A version of this article first appeared in the Side Bar journal for the Litigation…
Today the Ninth Circuit Court of Appeals decided an important case regarding enforcement of the Form I-864, Affidavit of Support. Erler v. Erler (3:12-cv-02793-CRB) gives the clearest rule of any circuit court to date on how to calculate household size for purposes of calculating damages under the Form I-864.
Beneficiary and Sponsor were married on April 15, 2009 and separated about two years later. Sponsor filed divorce proceedings shortly thereafter and the divorce was finalized in May 2012. I-864 enforcement was later raised in a separate action in federal district court, not in the divorce proceedings.
After separation,Beneficiary moved in with her adult son. Her son was employed, earning income that exceeded 125% of the Federal Poverty Guidelines (FPG) for a household of two. The evidence showed that the Beneficiary’s son used some of his income to pay rent and living expenses for both himself and sponsor.
Beneficiary sued the sponsor for support under the Form I-864. Although the trial court determined that the obligation survived divorce, it held that Sponsor owed no support. The trial court “imputed” the son’s income to the Beneficiary. Because his income exceeded 125% FPG for a household of two, Beneficiary was above the required support level and Sponsor owed nothing. Read our original commentary on the trial court’s decision here.
The court’s decision
First, the Ninth Circuit squarely held that the Form I-864 is an enforceable contract. This holding follows every other jurisdiction in the United States to consider the issue. The Court further stated that “neither a divorce nor a premarital agreement may terminate an obligation of support.” This statement is important, since courts have disagreed about whether or not a sponsor and beneficiary can contractually agree to waive enforcement of the Form I-864. The Ninth Circuit now joins the majority of courts in holding that a premarital agreement cannot waive a beneficiary’s rights under the Form I-864. The waiver issue received no analysis from the Ninth Circuit, and there would appear to be a question about whether the Court’s statement is dicta. But in any event, Erler is another in a line of cases that at least strongly weigh in favor of the view that I-864 enforcement cannot be waived.
The Ninth Circuit then went on to the issue of household size. The Court rejected the trial court’s notion that the son’s income would be imputed to Beneficiary. As with the trial court, the Ninth Circuit found that the I-864 statute and regulations did not define household size for enforcement purposes. The Ninth Circuit rejected the idea that household size could be measured by the actual “post petition” household. Instead,
…in the event of a separation, the sponsor’s duty of support must be based on a household size that is equivalent to the number of sponsored immigrants living in the household, not on the total number of people living in the household.
In other words, the operative household size is one, plus any other immigrants who were also sponsored by the same sponsor.
The Court acknowledged that this approach will sometimes seem to give a windfall to the immigrant. In the Erler case, for example, Beneficiary had access to some resources from her son, even though she was also entitled to a full support (125% FPG) from Sponsor. But the Court reasoned that a Sponsor should have anticipated that he might be liable for that amount. Moreover, it would be unfair to foist the support of the immigrant on – in this case – her son, when in fact it was the Sponsor’s duty to provide the support.
Although the Erler decision is helpful in setting a bright line rule, it leaves unanswered questions. At the top of the list: what happens if the beneficiary has a child? Under the Erler decision, because that child (a U.S. citizen if born in the country) is not a sponsored immigrant, she will not qualify as a household member. The core purpose of the I-864 is to ensure that a sponsored immigrant has a bare-bones safety net, at the sole expense of the sponsor. It appears that the beneficiary’s best strategy in that situation would be to pursue child support in addition to I-864 support.
As a final note, the Erler Court remanded on the issue of whether food assistance (“food stamps”) received by Beneficiary offset Sponsor’s obligations. Does the sponsor owe less support if the state and federal government is providing food support to the beneficiary? This is an issue that comes up often in these cases, so the decision on remand will be interesting.