Blog

Washington court holds: no alimony based on I-864

Today an appeals court in Washington State held that an I-864 beneficiary is not entitled to receive spousal maintenance (i.e., alimony) on account of the I-864, Affidavit of Support. But the court made clear that the beneficiary is still able to seek enforcement of the Affidavit in a contract suit against the sponsor. This decision leads to a very inefficient situation, where two separate legal cases will be needed in order for the beneficiary to defend her rights. In Matter of Khan, No. 44814-9-II (Div. 2 2014) involved an Indian citizen who was married for two years to a United States citizen. The couple separated, and the husband petitioned for dissolution of marriage in January 2012. None of the pleadings in the divorce case mentioned the I-864, but the trial court considered the I-864 and ordered temporary maintenance of $2,000 based on the I-864. The beneficiary appealed, arguing that the trial court should not have limited the duration of the support, since it was based on the I-864 obligation which lasts potentially indefinitely. Instead, she argued, the courts should have based the duration based on the five events stated in the I-864 that end the support obligation.

The court of appeals disagreed with the beneficiary. The court cited three reasons for why it was not appropriate to use alimony to enforce the I-864 support duty:

  1. First, the court found there was no conflict between state alimony rules and the I-864 obligations. Rather, the court held that state-ordered alimony are independent obligations.

  2. Second, the court looked at the Washington statute governing alimony and found that none of the factors concerned “one spouse’s contractual obligation under federal immigration law.”

  3. Third – and very importantly for I-864 beneficiaries – the court rejected the concern that the beneficiary could not bring a separate suite to enforce the support obligation. Other courts have found that a beneficiary cannot bring a separate lawsuit for I-864 support after arguing for such support in a divorce case. But the Khan court specifically held that the beneficiary could bring a different lawsuit to enforce her I-864 rights because the divorce court “did not adjudicate an action for breach of the sponsor’s I-864 obligation.”

The Khan case leads to a frustrating and inefficient situation for I-864 beneficiaries. By holding that a divorce court is not required to order alimony based on the I-864 the Khan court leaves beneficiaries in the position of having to bring a separate lawsuit to recover I-864 support. The Khan decisions leaves open the possibility that a divorce court could order support based on the I-864 if the judge found doing so appropriate, but if alimony is not ordered it will be difficult to appeal.

On the other hand, the Khan decision creates a new Washington State precedent that beneficiaries are entitled to bring a lawsuit against I-864 sponsors. This is great news for beneficiaries. And because beneficiaries are entitled to recover attorney fees and the costs of litigation from I-864 sponsors, the expense of these lawsuits will be born by I-864 sponsors.

 

One (long-shot) strategy for joint sponsorship

Family petitioners with limited resources often find themselves in need of an additional “joint sponsor” to meet the financial sponsorship level required for the I-864. Usually the petitioner will approach other family members or friends. The only legal requirements are that the person be a citizen or permanent resident living in the US. But here’s one approach to finding a joint sponsor that I saw for the first time today: post a Craigslist ad. The following ad was posted on the Eugene Craigslist page:

Affidavit of support co-sponser needed

 I know this is a long shot but I have tried everything else, so I have decided to come here to see if I can find someone with a good heart that is willing to help my family. My husband is a nigerian citizen and we are trying very hard to get him here with his family where he belongs. Our son misses his father dearly and the struggles of being the only parent in the home is getting overwhelming. I work full time and go to school but I still don’t make enough to petition for my husband on my own. Please I beg if you are willing to help and make over 125% of the poverty guideline please contact me by responding to this ad for more details.

 

Certainly this shows the challenging situation of someone struggling to meet the financial sponsorship requirements of the I-864. It’s also important to recognize what this person is asking from a stranger. I-864 sponsorship lasts potentially indefinitely. Folks can – and should – helps others when they can. But it’s important not to think the I-864 is “just” an immigration form. It’s a binding legal contract and needs to be treated with caution.

Daily News America picks up I-864 issues

The New York Daily News had given rare mainstream media coverage to I-864 enforcement. The brief article suggests that enforcement of I-864 rights “rarely happens”. This may be the case, though no known statistics exist to back up the assertion. What is clear, however, is that the right to receive I-864 support is clearly established for beneficiaries. It seems that many beneficiaries may not be recovering the support to which they are entitled.

