Blog

Blog Post Title

What goes into a blog post? Helpful, industry-specific content that: 1) gives readers a useful takeaway, and 2) shows you’re an industry expert.

Use your company’s blog posts to opine on current industry topics, humanize your company, and show how your products and services can help people.

Government may start suing I-864 sponsors

A new initiative by Citizenship and Immigration Services (USCIS) could mean that government agencies will be suing I-864 sponsors. The program is referred to as the Systematic Alien Verification for Entitlements (SAVE) initiative.

By signing the I-864 – a contract with the U.S. government – a sponsor makes two promises. First, he promises to ensure that the immigrant will have income at or above 125% of the Federal Poverty Guideline. (Our law firm helps immigrant sue sponsors when they fail to provide that support). The second promise is to repay the government for certain types of public benefits if given to the immigrant.

When it comes to the sponsor’s responsibility to financially support the immigrant, that is enforced only by the immigrant herself. The government plays no role in enforcing that support obligation, and in fact has no legal basis for making the sponsor pay the required support.

But the government – and only the government – can recover the cost of federally-funded benefits paid to the immigrant. Historically, no government agency that we are aware of has routinely done that. In fact, some states – such as Washington – do not even have a procedure at all for suing sponsors. Last year, however, the federal government considering making it mandatory for agencies to sue sponsors when sponsored immigrants received benefits. The new SAVE initiative is a significant step in that direction.

As a practical matter, it is unclear how often sponsors could potentially face liability under the SAVE initiative. Most federal programs are unavailable to new immigrants for the first five years of their residency, although some limited exceptions apply.

Nonetheless, this is a significant development, and certainly something an individual should be aware of before signing the I-864.

In Florida, can you bring an I-864 lawsuit in federal court

The form I-864, Affidavit of Support is created by federal law. Indeed, the form has been integral to the practice of (federal) immigration law for over twenty years… much longer if you consider the predecessor Affidavits of Support. So if you’re an immigrant looking to enforce your financial rights against a sponsor, you should go to federal court – right? Not so fast. At least not in Florida.

Federal question and diversity jurisdiction.

Federal courts are courts of limited jurisdiction. That means, in short, that there are only certain cases that they will decide. That’s unlike your main state court, which can hear almost any type of dispute (including federal claims, unless a federal law explicitly says the court cannot). One way to get federal jurisdiction is through diversity, which means the parties live in different states. But that is only for cases valued at $75,000 or more, and in I-864 cases the parties usually live in the same state.

The other way to get into federal court is to have a claim that arises out of federal law. Civil rights cases are a good example of this, or lawsuits against federal agencies such as under the federal Freedom of Information Act. When it comes to the I-864, it has always seemed clear to me – and seems clear to most courts – that federal courts have jurisdiction over these cases. Why? Because there is a “private cause of action” – a provision of law saying that sponsored immigrants can sue – directly in the Immigration and Nationality Act. 8 U.S.C. 1183a(e)(1) says clear as daylight:

(e) Jurisdiction. An action to enforce an affidavit of support executed under subsection (a) may be brought against the sponsor in any appropriate court—

(1) by a sponsored alien, with respect to financial support

To me, that sounds awfully clear. Right there in the statute: “immigrant, if you need to enforce these claims, go to court.” And since it’s a federal statute, that’s a federal right of action.

Middle District of Florida – “no subject matter jurisdiction.”

Sometimes I come across a court opinion that seems so clearly wrong that I must have misread it. Winters v. Winters was such a case. No. 6:12-CV-536-ORL-37, 2012 WL 13137011 (M.D. Fla Apr. 25, 2012), adopting the report and recommendation, 2012 WL 1946074 (M.D. Fla. May 30, 2012). That case was a typical I-864 enforcement matter, where one Florida resident (the I-864 beneficiary) sued another Florida resident (the I-864 sponsor) for financial support.

The sponsor moved for dismissal, saying that the lawsuit was a breach of contract case, rather than a claim arising out of federal law. The plaintiff did just what I would have done, and showed the court 8 U.S.C. 1183a(e)(1) and its clear private right of action.

But the court agreed with the defendant. Basically, it said sure, the federal statute says that the sponsored immigrant can sue. But it doesn’t clearly enough say that the lawsuit can be in federal court.

