The Eleventh Circuit has held that the common law defenses of unclean hands, anticipatory breach,…
A version of this article first appeared in the Side Bar journal for the Litigation Section of the Federal Bar Association (Spring 2021).
If you are like most federal litigators – this author included – you would never enter divorce court unless your name was on the case caption. The vitriol, the sabotage, the meanness. Who needs it? Certainly not those who practice in the rarefied air of the federal courthouse.
Likewise, one does not typically think about federal immigration law as conveying private rights. To be sure, individuals apply for visas and other immigration benefits. But immigration law is about migration, right? It has nothing to do with rights one private party might have against another. Right?
Not so fast. Meet the obscure yet surprisingly powerful Form I-864, Affidavit of Support. For anyone immigrating to the United States on a family-based petition – the primary route to U.S. residence – this document is a required part of the process. Its origins lie in the Clinton-era reforms of the country’s immigration and welfare systems. As Congress made most new immigrants ineligible for public assistance, it simultaneously required visa petitioners to serve as a financial safety net for those they bring to the country.
By signing the Affidavit of Support, a sponsor promises to maintain the beneficiary’s income at a level equal to 125% of the Federal poverty line. That pencils out to $16,100 under this year’s guidelines. Put differently, if the beneficiary’s income falls below 125% of the poverty line, the sponsor promises to make up the difference. To be clear: rights under the Affidavit of Support are available only to the truly destitute.
Similar affidavits have long been used in U.S. immigration. The purpose being to demonstrate to the authorities that the intending immigrant will not become a “public charge” – a longstanding ground of inadmissibility with its origins in the first U.S. immigration laws. What changed in 1996 was that Congress made Affidavits of Support both mandatory and legally enforceable.
Once signed and filed in support of an immigration case, the Affidavit of Support becomes an enforceable contract. The parties to the contract are the sponsor and the United States government, and the intending immigrant is designated as a third-party beneficiary. The contract ends only upon the occurrence of a terminating event as defined by federal regulations. Those are, that the immigrant: (1) becomes a U.S. citizen; (2) can be credited with 40 quarters of work under the Social Security Act; (3) is no longer a permanent resident and departs the U.S.; (4) after being ordered deported seeks permanent residency based on a different Affidavit of Support; or (5) dies. Divorce does not terminate the contract.
In addition to promising to maintain the beneficiary’s income, the sponsor promises to repay the cost of means-tested benefits provided to the beneficiary. In practice, this second aspect of the contract is virtually never enforced, no doubt in part because recent immigrants are ineligible for most public benefits.
There is no question whatsoever that the immigrant beneficiary has standing to enforce her rights under the Affidavit of Support. Moreover, the statute includes a fee-shifting provision, allowing the plaintiff to recover all costs of enforcement. While the Affidavit is required for all classes of family-based immigrants, enforcement cases are typically between current or former spouses.
Immigrant-beneficiaries sometimes enforce the Affidavit within a divorce proceeding. But the square corners of the Form I-864 contract fit poorly into the round hole of matrimonial law. Does the Affidavit provide any basis for an alimony award? Perhaps, but the multifactor considerations for alimony do not necessarily look to contractual obligations. The beneficiary may be able to join a breach of contract claim to a divorce proceeding, but the result often strays from the otherwise clear terms of the Affidavit.
Instead, Affidavit beneficiaries often turn to federal court as the forum to enforce their financial rights. The majority view is that the Immigration and Nationality Act confers federal question jurisdiction at 8 U.S.C. § 1183a(e)(I) by creating a private right of action for the immigrant. Only two unpublished district-level decisions hold to the contrary.
The elements of an Affidavit enforcement case are fundamentally straight forward. First, did the purported sponsor sign the Affidavit? This is almost never disputed, as the beneficiary could not have achieved residency unless the visa petitioner signed the Affidavit. If the point is contested, the plaintiff can obtain her “alien” file through the Freedom of Information Act (FOIA), and the regulations permit recovery of the signed Affidavit through a judicial subpoena.
Second, did the beneficiary obtain residency? Again, there is rarely a question as to whether residency was conferred. The plaintiff will have a copy of her “green card,” and can acquire records of her approval notification through a FOIA request.
The plaintiff’s only remaining task is to show that her income has fallen beneath 125% of the poverty line. Federal regulations expressly define “income” to mean an individual’s federally taxable income. Tax records are the starting point – and arguably the ending point – for assessing the plaintiff’s income for purposes of the damages calculation. In practice, courts sometime consider additional financial sources to be “income,” including such things as food stamps or the fair market rental value of a home where the plaintiff has been allowed to stay. This third element of the plaintiff’s case is the most likely to present factual or legal issues.