Joint sponsor liable for $10,908

Following a bench trial to a federal judge, a joint sponsor has been held liable for $10,908 in damages to an I-864 beneficiary. In Matloob v. Farhan a Pakistan national brought suit pro se against her former husband and his uncle, who signed an I-864, Affidavit of Support as a joint sponsor. Civil No. WDQ-11-1943, 2014 WL 1401924 (D.Md. May 2, 2014) (Memo. Op.).
The marriage at issue was arranged between the Pakistan national wife and a US citizen husband. Because of the husband’s low income, in order to meet sponsorship requirements for a spousal visa he was required to secure an additional “joint sponsor” I-864, which was executed by his uncle.

A trial, testimony established that the beneficiary-plaintiff had suffered physical abuse by her sponsor-husband. She suffered the abuse when the sponsor-husband was physically unable to consummate the marriage, shortly after her arrival to the US. When the couple sought medical advice for this issue the doctor discovered scares and bruising on the beneficiary-plaintiff and the police became involved. Following a bench trial the District Court concluded that the I-864 defendants had failed to carry their burden of proof on the defense of fraud. Although it was not contested that the marriage dissolved shortly after the beneficiary’s arrival in the US, there was insufficient evidence she had fraudulently induced marriage to secure an immigration benefit.

[In February the District Court had denied a defense motion for summary judgement which raised the same assertions of fraudulent inducement. Farhan v. Farhan, Civil No. WDQ-11-1943, 2013 WL 453237 (D.Md. Feb. 5, 2013).]

The judge readily concluded that both sponsors were jointly and severally liable for I-864 support. The beneficiary-plaintiff had been unemployed for all of the 2010 calendar year, and had moved from the husband’s house in March of that year. The court therefore ordered support in the amount of $10,908, which represented 125% of the Federal Poverty Guidelines for the 2010 calendar year, pro-rated for the period of time during which the beneficiary-plaintiff had resided with her husband. The beneficiary-plaintiff was instructed to seek reasonable attorney fees and costs via motion.

The Matloob decision delivers no real surprises, but provides one of the few examples where an I-864 joint sponsor has been held accountable.

 

Oral arguments set in first Washington State case on I-864 issues

Oral arguments have been set in the first Washington State appeals case to consider issues relating to the I-864, Affidavit of Support. The principal issue in Matter of Khan (Div. II 44814-9-II) is the appropriate duration of spousal maintenance. In Khan the trial court agreed that it was appropriate to award spousal maintenance to an I-864 beneficiary based on the husband’s support duties under the Affidavit of Support. But in Khan the trial court set the duration of support shorter than the 5 terminating conditions set forth in the I-864. The appellant-beneficiary argues this shortened duration was erroneous, and that the trial court should have set duration based on the terminating conditions in the I-864.
The I-864 beneficiary is represented by this blog’s author, attorney Greg McLawsen. Arguments are set for June 23, 2014 at 9:00 at Court of Appeals Division II (950 Broadway, Tacoma, WA 98402).

Raising I-864 in divorce court bars litigation in federal court

What happens if an Affidavit of Support beneficiary unsuccessfully raises the issue of I-864 financial support during divorce proceedings? One court has recently held that she will be barred from bringing a federal lawsuit to subsequently enforce those rights.
In Yaguil v. Lee the foreign national wife asserted her right to financial support during divorce proceedings. 2:14-cv-00110-JAM-DAD, 2014 WL 1400959 (E.D.Cal.,2014) (Order Granting Defendant’s Motion to Dismiss). It is not clear that the I-864 was mentioned in the divorce pleadings, but the beneficiary did so in a “statement of issues” filed in the divorce action. She wrote, “[s]ince the separation (19[ ]months) my sponsor Mr. Gary Lee failed to comply the I-864[sic].” In argument before the federal court the beneficiary asserted that the I-864 issue was “apparently dropped” in the divorce action, though it appears there was no citation to the record to assert this claim.

Following entry of the divorce decree the beneficiary brought a federal lawsuit to assert her I-864 support rights. The sponsor/defendant moved for dismissal, arguing the suit was barred by res judicata.

The beneficiary appears have argued only that there was no “identity of claims” as required for res judicata to apply. The brief federal court order makes it difficult to assess the basis of this argument. Assuming an I-864 claim was raised in the divorce proceeding, it seems probable the claim is identical to seeking the same financial support in a contract action. At least part of the claim.

