Getting Sued using I864

[Brian1967## 119]

Hello again I thought I would start this topic, there is so much information out there about the I864. Some of it true and a lot of false information. The next I am not a lawyer, nor am I trying to practice law without a permit. There are many things I have been told about the I864..it is a contract between you and the government and your immigrant spouse cannot sue you. So here are some facts I have found out and I am trying to dispel some of the "bunk" floating around out there.

1) can my immigrant spouse sue me if we divorce...the answer is yes she can...she can sue you and get a lot of money (Stump v Stump). There is a legel reason that she needs to work in the case from the 6th Circuit Court of Apples in Corpus Christi, Texas (Liu V Liu) nowhere does it say in the I864 that you immigrant spouse has to even look for a job. You being the sponsor are responsible for maintain the sponsored immigrant at 125% of the poverty line. There are several states out there now that use the I864 as a bar or means to determine spousal support if you live in the following states expect to see this form in your states divorce court because it has been upheld New York, New Jersey, Michigan, Ohio, California, Florida it is becoming more and more common in the state courts as the federal courts are and should be growing tired of deciding family law witch belongings in the state courts. Your immigrant spouse will have to sue you in federal court, in Texas the I864 has been upheld in the 6th (Liu V Liu) and in the 7th Circuit court (Kamali V Kamali). It should be strongly noted that both of these cases to the best of my research as of this posting Liu V Liu...Mr. Liu was found guilty of Domestic Violence. Dr. Kamali was found at fault in his divorce of repeated adultery.

2) the other big misnomer...my wife can sue me if she has a conditional green card...false...An important condition has been recognized under the latest iteration of the I864 (revised 09/19/2011) Under the new form it would appear that a beneficiary must achieve lawful permanent resident status (LPR) in order to sue in federal court please note the new language of the current I864 reads "the intending immigrant's becoming a permanent resident is the consideration of the contract" The important difference occurs where the new form clarifies the differences that the sponsors obligation's commence, "if and attending immigrant becomes a permanent resident in the United States based on the I864 form you signed" in a Virginia case (Chavez V Chavez) the Virginia court concluded that becoming a resident is a condition precedent. This result is consistent with the understanding of the Department Of homeland Security, which has expressly considered and endorsed the view that a sponsor's support duties only arise after the intending immigrant acquires status.

3) Defense of the USC to not pay support under the I864 are standard defenses Lack Of Consideration (please note the new language of the form has not been challenged in court and could be attacked using this defense ),unconscionability, fraud, Impossibility, Adhesion..

4) damages how to determine the level of support there is precedent that states you only have to make up the defiance to make the immigrant get upto the 125% of the poverty line, and courts have defined in several cases on what is income to the immigrant spouse. Student grants are income affordable housing vouchers are income. Note student loans are debt and not income; gifts are not income child support is not income for the spouse it is for the child and will never be taken into consideration

5) Failure to mitigate (Liu V Mund or Liu V Liu) out of 7th Circuit) this was a huge case for the I864. the 7th Circuit held that there is no duty of the immigrant spouse to mitigate damages by seeking a job. Though not actually a "duty" as such, a party "cannot recover damages for a loss that he/she could have avoided by reasonable efforts" Ms. Liu lost this case on the basis at summary judgment on the finding she had no sought active work during the period for which the support was sought. I.E. if your immigrant spouse leaves you she/he must find a job and work to offset your losses is what this read to me

Departing from other states in Florida the case of Winters V Winters federal court recently stated that it lacked subject matter jurisdiction over an I864 contract action against a sponsor. The court stated a move to clarify that the suit the immigrant spouse brought sounded only on contract law and was predicated on the underlying immigrant statue, the case was a suit on the contract, and did "not involve the validity, construction or effect of federal law, but the construction of the contract" U.S.C. 1183 a (e)(1) speaks only of the jurisdiction in an "appropriate court" without specifying what is the right court to enforce the document. WOW this is a huge change in impact for this form should it be kicked back to the states or will immigrant spouse clog up the federal court systems with a bunch of what is vied as traditional state court area.

