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Case Law Contribution


Hindar IRIANTO, Petitioner, v. Alberto GONZALES, Attorney General of the United States of America, Respondent.

No. 06-1690.

United States Court of Appeals, Eighth Circuit.

Submitted: March 16, 2007.

Filed: March 23, 2007.

Petition for Review of a Final Decision of the Board of Immigration Appeals.

Amadu Edward Swaray, Swaray Associates, Brooklyn Center, MN, for Petitioner.

Joan Decoursin Humes, U.S. Attorney’s Office, Minneapolis, MN, Richard M. Evans, *486486 Marion E. Guyton, U.S. Department of Justice, Office of Immigration Litigation, Ben Franklin Station, Washington, DC, for Respondent.

Before RILEY, BOWMAN, and ARNOLD, Circuit Judges.


Hindar Irianto (Irianto), a native and citizen of Indonesia, petitions this court for review of the decision of the Board of Immigration Appeals (BIA), affirming the Immigration Judge’s (IJ) denial of his requests for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). We deny the petition.

At his hearing before the IJ, Irianto testified he was born in Indonesia and his wife and four children live in Indonesia. Irianto testified that in 1984 he became affiliated with the Golput movement, a movement dissatisfied with the government which advocates abstention from participation in general government elections by discouraging others from voting and by invalidating election ballots and related materials. Irianto testified he has been persecuted by the Golkar party, the ruling political party.

Irianto specifically testified that, during the 1997 general elections, some members of the Golkar party campaigned in front of his house and asked for Irianto’s permission to use his pick-up truck. Irianto refused and, in retaliation, these Golkar party members threw rocks at his house, breaking windows. Irianto stated these individuals also made telephone calls threatening to harm him. Afraid of possible harm, Irianto testified he stayed away from his home after that incident and lived with friends until April 2000, when he entered the United States in Los Angeles, California, as a non-immigrant visitor with authorization to remain in this country until October 2000.

The Department of Homeland Security commenced removal proceedings against Irianto. At a hearing on November 15, 2004, Irianto sought asylum, withholding of removal, and protection under the CAT, stating the Golkar party would persecute him if he were forced to return to Indonesia. After the hearing, the IJ issued an oral decision (1) finding Irianto’s application for asylum was untimely because he had not applied within one year of his arrival to the United States and (2) denying all of Irianto’s other claims for relief. Irianto appealed to the BIA. Although the BIA disagreed with the IJ’s determination that there was no credible evidence indicating the Golput movement existed, the BIA dismissed Irianto’s appeal and affirmed the IJ’s decision in all respects. Irianto petitions for review, arguing the IJ and BIA erred in denying his claims for asylum, withholding of removal, and protection under the CAT.

We review the BIA’s determination under the substantial evidence standard and will reverse only if “it would not be possible for any reasonable fact-finder to come to the conclusion reached by the administrator.” Menendez-Donis v. Ashcroft,360 F.3d 915, 918 (8th Cir. 2004). Because the BIA adopted the IJ’s decision and added reasoning of its own, we review both decisions. Setiadi v. Gonzales, 437 F.3d 710, 713 (8th Cir. 2006).

The REAL ID Act of 2005, codified in relevant part at8 U.S.C. § 1252(a)(2)(B) and (D), permits judicial review under8 U.S.C. § 1158(a)(2) where there is a claim of a constitutional violation or question of law. Absent such a claim, however, we lack jurisdiction to review the determination that an asylum application was barred *487487 as untimely filed. See 8 U.S.C. § 1158(a)(3) (stating “[n]o court shall have jurisdiction to review any determination of the Attorney General under [8 U.S.C. § 1158(a)(2)]”); Ibarra-Terrazas v. Gonzales, 461 F.3d 1046, 1048 (8th Cir. 2006) (finding jurisdiction to review questions of law); Ming Ming Wijono v. Gonzales, 439 F.3d 868, 871 (8th Cir. 2006) (recognizing jurisdiction exists to address constitutional claims and questions of law).

Here, Irianto does not dispute his asylum application was untimely. Irianto, however, asserts a due process violation, alleging he was prejudiced by the court-appointed interpreter’s inaccurate translations. To prevail on a due process claim, “an alien must prove that he was actually prejudiced by the lack of process afforded to him.” Briones-Sanchez v. Heinauer,319 F.3d 324, 327 (8th Cir. 2003). No prejudice has been shown. Irianto does not indicate: (1) what part of the proceedings he did not understand because of an inaccurate translation (in fact, the record indicates Irianto also had his own interpreter at the hearing); (2) which inaccurate translations were not resolved; and (3) most importantly, what part of the proceedings, if translated correctly, would have produced a different outcome. See Al Khouri v. Ashcroft 362 F.3d 461, 466 (8th Cir. 2004) (holding prejudice occurs if the outcome of the proceedings may well have been different had a due process violation not occurred). Thus, Irianto’s due process claim fails.