It’s important to recognize that I-864 obligations continue following divorce. So unless the wife waived her right to subsequent support (assuming this can be done) she would continue to accrue new claims for each month in which the sponsor fails to provide financial support. If the beneficiary was seeking support for time periods after the divorce, it’s unclear why the claims in Yaguil would be the same as support sought up to the time of the divorce.

The decision in Yaguil also does not address the question of whether there was a “final judgment on the merits” on the I-864 issue in the divorce action. It seems the only mention of the I-864 was in the “statement of issues.” Moreover, it seems the I-864 was not mentioned in final orders from the family law court. At the very least the federal court orders makes no mention of such a citation. It is possible that beneficiaries in similar situations might successfully argue that the divorce court never passed on the merits of the I-864 claim.

The Yaguil matter is yet another reason for family law practitioners to be very careful about giving attention to the I-864. Family law practitioners should screen all clients – and their partners – for foreign citizenship. If either is – or was – a foreign national it’s important to pro actively explore how that individual immigrated to the U.S. and whether an I-864 was executed.

 

***

I thank Mr. Gary Lee for bringing the Yaguil matter to my attention.

 

Ante-nuptial agreements can’t waive I-864 support.

A third court has held that purported waivers of I-864 support are ineffective. Toure-Davis v. Davis, NO. WGC-13-916, 2014 U.S. Dist. LEXIS 42522 (Dist. M.D. Mar. 28, 2014). In Toure-Davis v. Davis the court gave both a narrow (but plausible) and a broad (but misguided) basis for holding the waiver was ineffective.  I’m indebted to noted immigration attorney, Bob Gibbs, for bringing this decision to my attention today.
 Background. Plaintiff was a citizen of Ivory Coast who married the U.S. citizen defendant on July 29, 1998. On the day of marriage the parties signed an ante-nuptial agreement. The agreement set forth a general waiver, whereby both parties agreed broadly not to seek financial support from each other, were the marriage to end. The agreement contained no language specific to the I-864. Defendant later petitioned for Plaintiff’s lawful permanent residency in the U.S. and in the process executed an I-864. After the parties separated a state court action followed, which resulted in a settlement wherein Plaintiff received certain financial support. The federal district court action then followed, in which Plaintiff sought a damages award for I-864 support.

[Side note. The court breezily concluded it had federal question subject matter jurisdiction, as the claim at stake “involves” a federal statute. This view jives with the majority, contrary to one district court in Florida which holds I-864 suits are contract actions not arising from federal statute. See Winters v. Winters, No. 6:12-cv-536-Orl-37DAB, 2012 U.S. Dist. LEXIS 75069 (M.D. Fla. Apr. 25, 2012). (It appears Defendant did not raise object to jurisdiction).]

Narrow basis. Defendant argued that Plaintiff had waived her right to collect financial support under the I-864 by signing the ante-nuptial agreement. The District Court rejected this argument first because of the timing of the agreement. Since the agreement was signed before execution of the I-864, the court reasoned that the ante-nuptial agreement was modified by execution of the I-864. Since Plaintiff is a third-party beneficiary to the I-864, the reasoning goes, execution of that form gave her new contractual rights against the Defendant, and those rights modified the previously agreed-upon rights from the ante-nuptial agreement.

Even if sound, this reasoning wouldn’t prevent parties from making enforceable waivers of I-864 rights. The timing issue can be resolved by re-executing a waiver agreement after the sponsor signs the I -864. The I-864 is signed on Day 1; on Day 2 the ante-nuptial agreement is signed and the parties thus modify their private rights under the I-864. The modification argument could also, presumably, be bypassed by a more carefully-drafted waiver agreement. Contracts routinely contain modification clauses that explain how the agreement can and can’t be modified (e.g., in writing, etc.). Why not specify that execution of the I-864 does not modify the waiver agreement?

Broader basis. Despite having rejected the validity of the ante-nuptial agreement, the court went on to offer a boarder and more confused basis for the same conclusion. The court appears to reason:

  1. The “obligation of support” is “imposed by federal law.”
  2. The duty of support is for the “benefit of federal and state taxpayers”, etc.
  3. Defendant agreed to provide support to Plaintiff.

Thus:

Defendant therefore cannot absolve himself of his contractual obligation with the U.S. Government by Plaintiff purportedly waiving any right to alimony or support via the ante-nuptial agreement.