If the plaintiff’s case is so open and shut, what then of this earlier allusion to the drama of divorce court? While Affidavit plaintiffs view these cases as something akin to a credit card collection suit, sponsor-defendants seek to convert them into a referendum on the parties’ relationship at large.
The first defense raised by sponsors is fraud. Recall that these cases are usually Spouse versus Spouse. A marriage has failed, and there are bad feelings on both sides. Sponsors argue that they were duped into marriage by a strategizing foreigner who has used the sponsor for a green card and is now returning for a free meal ticket. On top of fraud, sponsors pile on other defense familiar from 1L contracts class: “the financial obligation is too onerous” (unconscionability); or “I didn’t get anything in return” (illusory contract).
Courts have increasingly taken the view that such defenses are categorically inapplicable to the Affidavit. The reason goes back to why the Affidavit was created by Congress in the first place: to make sponsors, rather than the American public by way of the welfare system, responsible for supporting the immigrant. For that reason, the Ninth Circuit has held that immigrants cannot waive their rights via a nuptial agreement, for example. Nor, says the Seventh Circuit, is the sponsor’s liability offset by the ‘duty to mitigate’ if the immigrant could theoretically be working. Rather, the Affidavit of Support places the financial obligation on the sponsor until he is released by one of the five terminating events. Contract law defenses fail for the same reason: the defenses available to Affidavit sponsors are the five terminating events defined by the regulations. Those five events are the only things that end a sponsor’s obligations.
As with affirmative defenses, sponsors are keen to unleash a torrent of counterclaims on the immigrant. Sponsors claim damages from having been fraudulently induced into marriage, or intentional infliction of emotional abuse. These counterclaims generally fail because supplemental jurisdiction is not broad enough to encompass all facts that have transpired between the parties.
Ultimately, the Affidavit of Support is a rare instance where federal court is the proper forum to settle the private rights of a (formerly) married couple. But federal rights these are. For the recent immigrant with no other safety net, the Form I-864 may be her one lifeline and federal court is the forum to turn her rights into remedies.
 United States Citizenship and Immigration Services Form I-864, Affidavit of Support Under Section 213A of the INA (rev’d March 10, 2021), available at https://www.uscis.gov/i-864 (last visited March 30, 2021).
 Cf. 8 U.S.C. § 1183a (codifying requirements for the new Affidavit of Support).
 8 C.F.R. § 213a.2(e)(2)(i).
 See Erler v. Erler, 824 F.3d 1173, 1177 (9th Cir. 2016).
 8 U.S.C. § 1183a(b).
 8 U.S.C. § 1183a(c).
 Compare Marriage of Khan, 332 P.3d 1016 (Wash. 2014) (trial court did not err in failing to award alimony based on Affidavit of Support), with Marriage of Kumar, 220 Cal.Rptr.3d 863 (Cal. Ct. App. 2017), and In Matter of Kamali, 356 S.W.3d 544 (Tex. App. 2011) (both endorsing support orders predicated on the Affidavit of Support).
 See, e.g., Beringer v. Beringer, No. 04-19-00097-CV (Tex. App. Apr. 1, 2020) (fee award was not required because claim was characterized as declaratory rather than under the Form I-864); Varnes v. Varnes, No. 13-08-00448-CV (Tex. App. Apr. 23, 2009) (unpublished) (immigrant-beneficiary did not adequately plead contract claim to support arrears under the Form I-864).
 Ivanoff v. Schmidt, No. 17-cv-01563-KMT (D. Colo. Mar. 23, 2018); Winters v. Winters, 2012 U.S. Dist. LEXIS 75069 (M.D. Fla. Apr. 25, 2012).
 8 C.F.R. § 213a.4(a)(3) (subpoena authority).
 8 C.F.R. § 213a.1.
 See, e.g., Dorsaneo v. Dorsaneo, 261. F.Supp.3d 1052, 1054 (N.D. Cal. 2017); Li Liu v. Kell, 299 F. Supp. 3d 1128, 1133 (W.D. Wash. 2017).
 Erler, 824 F.3d 1173.
 Liu v. Mund, 686 F.3d 418, 420 (7th Cir. 2012), as amended (July 27, 2012).
 Id. at 420.
 See, e.g., Cyrousi v. Kashyap, 386 F.Supp.3d 1278, 1284 (C.D. Cal. 2019).
 See, e.g., Rahman v. Chen, 281 F. Supp. 3d 1124 (W.D. Wash. 2017).