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