USCIS has started to advise green card applicants about their rights under the Form I-864.
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Marriage of Miller is a recent (unpublished) California appeals case.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)
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.
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.
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 " 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  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.
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
J. We concur: SLOUGH
Acting P. J. FIELDS
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.
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:
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.
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.
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.
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.
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.
Slides 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.
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.
As noted in our articles, the executed Form I-864 can be requested through a Freedom of Information Act (FOIA) request. Other lawyers have reported that such requests have returned Forms I-864 that are either fully or partially redacted. That result is arguably consistent with protections of the U.S. sponsor’s personal information under the Privacy Act. In my experience, however, FOIAs submitted by the foreign national typically are returned with an unredacted copy of the I-864. Regardless of whether this is erroneous or not on the part of USCIS, FOIA requests have proved an expedient means of acquiring the signed contract.
If you are a greencard holder, what are your rights in the case of divorce? Can you use the Form I-864, Affidavit of Support to recover support from your spouse? That depends on the details of your case.
What is the Form I-864?
The Form I-864 is signed by the US citizen/resident during the immigration process. By signing the Form I-864 the sponsor promises to provide support to the immigrant. He promises to ensure that the immigrant has income equal to at least 125% of the Federal Poverty Guidelines.
The support obligation lasts potentially forever. It stops if the immigrant is credited with 40 "quarters of work." In some situations it also ends if the immigrant departs the United States. But divorce does not end the I-864 support obligation.
The Form I-864 and divorce.
If the immigrant divorces her US husband, she may be entitled to support under the Form I-864. In fact, she may be able to get I-864 support even if she cannot get alimony.
To qualify for support, the immigrant would need to be earning less that 125% of the Federal Poverty Guidelines. For a household of one that is $1,238 per month. If the immigrant is earning that much or more, then the sponsor is not required to provide support. But if the immigrant is unemployed, or earning less than $1,238, then the sponsor is required to make up the difference.
Can I bring up the I-864 in divorce court?
If you believe you are entitled to support under the I-864, what do you do? Unfortunately the answer is complicated and varies from state to state. (The easy answer is ask us - we're happy to offer you a case assessment at no cost).
In some states, judges will consider the I-864 in a divorce case. The judge may be willing to enforce the I-864 and to award alimony based on the I-864.
But in other cases, divorce courts refuse to enforce the I-864. In those states, the courts believe that the I-864 should be enforced through a separate lawsuit. Those courts say that alimony laws cannot be used to enforce a federal contract like the the I-864.
Should you "play it safe" and raise the I-864 in divorce court? Not so fast. That could make it impossible for you to bring another lawsuit later, if a judge refuses to enforce the I-864. This is a legal principle called "issue preclusion" or "collateral estoppel." Under that rule, someone is not allowed to bring a second lawsuit to raise an issue decided in a previous lawsuit. So if a divorce judge rules against you on the I-864, that could prevent you from bringing another lawsuit to enforce the I-864.
Generally, a separate lawsuit should be brought to enforce the I-864. This lawsuit can be started even while a divorce case is continuing. In fact, it is usually best to bring the lawsuit as soon as possible. This prevents the defendant from arguing that the I-864 should have been raised in the divorce case.
We are publishing an update to our 2012 article, Suing on the I-864, Affidavit of Support. That original article, along with a February 2014 update, is available on our website here. The current article reviews all United States case law concerning enforcement of the I-864, going back to publication of the last article. Together the three articles review every case throughout the United States to consider enforcement of the I-864.
Download the article here: Suing on the I-864 - December 2016 Update
This is the third in a series of articles summarizing all available case law regarding enforcement of the Form I-864, Affidavit of Support. The previous articles are freely available for download. As with the last piece, the current one is intended as a “pocket part” update to issues discussed in the original 2012 article.
I-864 beneficiaries have continued their strong track record of successfully enforcing support rights in both state and federal courts. There is no longer any question whatsoever as to whether they have the standing to do so. The issues over which courts now disagree are subsidiary ones. For example, what types of financial benefits – housing subsidies, gifts, and so forth – offset a sponsor’s support obligation?
Most immigration attorneys are uninterested in civil damages litigation, so why read further? Because we represent I-864 sponsors. Indeed, immigration attorneys commonly represent both a U.S. citizen/resident petitioner and an intending immigrant family member. The same attorney may also represent an I-864 joint sponsor in the same matter, though we argue that is unwise. It is one thing to have a vague sense that the I-864 is an enforceable contract. But it is another matter altogether to see I-864 litigation in action. The cases discussed below may prompt some practitioners to double-check their procedures and advisories when working with I-864 sponsors.
For would-be I-864 plaintiffs, one of the first orders of business is to acquire a copy of the Form I-864 executed by the sponsor. Often, the beneficiary does not possess a copy of the I-864 as filed. That is hardly a surprise. If the foreign national went through consular processing for an immigrant visa, the sponsor – and not the beneficiary – would have filed the I-864 directly with the National Visa Center. And if the foreign national adjusted status, it is often the English-speaking petitioner who takes on the primary logistical role in submitting the application packet.
If the parties were assisted by an attorney, of course, that firm must release the I-864 to the foreign national upon request, as it was drafted on her behalf. The I-864 is submitted in support of the foreign national’s adjustment or visa application, not in support of the underlying I-130 petition. This author recently filed a complaint for unauthorized practice of law in Arizona where a notario – a former Immigration and Customs Enforcement officer, to boot – refused to return an adjustment file to a foreign national. A replevin action could be used to claw back a copy of the form, but this would hardly seem worth the effort.