Now, Winters was an unpublished district court decision, so it technically doesn’t have an precedential value. But the same Court (the Middle District of Florida) later followed Winters in a second, nearly identical decision.

The Northern District of Florida gets jurisdiction right.

Winters was decided in 2012. Fast forward a few years and district courts all across the United States have decided more and more I-864 enforcement cases. On top of that, you have decisions at the Seventh and Ninth Circuits. Granted that those cases don’t expressly decide issues of jurisdiction, but there are strong, strong indicators that federal courts understand themselves to have jurisdiction in these cases (cases that enforce federal law).

In Greiner v. De Capri – in a district-level decision that was published – the Northern District of Florida did a course-correction on jurisdiction 403 F. Supp.3d 1207 (N.D. Fla 2019) (decision and order on motion to dismiss). The Court starts with the clear proposition that “A civil action “arises under” federal law at least when a federal statute creates the cause of action.” Well… right.

Here, Greiner’s complaint plainly states that he is bringing this action pursuant to section 213A of the Immigration and Nationality Act. 8 U.S.C. 1183a. The Immigration and Nationality Act is federal law. Nobody disputes that the power to regulate immigration is unquestionably exclusively a federal power.

Bam – it couldn’t be clearer. Only federal law could have created this contract in the first place, since only Congress can regulate immigration. You couldn’t find a more federal-centric area of law!

The cause of action asserted by Greiner was expressly created by a federal statute; the statute created a federal right that otherwise did not exist; and federal law provides an essential element of the claim.

But for a federal law, the claim just wouldn’t exist. On top of that,

In addition to the fact that federal law created the right at issue and the cause of action, and federal law provides the substantive law that must be applied to the case, Greiner is seeking to assert his federal statutory right in a civil action specifically authorized by federal law.

In other words, on top of the fact that the federal statute creates these private rights, the whole case is going to be about interpreting and applying federal law. Federal, federal, federal.

Then the Court turned its attention to Winters. Remember that the Winters Court wanted the statute to explicitly say “U.S. District Courts have jurisdiction.” But the Greiner Court rejected the idea that a statute has to be so clear.

There certainly is no requirement that Congress explicitly state in each statute authorizing a federal cause of action that the “United States Districts Courts” enjoy subject matter jurisdiction. So long as federal law authorizes a cause of action, a case arises under federal law for purposes of 28 U.S.C. § 1331 [federal question jurisdiction], and Congress need not even mention the word “jurisdiction” in the statute that authorizes the cause of action or explicitly confer subject-matter jurisdiction on federal courts.

The Greiner Court tries to give the Middle District a way to save face, noting that Winters was decided before the Seventh (and Ninth) Circuits decided I-864 enforcement cases. Hopefully that is an olive branch that the Middle District will accept, and will reverse course on Winters.

So do Florida’s federal courts have jurisdiction in I-864 cases?

Clearly I-864 plaintiffs are relatively safe in the Northern District. Elsewhere in the state things are either unclear or – in the Middle District – muddy at best. But I am optimistic that Greiner marks a turning point for Florida, and I-864 plaintiffs have a clearer path to vindicating their (federal law) rights in federal court.

How does settlement work in I-864 cases?

Most civil lawsuits end in settlement long before they go to trial. Lawsuits to enforce the I-864 are no different. In our experience, roughly half of I-864 enforcement cases settle before a lawsuit is ever filed, or very shortly after the lawsuit is filed. In the remainder of cases there is at least some “motions practice,” which in these cases usually involves asking the judge to narrow the issues in the lawsuit.

For those I-864 enforcement cases that do settle, here is how things usually work.

How do you calculate damages for the I-864?

Calculating damages – the money that can be recovered by a plaintiff – under the I-864 is easy, at least in principle. A sponsor is required to provide support equal to 125% of the Federal Poverty Guidelines for a person’s household size. For a household of one that’s roughly $1,300 per month, though the figure goes up a bit each year. The support obligation starts when a person gets their green card, though for settlement purposes we normally calculate damages from when the person stopped living with their sponsor. The obligation continues until one of these five legal events occur.

Because the I-864 looks at a person’s “income,” damages are reduced by any income the immigrant has been earning. So the formula for calculating damages for a one-person household is simply: ($1,300 x months the person was entitled to support) minus (all income earned during that period.

