Divorce and the I-864

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Love v. Love: The Pennsylvania Superior Court Upholds Federal Immigration Law in Spousal Support Matters.

On December 14, 2011, the Superior Court of Pennsylvania, Eastern District, issued its decision in the case of Love v. Love, 33 A.3d 1268 (Pa. Super. Ct. 2011). This case highlights the increasing frequency with which issues of immigration law intersect with other practice areas, in this case, family law. In Love the Court addressed the case of a U.S. citizen who married a foreign national and then sponsored her to immigrate to the United States. The marriage ended shortly thereafter in divorce. As part of the process of sponsoring his foreign national spouse, Mr. Love a U.S. citizen, signed a Form I-864 Affidavit of Support: an immigration document requiring the U.S. citizen to maintain his or her foreign national spouse at or above 125 percent of the Federal Poverty Guidelines. This form is required under U.S. immigration law whenever a U.S. citizen (USC) or lawful permanent resident (LPR) sponsors a relative for immigration to the U.S. The obligations under the Affidavit of Support are the central issue in the Love case. This article will discuss the Affidavit of Support and the increasing importance it plays in support matters following a separation of the U.S. citizen and his or her foreign national spouse. The purpose of this article is to highlight the importance for family law and immigration law practitioners to understand the obligations created under the I-864 so as to better advise clients if they wish to marry a foreign national and sponsor him or her (and his or her children) to immigrate to the United States.

The I-864 Affidavit of Support came into law when Congress passed the Illegal Immigrant Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Under IIRIRA if a U.S. citizen or LPR wishes to sponsor a foreign national spouse or other relative to immigrate to the United States, that person must sign an I-864 Affidavit of Support. He or she then becomes the obligor on a binding contract between the U.S. citizen/LPR and the U.S. government. Thereafter any government agency may request to be reimbursed by the obligor for any means-tested public benefits received by the sponsored-immigrant. This document serves the important public policy objective of not requiring taxpayers to bear the cost of supporting impoverished immigrants who are brought to the United States by their relatives. Until recently, the obligations under the I-864 Affidavit of Support have not been widely enforced, and there is little information available to indicate that government agencies have actually enforced the obligations under the Affidavit of Support to recover costs for means-tested public benefits. However, enforcement actions by the U.S. government may soon be instituted, as a means of generating revenue for a government running a serious deficit.

The Affidavit of Support also creates a separate contractual obligation between the U.S. citizen/LPR and his or her foreign national spouse, and that is the essence of the Love decision. This contractual obligation is enforceable in either state or Federal court through an action brought by the immigrant spouse. In recent years, this issue has been the subject of increasing litigation, and obvious questions regarding federalism, jurisdiction, issue/claim preclusion, and contract law have been tested by this new intersection of immigration law with family law, with differing results. What all courts have agreed on, however, is that the I-864 Affidavit of Support is enforceable as a binding agreement between the U.S. citizen sponsor and his or her foreign national spouse, and the obligations under the Affidavit of Support do not terminate upon divorce. Exactly how much money the foreign national spouse can collect and whether or not the foreign national spouse has an obligation to mitigate his/her damages are issues which differ within each jurisdiction.

The obligations created under the I-864 contract differ from traditional common law support principles in Pennsylvania in the following ways:

Differences Between I-864 Action and Spousal Support Action in PA

I-864

• Attorney's fees awarded;
• Does not start at filing date, can ask for retroactive support;
• Can file in federal court or state court;
• Amount awarded not based on support guidelines but on federal poverty guidelines;
• Amount awarded has no relation to sponsor's income;

Spousal Support

• Difficult to get attorney's fees;
• Starts only upon filing, no retroactivity;
• Must file in county court;
• Amount awarded based on support guidelines;
• Amount awarded based on sponsor's income.

According to the terms of the I-864, a sponsor's obligations terminate only when one of the following conditions applies to the sponsored immigrant:

• He./she has worked, or can be credited with, 40 quarters of coverage under the Social Security Act;
• He/she becomes a United States citizen;
• He/she no longer has lawful permanent resident status, and has departed the United States;
• He/she becomes 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;
• He/she dies.