As noted in prior articles, the executed Form I-864 can be requested through a Freedom of Information Act (FOIA) request. Other practitioners have reported that such requests have returned Forms I-864 that are either fully or partially redacted. That result is arguably consistent with protections of the U.S. sponsor’s personal information under the Privacy Act. In this author’s experience, however, FOIAs submitted by the foreign national typically are returned with an unredacted copy of the I-864. Regardless of whether this is erroneous or not on the part of USCIS, it has proved an expedient means of acquiring the signed contract.
May the beneficiary compel the sponsor to cooperate in a FOIA request to obtain the signed I-864? Surprisingly, at least one case suggests the answer could be no. Echon v. Sackett was not I-864 enforcement litigation, but rather a federal district court action against an employer, alleging violations of anti-trafficking and employment laws. In the course of contentious discovery, the plaintiffs sought copies of Forms I-864 filed by the employer-defendant. Though unartfully presented, it appears the plaintiffs sought an order compelling the defendants to sign a FOIA request for the Forms I-864, after the defendants denied possessing the documents. After noting that Fed. R. Civ. Pro. 34 does not “expressly authorize a court to order a party to sign a release concerning any kind of record,” the Court advised that the plaintiffs should first seek the documents through their own FOIA request, or else via a Rule 45 subpoena.
In this author’s experience, sponsor-defendants have readily agreed to cooperate with a FOIA request to acquire the Form I-864 filed by a sponsor. A plaintiff, of course, may compel production of a document that is within the “possession, custody, or control” of a defendant. Since signing the FOIA request is hardly burdensome, and the document is highly relevant to the claims, opposing litigants generally have not resisted on this issue.
Duration of obligation
It is said that bad facts make bad law. Perhaps the only thing that makes worse law is pro se litigants.
In a poorly guided decision, a federal district court for New Jersey held that I-864 obligations terminate once a foreign national has prevailed in an I-751 waiver petition. In Shah v. Shah, a pro se foreign national prevailed at a jury trial, demonstrating that her sponsor had failed to fulfill his obligation under the Form I-864. The jury, however, appeared to calculate damages based on a cutoff date of when the foreign national won approval of her I-751 petition, which was filed as a waiver without the sponsor’s assistance.
The plaintiff, pro se, moved for a new trial, arguing that the I-751 approval did not terminate the sponsor’s obligations. Without further explanation, the Court stated:
After Plaintiff received a one-year extension from USCIS, her status was set to expire on May 25, 2014. But upon Plaintiff's petition, USCIS adjusted Plaintiff's immigration status to that of lawful permanent resident on December 13, 2013. Because Plaintiff's status adjustment was not based upon Defendant's Form I-864, her status adjustment terminated Defendant's obligation to support Plaintiff.
These statements are poorly guided – likely in the literal sense that the litigants gave the Court little sound research on which to base its ruling.
The error is this: an I-751 petition is not an application for “status adjustment.” An I-751 petition, of course, is exactly what it says on its face – a petition to remove the conditions placed on an individual who is already a lawful permanent resident (LPR). That is a distinction with a difference.
Under the plain language of federal regulations conditional residents are LPRs. Unless otherwise specified by law, a conditional resident possesses all “rights, privileges, responsibilities and duties which apply to all other lawful permanent residents.” As the USCIS Policy Manual states in its introductory sentence to conditional residency, conditional residents have “been admitted to the United States as LPRs on a conditional basis for a period of two years.” For a foreign national filing an I-751 petition, LPR status is hers to lose, not to gain.
In other words, once a foreign national has acquired conditional LPR status based on an I-864 filed by her sponsor (or a joint sponsor), she has already acquired LPR status, period. All that is left is to remove the conditions placed on her LPR status, but there is no “other” permanent residency status to which she could “adjust.” When a conditional resident gets an I-751 approved – whether via a joint petition or waiver – she is not transitioning into a new residency status. The pro se plaintiff in Shah was an LPR from the day she first received conditional LPR status, and she maintained that same LPR status through the I-751 petition process. Shah was wrongly decided and will hopefully not mislead other courts.
The sponsor’s obligation under the I-864 terminates when the beneficiary acquires 40 quarters of work under the Social Security Act. But whose work quarters count towards that threshold? In the California case of Gross v. Gross, a pro se plaintiff argued that her husband’s quarters of work did not count towards the 40 quarters. Following the plain text of the Form I-864 and underlying statute, the Court disagreed. The statute specifically provides that in counting quarters of work, the beneficiary shall be credited with “all of the qualifying quarters worked by a spouse of such alien during their marriage and the alien remains married to such spouse or such spouse is deceased.” The Form I-864 itself, official instructions, and statute all refer to work quarters with which the beneficiary may be “credited” rather than those she has earned. As the Gross Court concludes, it is clear that a beneficiary can be credited with work quarters earned by her spouse. Note, however, that this does not necessarily resolve the issue of whether quarters can be double-stacked. If both the beneficiary and sponsor are working, it is not obvious that two work quarters should be simultaneously counted towards the 40-quarter threshold.
In a published New Jersey case, an appeals court followed the plain language of the Form I-864 to hold that support obligations end upon the death of a sponsor. Fox v. Lincoln Financial Group was primarily a state law case about whether marriage should automatically cause one spouse, by operation of law, to become the beneficiary of the other’s life insurance policy. When a U.S. citizen spouse died, his foreign national spouse sued the life insurance company, and argued that the Affidavit of Support offered a justification for recovering against the policy. The trial and appeals courts rejected that contention, citing the plain language of the Form I-864, stating that the obligation ends upon the death of the sponsor.
It is important to distinguish, however, between termination of the sponsor’s obligation and the viability of claims accrued up to the date of termination. If a sponsor has failed to provide support for a period of one year, for example, and then dies, his estate will remain liable for support arrears up to the date of his death. While the estate is not liable for future support – since the obligation has terminated – the beneficiary does not lose the ability to assert claims that accrued prior to the sponsor’s death.