For example, if someone was entitled to 12 months of sponsorship ($15,600) and earned $5,000 working odd jobs, she would be entitled to support in the amount of $10,600.

What money can be recovered in an I-864 settlement?

There are basically two components to I-864 settlement.

First, there are support arrearages. This represents damages that are due up to the time that a person settles her claim. In the example above, the person has $10,600 in support arrears. At the end of the day, this is simply a matter of arithmetic, as explained above. All you need to know is the person’s household size, and how much income they have earned. Subtract the income from 125% FPG for the household size and that’s your figure for support arrearages.

The second component of and I-864 settlement is for future support. The I-864 support obligation continues into the future until the person becomes a U.S. citizen, earns 40 quarters of work, or leaves the U.S. and gives up her green card. But in most cases, what we’re really focused on is the person’s employment prospects. Why? Since income reduces a sponsor’s obligation, once an immigrant is earning $1,300 or more per month, that negates the sponsor’s support obligation. So for settlement purposes, we are looking at when our client is likely to be stabling employed. Sometimes that’s relatively easy if we have a student for example finishing a degree program. Other times is’’t much tougher if we have someone with limited English and no clear job prospects.

Dealing with future support is the trickiest part of I-864 settlement. That’s because we have no magic way of knowing when our client will be back in the workforce. Because of that unknown, there are two ways we approach settlement.

In some cases, the sponsor agrees to a piecemeal settlement. Taking this approach, the sponsor pays all support arrears, then agrees to continue making monthly support payments until our client is employed. That can be an attractive option for the sponsor, since they won’t risk over-paying for support (that is, they pay only for months they know that a person is unemployed). The two downsides are: (1) there is no end to the sponsor’s obligation, and he could end up paying support for the rest of our client’s life; and (2) there is an administrative cost, since lawyers have to be involved each month to provide the requested documentation of unemployment and to take care of payments.

In other cases, we reach a global settlement of all claims. On that approach, the sponsor agrees to pay a specific dollar amount that covers both support arrears and all future support. This is often attractive to both parties since they can set a specific valuation for the case and be conclusively done. This is how most, though not all, of our cases, are settled.

How does the settlement payment work?

Sometimes settlement payment is completed in one lump sum. Normally we see this only in cases with a total settlement cost of $50,000 or less. Depending on the financial status of the sponsor, he can agree to simply cut one check, then walk away and be done.

For sponsors that have limited financial ability, and for higher costs cases, payment is structured over a period of time. For these settlements, the sponsor pays one initial sum, usually 30% of the total settlement, and then makes monthly payments over a period of time. These agreements often include a requirement that the sponsor pay interest.

The settlement also includes attorney fees.

Both the I-864 contract itself and the Immigration and Nationality Act authorize an attorney fee award for sponsored immigrants. (The sponsor is not entitled to a fee award if he wins). Every case we settle includes an attorney fee allocation so that our hourly fees are paid by the sponsor.

Another I-864 claim lost in divorce court – Mullonkal v. Kodiyamplakkil

It is a theme we have commented on many times on this website. Yet another I-864 beneficiary has lost out on a claim under the I-864 because they tried to do so in state family law court versus federal court.

Mullonkal v. Kodiyamplakkil was a case arising in Placer County, California. C085825 (Cal. 3d App. June 29, 2020). While the case was being litigated at the trial court level, the California Appeals Court (First District) decided the Marriage of Kumar case (discussion here). In Marriage of Kumar, the Court held that spousal maintenance (alimony) could be used as a vehicle to enforce the Form I-864. We were happy to have assisted the pro bono legal team that handled the Marriage of Kumar appeal.

The Kumar decision was issued after Mullonkal v. Kodiyamplakkil had already gone to trial. When the immigrant part learned of Kumar, he moved for a new trial on grounds that he should have a chance to argue I-864 enforcement based on the Kumar decision. But the trial court disagreed. It said that the party had not been stopped from presenting evidence about the I-864, and had not asserted a breach of contract claim.

The appeals court upheld the trial court. It noted that the immigrant beneficiary had raised the I-864 only in passing. It also noted prior cases outside of California, which the party could have been aware of, where beneficiaries had enforced the I-864 in a family law court.

