. Under the I-865, the client is entitled to support until she has 40 quarters of work. (Other events also end the obligation, but work is the most common). Similarly, the support obligation will end – at least temporarily – once the person becomes gainfully employed. Since the sponsor is required to make up the income shortfall based on 125% of the poverty guidelines, once the beneficiary has returned to work the sponsor will not have to make support payments while the beneficiary is employed.
That second step of the assessment is challenging. In some situations it is relatively clear how long it will take a client to become employed. For example, if the client is in an advance degree program we would expect her to become employed shortly after graduation. In other situations, however, it is far less clear. For a client who has limited English and no work history, the road to employment could be a very lengthy one.
Our firm charges no fee to clients for case assessment. You can contact us here to request our assessment of your case. We consult with individuals throughout the United States.
We consult with clients by phone in all 50 states.
2. Settlement negotiations.
Once we have been retained by a client our first step is trying to reach a negotiated settlement with the opposing party. The vast majority of our defendants agree to settle claims before litigation is filed. That is strongly in the defendant’s interest, since they may have to pay both sides attorney fees if the case goes to court.
How long do settlement negotiations take? That varies quite a bit from case to case. Sometimes an agreement can be reached in as little as a couple of weeks. But in other cases negotiations can drag on for two months or more. If we believe that the other side is not serious about negotiation, we always have the option of simply moving forward with our lawsuit.
Settlements are typically structured one of two ways. In the first option, settlement is made for a single lump payment. For example, our client might agree to accept a one-time payment of $50,000 in exchange for waiving any future claims for support. Lump sum settlements are relatively common. They are attractive to defendants because they an make one payment, then no longer have to worry about the matter in the future.
The second option is to have a structured settlement. On this option, the defendant typically makes an initial lump payment, then agrees to make monthly payments for an agreed period of time. For example, the defendant might agree to make a $10,000 payment, then $1,200 per month for 30 months. This second option is often used where the defendant simply doesn’t have enough case on hand to make a large lump payment.
3. Lawsuit.
But sometimes settlement negotiations don’t work. Sometimes this is because the defendant responds based on emotion rather than sound judgment. Sometimes the defendant gets bad legal advice and thinks he will successfully defend the lawsuit. In either case, we have no problem going to court if that’s what the defendant wants to do.
I-864 beneficiaries may bring a lawsuit in either state or federal court.
I-864 enforcement lawsuits may be brought in either state or federal court. They can be brought in state court because, at the end of the day, the I-864 is just a contract. State courts hear contract disputes all the time, so there’s nothing to prevent them from hearing an I-864 enforcement case.
These cases can also be brought in federal court. The Immigration and Nationality Act gives federal courts the ability to hear I-864 enforcement matters.
The choice between the two courts is a strategic one. For example, in a given state the federal court docket may move faster than the state court. Or it could be the other way around. Or our local co-counsel may have a preference for one venue over the other.
If litigation is required the case may take many months to complete. Some cases may be won relatively early on with a Motion for Judgment on the Pleadings or Motion for Summary Judgment. But other cases will require discovery – the form process where the parties exchange information about the case. I-864 enforcement cases rarely go to trial, however, as the facts are generally not in dispute.
A case that is fully fought out in court can take a year or longer to complete. And even after that time, the defendant could appeal the decision.
The I-864 contract says very clearly that the defendant is responsibly for legal fees. When a I-864 beneficiary wins her case in court, the judge should make a fee award against the defendant. Such fees will easily exceed $50,000, making it a terrible decision for a defendant to force us to litigate.
4. Collections.
If a lawsuit is required and results in a judgment, the final step is to collect that judgment from the defendant. In some situations the defendant will agree to pay the judgment. In other cases, collections law must be used. These steps could include garnishing the defendant’s wages, garnishing his bank account, or placing a lien on his property. The time needed for full collection of a judgment depends on the defendant’s financial situation and the size of the judgment.
Conclusion.
I-864 beneficiaries have valuable financial rights under that contract. And the law gives these clients powerful legal tools to enforce those rights. If you are a lawful permanent resident and believe you may have rights, please contact us to learn more.
A federal district court has issued a ruling that is very helpful to I-864 beneficiaries who turn to federal courts to enforce their rights. Hats off to Devon Slovensky for her great work on this case.