Under the plain language of the Form I-864, the sponsor’s obligations commence when the beneficiary gains lawful permanent residency based on the sponsor’s affidavit. Of course, if the Affidavit is signed but never filed, then the sponsor never becomes obligated under the contract.
Sponsor-defendants typically answer I-864 lawsuits by pleading a kitchen sink’s worth of affirmative defenses. In the author’s experience, these often include defenses that seem hard-pressed to pass even the good faith requirement. The notion, for example, that an I-864 beneficiary “lacks standing” to maintain a suit against a sponsor is simply frivolous. Nonetheless, courts will typically decline to strike even questionable affirmative defenses, at least during early stages of litigation.
In December 2016 the North Carolina Supreme Court handed down one of the most important I-864 enforcement opinions in years. In Zhu v. Deng the Court held squarely – albeit with little discussion – that the duty to mitigate does not apply in I-864 enforcement cases. The sponsors in Zhu argued that their support obligation should be offset by income that the plaintiff could be earning, were she not voluntarily unemployed. But the state Supreme Court disagreed. Instead, it followed a seminal Seventh Circuit opinion authored by Judge Posner. In Liu v. Mund, Judge Posner opined that the congressional purpose behind the I-864 is to ensure that the sponsored immigrant has actual support when needed. That purpose would be thwarted if courts were to engage in speculation about whether a sponsored immigrant could be working but was electing not to. With little discussion of its own, the Zhu opinion favorably quotes the reasoning in Liu.
Damages in I-864 enforcement litigation are easy to calculate – at least in principle. The plaintiff is entitled to recover 125% of the Federal Poverty Guidelines (FPGs), less any actual income she has received. Courts continue to work through the issue of what financial sources qualify as income for purpose of calculating damages. The resulting decisions are a hodgepodge that employ no consistent standard to define what is and is not income for purposes of I-864 lawsuits.
In Dahhane v. Stanton a federal judge for the District of Minnesota opined on several financial sources, led by the dubious guidance of pro se litigants The Dahhane Court correctly ruled that financial payments from the sponsor to the beneficiary should count against the sponsor’s support obligation, regardless of whether they were designated as support payments under the I-864. Yet in reaching that conclusion, the Court unnecessarily opined that the I-864 regulations in Title 8 C.F.R. do not define income for purposes of calculating damages under the I-864.
Under those regulations income means income as defined "for purposes of the individual's U.S. Federal income tax liability." The Court reasoned,
8 C.F.R. § 213a.1 provides definitions for use in determining whether someone is eligible to sponsor an immigrant; the regulation has nothing to do with calculating whether an immigrant has been supported at 125 percent of the federal poverty level.
The Court offers no explanation for why 8 C.F.R. § 213a.1 does not provide the definition of income for purposes of damages calculations. Why go this far? Instead, the Court could simply have held that a financial transfer from sponsor to beneficiary counts towards the sponsor’s support obligation regardless of how it is characterized.
Bizarrely, the Dahhane Court next held that money brought by the beneficiary from his home country qualified as income for purposes of offsetting damages. This result is jarring, as the Court does a 180-degree flip on its rationale applied earlier in the same decision regarding the import of IRS guidelines. The Court noted that the I-864 regulations permit the sponsor to list the beneficiary’s assets for purposes of demonstrating financial sufficiency to qualify as an I-864 sponsor. Thus, the Court reasoned, $3,000 that the beneficiary brought from Morocco counts as income provided to him by the sponsor for purposes of damages calculations.
There are two problems with this. First, the Court had just reasoned that income defined for initial sponsorship purposes is not the same thing as income for purposes of damages calculations. Second, income and assets are of course separate concepts under the I-864. A sponsor need not report his own assets – let alone the assets of the beneficiary – if his income meets the required threshold. In any event, why should reported assets have anything to do with whether a sponsor s fulfilling duty to provide income? The Court gives no reason why the beneficiary’s assets, which might or might not have been reported on the I-864, later qualifies as an income source for a later support period.
The Zhu case from North Carolina reached the opposite and correct approach regarding assets owned by an I-864 beneficiary. The sponsors in Zhu argued that their support obligation should be offset by the beneficiary’s share of monetary wedding gifts. Disagreeing, the opinion states:
Assets do not amount to income, and a judgment, even a monetary one, is not necessarily an asset for purposes of income. [. . .] Notably, plaintiff-husband listed $150, 000.00 under a heading titled "Assets of the principal sponsored immigrant" on his Form I-864A. This fact had no bearing or impact on the government's requirement that contracts of support were necessary for [the plaintiff-beneficiary] to become a permanent resident, and nor should a judgment against defendant-parents in the amount of $67, 620.
This approach is both clean and correct. The sponsor’s obligation is offset by the beneficiary’s income. But assets are not income under any normal understanding of the terms.
Departing from other federal courts, the Dohhane Court next held that child support payments to the Beneficiary’s children qualified as income for purposes of the I-864 damages calculation.
Finally, the Dohhane Court correctly concluded that federal income tax refunds paid to the Beneficiary do not qualify as income. Since “[a] tax refund is merely the return of the recipient's money,” it would be unfair to count it twice, “once when it is received and a second time when it is refunded.” Similarly, in Villars v. Villars, the Supreme Court of Alaska held that an Earned Income Tax Credit does not constitute income for purposes of offsetting I-864 support obligations.
Other tribunals have reached the opposite conclusion regarding reliance on IRS guidelines. In Nasir v. Shah, another U.S. District Court held that the immigrant-beneficiary’s unemployment insurance payments qualified as income, following the defendants’ citation to Internal Revenue Service (IRS) guidelines characterizing such payments as taxable income.