The outcome in Mullonkal v. Kodiyamplakkil would presumably have been different if the beneficiary had tried to assert his I-864 claim and been denied. But he lost out since the court said, more or less, that he didn’t even try.

At the end of the day, this is just another example of I-864 beneficiaries losing out on potentially meritorious claims because they brought them in a state versus federal court. In almost all circumstances, we continue to say that it is by far better to assert these claims in federal versus state court.

Beringer v. Beringer – another example of bad I-864 results in state court

Another case, this one in Texas, illustrates the dangers of trying to enforce the Form I-864 in state versus federal court. In Beringer v. Beringer, yet another I-864 beneficiary got less than what she was entitled to under the plan terms of the I-864 and federal law. No. 04-19-00097-CV (Tex. App. Apr. 1, 2020).

The Beneficiary was a Mexican national who moved to the United States in 2014 and married the Sponsor in 2016. That year, the Sponsor signed the Form I-864. The following year, the Sponsor filed for divorce.

In her counterpetition, the Beneficiary expressly plead breach of contract with respect to the I-864. An evidentiary hearing was held on the Beneficiary’s work, since earned income offsets any sponsor’s obligation. The Court heard legal argument but – and this is revealing – noted that it did not have access to federal cases on its research system. That’s rather significant if you are applying federal law!

The trial Court ordered that the Sponsor would need to make monthly support payments in the amount of 125% of the Federal Poverty Guidelines until one of the terminating events described in the I-864. That is, for sure, the correct ruling.

There were two issues on appeal.

First, the Beneficiary argued that the trial Court erred in not awarding support arrears due under the I-864. The appeals court disagreed on basically procedural grounds. It noted that the Beneficiary’s counterpetition had asked for continued payment of support, but not support arrears. That is a somewhat weak view, since “notice pleading” in the United States is generally forgiving as to language used in setting forth legal claims. What is more significant, though, is that the Beneficiary’s attorney seems not to have presented evidence on the entitlement to arrears.

Next, the Beneficiary argued that she was entitled to legal fees, as she most certainly is entitled to under the Form I-864 and 8 U.S.C. § 1183a(c). In holding so hyper-technical it is absurd, the appeals court disagreed. It noted that – as above – the Beneficiary had not plead or presented evidence of her entitlement to past support under the I-864. It then noted that the pleadings could no have requested future support, since future support isn’t owed until the Form I-864 contract is breached. Instead, the payments ordered by the court were “declaratory relief” rather than recovery under the contract. So the Beneficiary was not entitled to legal fees, which she then has to pay herself.

This is, to be blunt, a ridiculous result. The trial court ordered the Sponsor to pay support specifically because of – and in the amount due under – the Form I-864. The Beneficiary plead, specifically, that she was entitled to support under the contract. Nonetheless, the appeals court acted like there was no basis for granting attorney fees. But if the support provisions of the I-864 supported a “declaratory” award of money to the Beneficairy, why would the attorney fee provisions of the contract not support a “declaratory” award of her legal fees?

Beringer is just another example of the bad and often silly results that I-864 beneficiaries experience in state court. At least the Beneficairy in Beringer got the full entitlement to future support under the I-864. But she lost out on all of her support arrears. More impactful, she lost her legal fees. Given the relatively modest amount of damages at issue in I-864 cases, and the vast amount of time required to litigate them, it is not economically viable for beneficiaries to enforce their rights unless they can recover legal fees. Beringer means that no Texas divorce attorney in her right mind should agree to help someone recover money under the I-864, unless the person can pay upfront. But if they have the money to pay upfront, they probably don’t have a claim under the I-864, which requires low or zero income. So Beringer basically means that it will be hard or impossible for Texas-based I-864 beneficairies to find a good divorce attorney. That is sad and not what Congress intended.

Another federal court holds that nuptial agreements cannot waive I-864 support rights

In Golipour v. Moghaddam, yet another federal court has directly held that an I-864 beneficiary cannot waive her rights in a nuptial agreement. No. 4:19-cv-00035-DN-PK (D. Utah Feb. 7, 2020) (granting and denying in part cross-motions for summary judgment). This case arose recently in the District of Utah.

Download the decision here.