Likewise, Irianto’s claims for withholding of removal and for protection under the CAT fail. “To be eligible for withholding of removal, 8 U.S.C. § 1231(b)(3), the standard is more demanding [than the standard for asylum].” Krasnopivtsev v. Ashcroft, 382 F.3d 832, 840 (8th Cir. 2004). “The alien must show a `clear probability’ that he or she will face persecution in the country to which he or she will be deported.” Id. (citation omitted). Here, the record does not support a clear probability Irianto will face persecution if he returns to Indonesia, and Irianto fails to present evidence of past persecution. The 1997 incident regarding his truck does not amount to persecution. At best, this isolated incident reflects Irianto angered a few local members of the Golkar party about ten years ago. Besides the truck incident, Irianto does not allege any other attacks by the Golkar party. Furthermore, nothing in the record indicates Irianto could not relocate to other parts of Indonesia or that the Golkar party as a whole is targeting him. In fact, Irianto has been able to obtain a passport and other official documents from the government without incident. Moreover, Irianto’s wife and children currently live in Indonesia, and there is no evidence they have suffered any harm. Id. at 839 (“The reasonableness of a fear of persecution is diminished when family members remain in the native country unharmed.”). Nothing in the record establishes either past persecution or a clear probability of persecution if Irianto returns to Indonesia.

“To qualify for relief under [the CAT], the applicant must prove that it is more likely than not that he would be tortured if returned to the proposed country of removal, considering the testimony of the applicant as to past torture, the possibility of relocation within the country, mass violations of human rights, or other relevant information regarding conditions within the country.” Id. at 840 (citing 8 C.F.R. § 208.16(c)). “Torture is defined as an act by which severe pain or suffering, whether physical or mental, is intentionally inflicted, and it is an extreme form of cruel and inhuman treatment; it does not include lesser forms of cruel, inhuman, or degrading treatment.” Id. (citing *4884888 C.F.R. § 208.18(a)(1), (2)). We agree with the BIA and the IJ that Irianto failed to show he would more likely than not be subjected to torture if returned to Indonesia. Thus, Irianto’s claim under the CAT fails.

For these reasons, we deny Irianto’s petition.

Amadu Edward Swaray represented Petitioner in this appeal.  Swaray is an immigration  Attorney at Swaray Law Office in Brooklyn Center in Minnesota.  Brooklyn Center is one of the large suburbs to the north of Minneapolis, and is close to Crystal, Robbinsdale, Fridley, and Brooklyn Park, among others.

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Case Law Contribution

This was a case that Amadu Edward Swaray, an immigration attorney at Swaray Law Office, argued for the Appellant in the Minnesota State Appeal Court .  Appellant did not win on the appeal, but the case moved the wheel of justice one step further.  Swaray Law Office is in Brooklyn Center in Minnesota.

Court of Appeals of Minnesota.

Brian Timothy Geraghty, Respondent, v. Sarah Laber, Appellant.


    Decided: December 12, 2011



Considered and decided by Halbrooks, Presiding Judge;  Stoneburner, Judge;  and Worke, Judge. File Nos. 27–PA–FA–09–63, 27–PA–FA–09–67 Jennifer R. Wellner, Wellner & Isaacson, PLLP, Circle Pines, Minnesota (for respondent) Amadu Edward Swaray, Swaray Law Office, Ltd., Brooklyn Center, Minnesota (for appellant)UNPUBLISHED OPINIONAppellant argues that the district court abused its discretion in (1) awarding respondent sole legal and sole physical custody;  (2) conditioning parenting time on her receiving therapy for her personality disorder;  and (3) awarding respondent conduct-based attorney fees.   We affirm.FACTS

Appellant Sarah Laber and respondent Brian Timothy Geraghty are parents of two children, S.B.G. (dob 11/23/06) and S.T.G. (dob 3/24/08).   The parties were never married and never resided together.   The children initially lived with appellant, but respondent petitioned for physical and legal custody.   The court appointed a guardian ad litem (GAL) to represent the interests of the children.