In Love, the Pennsylvania Superior Court joined New Jersey , New York and other jurisdictions in holding that an immigrant spouse in a support action against his or her U.S. citizen/LPR spouse, may enforce the Affidavit of Support during the support proceedings without having to initiate a separate civil action. The Love case involved Appellant wife, a German national, whose U.S. citizen husband sponsored her to immigrate to the United States, and signed an I-864 Affidavit of Support. The couple separated and the wife brought a spousal support action in Philadelphia County. In her complaint she produced as an exhibit the I-864 Affidavit of Support signed by Husband as part of her immigration process. The trial court issued a support order based on the Pennsylvania support guidelines set forth in Rule 1910.[16]-3, Pa.R.Civ.P., without taking into account husband's obligations under the I-864 to support his wife at 125 percent of the Federal poverty guidelines. The trial court reasoned that the Pennsylvania Domestic Relations Code and the concomitant support guidelines were controlling, and thus foreclosed it from considering husband's obligations pursuant to the I-864 Affidavit of Support in formulating the support order. Love v. Love, 33 A.3d at 1273. The trial court concluded that the proper remedy for wife was to bring a separate action in Federal Court if she wanted to secure monies from husband based upon the I-864. Id.

In reversing and remanding the case, the Superior Court held that the I-864 Affidavit of Support memorializing husband's commitment to support his wife at a minimum baseline level was relevant evidence upon which the trial court ought to have deviated from the support guidelines. Id. The Court further directed the trial court to follow the holding in the New Jersey case of Naik v. Naik, 944 A.2d 713 (N.J. Super 2008), according to which the sponsor's obligation to provide additional support to the immigrant spouse pursuant to the Affidavit of Support would be triggered only when the immigrant spouse's income from all available sources falls below 125 percent of the Federal Poverty Guidelines. Id. at 717-718. Additionally, the Court held that the trial court erred in holding that the immigrant spouse's "earning capacity" could be counted as "income" against the sponsor's support obligations: "We conclude that including a theoretical earning capacity in [the calculation of the immigrant spouse's income] vitiates the purpose of the sponsorship obligation since the imputed figure does not rectify the need for an otherwise impoverished immigrant to rely upon means-tested public benefits programs to satisfy his or her basic needs." Love v. Love, 33 A.3d at 1278.

The Love decision, like Naik and other state appellate court decisions (see e.g. Moody v. Sorokina, 40 A.D.3d 14, 830 N.Y.S.2d 399, 401 (N.Y.App.Div. 2007) illustrates the willingness of state courts to enforce a federally mandated contractual obligation in spousal support matters. Further complicating the legal landscape are the increasing number of I-864 cases in Federal courts. Because executing the I-864 is a federally mandated obligation when sponsoring a foreign relative to immigrate to the U.S., Federal courts are now deciding matters pertaining to spousal support, traditionally the province of state jurisdiction. Federal suits under the I-864 have invited challenges of collateral estoppel/issue preclusion, res judicata, and challenges based on the Rooker-Feldman doctrine and the Younger doctrine. While there will likely be disagreement among jurisdictions on these procedural questions, there nonetheless is uniformity among Federal Courts that the I-864 is an enforceable contract between a U.S. citizen/LPR and his/herforeign national spouse, and the obligations under the I-864 do not terminate upon divorce.

In Chang v. Crabill, 2011 U.S. Dist. LEXIS 67501 (N.D. Ind. June 21, 2011) a United States citizen, married a Taiwanese woman in July, 1998. Mr. Crabill sponsored his wife and her son (from a previous relationship) to immigrate to the United States and executed an I-864 Affidavit of Support. The couple separated in May 2000 and upon the conclusion of divorce proceedings in Whitley Co., Indiana, the court issued a divorce decree stating, "No request was made by the Respondent [Chang] for spousal maintenance or support of any kind," and no maintenance was awarded. Id. at *3. Later, Ms. Chang and her son brought suit in the Northern District of Indiana alleging that Crabill had failed to provide support as required under the I-864, and asked for an order for said support from the date of their separation on May 1, 2000 to the present. She also requested specific performance for future support under the I-864 and attorney's fees. Defendant Crabill moved to dismiss based on the theory of collateral estoppel/issue preclusion, which bars subsequent litigation of an issue previously adjudicated in a former suit. Defendant also moved to dismiss based on res judicata, according to which all matters that were, or might have been, litigated are deemed conclusively decided by the judgment in the prior litigation.