In Golipour, the Court categorically rejected the argument that a Form I-864 beneficiary can waive rights under that contract in a nuptial agreement. (“Categorically,” meaning this holding did not depend on facts specific to this case). First, the court rejected the idea that the agency then known as Immigration and Naturalization Services (now USCIS) had definitively weighed in on the matter. Under “deference” doctrines, federal courts usually defer to how agencies interpret their own areas of the law. In this case, however, the only agency interpretation was some ambiguous statements made when the agency announced their rules governing the I-864. Basically, INS/USCIS just has never made an official statement of the law when it comes to nuptial agreements and the I-864.

Next, the court wrote off the only federal decision that has ever suggested that I-864 rights might be subject to waiver in a nuptial agreement. Blain vHerrell was a case in the District of Hawaii, but the court, in that case, did not provide much analysis of nuptial agreements and the I-864. No. 10-00073 ACK-KSC, 2010 WL 2900432, *7-8 (D. Haw. July 21, 2010). Moreover, the statement about nuptial agreements was “dicta,” meaning the court didn’t actually have to decide the issue. For those reasons, the Golipour Court did not see a reason to defer to the statement in Blain.

Instead, the Golipour Court looked to the Ninth Circuit’s seminal Erler vErler case that held, among other things, that nuptial agreements cannot waive rights under the I-864. 824 F.3d 1173 (9th Cir. 2016). The Golipour Court determined that the language of the I-864 itself was clear on this matter.

The express language of the Form I-864 demonstrates that divorce and nuptial agreements will not terminate a sponsor’s financial support obligation. The Form I-864 identifies six circumstances that terminate a sponsor’s obligation. Waiver by divorce or nuptial agreement are not enumerated. Indeed, the Form I-864 emphasizes that “[d]ivorce does not terminate [a sponsor’s] obligations under Form I-864.” This clear and plain language must be given effect. The right of support conferred by the Form I-864 is separate from the rights a party has under divorce law.

This follows the same reasoning that our law firm has pressed in a number of I-864 cases. The Form I-864 lists five (or six if you count the death of the sponsor) terminating events. These are the only things that end a sponsor’s liability. Because nuptial agreements aren’t on that list, they cannot be used to cut off liability. For the same reasoning, normal contract law defenses do not apply in these cases.

The Court also followed a statutory intent argument that was first articulated in the Seventh Circuit’s Liu v. Mund case.

To permit a sponsor to unilaterally terminate the Form I-864’s financial support obligation through a separate agreement with the immigrant would ignore the interests of the U.S. Government and the benefits of taxpayers and charitable donors. It would also defeat the Form I-864’s purpose of preventing admission of an immigrant that is likely to become a public charge at any time. Therefore, nuptial agreements will not terminate a Form I-864’s financial support obligation.

Basically, Congress obviously created the I-864 to ensure that immigrants turn to their sponsors – not to tax payers – for financial support. This is undermined if U.S. sponsors can get immigrants to sign nuptial agreements that shred the sponsorship contract that was just signed with the U.S. government (i.e., the I-864).

Golipour provides one of the most detailed discussions to date about nuptial agreements and the I-864. It adds to the growing consensus in federal courts that no nuptial agreement can ever waive a sponsored immigrant’s right to support.

Hats off to attorney Matthew Allen Grow of Utah Legal Servies who represents the plaintiff in this ongoing matter.

Covid-19 has left me unemployed – can I get support under the Form I-864?

The Covid-19 pandemic has devastated the U.S. economy, leaving millions without jobs. If are in the United States through family-sponsored immigration – such as a petition from a former spouse – you are very likely the beneficiary of a Form I-864, Affidavit of Support. While this form is in effect, your sponsor is required to ensure that you have income at or above 125% of the Federal Poverty Guidelines, or roughly $1,300/month for a household of one. If you do have a Form I-864, and are newly unemployed, you may be eligible for financial support from your sponsor.

How do I know if someone signed a Form I-864 for me? If you are in the U.S. through family-sponsored immigration, it is very likely that one or more people signed a Form I-864 for you. The main exception for this is if you worked for an extended period in the U.S. before immigrating. But for the vast majority of folks, a Form I-864 is required. Don’t worry if you don’t have a copy of your Form I-864, a copy can be requested for free through the Freedom of Information Act (here’s our free guide on how to do that).

