I've been representing clients in lawsuits to enforce the USCIS Form I-864, Affidavit of Support…
The Eleventh Circuit has held that the common law defenses of unclean hands, anticipatory breach, and equitable estoppel are unavailable to a sponsor who has signed a USCIS Form I-864, Affidavit of Support. Blevich v. Thomas, 17 F.4th 1048 (11th Cir. 2021). Belevich joins a growing line of cases that stand for the proposition that no common law affirmative defenses are available to Affidavit of Support sponsors.
No affirmative defenses for Form I-864 sponsors.
Prior to Belevich, the leading case addressing affirmative defenses was the Seventh Circuit’s decision in Wenfang Liu v. Mund. 686 F.3d 418 (7th Cir. 2012), as amended (July 27, 2012). Mund held that the affirmative defense of “duty to mitigate” is categorically unavailable to Affidavit of Support sponsors. The decision focused on the Congressional objective behind the Affidavit of Support – to prevent the sponsored immigrant from becoming a public charge. The Court held that reading a duty to mitigate into the statute was at odds with that Congressional objective. Most state and federal cases that subsequently considered affirmative defenses in the context of the Affidavit of Support expressly adopt the reasoning in Mund.
Historically, many courts simply assumed that common law affirmative defense were available to Form I-864 sponsors. But when presented with the question of whether a sponsor can avoid liability for reasons other than those described by the Form I-864 and associated statute, federal courts are uniformly holding that affirmative defenses are not available. See Asilonu v. Asilonu, 1:19-cv-1122, __ F.Supp.3d __, Dkt. 109 (M.D.N.C. July 22, 2021) (granting judgment on the pleadings against the affirmative defense of failure to mitigate); Anderson v. United States, No. 2:17-cv-00891, at *5 (W.D. Wash. Feb. 25, 2019) (granting judgment on the pleadings, inter alia, against failure to mitigate defense); Cyrousi v. Kashyap, 386 F. Supp. 3d 1278, 1284 (C.D. Cal. 2019) (holding that common law affirmative defenses are unavailable to sponsors); Liu v. Kell, 299 F. Supp. 3d 1128, 1133 (W.D. Wash. 2017) (same).
Belevich is interesting because the Eleventh Circuit significantly expands on the statutory interpretation taken in Mund and concludes that the affirmative defense issue is settled by the plain text of the Immigration and Nationality Act (INA).
The plain text of the statute means that no defenses are available.
As with Mund, Belevich zeros in on the fact that the INA and its supporting regulations list five Terminating Events for a sponsor’s obligation. The Affidavit terminates only when one of those five events happens.
Belevich looks closely at the statutory language pertaining to the five Terminating Events.
The statute says that the affidavit of support “shall be enforceable. . . before” the immigrant becomes a United States citizen or works forty quarters. 8 U.S.C. § 1183a(a)(2). Likewise, the regulation provides that a sponsor “cannot disavow” the agreement unless the sponsored immigrant withdraws his petition for a visa. 8 C.F.R. § 213a.2(f).
Slip op. at 8.
The Court observes that if Congress had wanted the Affidavit to be made unenforceable for reasons including – but not just limited to – the Terminating Events, it could have said so. But the “shall be enforceable” language supported the reading that only the Terminating Events render the contract unenforceable.
The Court also found it significant that the sponsor gained “no rights at all under the statute, regulation, or affidavit.” (That is only arguably true, since the immigrant becoming a lawful permanent resident, or being granted a visa, is what the sponsor gets in return for signing the Affidavit). Because rights were created only in favor of the government and sponsored immigrants, “Nothing in this structure contemplates an equitable remedy or defense for the benefit of a sponsor.”
Having determined that the five Terminating Events are “exclusive,” the Court determined that the plain text of the statute foreclosed allowing additional defenses for a sponsor. Belevich takes a more direct path to its holding than Mund, by finding the issue fully resolved on the plain text of the INA and regulations rather than taking recourse to the statutory purpose of the Affidavit.
The Congressional objective also means that the Form I-864 allows no affirmative defenses.
As a second basis for its holding, Belevich followed the Seventh and Ninth Circuits to conclude that affirmative defenses are incompatible with the statutory objective behind the Affidavit of Support.
The defenses of unclean hands, anticipatory breach, and equitable estoppel concern the immigrant’s wrongful acts, not whether he or she might become a public charge. If these grounds allowed the sponsor to cut off financial support, the public would have to shoulder the financial responsibility that the sponsor had voluntarily assumed. Because the sponsors’ proposed equitable defenses are inconsistent with the purpose of the statute, we would decline to recognize these defenses even if we thought the statute was silent or ambiguous.
Slip op. at 4
Like the Ninth Circuit, Blevevich recognizes that its interpretation “may impose a heavy burden on the sponsors.” The Ninth Circuit believed that construing the statute against the interests of sponsors was not only permissible but advanced the statutory objective by making sponsors cautious about signing Affidavits of Support. If Congress was serious about the obligations imposed by the Affidavit – and it clearly was – sponsors should be serious-minded about their obligations when signing Affidavits.
Belevich paves the way for streamlined enforcement of the Form I-864
Belevich is all the more notable because its plaintiff was hardly a sympathetic figure. Why were the defendants raising the defenses relating to the plaintiff’s bad conduct? Because he had been criminally charged with abusing the parties’ minor daughter and for possession of child pornography. “Bad facts make bad law”, as the saying goes. But the Eleventh Circuit recognized that a lawsuit to enforce the Affidavit of Support is not a general referendum on the equities of a couple’s relationship. It is an action to enforce the very narrow, very specific rights conferred by the Affidavit. Even if those rights are conferred to an unsympathetic person.
If – as Belevich says – affirmative defenses are unavailable to Form I-864 sponsors, this massively narrows the scope of enforcement lawsuits. Belevich says that I-864 lawsuits are not about the equities that the immigrant brings to the table. Nor, says the Seventh Circuit in Mund, are the lawsuits a forum to argue about whether the sponsored immigrant should be working more than she is. Rather, these Courts look at the clear purpose of the Affidavit: to ensure that the sponsored immigrant has financial support when she needs it.
This line of cases means that we will not be having federal jury trials over whether a sponsored immigrant is a good or lazy person. Focusing on the narrow terms of the Affidavit means these cases can move through the system faster, delivering the financial support that Congress intended.
My hat is off to Ross Kinder, who represented the plaintiff and appellant in Belevich. I looked Ross up after noting his district court win in Belevich, and I’m happy to be co-counseling with him on an I-864 enforcement matter now.