The Court rejected Defendant's collateral estoppel argument stating that collateral estoppel does not extend to matters that were not expressly adjudicated or to matters that can be inferred from the prior adjudication only by argument. Id. at *6, see also, MicroVote Gen. Corp. v. Ind. Election Comm'n, 924 N.E.2d 184, 197 (Ind. Ct. App. 2010). To support his argument Defendant pointed to the state court divorce decree stating that the Respondent, Plaintiff in the Federal action, had made no request for spousal maintenance or support of any kind. Chang, 2011 U.S. Dist. LEXIS 67501 at *7. However, the Court dismissed this argument and stated that, "[t]his statement is ambiguous at best, and it would require both argument and inference to find that the divorce court adjudicated the issue of immigrant support under the Affidavit of Support. Further, it can hardly be said that Chang had a full and fair opportunity to litigate the issue of support under the Affidavit. Accordingly, collateral estoppel does not apply." Id. Similarly, in rejecting Defendant's res judicata argument, the Court stated, that "unless Chang knew of or in the exercise of ordinary diligence could have discovered Crabill's breach before the divorce proceedings, her claim had not yet accrued, and it was not a cause of action that "could have been litigated" during the divorce proceedings for res judicata purposes." Id. at *12.

Chang v. Crabill is a recent (2011) case where a Federal court was clearly sympathetic to the Plaintiff who it viewed as having been unfamiliar with her rights to bring an action based on the I-864 Affidavit of Support. The Court admits that the principle of res judicata will still bar later action if the claim could have been litigated in the prior action. In Chang the Affidavit of Support claim could have been raised as an issue in the divorce proceedings. However, the Court did not deem discovery of this cause of action as being within the "exercise of ordinary diligence." Id. The Court also gives the Plaintiff the benefit of the doubt in noticing that her complaint said "nothing about when she learned about the existence of the Affidavit of Support..." Id., yet she would not have been able to immigrate to this country if the Affidavit had not been executed. Moreover, she had already attended at least two interviews with officers of the U.S. Citizenship and Immigration Service (USCIS) in which the I-864 would have played a part, giving merit to Defendant's argument that the Affidavit of Support could have been raised at the divorce proceeding.

By contrast, in Nguyen v. Dean, 2011 U.S. Dist. Lexis 3803 (Dist. OR 2011) the Court agreed with the U.S. citizen Defendant and granted his motion for summary judgment. There the Plaintiff, a Vietnamese national, sought enforcement in Federal Court of her U.S. citizen husband's support obligations under the I-864, which he signed to sponsor her immigration to the U.S. The couple divorced and in her divorce complaint the Plaintiff introduced the I-864 into evidence. The divorce court entered a support order, initially set at $500.00 per month payable by Defendant, later reducing the order to $250.00 per month. Id. In granting Defendant's motion for summary judgment the Court held that Plaintiff was barred "from relitigating her spousal support in Federal court based on the Affidavit of Support that was entered into evidence in the underlying divorce proceeding and considered by the state court judge when determining the spousal support amount and judgment." Id. at *9.

While the Court's decision in Nguyen rests on solid res judicata principles, it is noteworthy that the Court does not address the fact that the state court's support order of $250.00 per month significantly deviates from 125 percent of the Federal Poverty Guidelines, as required under the I-864. Moreover, the decision lacks any findings regarding other sources of support the Plaintiff may have had available to her. Any disputes about the amount of the support order were clearly not matters for the Court to review in this case, both on res judicata principles as well as on the Rooker-Feldman doctrine.