Reaching exactly the opposite conclusion from Dohhane, in Toure-Davis v. Davis a federal court for the District of Maryland held that IRS guidelines do define income for purpose of I-864 damage calculations.
In determining whether a sponsor has sufficient income to support a sponsored immigrant at a minimum of 125 percent of the Federal poverty line, Form I-864 utilizes the [IRS] rules. This court therefore will consult the IRS rules regarding whether a property settlement incident to a divorce is treated as income.
Relying on that standard, the Court in Toure-Davis held that a divorce property settlement did not constitute earned income, and therefore did not offset the Sponsor’s I-864 support obligation.
But in the very same memorandum decision, the Toure-Davis Court failed to rely on the IRS guidelines. With virtually no discussion, the Court held that the defendant was entitled to an offset for the value of free housing provided to the plaintiff by an individual. The Court reasoned that the free housing was the equivalent of receiving a housing subsidy, and also that it was given as a “bartered service” in exchange for the plaintiff’s cooking and cleaning. But wait, is couch-surfing now a form of income taxed by the federal government? If the divorce settlement in Toure-Davis was not income – because the IRS guidelines say it was not – why is free housing income, when its value is not taxable as income?
The damages to which an I-864 plaintiff is entitled depends on her FPG household size, and courts have struggled to define that term. In Erler v. Erler the Ninth Circuit has set forth a helpful bright-line rule for determining household size for the purpose of I-864 damages. After separation, the beneficiary moved in with her adult son. Her son was employed, earning income that exceeded 125% of the FPG for a household of two. The evidence showed that the beneficiary’s son used some of his income to pay rent and living expenses for both himself and the beneficiary.
The beneficiary sued for support under the Form I-864. Although the trial court determined that the obligation survived divorce, it held that the sponsor owed no support. The trial court “imputed” the son’s income to the beneficiary. Because his income exceeded 125% FPG for a household of two, the beneficiary was above the required support level and the sponsor owed nothing
First, the Ninth Circuit squarely held that the Form I-864 is an enforceable contract. The Ninth Circuit then went on to the issue of household size. The Court rejected the trial court’s view that the son’s income should be imputed to the beneficiary. As had the trial court, the Ninth Circuit found that the I-864 statute and regulations did not define household size for enforcement purposes. Note the parallel with the IRS guidelines issue discussed above. There, courts disagreed as to whether rules defining income for determining eligibility of a sponsor also defined that term for purposes of damages calculations.
The Ninth Circuit rejected the idea that household size could be measured by the actual “post petition” household. Instead,
…in the event of a separation, the sponsor’s duty of support must be based on a household size that is equivalent to the number of sponsored immigrants living in the household, not on the total number of people living in the household.
In other words, the operative household size is one, plus any other immigrants who were also sponsored by the same Form I-864.
The Court acknowledged that this approach will sometimes seem to give a windfall to the beneficiary. In Erler, for example, the beneficiary had access to some resources from her son, even though she was also entitled to a full support (125% FPG) from Sponsor. But the Court reasoned that a sponsor should have anticipated that he might be liable for the amount of support. Moreover, the court reasoned, it would be unfair to foist the support of the immigrant on – in this case – her son, when in fact it was the sponsor’s duty to provide the support.
Although Erler is helpful in setting a bright line rule, it leaves unanswered questions. At the top of the list: what happens if the beneficiary has a child? Under Erler, because that child is not a sponsored immigrant she will not qualify as a household member. The core purpose of the I-864 is to ensure that a sponsored immigrant has a bare-bones safety net, at the sole expense of the sponsor. The Erler approach will fall short of that goal where a sponsored immigrant has to use her resources to provide for a U.S. citizen child. It appears that the beneficiary’s best strategy in that situation would be to pursue child support in addition to I-864 support.
May a beneficiary recover damages for periods of time when she is outside the United States? At least two courts have answered yes.
In Villars v. Villars a sponsor argued that he was entitled to an offset for any months the beneficiary spent abroad in Ukraine. The Court noted that no language in the statute prevented the beneficiary from recovering support for time spent abroad. The Court then appeared to hold that the beneficiary was not categorically barred from recovering support for time spent abroad. Rather, the Court said that the issue was whether the beneficiary had received support from family members during that period, which amounts would be counted as an offset against the sponsor’s support obligation.
The Villars Court’s view on family assistance is problematic: that a sponsor may receive an offset if a beneficiary’s family pitches in for her wellbeing. The entire congressional purpose of the Affidavit is to mandate that the sponsor serve as the intending immigrant’s financial safety net. If the sponsor refuses to support the beneficiary, presumably she must find resources somewhere to survive. In any conceivable hypothetical – except for an immigrant living off her own vegetable garden – the beneficiary must receive some form of financial resources during the time a sponsor has failed to provide support. If friends, relatives or community groups step in to provide for the beneficiary’s basic needs, why should the sponsor receive a windfall?
Likewise, in Toure-Davis v. Davis the Court held that the I-864 beneficiary was entitled to recover support for a period of time spent in her home country of Ivory Coast. The only question was whether financial sources received during that period of time served to offset the defendant’s support obligation.
I-864 beneficiaries typically seek to recover damages from the date of their separation with the sponsor, who was typically also the spouse. Nothing, however, prevents a plaintiff from recovering for the period of time when she was residing with the sponsor. It is simply that the factual assessment may be more complex, as to what contributions were made to joint household expenses. This issue was noted by a federal judge for the Western District of Wisconsin, who requested a further factual showing on the issue from the parties.
In I-864 enforcement cases, plaintiffs may seek both recovery of support arrears and also an order of specific performance, mandating that the sponsor fulfill his support duty until the terminating conditions described by the contract. Courts have proved willing to enter such orders of specific performance. Since the plaintiff-beneficiary’s entitlement to I-864 support is contingent upon lacking other income, some form of periodic accounting is appropriate to demonstrate to the defendant that support is required. It has been the author’s practice in settlement negotiations to propose that the plaintiff provide monthly accounting to the defendant, certifying any earned income and that she has not become a U.S. citizen or otherwise triggered a terminating condition under the contract.