THE HUGE TIME BOMB... ROOKER FELDMAN DOCTRINE...if your immigrate spouse brings this form up in state court it is possible for her to resue you in federal court if she/he does not like the outcome in a state court. However a federal court is not likely to entertain the thought of rechewing the apple that your spouse is eating in federal court. Do state courts have jurisdiction of claims under the I864..you bet, this should not be a surprise the form clearly states in can be enforced in nearly any court of jurisdiction.

Next Item are the obligations of the I864 dischargeable in bankruptcy court...no they are not

How the spousal alamoniy is used or applied please see the following cases in Pennsylvania Love v Love and in Michigan and on the flip side in Michigan see the case of Greenleaf v Greenleaf

can you prenup around the I864? in the case of Blain v Harrell a couple in Hawaii signed a pre nup and the spouse waived her rights to sue under the I864 and it was upheld and that the prenup was enforceable But note the immigrant spouse still filed a pro se action in federal court under the Rooker Feldman Doctrine. The immigrant lost in federal court on the basis that he/she waived her right to sue in court

Can you settle the federal issue in state court..yes you can if the spouse is a adult and of sound mind can surrender his or her right to sue in federal court. But this could still be tested in a court under rooker Feldman. If your divorce attorney is saying they can get you out of the federal lawsuit you should be very cautious of this promise because this is really a contact between you and the federal government your immigrant spouse is the third party beneficiary and I do not think the federal government is going to redo the I864 so you do not have to pay alimony...sorry folks

Folks this form is not state law not really federal law the court go aginst each other and there is no real set staute on any state of federal level it just is up to the judge you are in front of. So this is what should be call a "hybrid type" of law. So it might mean that in a divorce from a immigrant spouse you might need a state divorce attorney, a immigration attorney and then a federal attorney...this amout of lawyers could work out anyone's wallet.

Please note the information was gathered from many sources but to read the whole article please see http://ssrn.com/abstract=2192275

Hope this helps and did not put anyone to sleep. Ruth

[del-2-5-2014 1,339]

Thanks Ruth, a very good read.

[Shiobhan 235]

Wow thanks gotta tell my knuckle-head teen cousin who think he's

madly in love with an older undocumented person with 2 kids, our

concern is he makes minimum wages parttime and goes to college,

the boy is just teen-whipped,and keep hounding us family members

if we would be co-sponsorshell no', he has to graduate 1st and get

hius own place and a job,lets see if love will survive that

[Brian1967## 119]

I have a question for the moderators of this site. There seems to be a lot of questions coming up more and more about the I864 is there any way you can pin this info at the top of the forum. Thanks

[newacct 688]

2) the other big misnomer...my wife can sue me if she has a conditional green card...false...An important condition has been recognized under the latest iteration of the I864 (revised 09/19/2011) Under the new form it would appear that a beneficiary must achieve lawful permanent resident status (LPR) in order to sue in federal court please note the new language of the current I864 reads "the intending immigrant's becoming a permanent resident is the consideration of the contract" The important difference occurs where the new form clarifies the differences that the sponsors obligation's commence, "if and attending immigrant becomes a permanent resident in the United States based on the I864 form you signed" in a Virginia case (Chavez V Chavez) the Virginia court concluded that becoming a resident is a condition precedent. This result is consistent with the understanding of the Department Of homeland Security, which has expressly considered and endorsed the view that a sponsor's support duties only arise after the intending immigrant acquires status.

I don't think any of the things in this paragraph support your claim that wife cannot sue you if she has a conditional green card. A conditional permanent resident IS a lawful permanent resident, just on a conditional basis.

[Brian1967## 119]

According to the wording of the latest version of the I864 and federal suit Chavez b . The immigrant spouse must be a LPR not a conditional LPR.

Edited March 25, 2013 by Brian1967##

[Tahoma 2,291]

I don't think any of the things in this paragraph support your claim that wife cannot sue you if she has a conditional green card. A conditional permanent resident IS a lawful permanent resident, just on a conditional basis.

^^^ Agreed. I just looked at my wife's conditional green card. It said "Permanent Resident" on it.

[Villanelle 4,121]

^Thats correct. Once you have status as a resident whether its conditional or not- its status and you can sue.

Your point number 2 Brian is a bit off. The decision in Chavez v Chavez is accurate but youre misconstruing it.

