California appeals court: “Form I-864 is enforceable, and there is no duty to seek work.

The California Court of Appeals (First District) has handed down an extremely important decision affirming rights under the Form I-864, Affidavit of Support. The case decided is Kumar v. Kumar, A145181 (Cal. App. Div. II, July 28, 2017), available here. 

First, I express my appreciation to the outstanding legal team that handled this appeal. Edin Steussy, an attorney at Orrick Herrington & Sutcliffe LLP, took this matter on a pro bono basis. He was assisted by Erin Smith, Jennafer Wagner and Shuray Ghorishi of the Family Violence Appellate Project. Protima Pandey of Bay Area Legal Aid also assisted, as well as the National Immigrant Women’s Advocacy Project, which provided an amicus brief. 

Why is this case so important? 

The appellant, A.K., was a Fijian citizen who immigrated to the U.S. on a marriage-based visa. After immigrating to the U.S., her husband/sponsor began abusing her almost immediately. (Sadly, a disproportionate number of those enforcing rights under the I-864 are domestic abuse survivors). The husband tricked her into traveling to Fiji, where he tried to abandon her without proof of her U.S. residency status, but she was able to return to the States. 

The husband filed an annulment and dissolution case in California. A.K. did not make a formal request to enforce the Form I-864, but she later raised the issue to the trial court. She told the trial court that she had been unable to work since her husband stole her green card and she was waiting for a replacement. The court ultimately refused to fully enforce the Form I-864 contract, held that A.K. had a duty to seek work, and imputed income to her that she wasn’t actually earning. A.K. filed an appeal. 

First, the Court of Appeals held squarely that the Form I-864 is an enforceable contract and that A.K. had the ability to enforce it for her benefit. (That’s no surprise – every other court to consider the issue has ruled the same way). It next made very clear that A.K. was seeking financial compensation as a contractual right, not under California’s maintenance/alimony rules. The Court also rejected the husband’s argument that the trial court lacked jurisdiction over A.K.’s claims, since the federal statute makes clear that the husband “submitted” to the court’s jurisdiction by signing the Form I-864. 

The appellate court also addressed a second, critical issue. 

When sued, I-864 sponsors frequently argue that a beneficiary like A.K. has a legal responsibility to seek work. They argue that if the person could theoretically be working then the court should impute income to her. In effect, the argument is that someone like A.K. can’t receive support under the I-864 if she is alleged to be voluntarily unemployed. In legal jargon, this is called the “duty to mitigate damages.” But the appeals court rejected the approach. 

The California court followed the leading decision on this topic, which is Liu v. Mund. 686
F.3d 418 (7th Cir. 2012). As in Mund, the Court looked to the congressional purpose behind the Form I-864, which is to ensure that vulnerable immigrants have actual financial support if needed. That goal is undermined by counterfactual guessing games about whether an immigrant might theoretically be able to work, even though she isn’t working.

Under the Kumar case, Califonia joins the growing list of states where the “duty to mitigate” simply does not apply to immigrants enforcing the Form I-864. This makes the immigrant’s right to damages under the Form I-864 very clear. If she is unemployed, then the sponsor is required to pay $1,226/month in support, period. (More if she has other qualifying household members).

We again thank the outstanding team who represented A.K. This case further solidifies rights under the Form I-864 and will provide an important resource to vulnerable green card holders.