Both the Form I-864 itself and underlying statute make very clear that a beneficiary may recover attorney fees incurred in successfully enforcing the contract. In Matloob v. Farham, the plaintiff prevailed after a one-day bench trial and sought just under $40,000 in attorney fees. The Court applied a 10% downward reduction on the basis of some duplicative work between the two lead attorneys, and because the Court believed that the 15 hours spent on the relatively short summary judgment brief was excessive. Notably, the Court acknowledged that although the fee award was nearly four times the amount in controversy, the award was appropriate given the undesirability of the case, and the uncertainty as to whether any fee award could be collected.
The defendants in Matloob were pro se and it is unclear how actively they defended the litigation. For example, the fee award motion was not opposed. Defendants in I-864 enforcement actions often plead numerous affirmative defenses, including the fact-intensive defense of fraud. This can lead to extensive discovery that substantially increases litigation expense. Although the fee award in Matloob was approximately four times the damages sought, a substantially higher award can be appropriate when the litigation is actively defended.
If the sponsor prevails, may he recover attorney fees? In Yaguil v. Lee, brought in the Eastern District of California, the sponsor won dismissal on the grounds of res judicata. The sponsor argued that under a California statute, the attorney fee provision in the Form I-864 and underlying statute should be construed as authorizing an award for the prevailing party, not just the beneficiary. The Court disagreed. It reasoned that the lawsuit was grounded in a federal cause of action authorized by the statute underlying the Form I-864. For that reason, federal rather than California law governed the claim, and the California fee statute simply did not apply. Next, the Court reasoned that the federal statute could not be construed to authorize a prevailing party fee award, as the plain language provides for an award to only the beneficiary, not the prevailing party.
The lengthy timeline of litigation presents a vexing challenge for I-864 beneficiaries. Plaintiffs eligible to recover under the Affidavit will, by definition, be impoverished and without financial resources. How can the beneficiary meet her basic needs while litigation is pending? At least one I-864 plaintiff has succeeded in obtaining a preliminary injunction, enjoining the sponsor to comply with the support obligation pendente lite. Financial loss by itself does not normally meet the irreparable harm standard required by most rules governing preliminary injunction. But a California trial court agreed with an I-864 plaintiff that a damages award, by itself, would not “adequately compensate” her, presumably due to the harm she would suffer while being left without means to meet her most basic needs.
As mentioned, I-864 plaintiffs have few resources. For that reason, courts readily permit I-864 plaintiffs to proceed in forma pauperis (IFP). Attorneys sometime mistakenly believe that a plaintiff may not proceed IFP if she is represented by counsel, but in most jurisdictions there is no such rule. Indeed, the author has successfully recovered attorney fees for submitting IFP petitions on behalf of I-864 plaintiffs.
Under the bankruptcy code “domestic support obligations” (DSOs) are exempt from discharge. As mentioned in prior articles, the only bankruptcy cases to consider the issue have held that support under the Form I-864 is a non-dischargeable DSO. Another bankruptcy judge has reached the same conclusion, where a state family court support order was predicated at least partially on the Form I-864.
Federal courts have continued to exercise caution when I-864 enforcement actions are pursued in parallel with state court dissolution proceedings. In one case in the Southern District of New York, for example, a pro se I-864 beneficiary filed a district court action while her dissolution was still proceeding. The Court stayed the federal action under the Colorado River abstention doctrine, and refused to lift the stay where it appeared that the state court was “aware of the Form I-864 issue and was considering it in the divorce proceedings.”
Maintenance (“Alimony”) Orders
May a beneficiary use spousal maintenance as a vehicle to enforce the Affidavit of Support? The answer varies from state to state. In Matter of Khan, this author represented a Washington respondent on appeal from a divorce trial. The respondent argued that the trial court had abused its discretion by acknowledging the enforceability of the Affidavit of Support but ordering only short-term spousal maintenance. The Court of Appeals disagreed, holding that the Form I-864 obligation did not fall within any of the statutory bases for ordering spousal support. Instead, the Court acknowledged that the Affidavit was enforceable and instructed that the beneficiary could maintain a “separate action” to enforce her rights.
The approach taken by the Khan Court is frustrating because of the tremendous inefficiency it imposes on the parties and judicial system. In Khan, the trial court partially incorporated the I-864 obligation into a maintenance order, and the sponsor acknowledged to the Court of appeals that he was obligated under the Affidavit. The divorce proceeding could have been used to define the obligation and send the parties on their way. Instead, the beneficiary was forced to bring a separate lawsuit, which resulted in a $104,000 judgment against the Sponsor. The Sponsor was ordered to pay approximately $60,000 in attorney fees to the beneficiary, and presumably paid his own counsel a substantial sum.
In a Kansas case, a sponsor argued that spousal maintenance should be capped at the level provided for in the Affidavit of Support. In Matter of Dickson the Court rejected that proposition, reasoning that the Affidavit of Support and maintenance statute serve different purposes:
The obligation undertaken by signing an 1-864 affidavit is to ensure that the immigrant will not become a public charge. A Kansas court awards maintenance, on the other hand, to provide for the future support of the divorced spouse, and the amount of maintenance is based on the needs of one of the parties and the ability of the other party to pay.
Indeed, this author is at a loss as as to what language in the Form I-864 or federal statute could be construed to imply a ceiling to spousal maintenance.