What is said was, the new language in the new 864 was a bit vague (not surprising) and it said that basically the alien must "have achieved lawful permanent resident (LPR) status in order to sue for support" vs the old "in consideration of the sponsored immigrant getting status". A slight change in wording with a large impact.

Based on that new language Chavez v Chavez ruled “becoming a permanent resident is a condition precedent” to a beneficiary suing on an I-864. "This result is consistent with the understanding of the Department of Homeland Security, which expressly considered and endorsed the view that a sponsor’s support duties arise only after the intending immigrant acquires status"

"The present version of the I-864 sets forth “becoming a permanent resident” as the consideration carrot offered by the Government to the sponsor. Courts have yet to address whether the revised Form is vulnerable to attack as lacking consideration. In fact, there is serious reason to question whether the revised language is more prone to challenge."

"the Form now asserts that “[t]he intending immigrant’s becoming a permanent resident is the ‘consideration’ for the contract.” The Government’s promise is now insulated by two layers of statutory discretion: it must favorably exercise discretion both for the immigrant to overcome public charge inadmissibility and to grant permanent residency.45 But more importantly – regardless of a properly executed I-864 – the Government would be statutorily prevented from upholding its promise if the intending immigrant is statutorily ineligible to adjust, for instance because she entered the country without inspection. Likewise, any other grounds of inadmissibility could statutorily prevent the Government from upholding its promise – can the Government promise a sponsor that his Nazi-persecutor wife may become a permanent resident if the sponsor signs the I-864?47 All this serves to question whether the Government’s promise is illusory, since it simply is not the case that the Government is prepared to grant permanent residency merely because a sponsor has signed the I-864."

The above quotes were taken from Benders Immigration Bulletin. 'Suing on the I-864 Affidavit of Support' Avail for free download here- http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2192275 Along with the relevant policies, footnotes and legal references. Its 27 pages- so way too long to snip and paste in its entirety. But plenty of keywords and resources available for those who wish to pursue the topic further.

[Brian1967## 119]

I stand Corrected Capri you are right after reading this you are 100% correct

[Mimino 2]

Good info. I was asked to be a joint sponsor for a friend's wife. Could I draft a pre-nup type of doc that would disallow her to sue me in Court, should anything arise?

Thanks, all!

[Brian1967## 119]

Do not do this if you do you can be sued in federal court and be held accountable to support this person for a undetermand amount of time:( this person may be a good friend but do you want the legal headache?

Do not do this if you do you can be sued in federal court and be held accountable to support this person for a undetermand amount of time:( this person may be a good friend but do you want the legal headache?

[Mimino 2]

Not at all, that's why I'm trying to cover my ### here. It's very hard to refuse, as he doesn't have many people to turn to...

[VanessaTony 3,567]

Not at all, that's why I'm trying to cover my #### here. It's very hard to refuse, as he doesn't have many people to turn to...

It's not just about this person suing you. The contract is between YOU and the US government. It means that if they use any means-tested benefits, which you can't "order" them not to, the US governent can sue you for repayment of those benefits.

Do NOT do it. Your friend can get another job to boost their income, do whatever THEY need to do to go it alone. The risks of this are far too high.. especially for a "friends wife" rather than your own spouse. No. A true friend wouldn't ask because it's THAT serious and dangerous to your financial security.

[Mimino 2]

It's not just about this person suing you. The contract is between YOU and the US government. It means that if they use any means-tested benefits, which you can't "order" them not to, the US governent can sue you for repayment of those benefits.

Do NOT do it. Your friend can get another job to boost their income, do whatever THEY need to do to go it alone. The risks of this are far too high.. especially for a "friends wife" rather than your own spouse. No. A true friend wouldn't ask because it's THAT serious and dangerous to your financial security.

I know that this is a contract between us and the Gov. However, I couldn't find a single reference to the Gov ever being successful at suing anyone. The immigrant on the other hand...

[VanessaTony 3,567]

I know that this is a contract between us and the Gov. However, I couldn't find a single reference to the Gov ever being successful at suing anyone. The immigrant on the other hand...

Well they wouldn't really have to sue... they would just send you a bill.