A version of this article first appeared in the Side Bar journal for the Litigation…
What happens if an Affidavit of Support beneficiary unsuccessfully raises the issue of I-864 financial support during divorce proceedings? One court has recently held that she will be barred from bringing a federal lawsuit to subsequently enforce those rights.
In Yaguil v. Lee the foreign national wife asserted her right to financial support during divorce proceedings. 2:14-cv-00110-JAM-DAD, 2014 WL 1400959 (E.D.Cal.,2014) (Order Granting Defendant’s Motion to Dismiss). It is not clear that the I-864 was mentioned in the divorce pleadings, but the beneficiary did so in a “statement of issues” filed in the divorce action. She wrote, “[s]ince the separation (19[ ]months) my sponsor Mr. Gary Lee failed to comply the I-864[sic].” In argument before the federal court the beneficiary asserted that the I-864 issue was “apparently dropped” in the divorce action, though it appears there was no citation to the record to assert this claim.
Following entry of the divorce decree the beneficiary brought a federal lawsuit to assert her I-864 support rights. The sponsor/defendant moved for dismissal, arguing the suit was barred by res judicata.
The beneficiary appears have argued only that there was no “identity of claims” as required for res judicata to apply. The brief federal court order makes it difficult to assess the basis of this argument. Assuming an I-864 claim was raised in the divorce proceeding, it seems probable the claim is identical to seeking the same financial support in a contract action. At least part of the claim.
It’s important to recognize that I-864 obligations continue following divorce. So unless the wife waived her right to subsequent support (assuming this can be done) she would continue to accrue new claims for each month in which the sponsor fails to provide financial support. If the beneficiary was seeking support for time periods after the divorce, it’s unclear why the claims in Yaguil would be the same as support sought up to the time of the divorce.
The decision in Yaguil also does not address the question of whether there was a “final judgment on the merits” on the I-864 issue in the divorce action. It seems the only mention of the I-864 was in the “statement of issues.” Moreover, it seems the I-864 was not mentioned in final orders from the family law court. At the very least the federal court orders makes no mention of such a citation. It is possible that beneficiaries in similar situations might successfully argue that the divorce court never passed on the merits of the I-864 claim.
The Yaguil matter is yet another reason for family law practitioners to be very careful about giving attention to the I-864. Family law practitioners should screen all clients – and their partners – for foreign citizenship. If either is – or was – a foreign national it’s important to pro actively explore how that individual immigrated to the U.S. and whether an I-864 was executed.
I thank Mr. Gary Lee for bringing the Yaguil matter to my attention.