How do I know if I’m eligible for support? If you were sponsored, your sponsor is required to ensure that you have income of at least 125% of the Federal Poverty Guidelines (FPG). Again, that’s about $1,300/month for a household of one. If your income dips below that amount – or if you are unemployed – then you may have a viable claim against your sponsor. The person needs to make up the difference between 125% FPG and your actual earnings. So if your hours have been dramatically cut, and you now earn $1,000/month, your sponsor should provide you with $300/month in additional support.

How do I make my sponsor provide me with support? Unfortunately, the government plays no role in ensuring that your sponsor provides you with support. Instead, it is like other civil legal claims. Specifically, it is treated as a breach of contract claim. You can always start by requesting that your sponsor voluntarily pay the support to you. If not, you may have the right to sue the sponsor in state or federal court. If you do so, you may be entitled to all of your attorney fees and the cost of litigation. For more about enforcement, read our post here.


If you have questions about enforcing the Form I-864 please feel free to contact us. If you have a general question, please feel free to comment here or use the form at the bottom of the page. If you believe that you may be entitled to support, follow this link to get a free and confidential case assessment.

More res judicata fights – Levin v. Barone & Greiner v. De Capri

Courts continue to grapple with when a prior family law (divorce) case may pose a res juidcata problem for an I-864 plaintiff.

Levin v. Barone.

In Levin v. Barone, 2019 U.S. Dist. LEXIS 169573 (S.D.N.Y., Sept. 30, 2019), the plaintiff sought I-864 enforcement. In a prior proceeding (“Levin I”), the United States Court of Appeals for the Second Circuit affirmed the United States District Court for the Southern District of New York’s holding that a New York Supreme Court’s judgment of divorce, which ended the defendant Barone’s obligation to financially support the plaintiff Levin, was a prior judgment on the merits involving the same parties and the same cause of action and was therefore barred by res judicata. (citing Levin v. Barone, 2018 U.S. Dist. LEXIS 53861 (S.D.N.Y. Mar. 29, 2018), aff’d, Levin v. Barone, 771 Fed. Appx. 39 (2d Cir. 2019)).

Without much of an analysis, the court dismissed Plaintiff’s claims pursuant to the doctrine of res judicata. (“Here, Plaintiff again seeks enforcement of the Affidavit of Support. Plaintiff’s claims in this action are the same as those that she brought, and that were adjudicated by Judge Nathan, in Levin I. The Court therefore dismisses Plaintiff’s claims for the reasons discussed in Judge Nathan’s opinion in Levin I, ECF 1:14-CV-0673, 101. See 28 U.S.C. § 1915(e)(2)(B)(ii).”).

Greiner v. De Capri.

Greiner v. De Capri, 2019 U.S. Dist. LEXIS 162411 (N.D. Fla., Sept. 10, 2019), involved a plaintiff (“Greiner”)—a citizen of the Federal Republic of Germany—who married the defendant (“De Capri”), a U.S. citizen, and thereafter gained permanent resident status upon De Capri’s petition to sponsor Greiner and execution of Form I-864, agreeing to provide sufficient support to Greiner in the U.S.

In January 2017, after living together for two years in the U.S., De Capri filed for divorce in a Florida court. On March 7, 2017, Greiner filed a counter-petition in which he asserted a counterclaim for “breach of contract” based on the promises De Capri made in the Form I-864. On June 1, 2018, the Circuit Court of the First Judicial Circuit in and for Walton County, Florida, entered a final judgment dissolving the marriage. Without discussion, the court did not award Greiner any relief based on the Form I-864.

On August 27, 2018, pursuant to 8 U.S.C. § 1183a, Greiner initiated an action in in the United States District Court for the Northern District of Florida, Pensacola Division to enforce his rights under the I-864, seeking an award of the financial support De Capri purportedly owed him under the Form I-864, including financial support due in 2016 to 2018. In response, De Capri unsuccessfully argued that the court lacked jurisdiction under the doctrines of the “domestic relations exception” and res judicata.

Two principles governed the court’s holding. First, the court concluded that a claim for enforcement of Form I-864 does not fall within the scope of the “domestic relations” doctrine, distinguishing such claims from a dissolution of marriage. Second, the court focused on the principle that res judicata would not bar enforcement of an I-864 when a plaintiff’s entitlement to support had not accrued at the time of a prior suit, regardless of whether such suit involved post-marital support.

