A version of this article first appeared in the Side Bar journal for the Litigation…
A third court has held that purported waivers of I-864 support are ineffective. Toure-Davis v. Davis, NO. WGC-13-916, 2014 U.S. Dist. LEXIS 42522 (Dist. M.D. Mar. 28, 2014). In Toure-Davis v. Davis the court gave both a narrow (but plausible) and a broad (but misguided) basis for holding the waiver was ineffective. I’m indebted to noted immigration attorney, Bob Gibbs, for bringing this decision to my attention today.
Background. Plaintiff was a citizen of Ivory Coast who married the U.S. citizen defendant on July 29, 1998. On the day of marriage the parties signed an ante-nuptial agreement. The agreement set forth a general waiver, whereby both parties agreed broadly not to seek financial support from each other, were the marriage to end. The agreement contained no language specific to the I-864. Defendant later petitioned for Plaintiff’s lawful permanent residency in the U.S. and in the process executed an I-864. After the parties separated a state court action followed, which resulted in a settlement wherein Plaintiff received certain financial support. The federal district court action then followed, in which Plaintiff sought a damages award for I-864 support.[Side note. The court breezily concluded it had federal question subject matter jurisdiction, as the claim at stake “involves” a federal statute. This view jives with the majority, contrary to one district court in Florida which holds I-864 suits are contract actions not arising from federal statute. See Winters v. Winters, No. 6:12-cv-536-Orl-37DAB, 2012 U.S. Dist. LEXIS 75069 (M.D. Fla. Apr. 25, 2012). (It appears Defendant did not raise object to jurisdiction).]
Narrow basis. Defendant argued that Plaintiff had waived her right to collect financial support under the I-864 by signing the ante-nuptial agreement. The District Court rejected this argument first because of the timing of the agreement. Since the agreement was signed before execution of the I-864, the court reasoned that the ante-nuptial agreement was modified by execution of the I-864. Since Plaintiff is a third-party beneficiary to the I-864, the reasoning goes, execution of that form gave her new contractual rights against the Defendant, and those rights modified the previously agreed-upon rights from the ante-nuptial agreement.
Even if sound, this reasoning wouldn’t prevent parties from making enforceable waivers of I-864 rights. The timing issue can be resolved by re-executing a waiver agreement after the sponsor signs the I -864. The I-864 is signed on Day 1; on Day 2 the ante-nuptial agreement is signed and the parties thus modify their private rights under the I-864. The modification argument could also, presumably, be bypassed by a more carefully-drafted waiver agreement. Contracts routinely contain modification clauses that explain how the agreement can and can’t be modified (e.g., in writing, etc.). Why not specify that execution of the I-864 does not modify the waiver agreement?
Broader basis. Despite having rejected the validity of the ante-nuptial agreement, the court went on to offer a boarder and more confused basis for the same conclusion. The court appears to reason:
- The “obligation of support” is “imposed by federal law.”
- The duty of support is for the “benefit of federal and state taxpayers”, etc.
- Defendant agreed to provide support to Plaintiff.
Defendant therefore cannot absolve himself of his contractual obligation with the U.S. Government by Plaintiff purportedly waiving any right to alimony or support via the ante-nuptial agreement.
First of all, the court doesn’t identify what rule makes it impossible for a sponsor to waive the duty of support. Is it because such an agreement would be void as against public policy? (Hence the citation to the public purpose behind the form). Or is it because the rights involved aren’t contractual in nature? (Hence the citation to “federal law”). This is yet the most recent example of confusion about what type of rights an I-864 beneficiary possesses. At least one federal court clearly believes they are contractual in nature, and rejects federal question subject matter jurisdiction because there is no federal statutory cause of action. See Winters, supra. Other courts, as in Toure-Davis, treat the rights as statutory. As long as this confusion persists, case law about I-864 enforcement will continue to be incoherent.
Unlike the Narrow Basis for the holding in Toure-Davis, the Broader Basis lends itself to no drafting solution. On this view beneficiaries can’t waive their right to collect I-864 support, so attorneys will want to be cautious about advising clients to try. In the Western District of Washington, where I practice, no state or federal court has considered waiver of I-864 support. I will continue to advise I-864 sponsors and joint-sponsors that a waiver may be possible, but that the prevailing view is that such agreements are unenforceable. But where the sponsor has already agreed to sign the I-864, she may as well attempt to protect herself with a waiver agreement.