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

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

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

What is household size? Erler v. Erler (N.D. Cal. Nov. 21, 2013).

In Erler v. Erler a District Court provided the most detailed discussion to date of the calculation of household size for determining the level of support obligations under the I-864.  CV-12-02793-CRB, 2013 WL 6139721, at (N.D. Cal. Nov. 21, 2013). The court began by recognizing that there is no single definition of “household size” for purpose of the Federal Poverty Guidelines that applies across all federal law contexts.  Instead, the Department of Health and Human Services defer to programs that rely on the guidelines for administering various benefits.  Indeed, the I-864 regulations do provide a definition of household size, but the definition is made “for the express purpose of determining whether the intending sponsor’s income is sufficient to suppose the intending immigrant.” Under the I-864 regulations “household size” necessarily includes the following:

  • The sponsor;
  • The sponsor’s spouse;
  • The sponsor’s unmarried children under age 21 (not including stepchildren);
  • Any person claimed as a dependent on the sponsor’s Federal income tax return for the most recent year;
  • The number of non-citizens the sponsor has sponsored under an I-864, where the obligation has not terminated; and
  • All non-citizens sponsored under the current I-864.

Household size may also include the sponsor’s parent, adult child, brother or sister, if that person’s income is used for the current I-864.

The plaintiff-beneficiary in Erler lived with her adult son, whose income – if imputed to her – would place her above 125% of the Federal Poverty Guidelines. Hence, the beneficiary was incentivized to argue that she was a household of one, in order to present herself as having no income.  The court rejected the argument that it was bound by the determination that the beneficiary was a household of one for purposes of the food stamps program, since among other flaws the Guidelines make clear that household definition is context specific.  Likewise, the court rejected the argument that it should look only to the sponsor-defendant for financial support, in lieu of the beneficiary’s son, as only the defendant had a contractual support obligation.  The court rejected this proposition without legal citation, “because it leads to an untenable result” that the beneficiary would be entitled to I-864 support even if she “becomes part of a millionaire’s family.”

Instead, the court determined that it must “strike a balance between ensuring that the immigrant’s income is sufficient to prevent her from becoming a public charge while preventing unjust enrichment to the immigrant.”  Where an immigrant “lives alone, or only temporarily with others, she should receive payments based on a one-person household.”  But the court believed the plaintiff-beneficiary would be “unjustly enriched” if she received income support from her I-864 sponsor, since her adult child was in fact providing support.

Note the Hobson’s choice with which an immigrant is left by this holding.  An I-864 beneficiary may elect to attempt to live on her own with no financial support – in which case she may seek recovery from her I-864 sponsor – or else she may impose herself on a family member, thereby waiving I-864 support.  Imputing income from the family member may seem unproblematic for the “millionaire” families envisioned by the Erler court, but that hypothetical is likely distant from the reality of many immigrant families.  Indeed, the beneficiary’s son in Erler earned only two and one-half times the Federal Poverty Guidelines for a household of two.

Claim preclusion re defense of fraud. Erler v. Erler (N.D. Cal. Nov. 21, 2013).

A number of cases have addressed claims that a sponsor was fraudulently induced to sign an I-864, Affidavit of Support. In dicta, a District Court has suggested that a defendant-sponsor waives his right to raise the defense of fraud in the inducement if he fails to assert that defense in a preceding dissolution action. In Erler v. Erler the district court held that the defendant-sponsor had failed to provide “sufficient evidence” of fraud at summary judgment. CV-12-02793-CRB, 2013 WL 6139721, at *4 (N.D. Cal. Nov. 21, 2013).  The court went on to state that the time to contest the marriage’s validity had passed, and that “[a]ny allegations of fraud should have been made to the state court during divorce proceedings.” Previous case law has suggested that an I-864 beneficiary may waive the right to seek support under the I-864 if she fails to raise the issue in a dissolution action.  Nguyen v. Dean, No. 10–6138–AA, 2011 U.S. Dist. LEXIS 3803 (D. Or. Jan. 14, 2011) (granting defendant’s motion for summary judgment).  The Erler counsels similar caution for family law attorneys representing I-864 sponsors.

 


Prenuptial agreement cannot waive enforcement? Erler v. Erler (N.D. Cal. Nov. 21, 2013).