There are generally two ways to “get into” federal court. One is if you have a defendant and a plaintiff from different states – called “diversity” jurisdiction. The second is if you are suing on a federal law basis, called “federal question” jurisdiction. People are often surprised to learn at some judges are unsure whether I-864 claims qualify as federal law claims. That’s seems somewhat odd, since a federal statute creates the Form I-864 and gives beneficiaries the right to sue.
The most thorough discussion of federal subject matter jurisdiction in any case to date comes from a recent decision in Madrid v. Robinson from the Western District of Virginia.[1] The defendant in Madrid argued that the plaintiff’s claim sounded only in contract law and was undermined by no federal cause of action. The Court first noted that the vast majority of courts to consider the issues “either explicitly or implicitly” found federal question jurisdiction in I-864 enforcement litigation.[2] The Court found the I-864’s statutory provisions similar to those at issue in the Supreme Court in Mims v. Arrow Fin. Servs., LLC.[3] There, federal question jurisdiction existed where a federal statute created a claim for relief, even though the statute referred only to suits in an “appropriate court of that State.”[4]
The Madrid Court found I-864 claims to be indistinguishable, where the statute authorizes enforcement ligation “in any appropriate court.”[5] “Under any formulation of the arising under standard, this federal statute ‘creates’ or ‘authorizes’ a private right of action to enforce an Affidavit of Support.”[6] The Court noted that jurisdiction was even clearer than in Mims, as the statute’s “appropriate court” provision did not mention only state courts.[7]
The Madrid Court went on to note the nature of enforcement claims, which go beyond reliance on merely the four corners of the Form I-864. The rules for calculating quarters of work – for purpose of determining whether the 40-quarters terminating condition has been met – are set forth in the statute but no the Form I-864 itself.[8] Likewise, the statute provides remedies – such as a judgment lien – which are not clear from the contract itself.[9]
Madrid is not an appellate decision, so it is not binding legal authority on any court. But it offers strong persuasive arguments in favor of allowing I-864 beneficiaries to enforce their rights in federal court. Again, hats off to Devon Slovensky for sucessfully arguing her side of this case.
[2]Id. at 6 (“At least four circuit courts and many more district courts have found, either explicitly or implicitly, that arising under jurisdiction exists for Form I-864 cases”).
Thanks to everyone who joined us yesterday for our webinar on enforcing the Form I-864, Affidavit of Support. This page contains written material for the program, along with a recording of the presentation.
Written materials.
The following articles comprehensively summarize all U.S. case law relating to enforcement of the Form I-864.
When non-citizens leave abusive households they are often left with little means of support. Language barriers can make employment difficult, and many types of public assistance are unavailable. But tens of thousands – perhaps hundreds of thousands – may be eligible to receive financial support from their visa sponsors.
Under law in effect since 1996, certain non-citizens are entitled to financial support from their visa sponsor. In virtually all family-based immigration cases, the sponsor is required to file a Form I-864, Affidavit of Support. By signing the Form I-864, the sponsor promises to ensure that the immigrant has income at or above 125% of the Federal Poverty Guidelines. This obligation lasts until the immigrant becomes a U.S. citizen, is credited with 40 work quarters, leaves the US under certain circumstances, or dies.
But divorce does not end the sponsor’s support obligation. For this reason, some immigrants can use the Form I-864 to recover financial support from abusive spouses, even when a divorce court would be unable to award alimony.
It is important for advocates to understand the support rights of the Form I-864. This support can provide crucial resources to clients who are transitioning to self-sufficiency. Form I-864 support may be available to clients who would normally not qualify for public benefits.
Law enforcement may benefit from an understanding of the Form I-864 when working with non-citizen survivors. Cooperating with investigators will only strengthen the survivor’s legal claim for support by documenting the individual’s bona fide reason for leaving her sponsor and requiring support.
This training will help advocates, law enforcement and other professionals identify clients/survivors who might be able to benefit from the Form I-864. Learn easy questions that can be added to your intake procedure to screen for potential eligibility. Learn to assess the scope of support to which an individual might be eligible, and what steps may be taken to enforce the support obligation.
Thanks to the Clallam County Bar Association for inviting me to speak this week about the Form I-864. This page provides the slides and written material’s for the presentation.