Issue Preclusion, Claim Preclusion
Procedural doctrines prohibit the litigation both of matters that have already been actually litigated and that could have been litigated. Courts have continued to allow beneficiaries to proceed with enforcement cases when the Affidavit of Support was raised – but claims not fully adjudicated – in a preceding divorce case. In Du v. McCarthy, a beneficiary attempted to raise the Form I-864 during a divorce trial, but was barred from offering testimony as the matter had not properly been brought before the court. A magistrate judge for the Northern District of West Virginia held that because the matter had not been correctly raised in the divorce proceeding, there was no final judgment on the matter and the beneficiary was not barred from bringing her subsequent enforcement action.
By contrast, in Yaguil v. Lee a court for the Eastern District of California dismissed a complaint on res judicata grounds. The beneficiary disputed only whether her federal complaint presented claims that were identical to those she previously raised in divorce proceedings. In the divorce case, the Beneficiary had presented the Form I-864 at a settlement conference, and asserted without evidence that the matter had later been “dropped.” From the order in Yaguil it is fully unclear what came of the beneficiary’s efforts to raise the Affidavit of Support in the divorce proceedings. Regardless, Yaguil imposes a harsh result where a beneficiary may have raised the Affidavit in an ineffective manner in the preceding divorce case. It is unclear whether the beneficiary in Yaguil made a full-throated presentation of her rights before the family law court, or simply decided to enforce them in a different forum.
So should the beneficiary play it safe by simply not mentioning the Affidavit in divorce proceedings? Not so fast. The doctrine of claim preclusion can bar litigation of claims that could have been raised in an earlier proceeding. Courts remain split about the proper forum to enforce I-864 rights, some holding that they may be enforced via spousal maintenance. If a beneficiary fails to raise the Affidavit in a divorce case, the sponsor could later argue that she should have resolved the matter there.
When counsel becomes involved in matters early enough, one option is to file the Form I-864 claim while the divorce case is still pending. If done this way, the Form I-864 case should be brought in state court, as a federal court would likely abstain from the matter while the divorce case is pending. It would seem difficult for the sponsor to argue that the beneficiary should have used a divorce proceeding to enforce the Affidavit if she had already brought a separate contract action to do so.
In Erler v. Erler – discussed above – the Ninth Circuit weighed in on whether a prenuptial agreement may waive support under the Form I-864. The Ninth Circuit affirmed the trial court’s view that “neither a divorce nor a premarital agreement may terminate an obligation of support.” This statement is important, since courts have disagreed about whether or not a sponsor and beneficiary can contractually agree to waive enforcement of the Form I-864. The Ninth Circuit now joins a majority of courts in holding that a premarital agreement cannot waive a beneficiary’s rights under the Form I-864. The waiver issue received no analysis from the Ninth Circuit, and there would appear to be a question about whether the Court’s statement is dicta. But in any event, Erler is another in a line of cases that at least strongly weigh in favor of the view that I-864 enforcement cannot be waived.
Taken at face value, Erler stands for an even more extreme proposition: no I-864 beneficiary could ever enter into an enforceable settlement agreement of her claims against a sponsor. The trial court in Erler rested its decision, in part, on the view that a beneficiary could not waive support rights, since the sponsor’s contract is with the federal government, not the beneficiary. In the experience of this author, many claims against I-864 sponsor are resolved either prior to filing a lawsuit, or at least in pre-trial stages of litigation. A typical move is for beneficiary is to release the sponsor from all future claims for support, either in exchange for a lump-sum payment or structured payments over a specified period of time. For such a settlement to function, the beneficiary must possess the legal authority to release the sponsor from support claims. In Erler the Ninth Circuit seems to say, “only five events can terminate the I-864 support duty, and premarital agreements are not one of them.” Well, neither are settlement agreements. The Court, of course, was not presented with the enforceability of a litigation settlement agreement. Yet the decision leaves some added uncertainty on this issue.
In Maryland, a federal district court reached the same conclusion as in Erler, holding that I-864 support rights cannot be waived. In Toure-Davis v. Davis, the sponsor signed a nuptial waiver before signing the Affidavit of Support. The Court held that by subsequently signing the Form I-864 the sponsor modified the nuptial contract. Moreover – as with Erler – Toure-Davis takes the view that I-864 rights are categorically non-waiveable:
In consideration for allowing Defendant's immigrant wife to seek an adjustment of her status to a legal permanent resident, Defendant pledged to the U.S. Government, as the sponsor, that he will ensure his sponsored immigrant wife is provided for to maintain her income, at a minimum, of 125 percent of the Federal Poverty Guidelines. Defendant voluntarily, knowingly and willingly signed the Form I-864. 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.
As noted in a previous article, official commentary accompanying the Form I-864 regulations specifically stated that support obligations may be waived by a nuptial agreement. The Toure-Davis Court pushed aside that commentary on the basis that it “does not constitute law.”
Interpreting the I-864
Is a lawsuit to enforce the Form I-864 “just” a contact action, or does it also sound in federal law? This issue continues to be a source of confusion. In a federal enforcement case in the District of Minnesota, for example, a pro se plaintiff moved to strike the defendants’ jury demand, arguing that the underlying federal statute does not create a right to trial by jury. Rejecting that argument, the magistrate judge stated clearly that the causes of action were exclusively contractual in nature:
The federal statute, 8 U.S.C. § 1183a, is not the basis for the cause of action, but expressly states that an affidavit must be executed by a sponsor and provides authorization for enforcement of a Form I-864 agreement as a contract. Breach of contract is a claim at law to which the Seventh Amendment right to a jury trial attaches.
The court declined to rule on the motion to strike the jury demand, however, before seeing what claims and affirmative defenses survived discovery and summary judgment.
Litigation continues to deliver consistent and positive results for I-864 beneficiaries. For immigrants who lack access to public benefits, and those with limited job qualifications, support under the I-864 can provide a crucial lifeline. No one gets rich from the Form I-864. But the support mandated by the contract can help an LPR survive while transitioning from poverty to self-sufficiency.
