Immigration form I-864 (affidavit of support) and efforts to collect damages as support obligations against divorced spouses - what practitioners need to know.

• Author: Hoffman, Geoffrey A.
• Position: Family Law

Imagine a spouse who can sue his or her former spouse for support every year until either dies. Imagine the suing spouse bringing an action in state court and, if unhappy with the outcome, moving to federal court for a new law suit for support, and then going back to state court to sue, yet aagain, for the following year's support. An impossible scenario? Not any longer.

The I-864, affidavit of support, is a little-known form (outside of immigration law) that has become pertinent in family law and federal court litigation. The form is required as part of the application process for an alien who seeks to obtain lawful permanent residence in the U.S. (1) The form requires that a U.S. citizen or lawful permanent resident petitioner agrees to support the beneficiary at 125 percent of the applicable federal poverty guidelines in the event the intended immigrant earns less than that amount or becomes a public charge. (2) Although the agreement is between the petitioner and the federal government, all courts that have considered the issue have held that the agreement constitutes a binding, enforceable contract. (3)

This simple and seemingly innocuous form implicates a wide array of issues including, inter alia, federal court procedure, state court preemption, family law, immigration, public benefits, and Social Security law. In a spate of recent cases, pro se and represented plaintiffs are coming forward seeking to enforce the terms of the I-864 against their ex-spouses. These individuals make such claims because courts have interpreted the obligations imposed on the petitioner as surviving divorce. In fact, the support obligations under the I-864 may never terminate, unless or until one or more of the following conditions occurs: the sponsored immigrant a) becomes a citizen of the United States; b) has worked, or can be credited with, 40 quarters of coverage under Title II of the Social Security Act; c) ceases to hold the status of an alien lawfully admitted for permanent residence and departs the U.S.; d) obtains in removal proceedings a new grant of adjustment of status; or e) dies. (4)

Efforts on the part of divorced spouses in particular to show that they are entitled to support payments under the I-864 have been successful in the federal courts. (5) In Stump v. Stump, 2005 WL 2757329 (N.D. Ind. Oct. 25, 2005), the original case to explore this issue, the plaintiff wife was a Russian citizen who entered the U.S. on a fiance visa. The defendant husband married the plaintiff wife shortly after her arrival in the U.S. The defendant husband signed the affidavit of support and agreed to provide his wife with support necessary to maintain her at an income in the amount of at least 125 percent of the federal poverty guidelines. According to the court, the defendant husband "made this promise as consideration for the plaintiff's application not being denied on the grounds that she was an immigrant likely to become a public charge." (6)

Mr. Stump defended by arguing that his wife had failed to plead essential elements required to state a claim for relief in that she did not allege receiving any "means-tested benefits" from any "federal, state, or local government," and did not allege that she had attained permanent resident status. (7)

The court rejected this argument, and instead granted summary judgment on liability in favor of the plaintiff wife. With respect to damages, the court found that since the plaintiff wife was now divorced, her household size would be one person, as opposed to three, which was the original size of the household at the inception of the marriage. (8) The reduced household size lessens the amount of damages to which Mrs. Stump would otherwise be entitled, because the federal poverty guidelines are dependent on number of persons in the household. (9)

With respect to the contract defenses of mitigation and set-off, the court found that such issues were properly before the court. (10) While the court noted there is no body of federal common law specifically addressing these issues, there is a general duty to mitigate damages as a "basic tenet" of contract law. (11) Applying these principles, the court found that any "funds the [p]laintiff received after her separation should be subtracted from the amount the [d]efendant must provide to 'maintain' the [p]laintiff at 125 [percent] of the poverty level." (12) The court further found that the plaintiff had made "reasonable efforts" to obtain employment and be self-sufficient. (13)

The legislative history behind the I-864 also supports the finding that the affidavit of support creates a binding, enforceable contract between the sponsoring petitioner and federal government, with the intended immigrant as the third-party beneficiary. (14) In the commentary relating to [section] 551 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), the new section was described as "creat[ing] a new, legally binding affidavit of support in order to seek reimbursement from sponsors for the costs of providing public benefits." (15) It was the intention that "the affidavit of support be a legally binding contract between an alien's sponsor, the sponsored alien, and the government." Interestingly, the drafters further intended that "public hospitals, private hospitals, and community health centers" be allowed to seek reimbursement from sponsors "for the costs of providing emergency medical services" to the extent that such services would be reimbursed by "means-tested public benefit programs." The provision was designed "to encourage immigrants to be self-reliant in accordance with national immigration policy." (16)

What Constitutes Mitigation or Set-offs?

While a finding of basic liability on the part of the sponsor under the I-864 is supported by the legislative history, the governing statute, and the attendant regulations, it is an open question regarding what exactly constitutes mitigation and/or set-off and, also, whether any further defenses may exist. For example, in Shumye v. Felleke, 555 F. Supp. 2d 1020 (N.D. Cal. 2008), the court held that the I-864 is legally enforceable but recognized certain set-offs. The court held that the value of "affordable housing subsidies" and student grants, such as...