A second federal district court has weighed in on whether a prenuptial agreement may waive an immigrant-beneficiary’s right to seek enforcement of the I-864.  Previously, in Blain v. Herrell, a district court in Hawaii had concluded that a premarital agreement could waive a beneficiary’s rights to enforce the I-864, on the reasoning that the beneficiary was entitled to bargain away her own private rights if she chose.  No. 10-00072 ACK-KSC, 2010 U.S. Dist. LEXIS 76257 (D. Haw. July 21, 2010). In Erler v. Erler the parties entered into a premarital agreement stating that “neither party shall seek or obtain any form of alimony or support from the other.”  CV-12-02793-CRB, 2013 WL 6139721 (N.D. Cal. Nov. 21, 2013). When the immigrant-beneficiary brought a contract action on the I-864 to recover support arrearages, the sponsor sought summary judgment, arguing that the premarital agreement rendered the I-864 contract “void.”  The court rejected this contention on two grounds.  First, the court held that premarital agreement could not waive rights under the I-864, as the premarital agreement was executed before the I-864.  These facts distinguished Blain v. Herrell, in which the premarital agreement was executed after the I-864.  Second, the court held that the defendant-sponsor could not “unilaterally absolve himself of his contractual obligation with the government by contacting with a third party.”  This reasoning fundamentally departs from Blain v. Herrell, where the court reasoned that a beneficiary’s private rights were her own to waive if she chose.  Indeed, the Department of Homeland Security itself has opined that a beneficiary may elect to waive her right to enforcement of the I-864.

The Erler case injects new uncertainty into whether a sponsor and beneficiary can waive enforcement of the I-864.  In my view Erler got it wrong: a beneficiary's I-864 rights are in the nature of private rights under a contract.  Normally a contract beneficiary - including a third-party beneficiary - may elect to bargain away her rights.  By contrast, it is less likely that a sponsor could contract his way out of his obligation to repay means-tested public benefits received by an immigrant-beneficiary (the second of two promises made under the I-864).  This promise gives no bundle of rights to the beneficiary, who therefore has nothing to waive.

The Erler court also suggested that allowing waiver of I-864 enforcement would serve an end-run around the policy basis for the I-864.  This reasoning circles back on a common area of confusion: how should courts account for the statutory framework behind the I-864?  Courts commonly treat I-864 rights as a confusing hybrid of statutory and contract rights.  Why and how is the policy basis for the I-864 relevant to the waiver issue?  Is it because the premarital agreement was rendered void (i.e., as against public policy)?  The Erler court does not tell us.  If courts look beyond the four corners of the I-864 to determine parties' rights they should be clear about why they are doing so.

Lack of personal jurisdiction? Delima v. Burres (D.Utah Feb. 26, 2013)

Delima v. Burres, No. 2:12–cv–00469–DBP, 2013 WL 690536 (D.Utah Feb. 26, 2013). In this Federal contact suit by an I-864 Beneficiary the Court held that it lacked personal jurisdiction over Sponsor-defendant.

It appears the parties hired a Utah law firm to prepare the I-864, but executed the form in Montana… at least there was no evidence this took place in Utah.

The magistrate judge first analyzed whether the Beneficiary/Plaintiff had demonstrated minimum contacts with Utah sufficient for the State’s long-arm statute and due process.  The Court found that Plaintiff’s hiring of a Utah law firm to prepare the Form was not a minimum contact, and that Plaintiff had failed to show other plausible grounds.  The magistrate then turned briefly to 8 C.F.R. § 213a.2(d), which is generally read to waive the defense of personal jurisdiction by a Sponsor who signs the I-864.  The magistrate then summarily concluded that the “Defendant’s decision to sign the Form I-864… does [not?] constitute a waiver or replacement of her constitutional due process rights related to personal jurisdiction."

This case is an outlier - Courts generally determine that Sponsors waive objection to personal jurisdiction when they execute the I-864.  It will be interesting to see if the magistrate’s decision will be contested.  Contracts, of course, can restraints on personal jurisdiction and do so all the time.  The decision gave no analysis of why the contractual provisions in the form itself were insufficient for such a waiver: “I agree to submit to the personal jurisdiction of any Federal or State court that has subject matter jurisdiction of a lawsuit against me…”