 See Greg McLawsen, Suing on the I-864 Affidavit of Support, 17 Bender’s Immigr. Bull. 1943 (Dec. 15, 2012) (hereinafter McLawsen (2012)); Greg McLawsen, Suing on the I-864 Affidavit of Support: March 2014 Update, 19 Bender’s Immig. Bull. 1943 343 (Apr. 1, 2014) (hereinafter McLawsen (2014)). See also Greg McLawsen, The I-864, Affidavit of Support; An Intro to the Immigration Form you Must Learn to Love/Hate, Vol. 48. No. 4 ABA Fam. L. Quarterly (Winter 2015). In this article, as with its predecessors, the female and male pronouns are used when referring to I-864 beneficiary’s and sponsors, respectively. This approach is taken if view of the fact that I-864 plaintiffs tend to be female.
 Greg McLawsen and Gustavo Cueva, The Rules Have Changed: Stop Drafting I-864s for Joint Sponsors, 20 Bender’s Immigr. Bull. 1287 (Nov. 15, 2015). Colleagues sometimes mistakenly assume that joint sponsors are never sued for I-864 enforcement. That view is inaccurate. Indeed, the author recently settled such a case.
 14-cv-03420-PAB-NYW (D. Col. May 2, 2016) (discovery order).
 Id. (citing EEOC v. Thorman & Wright Corp., 243 F.R.D. 426, 428 (D. Kan. 2007); Bouchard v. Whetstone, No. 09-CV-01884-REB-BNB, 2010 WL 1435484, at *1 (D. Colo. Apr. 9, 2010)).
 Fed. R. Civ. Pro. 34 (emphasis added).
 See, e.g., Encarnacao v. Beryozkina, No. 16-cv-02522-MEJ (N.D. Cal., June 27, 2016) (order) (issuing summons in I-864 matter after having previously having dismissed the Complaint where it “failed to provide enough facts for the Court to determine whether he could state a cognizable claim for relief”); Du v. McCarty, No. 2:14-CV-100 (N.D. W. Vir. Apr. 16, 2015) (order adopting report and recommendations) (denying pro se Sponsor’s motion to dismiss based on allegation that Form I-864 signature was not his, since such a matter is for the jury).
 No. 12-4648 (RBK/KMW) (N. N.J., Oct. 30, 2015).
 Id. (emphasis added, internal citation omitted).
 8 C.F.R. § 216.1 (“A conditional permanent resident is an alien who has been lawfully admitted for permanent residence within the meaning of section 101(a)(20) of the Act. . .”).
 USCIS Policy Manual Vol. 12, Part G, Chapter 5(A), available at http://1.usa.gov/1IArtlI (last visited Dec. 28, 2015) (emphasis added). See also 8 CFR § 235.11(c) (The lawful permanent resident alien status of a conditional resident automatically terminates if the conditional basis of such status is not removed by the Service through approval of a Form I-751, Petition to Remove the Conditions on Residence. . .”) (emphasis added).
 A conditional resident maintains status as an LPR unless: (1) she fails to timely file her petition for unconditional status; (2) such a petition is denied; or (3) her status is affirmatively terminated by the government. 8 USC §§ 1186a(c)(2)(A) (lack of timely petition), 1186a(c)(3)(C) (petition denied), 1186a(b)(1) (affirmative termination).
 Clients and even immigration attorneys sometimes believe that I-864 obligations end after 10 years. That is incorrect. The obligations are terminated after the beneficiary may be credited with 40 quarters of work under the Social Security Act. That threshold could be met in ten years, but not necessarily.
 E060475 (Cal. App., 4th Dist., 2nd Div. Aug. 6, 2015).
 Id. (citing INA § 213A(a)(3)(A)).
 See id.
 Cf. Davis v. Davis, No. WD-11-006 (Ohio Ct. App. May 11, 2012), available at http://www.sconet.state.oh.us/rod/docs/pdf/6/2012/2012-ohio-2088.pdf (last visited Nov. 15, 2016) (Singer, J. dissenting) (arguing that double-stacking should not be applied).
 109 A.3d 221 (2015).
 Id. at 223, 227-28.
 F.B. v. M.M.R., 120 A.3d 1062 (Pa. Super. 2015).
 Commonly asserted defenses include (in no particular order): estoppel, statute of frauds, duress, fraud (typically fraud in the inducement), unconscionability, waiver, res judicata, unclean hands, and “equity.”
 See Fed. R. Civ. Pro. 11.
 See, e.g., Dahhane v. Stanton, 15-1229 (MJD/JJK) (D. Minn. Aug. 4, 2015) (report and recommendation) (refusing to strike affirmative defenses).
 No. COA16-53 (N.C. Dec. 6, 2016)
 686 F.3d 418, 422 (7th Cir. 2012).
 Id. ("[W]e can't see much benefit to imposing a duty to mitigate on a sponsored immigrant.").
 See McLawsen (2012) supra note 1 at Section I.C.
 No. 15-CV-1229 (PJS/BRT) (D. Minn., Aug. 12, 2016) (Order on plaintiff’s objection to magistrate’s report and recommendations).
 Id. (“[Beneficiary] argues that, if [Sponsor] had given him a gift of $1 million in 2003, he could still sue her for failing to support him at 125 percent of the federal poverty level during that year”).
 8 C.F.R. § 213a.1.
 No. COA16-53 (N.C. Dec. 6, 2016).
 Younis v. Farooqi, 597 F. Supp. 2d 552, 555 (D. Md. Feb. 10, 2009) (“child support is a financial obligation to one's non-custodial child, not a monetary benefit to the other parent”).
