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How do you calculate damages under the I-864, Affidavit of Support

In an important ruling for one of our I-864 enforcement clients, a Court ruled today that damages under the USCIS Form I-864, Affidavit of Support are determined based on taxable income. In Flores v. Flores, the Western District of Washington ruled that the term “income” is governed by the definition contained at 8 C.F.R. § 213a.1. See 3:12-cv-05814-DGE (March 7, 2022). That provision defines income with respect to funds subject to federal income tax. Under today’s decision, an Affidavit of Support plaintiff can recover damages under the Form I-864 even if she is receiving public benefits or financial gifts from friends and family. We represented the Plaintiff in the Flores case on a pro bono basis in partnership with the Korean Women’s Association.

Calculating damages for Affidavit of Support plaintiffs under Flores.

A green card holder is entitled to receive financial support under the Form I-864. This support is equal to the difference between her “income” and 125 percent of the federal poverty guideline. But courts have been inconsistent in terms of how they define the immigrant’s income. Some courts have considered such things as the fair market rental value of a place where the immigrant has been allowed to stay temporarily, or even the cost of food stamps provided to the immigrant. Taking that approach, immigrants have been unable to recover the financial support guaranteed by the Form I-864 even when they were completely unemployed.

Today’s ruling strikes back against unfair interpretations of the Affidavit of Support. The ruling means that a sponsored immigrant can recover the full amount of financial support guaranteed by the Form i-864 so long as she is actually unemployed. The decision looks at the individual’s actual earned dollars, rather than treating such things as food stamps as income.

Today’s decision will help streamline lawsuits by Affidavit of Support beneficiaries. When it comes to calculating what the person is entitled to under the Affidavit of Support, the answer simply depends on what the individual’s taxable income has been. If the person has received loans, gifts, public benefits, and the like, such things are not taxable and do not reduce damages under the Affidavit of Support.

Understanding the definition of income for the Affidavit of Support.

The Flores Court adopted our argument that the definition of “income” is governed by 8 C.F.R. § 213a.1. This departs from an unpublished decision by the Ninth Circuit Court of Appeals that applied a broader definition and did not examine the definition of income within the federal regulations. The Flores Court agreed that it was appropriate to look to the definitional section of 8 C.F.R. Part 213a, which governs the Affidavit of Support.

Plaintiff contends that 8 C.F.R. § 213a.1 provides definitions for the two contexts in which the INA uses the term “income” under 8 U.S.C. § 1183a(a)(1)(A) and 8 U.S.C. § 1183a(f)(6) by defining both “household income” and “income.” […] 8 C.F.R. § 213a.1. Plaintiff claims that the Court is bound by the definition of “income” in 8 C.F.R. § 213a.1, and therefore, Plaintiff’s income is limited to her taxable income. (Dkt. No. 24 at 20.) Given the lack of precedential authority defining “income” in this context, the Court agrees that it makes sense to apply the definition set forth in 8 C.F.R. § 213a.1. Additionally, because Defendant defaulted, the parties have not presented a compelling reason for discarding this definition. Accordingly, the Court follows other district courts that have used 8 C.F.R. § 213a.1 to determine the plaintiff’s income. See Sultana v. MD Safayet Hossain, 2021 WL5936909, *2 (N.D. Tex. Dec. 15, 2021) (using 8 C.F.R. § 213a.1 to define income in granting the plaintiff a preliminary injunction against her former husband, I-864 Affidavit of Support sponsor); Fukita v. Gist, 2021 WL288121, *5 (D. Minn. Jan. 28, 2021) (“As used in the pertinent regulations, ‘income’ means the sponsored immigrant’s federally taxable income.”).

Memo. Op. at *10.

The Sultana and Fukita decisions cited by the Flores Court were also plaintiffs represented by our law firm.

The Flores Court appropriately deferred to how the immigration agency chose to interpret the term “income” in the federal statute. Administrative agencies, such as USCIS and its predecessor INS, are normally given broad deference in how they interpret the federal statutes they are charged with administering. Here, INS had formally promulgated regulations that interpreted “income” in connection with the Affidavit of Support to mean taxable income. Frankly, it was surprising to me that the Ninth Circuit’s unpublished decision had overlooked the agency definition of income, and it is unclear why the definition was not considered. Erler v. Erler, 798 F. App’x 150 (9th Cir. 2020) (affirming the district court’s holding that food stamps qualify as income to the sponsored immigrant and reducing the amount the sponsor must pay in damages).

Streamlining Affidavit of Support enforcement.

Today’s decision is a major victory for vulnerable immigrants who need to rely on the financial support guaranteed by the Affidavit of Support. The ruling makes clear that where such individuals are unemployed, they can recover the full amount guaranteed to them by the Form I-864. This remains true even if the immigrant is receiving public benefits, is living in a free shelter bed, or has received loans or financial gifts. That outcome is consistent with the purpose of the Affidavit of Support, which is to ensure that vulnerable immigrants have actual financial support when they need it most.

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Greg is recognized as the leading national authority on enforcement of the Form I-864, Affidavit of Support. Greg represents low-income green card holders in lawsuits to recover support from their sponsors. Practicing family-based immigration law, Greg also focuses on helping married and engaged couples with U.S. immigration.

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