Written materials for the event may be downloaded here: ABA Article: . The article was authored for the American Bar Association and is designed as an overview of the Form I-864 for family law attorneys.
In a December 13, 2016 order, an I-864 enforcement case in federal district court for the Western District of Wisconsin has been resolved. See Santana v. Hatch, No. 15-cv-89-wmc (W.D. Wisc. Dec. 13. 2016) (memo. op.). Following an April order granting partial summary judgment to the immigrant-plaintiff, the only remaining issues were a damages calculation and specific performance of the I-864 duty. “Specific performance” is an order from a court requiring a party to continue a performance required by a contract – here, to make payments required to keep the I-864 beneficiary at 125% of the Federal Poverty Guidelines. The damages calculation was resolved on an agreed calculation, so the only issue addressed in the December 13th order is that of specific performance.
It is common for plaintiffs in I-864 enforcement cases to request both a damages award and also an order of specific performance. But there is a challenge in terms of the logistics required for such an order. The payments due by the I-864 sponsor require an understanding of how much (if any) income the I-864 beneficiary is earning. The sponsor also needs to know if the beneficiary becomes a United States citizen or has been credited with 40 quarters of work.
At Immigration Support Advocates, we typically structure settlements in a way that requires monthly payments by the sponsor. Generally, our clients have little or no income, and depend on the monthly support payments to meet basic needs. In prior cases we have agreed to provide monthly accountings to the sponsor, showing what public benefits were being received and what income had been earned for the month.
In Santana v. Hatch both parties agreed to work our support payments on an annual basis. That is, only one annual payment would be required by the I-864 sponsor, after the beneficiary accounted for earned income. The plaintiff-beneficiary wanted an order that would direct earlier payment if her income fell under 125% FPG for three months. But the Court said that the beneficiary failed to show why this was appropriate:
Under the circumstances, the court concludes that an order of specific performance on a yearly basis is appropriate. Plaintiffs have shown the determination and ability to earn income, as well as support themselves, despite defendant’s obligations to provide minimal support. Currently, Evelyn Santana has a steady job that provides income sufficient to keep her and her family above 125% of the poverty level. [. . .] Thus, at least as of now, there appears to be no justification for requiring defendant to make specific performance on a monthly or bi-weekly basis. On the contrary, as defendant points out, such a requirement could lead to an overpayment to plaintiffs.
In Santana, the plaintiff did not even seek monthly support payments. We believe that in many cases it would be easy to demonstrate that such a payment schedule would be appropriate. A plaintiff who needs ongoing I-864 support by definition has no other income. It would be absurd to make such an individual wait until the end of the year for support that she needs to meet monthly survival needs.
Given that the plaintiff in Santana did not seek monthly support payments, and made no attempt to show why they would be appropriate, we do not believe this case will be injurious to future plaintiffs who do seek orders of specific performance for monthly support payments.
We are proud to be offering this webinar in partnership with End Violence Against Women International. Our talk will be on February 16, 2017 at 10:00 PST. To register, please complete this short online form.
The presentation will help advocates identify which of their clients might be able to recover immigration financial support under the Form I-864, Affidavit of support. For further community resources please visit our advocate’s resource page.
The talk will cover:
What is the Form I-864, Affidavit of Support?
When is the Form I-864 used?
What are an immigrant’s rights under the Form I-864?
How long do these rights last?
Under what circumstances can an immigrant recover support?
How does an immigrant enforce the contract?
How much money can an immigrant recover?
How to identify clients who might have a support right.
How to advise clients about enforcing their support rights.
This month we are hosting a free webinar for domestic violence advocates and other allies serving our community. The training will be January 31, 2017 at noon Pacific Time – register here.
The presentation will help advocates identify which of their clients might be able to recover immigration financial support under the Form I-864, Affidavit of support. For further community resources please visit our advocate’s resource page.
The talk will cover:
What is the Form I-864, Affidavit of Support?
When is the Form I-864 used?
What are an immigrant’s rights under the Form I-864?
How long do these rights last?
Under what circumstances can an immigrant recover support?
How does an immigrant enforce the contract?
How much money can an immigrant recover?
How to identify clients who might have a support right.
How to advise clients about enforcing their support rights.
