What counts as "income" for I-864 support damages?

An I-864 plaintiff is entitled to damages equal to 125% of the Federal Poverty Guidelines versus any income she has received. But what does and does not count as "income?" 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[1] 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.[2] 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."[3] 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.

Departing from other federal courts,[5] 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.[6]

[1] No. 15-CV-1229 (PJS/BRT) (D. Minn., Aug. 12, 2016) (Order on plaintiff’s objection to magistrate’s report and recommendations).

[2] 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”).

[3] 8 C.F.R. § 213a.1.

[4] No. COA16-53 (N.C. Dec. 6, 2016).

[5] 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”).

[6] 336 P.3d 701, 712 (Ala. 2014).