Domestic relations exception.

The first defense De Capri asserted was that Greiner’s I-864 enforcement claim could not be brought in federal court pursuant to the domestic relations exception, a doctrine often invoked by federal courts to decline jurisdiction over claims involving family disputes, finding such disputes are better resolved in state courts. The court flatly rejected this argument, explaining, “an adjudication of [an I-864 enforcement] claim will not require this court to address issues traditionally considered within the purview and peculiar expertise of a domestic relations court, such as the division of marital property or an award of alimony.”). The court reasoned that the “parties’ prior marital relationship was not a prerequisite to [the plaintiff’s I-864 enforcement] action and simply is irrelevant to his claim insofar as many individuals who are not an alien’s spouse can serve as a sponsor by signing a section 1183a affidavit.”). Accordingly, the court held that the domestic relations exception did not bar Greiner’s claim.

Res judicata.

Next, De Capri argued that “Greiner’s claim must be dismissed under the doctrine of res judicata because the Circuit Court of the First Judicial Circuit in and for Walton County, Florida, already decided that Greiner was not entitled to recover under 8 U.S.C. § 1183a.” Rejecting this argument, the court explained that in determining the accrual date of a claim “[u]nder general rules of res judicata, the crucial date is the date the complaint was filed, or in cases involving a counter-claim, the date that the counter-claim is filed.” (citing Welsh v. Fort Bend Indep. Sch. Dist., 860 F.3d 762, 767 n.6 (5th Cir. 2017) (noting that the Second, Eighth, Eleventh, and Federal Circuits “have determined that federal res judicata law does not bar claims based on facts that occurred after the filing of the first lawsuit”)).

The court went on to note that I-864 obligations are ongoing and that I-864 damages cannot be calculated for the future, since a plaintiff’s income may differ in the future. Under those circumstances, the court determined res judicata did not apply to Greiner’s I-864 claims

Plaintiff win on abstention and income calculation – Al-Aromah v. Tomaszewicz

In Al-Aromah v. Tomaszewicz, 2019 U.S. Dist. LEXIS 154638 (W.D. Va. Sep. 10, 2019), the plaintiff Nadiah Al-Aromah (“Al-Aromah”) sought I-864 damages for a 6-month period that occurred prior to the time she filed for divorce from her husband – I-864 sponsor in a state court. The state court divorce proceedings were still ongoing, yet the state court had entered an order of pendente lite spousal support. Specifically, Al-Aromah alleged that Tomaszewicz provided no support between the date of the parties’ separation on June 7, 2016, and the date of the Spousal Support Order, December 14, 2016 and thus was entitled to damages.

The court addressed two main issues, the first of which was whether Al-Aromah was precluded from recovering I-864 damages pursuant to the abstention doctrine. The second issue was whether Tomaszewicz’s payments pursuant to the Spousal Support Order could be considered in calculating Al-Aromah’s income in determining whether Al-Aromah’s income fell below the 125% federal poverty guideline

Abstention.

First, Tomaszewicz argued that the abstention doctrine precluded Al-Aromah’s claim for I-864 damages since a state court had already determined the amount of spousal support Aromah was entitled to at a time period after that of which she claims damages accrued during. The abstention doctrine set forth by the U.S. Supreme Court in Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971) “provides that federal courts must abstain from exercising jurisdiction when doing so would interfere with pending state court proceedings.” (citing Golphin v. Thomas, 855 F.3d 278 (4th Cir. 2017)). Specifically,

..the Younger abstention doctrine provides that a court should refrain from exercising jurisdiction when: 1) there is an ongoing state judicial proceeding; 2) the proceeding implicates important, substantial, or vital state interests; and 3) there is an adequate opportunity to raise federal claims in the state proceedings.

(citing Wigley v. Wigley, No. 7:17cv425, 2018 U.S. Dist. LEXIS 35433, 2018 WL 1161138 (W.D. Va. March 5, 2018). Only the third prong was at issue in Al-Aromah, as the first two prongs clearly fell under the Younger absention doctrine. That is, the issue remaining was whether Al-Aromah had an adequate opportunity to raise her federal I-864 claim in the state court divorce proceedings.