First of all, the court doesn’t identify what rule makes it impossible for a sponsor to waive the duty of support. Is it because such an agreement would be void as against public policy? (Hence the citation to the public purpose behind the form). Or is it because the rights involved aren’t contractual in nature? (Hence the citation to “federal law”). This is yet the most recent example of confusion about what type of rights an I-864 beneficiary possesses. At least one federal court clearly believes they are contractual in nature, and rejects federal question subject matter jurisdiction because there is no federal statutory cause of action. See Winters, supra. Other courts, as in Toure-Davis, treat the rights as statutory. As long as this confusion persists, case law about I-864 enforcement will continue to be incoherent.

Unlike the Narrow Basis for the holding in Toure-Davis, the Broader Basis lends itself to no drafting solution. On this view beneficiaries can’t waive their right to collect I-864 support, so attorneys will want to be cautious about advising clients to try. In the Western District of Washington, where I practice, no state or federal court has considered waiver of I-864 support. I will continue to advise I-864 sponsors and joint-sponsors that a waiver may be possible, but that the prevailing view is that such agreements are unenforceable. But where the sponsor has already agreed to sign the I-864, she may as well attempt to protect herself with a waiver agreement.

Another court finds prenuptial agreements unenforceable

In Shah v. Shah a second federal district court has determined that an I-864 beneficiary may not waive her right to collect financial support under the I-864.  Civil No. 12–4648 (RBK/KMW), 2014 WL 185914 (D.N.J. Jan 14, 2014) (memo. op.).
In Shah, the parties had signed a prenuptial agreement prior to executing the I-864.   The court held that the language of the prenuptial agreement by itself was inadequate to waive the sponsor’s support duty, as it failed to specifically purport to waive those rights.  The agreement stated, under a section entitled “Alimony,” that the immigrant-beneficiary:

waives, releases and relinquishes any and all rights whatsoever, whether arising by common or statutory law (present or future) of any jurisdiction to spousal alimony, maintenance, or other allowances incident to divorce or separation….

This conclusion is not surprising, since I-864 support is not “alimony” or “maintenance” in any straight-forward sense.

But the court went on to hold that—language aside—the parties lacked authority to waive the sponsor’s support duty.  First the court noted that the “immigration regulations” list the five circumstances that terminate support obligations, ant that “a prenuptial agreement or other waiver by the sponsored immigrant” does not terminate obligations under the regulations.  This argument is probably weak since an individual may waive even constitutional rights, let alone regulatory rights.  The fact that the regulations set forth terminating conditions does not necessarily entail that the parties cannot create other terminating conditions.

But the court went on to offer an interesting second argument in support of the non-waivability of support rights.  It noted that under the INA the “Government” may not accept an I-864 unless that I-864 is “legally enforceable against the sponsor by the sponsored alien.”  The language quoted is where the INA mandates creation of the document that became the I-864, which replaced the unenforceable I-134.  But the court reasons, ‘the I-864 could not have been unenforceable if the government accepted it, the government did accept it, therefore the form must be enforceable.’  The syllogism seems perhaps a bit formalistic.

The deeper question underlying that argument is whether the parties’ rights are fundamentally statutory or contractual in nature. As noted elsewhere, courts are often unclear how they justify reliance on the INA when examining parties rights under the I-864.   Some federal courts reject subject matter jurisdiction over I-864 disputes precisely because they are contractual in nature rather than posing a federal question.  If the parties’ rights are contractual, and not statutory in nature, the Shah court’s reasoning seems misplaced.  Following it’s syllogism, another alternative is that the government just messed up: it accepted an I-864 that was actually unenforceable because the beneficiary had waived her rights, and if the government had known better it would have rejected the Affidavit.  Moreover, the I-864 form could be modified by the USCIS to include a clause on the form itself reciting that it trumps any prior written agreement.

With the Shah decision now issued — and only two other cases on point — an attorney taking the bean-counting approach to law must advise her clients that prenuptial agreements cannot waive I-864 rights.  Compare Erler v. Erler, Civ. No. 12–2793, 2013 WL 6139721, at *2 (N.D.Cal. Nov. 21, 2013) (prenuptial agreements can’t waive I-864 support) with Blain v. Herrell, Civ. No. 10–72, 2010 WL 2900432, at *7–8 (D.Haw. July 21, 2010) (yes they can). 