 336 P.3d 701, 712 (Ala. 2014).
 No. 2:10-cv-01003, 2013 WL 3085208 at *3 (S.D. Ohio June 18, 2013) (citing http://www.irs.gov/taxtopics/tc418.html).
 No. WGC-13-916 (D. Md. March 4, 2014) (memo. op.).
 Id. (citing Shumye v. Felleke, 555 F.Supp.2d 1020, 1026 (N.D. Cal. 2008) for the proposition that housing subsidies offset I-864 damages).
 No. 14-15362 (9th Cir. June 8, 2016). See also Toure-Davis v. Davis, WGC-13-916 (D. Md. March 4, 2015) (memo. op.) (holding that U.S. citizen children of the I-864 beneficiary did not count as household members for purposes of damages calculation).
 See Erler v. Erler, CV-12-02793-CRB, 2013 WL 6139721 (N.D. Cal. Nov. 21, 2013).
 That is, the number of individuals actually residing at the dwelling.
 See Toure-Davis v. Davis, WGC-13-916 (D. Md. March 4, 2015) (memo. op.) (“The minor children [of the I-864 beneficiary] are U.S. citizens; they are not sponsored immigrant children. The obligation of support imposed by Form I-864 is not legally enforceable by the minor children against their father Charles G. Davis. The issue of child support is a matter of interest to the State of Maryland.”).
 336 P.3d 701, 712 (Ala. 2014). See also Toure-Davis v. Davis, No. WGC-13-916 (D. Md. March 28, 2014) (memo. op.) (“It is not readily apparent to the court whether Defendant provided financial support during Plaintiff's absence from the United States between the summer of 2009 and December 14, 2010. The parties should discuss whether Plaintiff is or is not entitled to financial support during this period.”).
 No. WGC-13-916 (D. Md. March 4, 2015) (memo. op.).
 Santana v. Hatch, 15-cv-89-wmc (W.D. Wis. Apr. 29, 2016) (opinion and order).
 See, e.g., id.
 No. WDQ-11-1943 (D. M.D. Oct. 1, 2014). See also Toure-Davis v. Davis, No. WGC-13-916 (D. Md. March 4, 2014) (memo. op.) (awarding $32, 854.30 in fees).
 No. 2:14-cv-00110 JAM-DAD (N.D. Cal. Aug. 12, 2014) (order denying defendant’s motion for attorney fees).
 Id. (“If Congress intended to allow defendants to recover attorney's fees pursuant to § 1183a(c), either under a dual standard or an evenhanded approach, this Court would have expected it to include a prevailing party provision”).
 Gross v. Gross, E057575 (Cal. App., 4th Dist., 2nd Div. Dec. 4, 2014).
 See, e.g., Santana v. Hatch, 15-cv-089-wmc (W.D. Wis. Apr. 1, 2015) (opinion and order granting request to proceed in forma pauperis).
 See 11 U.S.C. § 101(14A) (defining domestic support obligations).
 Cf. McLawsen (2014), supra note 1, at text accompanying note 37. See Matter of Ortiz, No. 6:11-bk-07092-KSJ, 2012 Bankr. LEXIS 5324 (Bankr. M.D. Fla. Oct. 31, 2012) (granting summary judgment to beneficiary); Hrachova v. Cook, 473 B.R. 468 (Bankr. M.D. Fla. 2012).
 In re Williams, 15-10056-BAH (BK D. N.H. Jan. 7, 2016).
 For an earlier discussion of the doctrines of Younger and Colorado River absention, see Pavlenco v. Pearsall, No. 13-CV-1953 (JS)(AKT), 2013 WL 6198299 (E.D.N.Y. Nov. 27, 2013) (memo. order).
 Levin v. Barone, No. 14-cv-00673 (AJN) (S.D. N.Y. Jan. 28, 2016) (order).
 Cf. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976).
 Cf. McLawsen (2012), supra note 1, § II.B.1.
 332 P.3d 1016 (Wash. 2014).
 Id. at 1018.
 Id. at 1020.
 Id. at 1018 (“[The parties] both agree that [Sponsor] owes an ongoing support obligation under I-864”).
 337 P.3d 72 (Kan.App. 2014) (internal citation and quotation omitted).
 No. 2:14-cv-100 (N.D. W. Vir. March 26, 2015) (report and recommendations). See Du v. McCarty, No. 2:14-CV-100 (N.D. W. Vir. Apr. 16, 2015) (order adopting report and recommendations).
 No. 2:14-cv-00110-JAM-DAD (E.D. Cal. Apr. 10, 2014) (order granting defendant’s motion to dismiss).
 Cf. McLawsen (2012) supra note 1 at Section II.B.2.
 Cf. Pavlenco v. Pearsall, No. 13-CV-1953 (JS)(AKT), 2013 WL 6198299 (E.D.N.Y. Nov. 27, 2013) (memo. order) (discussing applications of Younger and Colorado River abstention).
 No. 14-15362 (9th Cir. June 8, 2016).
 Erler, No. 14-15362.
 Cf. McLawsen (2014) supra note 1 at Section III.A.
 CV-12-02793-CRB, 2013 WL 6139721, at *2 (N.D. Cal. Nov. 21, 2013) (order denying plaintiff’s motion for summary judgment and giving parties notice regarding possible summary judgment for defendant).
 No. WGC-13-916 (D. Md. March 28, 2014) (memo. op.).
 Emphasis added.
 McLawsen (2012) supra note 1, at text accompanying note 141 (citing Affidavits of Support on Behalf of Immigrants, 71 Fed. Reg. 35732 (June 21, 2006)).
 Toure-Davis, end note 5.
 Dahhane v. Stanton, 15-1229 (MJD/JJK) (D. Minn. Aug. 4, 2015) (report and recommendation).