The court began its analysis by noting generally that “[f]ederal courts routinely retain actions to enforce Affidavits of Support in cases where the federal action is filed after the parties’ divorce is final and the Affidavit of Support was not part of the final judgment.” (citing Du v. McCarthy, No. 2:14cv100, 2015 U.S. Dist. LEXIS 50001, 2015 WL 1800225, at *6 (N.D.W. Va. Apr. 16, 2015); Cheshire, 2006 U.S. Dist. LEXIS 26602, 2006 WL 1208010, at *1). Still, it conceded that courts disagree as to whether abstention is appropriate under certain circumstances like those involved in the case at bar, comparing the holding in Wigley v. Wigley, No. 7:17cv425, 2018 U.S. Dist. LEXIS 35433, 2018 WL 1161138 (W.D. Va. March 5, 2018 to that in Al-Mansour v. Shraim, 2011 U.S. Dist. LEXIS 9864 (D. Md. Feb. 2, 2011).  

In Wigley, the court found abstention precluded the plaintiff’s I-864 claim because she had plenty of opportunities to invoke her I-864 claim during the state-court divorce proceedings, which were still ongoing. In direct contrast, the court in Al-Mansour retained jurisdiction over Al-Mansour’s I-864 claim notwithstanding a pending state-court divorce proceeding, reasoning that claims made during state-court divorce proceedings are only relevant to I-864 enforcement actions for purposes of determining income, and thus does not preclude a concurrent I-864 action litigated in federal court.

Ultimately, the court sided with the United States District Court for the District of Maryland in Al-Mansour. The court focused on the fact that the state court could not have ordered spousal support for Al-Aromah for a time period before the divorce proceeding was filed pursuant to a Virginia statute. Under those circumstances, the court determined that abstention was not appropriate, and retained jurisdiction over Al-Aromah’s I-864 claim. 

Income calculation.

Regarding the income calculation issue, Tomaszewicz argued that Al-Aromah failed to state a claim for the third element of injury or damages because his payments to Al-Aromah under the Spousal Support Order from 2017-2019, including some arrearages payments, equaled more than 125% of the federal poverty level that he was required to pay under the Affidavit of Support from 2016 through 2019. Al-Aromah counterargued that Tomaszewicz’s payments pursuant to the Spousal Support Order in 2017 and onward could not be retroactively applied to satisfy his obligation to support her under the Affidavit of Support for the year 2016.

The court agreed with Al-Aromah, finding that Tomaszewicz’s method of calculation was not supported by persuasive case law, which instructed the court to compare Al-Aromah’s annual income for a particular calendar year at issue against the 125% poverty threshold, rather than considering multiple years in aggregate, citing to the Fourth Circuit’s approach set forth in Younis v. Farooqi, 597 F. Supp. 2d 552, 554-55 (D. Maryland 2009). Specifically, in Younis v. Farooqi, the court noted “[t]o determine the appropriate damages for breach of an Affidavit of Support, courts compare the plaintiff’s annual income for the particular years at issue, rather than the aggregate income for the entire period, against the 125% poverty threshold for each particular year.”

Critically, the court noted that not all jurisdictions take the Fourth Circuit’s approach for calculating the claimant’s income, citing to Cheshire v. Cheshire, 2006 U.S. Dist. LEXIS 26602, 2006 (M.D. Fl. May 4, 2006) and Stump v. Stump (In re Affidavit of Support (Form I-864), 2005 U.S. Dist. LEXIS 26022, (N.D. Ind. Oct. 25, 2005). In Cheshire, the court calculated the defendant’s support obligation under an Affidavit of Support on an aggregate basis by adding together the plaintiff’s annual income during a six-year period and compared it with 125% of the federal poverty threshold during that period. In Stump, the court calculated the amounts the defendant owed plaintiff on a year by year basis, aggregated that amount, and subtracted the plaintiff’s earnings or other offsets in an aggregate amount to arrive at a total amount due by the defendant.).

Concluding that the Younis approach was appropriate, the court therefore held that Al-Aromah stated a claim for damages for Tomaszewicz’s breach of contract during 6 months in 2016 despite his support payments in amounts greater than 125% of the federal poverty level in later years. In other words, the Fourth Circuit solidified its approach that must be used to calculate past-due Affidavit Support Payments for prior years: Affidavit of support payments in amounts greater than 125% of the federal poverty level made during one particular year cannot “make up” for prior years of unpaid support due.