The two preceding cases highlight the importance of careful preparation in representing a foreign national in a divorce proceeding. The Plaintiff in Chang was able to prevail partly because the issue of spousal support under the I-864 was relatively new and the Court was sympathetic to her argument that a cause of action under the Affidavit of Support was "unknown to her at the time." Chang at *10. However, as the Affidavit of Support becomes a more commonly litigated matter this argument will be unavailing. On the other hand, introducing an I-864 claim in a support proceeding in state court will require diligent preparation and perhaps instruction of the bench to ensure one's client receives the support to which he or she is entitled under the I-864, because if unsuccessful both res judicata and Rooker-Feldman may invite a successful motion to dismiss in Federal Court.

The Love case serves as another example, following Naik and Moody, that state appellate courts are enforcing the I-864 obligation. Little known outside the immigration bar until recently, the I-864 Affidavit of Support is gaining increased attention among family law practitioners due to the increasing number of cases where the I-864 is at issue at both the state and Federal level. This should alert both immigration and family lawyers to strategize carefully when advising clients about how best to proceed in a marriage to a foreign national.

There remain several issues of concern to family law practitioners regarding the I-864 Affidavit of Support. The first is whether the obligations under the Affidavit may be waived in a pre- or post-nuptial agreement. To date only Hawai'i has addressed this in the case of Blain v. Herrell, No. 10-00072, 2010 WL 2900432 (D. HI. July 21,2010), where the Court followed the fundamental principle of contract law that a party may waive legal rights. The Court ruled that Plaintiff had waived his right to support in a validly executed, binding pre-marital agreement. Id. at *8. However, it is far from certain that the Blain decision will be followed in other jurisdictions, not the least of which because it could be considered contrary to public policy: the very purpose of requiring U.S. citizens/LPRs to execute an I-864 Affidavit of Support when sponsoring a immigrant relative is to avoid immigrants becoming public charges.

Additional questions include: May a sponsored immigrant sue for child support based on the I-864 Affidavit of Support for minor children who are listed on the I-864? In cases where a joint sponsor is required[2], may the foreign national spouse also sue his or her joint sponsor for support under the I-864, in a divorce proceeding where the primary sponsor does not have the financial resources to meet his or her obligation to support the sponsored immigrant relative at 125% of the Federal Poverty Guidelines? May language be put into a post-nuptial agreement which would obviate the sponsors obligations under the I-864? These are just a few of the issues that have yet to be decided in Pennsylvania and in other jurisdictions. These issues will surely come to the forefront as the I-864 Affidavit of Support continues to be litigated at the state and Federal level.

[1] Marcia Binder Ibrahim is the founding and principal attorney at the Law Office of Marcia Binder Ibrahim in Lansdale, PA, and has been practicing immigration and family law since 1981. She is admitted to practice in Pennsylvania, New Jersey, and New York, and has appeared before Pennsylvania Superior Court, the U.S. District Court for the Eastern District of Pennsylvania, and the United States Court of Appeals for the Third Circuit. She is a noted expert in immigration law and has appeared frequently as a guest speaker at PBA and MBA CLE events.

Gregory J. Eck is an associate at the Law Office of Marcia Binder Ibrahim. He is admitted in Pennsylvania and has been practicing since 2010. Mr. Eck is a member of the Montgomery Bar Association and sits on the Immigration Committee. Prior to joining the Law of Office of Marcia Binder Ibrahim, Mr. Eck studied under noted immigration author and attorney, Ira Kurzban.

[2] The signatory to an I-864 must have a household income equal to or higher than 125% of the U.S. poverty level for his or her household size. Where the household income is not met, Federal regulations mandate that there be a joint sponsor, who independently must meet the same income requirements.

By Marcia Ibrahim and Gregory J. Eck | Published May 7, 2012 |

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Jeezuz H Krist

Definetely worth considering, especially for those that not only bring their new Wife but also kids from different marraige.

Thanks for sharing.