Colorado River abstention applies. Pavlenco v. Pearsall (E.D.N.Y. Nov. 27, 2013).

In Pavlenco v. Pearsall the District Court for the Eastern District of New York has offered the most detailed analysis to date on the application of abstention doctrines in the context of suing on the I-864.  No. 13-CV-1953 (JS)(AKT), 2013 WL 6198299 (E.D.N.Y. Nov. 27, 2013) (memo. order).  In Pavlenco  the parties had a pending state court divorce matter, approximately one month from trial, in which the beneficiary had sought to raise issues pertaining to the I-864.The beneficiary had sought enforcement of the I-864 in the divorce proceeding but alleged that the defendant-sponsor had noted “allow[ed]” her to do so.
Subject matter jurisdiction.  The court concluded easily that it possessed federal question jurisdiction over an I-864 enforcement suit, following the prevailing view on that issue. The Pavlenco court cited only to previous federal decisions that had reached the same view.  The Middle District of Florida appears to be the only jurisdiction currently holding that federal courts lack subject matter jurisdiction over suits to enforce the I-864.  See, e.g., Vavilova v. Rimoczi, 6:12-cv-1471-Orl-28GJK, 2012 U.S. Dist. LEXIS 183714 (M.D. Fla. Dec. 10, 2012) (report and recommendation of magistrate judge). 

Younger abstention. Younger abstention prevents a federal court from considering a matter where the following conditions are met:

(1) there is an ongoing state proceeding; (2) an important state interest is implicated in that proceeding; and (3) the state proceeding affords the federal plaintiff an adequate opportunity for judicial review of the federal constitutional claims.

Application of the doctrine turned on whether the plaintiff-beneficiary would have a full opportunity to pursue her federal claim in the state court action, and whether the federal action stood to interfere with the state court matter. Because the plaintiff-beneficiary had not yet succeeded in bringing I-864 enforcement issues to the attention of the state court, enforcement in the federal lawsuit would not have the effect of enjoining any state court action.  And the court noted that the mere existence of a parallel state court action does not implicate Younger abstention.

Colorado River abstention.  The court then considered Colorado River abstention, under which a federal court must consider the following factors:

(1) whether the controversy involves a res over which one of the courts has assumed jurisdiction; (2) whether the federal forum is less inconvenient than the other for the parties; (3) whether staying or dismissing the federal action will avoid piecemeal litigation; (4) the order in which the actions were filed, and whether proceedings have advanced more in one forum than in the other; (5) whether federal law provides the rule of decision; and (6) whether the state procedures are adequate to protect the plaintiff’s federal rights.

The court found that three factors weighed in favor of abstention.  First, a stay would avoid piecemeal litigation as the court believed it was likely the state court would address the I-864 issue.  This reasoning is somewhat confusing – although the defendant-sponsor argued to the federal court that the I-864 should be raised in state court, it is unclear why the defendant would have any incentive not to fight adjudication of the issue in state court as well.  Second, the court noted the advance stage of the state court litigation (approximately a week before trial).  Lastly, the court noted that although the I-864 involved “federal law,” state courts were equipped to adjudicate I-864 obligations in the context of a divorce proceeding.  The court therefore entered a six-month stay on the federal action.

No issue preclusive effect following divorce trial. Yuryeva v. McManus (Texas).

In Yuryeva v. McManus a Texas appeals court stated clearly – although in dicta – that an immigrant-beneficiary could bring a subsequent contract action on the I-864 despite failing to raise enforcement in the context of her divorce proceeding. No. 01-12-00988-CV, 2013 WL 6198322, at *7 (Tex. App. Houston 1st Dist. Nov. 26, 2013) (memo. op.).
In the divorce proceeding the beneficiary had put the I-864 into evidence and had testified that the sponsor had be failing to meet support obligations, and the sponsor’s attorney had stipulated that “there was an agreement that they were to live together and [the sponsor] would support her.”  The beneficiary did not, however, specifically request that the trial court “enforce” the I-864 support duty. For this reason the appeals court held the lower court did not err in failing to incorporate the support obligation into the divorce decree, but the appeals court stated that the contractual obligation survived.

Yuryeva aside, there is some question as to whether a divorce proceeding may have issue or claim preclusive effect on a beneficiary’s right to enforce a support obligation.  For further discussion see Section II.B.2 of Suing on the I-864 Affidavit of Support.