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 v. Herrell 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 v. Erler 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.

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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.

No I-864 lawsuits for children? Buttany v. Barrackas

In Buttany v. Barrackas, 2019 U.S. Dist. LEXIS 190261, *5-6 (E.D. Cal., Nov. 1, 2019), the court concluded that a mother suing on behalf of her minor children, beneficiaries of an I-864, could not assert a breach of contract claim pursuant to the I-864, pro se. (“To the extent that plaintiff may be attempting to set forth a claim for breach of an affidavit of support pursuant to 8 C.F.R. § 213a.2, plaintiff cannot do so as a pro se plaintiff on behalf of minor children.”). This result is somewhat surprising, as parents may often bring claims as a “next friend” for their minor children. It is a good idea not to reach much into the case holding, however, as the litigant was pro se and the Court likely had little briefing before it.

Anderson v. Anderson

In Anderson v. Anderson, 2019 U.S. Dist. LEXIS 193910 (W.D. Wash., Nov. 4, 2019), following Anderson v. United States, 2017 U.S. Dist. LEXIS 211102 (W.D. Wash., Dec. 22, 2017), the U.S. District Court for the Western District of Washington addressed two main principles of I-864 jurisprudence. First, the decision elaborated upon the definition of “income” as used to evaluate whether a claimant’s income falls below the I-864 federal poverty level. Second, the court clarified that obligations imposed by the I-864 Affidavit are continuing and are not terminated as a result of the parties' separation or divorce.

Additional notes to be considered in this case are that the court analyzed the plaintiff’s income in relation to 100% of the federal poverty level as opposed to the typical 125% level, and the case is currently pending appeal.

What counts as “income”?

First, the Court explained that “‘[i]ncome,’ for purposes of determining how much support defendant must provide to maintain plaintiff's income at the federal poverty level, includes not only wages and cash payments to plaintiff, but also property, services, gifts, or educational grants received by plaintiff (unless she paid fair market value for those items).” The Court further indicated that "[i]ncome" also includes constructively-received income.” The Court cautioned that "[i]ncome does not, however, include any loans that the plaintiff will have to pay back, such as cash advances on a credit card or student loans.”

In my opinion, Anderson takes an overly broad view of what qualifies as “income” for the purpose of calculating I-864 damages. The statute and implementing regulations gauge income in relation to taxable federal income. Courts taking a view like the one in Anderson have credited I-864 plaintiffs with things such as the fair market rental value of a home they are living. That is far broader a view of income than is supported by the statute.

Former Spouse’s I-864 Obligations.

Second, the court distinguished a former spouse’s obligations for spousal support (i.e., alimony) as a completely different issue from support a former spouse would be entitled to pursuant to an I-864. For example, the court took special care to emphasize that I-864 obligations continue subject only to specific statutorily created termination events. (Noting that “[t]he I-864 might not be enforceable only if the plaintiff:

(A) becomes a U.S. citizen; (B) has worked, or can receive credit for, 40 quarters of coverage under the Social Security Act; (C) no longer has lawful permanent resident status and has departed the United States; (D) is subject to removal but applies for and obtains, in removal proceedings, a new grant of adjustment of status based on a new affidavit of support if one is required; or (E) dies. Future support obligations also end if defendant dies.”

Lower Federal Poverty Level.

Last, it is important to note that in this Decision, the court analyzed the plaintiff’s claim under a federal poverty level of 100% as opposed to 125%. This is because, although “[t]he support obligation under and I-864 is generally 125% of the federal poverty guidelines, [it] drops to 100% if the sponsor is on active duty in the U.S. Armed Forces and married to the intending immigrant,” which was the case in Anderson.

What will the 9th Circuit decide upon appeal?

This case has been appealed to the 9th Circuit Court of Appeals, the appeal of which is still pending. It appears the Plaintiff has the upper hand if we look at the court’s subsequent Order. In a December 12, 2019 Order from the Court Granting Plaintiff Payment Arrangements, See 2019 U.S. Dist. LEXIS 214498 (December 12, 2019), the court appeared to notice that the plaintiff has a good claim for I-864 enforcement:

Although plaintiff has not specified which discovery, evidentiary, and/or legal rulings she intends to contest on appeal, many of the issues involved in this case were reasonably debatable. Having reviewed the record in this matter, the Court finds that (a) plaintiff is currently proceeding in forma pauperis on appeal, (b) the appeal is not frivolous, (c) the appeal presents substantial questions, and (d) the two pretrial hearings held on April 30, 2019, and July 8, 2019, and the entire trial transcript (including arguments regarding jury instructions and the polling of the jury) are relevant to a full understanding of the decisions plaintiff has appealed. Id (finding jurisdiction appropriate on the ground that the plaintiff’s claim appeared viable.

Raising I-864 in alimony order presents an unfair pickle

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)

MENETREZ J.

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.

BACKGROUND

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.

DISCUSSION

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 "[10] 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 [10] 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.

DISPOSITION

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

MENETREZ

J. We concur: SLOUGH

Acting P. J. FIELDS

J.

Belevich v. Thomas - Prejudgment interest and other good I-864 holdings

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.

Background.

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.

White House: new rules for seeking reimbursement of welfare from Form I-864 sponsors

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:

1. 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.

2. 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 Court rules that "fraud" is not a defense in I-864 cases

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.