USCIS Form I-864 enforcement in divorce court – another cautionary tale (Marriage of Bychina)

It is a theme that I have written about many times on this blog and elsewhere. Yes, the Affidavit of Support can theoretically be enforced in family law proceedings. But in practice, beneficiaries frequently encounter problems in that forum. Here is another example.

Marriage of Bychina was a family law case in Illinois. See No. 2-20-0303 (Ill. App. Ct. 2021). A U.S. citizen (age 55) met and married a much younger Russian national. He brought her to the United States on a K-1 category fiancée visa and she adjusted status to residency (that is the stage where the Affidavit of Support is signed). After several years of marriage, the Russian national petitioned for a divorce.

In the divorce proceeding, the sponsored immigration “included a count for breach of contract.” Although it is not completely clear from the appellate decision, that appears to mean that the sponsored immigrant alleged a breach of contract action in her divorce petition, in contrast to raising the Affidavit of Support as a basis for awarding alimony (also called maintenance).

In response, the U.S. citizen asserted the affirmative defense of fraud, raising the tired and always unsuccessful argument that he was dipped into marrying the Russian national. (As discussed elsewhere on this blog, courts reject the view that a sponsor can avoid liability on the basis of alleged fraud, regardless of the particulars of his factual allegation, since such defenses are not permitted by the federal statute).

The trial court – and this is a move we have seen before in such matters – tried to sidestep the Affidavit of Support breach of contract claim.

…the court stated that the issue before it was not whether the court “could” decide the issue but whether it “should” do so-specifically, whether the trial court or federal court was the more appropriate court to decide the issue. […] [T]he court determined that, for several reasons, petitioner’s suit to enforce the Affidavit of Support “arises under Federal law.”

Memo. Op. at *6.

Significantly, the Court raised this issue sua sponte, meaning that the U.S. citizen had not even requested that the Court not entertain the Affidavit of Support claim. The sole issue on appeal was whether the trial court erred in refusing to address the Affidavit of Support claim.

The sponsored immigrant’s argument was ultimately simple (and correct): the Affidavit of Support is a contract, and the trial court – as a court of general jurisdiction – undoubtedly has jurisdiction to address contract disputes. Although she does not seem to have raised the issue, the argument would not have been any different if she had looked to the statutory cause of action nat 8 USC 1183a(e)(1). Given the “presumption of concurrency,” state courts of general jurisdiction can (and must) hear federal statutory claims unless the specific statute says that only federal courts have authority over the matter.

The appellate court fully rejected the trial court’s rationales for refusing the Affidavit of Support claim. Agreeing with the Ohio decision in Motlagh v. Motlagh, it noted that there was no “conflict” between the Illinois matrimonial law and enforcing the Affidavit of Support. 100 N.E.3d 937, ¶ 14 (App. 2 Dist.). In short, the sponsored immigrant is entitled to what she’s entitled to under state spousal maintenance rules, and then she’s entitled to what she’s entitled to under the Affidavit of Support. There is no “conflict” there, just two distinct reasons for providing relief to the individual.

What I like most about the appellate decision is that the Court understood the serious burden that the trial court placed on the immigrant by refusing to enforce the Form I-864.

The trial court erred in determining that federal court was preferable because the trial court had not decided the maintenance issue, it required more time to assess the issue, and it wished to allow petitioner time to seek relief in federal court on her contract claim before returning to the trial court for the court’s maintenance determination. It required petitioner, whose claim was properly before a court that could decide the issue and which she had asked to decide it, to incur additional costs and delays in filing a new action in another court. There is no argument to be made that the federal court can better assess a claim for breach of an obligation under Form I-864. A state court is as capable as a federal court of addressing the contact issue raised by such a claim… 

Memo Op. at 14.

That’s all 100% correct. It’s important not to lose sight of the fact that Affidavit of Support plaintiffs, by definition, are in poverty. Making such a person file and refile legal claims to enforce their right to financial support works a real injustice on someone who needs to vindicate their rights efficiently. I must say that I was pleased that the Court quoted my own article for its reasoning on this point:

[noting that the choice of federal over state courts to enforce the Form I-864] is “somewhat puzzling” and could be based on “mistaken view that [Form] I-864 enforcement involves ‘federal law.’ The better understanding is that enforcement is a suit on a contract, precisely the type of dispute that a state court of general jurisdiction is competent to adjudicate”

Memo. Op. at 14 (quoting Greg McLawsen , The I-864 Affidavit of Support: An Intro to the Immigration Form You Must Learn to Love/Hate, 48 Fam. L.Q. 581, 590 & n.58 (2015)).

Ultimately the Illinois appellate court reached the right decision (that Affidavit of Support claims can be enforced in state court, and family proceedings specifically). But the case is yet another telling indication of the resistance that these claims face in state – and especially family law – proceedings. The adjudication environment is a serious reason for Form I-864 beneficiaries to seriously consider whether federal court might not be a more hospitable venue to assert their claims. It is certainly where I file the vast majority of our client’s claims.