A version of this article first appeared in the Side Bar journal for the Litigation…
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.