On July 7, 2009, appellant petitioned for an order for protection (OFP) against respondent.   A hearing was scheduled for July 14, but appellant failed to appear and the matter was dismissed.   The GAL indicated that she had not been able to locate appellant and that she was concerned that she had fled with the children.   The district court awarded respondent temporary sole physical and sole legal custody.   Appellant and the children had not been located by July 20.   The district court held a hearing to address the welfare of the children, noting appellant’s “history of lack of credibility,” failure to appear at hearings, willful deprivation of respondent’s access to the children, and violation of court orders.   The court found that there was a substantial risk that the children were in danger, and ordered law enforcement to assist respondent in locating the children, authorizing the use of an Amber Alert if necessary.   On August 4, appellant was located in Florida.   Respondent flew to Florida to pick up the children.   Appellant pleaded guilty to criminal deprivation of parental rights.

Appellant moved to modify the temporary-custody order, making serious claims against respondent, including allegations that he attempted to molest her daughters 1 and that he abused their children.   The district court ordered the parties to undergo psychological evaluations and denied appellant’s motion to modify the temporary order.   The court noted several concerns regarding:  (1) the care of the children while in appellant’s custody because they lived in appellant’s father’s home where he collects hazardous chemical waste that severely burned one child’s leg;  (2) the cleanliness of appellant’s father’s home;  (3) appellant’s alcohol and drug use;  (4) child protection’s involvement with appellant because of the way she treats her daughters;  and (5) appellant’s resistance of respondent’s parenting time.

The district court then held a hearing to determine custody and parenting time.   Dr. Bruce Renken conducted the parties’ psychological evaluations and testified that he diagnosed appellant as having adjustment disorder with depressed mood and personality disorder.   Dr. Renken stated that actions consistent with a personality disorder could include unreasonable, inappropriate, or overblown emotional reactions to stress and patterns of deceit and false reporting.   Dr. Renken stated that a personality disorder will not change if untreated.   Dr. Renken did not have any concerns regarding respondent’s ability to parent.

The GAL testified that the matter was “not even a close call,” opining that respondent should be awarded sole legal and sole physical custody.   She recommended that appellant be evaluated to determine her ability to parent before being granted parenting time.   The GAL testified regarding her interaction with the parties.   She summarized her impressions in reports received as evidence:  in April 2009, the GAL noted that respondent was a “competent and caring” parent, but the GAL lacked information on appellant to determine her ability to parent appropriately;  in June 2009, the GAL indicated a “high degree of confidence that the children are safe and well-cared for at [respondent’s] home”;  in September 2010, the GAL stated that appellant had discontinued visiting the children after Christmas 2009, and that appellant had filed several false police reports against respondent alleging sexual abuse and improprieties.   The GAL testified that the children were “thriving” with respondent;  she questioned whether appellant was physically and emotionally available to parent.

The district court analyzed the best-interest factors and awarded respondent sole legal and sole physical custody of the children.   The court ordered that appellant would be allowed parenting time after she participated in therapy for her personality disorder.   The district court also awarded respondent conduct-based attorney fees.   This appeal follows.



Appellant first argues that the district court abused its discretion in awarding respondent sole legal and sole physical custody.   When making a child-custody determination, the district court must consider the best-interest factors.  Minn.Stat. § 518.17, subd. 1 (2010).  “Appellate review of custody determinations is limited to whether the district court abused its discretion by making findings unsupported by the evidence or by improperly applying the law.”  Goldman v. Greenwood, 748 N.W.2d 279, 281–82 (Minn.2008) (quotation omitted).   The district court’s findings must be sustained unless they are clearly erroneous.  Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn.1985).   This court views the record in the light most favorable to the district court’s findings and will reverse only if we are “left with the definite and firm conviction that a mistake has been made.”  Dailey v. Chermak, 709 N.W.2d 626, 629 (Minn.App.2006) (quotation omitted), review denied (Minn. May 16, 2006).  “That the record might support findings other than those made by the [district] court does not show that the court’s findings are defective.”   Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn.App.2000).

In determining best interests, courts must consider the following factors:  (1) the wishes of the parents;  (2) “the reasonable preference of the child”;  (3) the primary caretaker;  (4) “the intimacy of the relationship between each parent and the child”;  (5) “the interaction and interrelationship of the child” with family members;  (6) “the child’s adjustment to home, school, and community”;  (7) “the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity”;  (8) “the permanence, as a family unit, of the existing or proposed custodial home”;  (9) the mental and physical health of all individuals involved;  (10) “the capacity and disposition of the parties to give the child love, affection, and guidance”;  (11) “the child’s cultural background”;  (12) “the effect on the child of the actions of an abuser”;  and (13) “the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.”  Minn.Stat. § 518.17, subd. 1(a)(1)-(13).

The district court found that both parents wanted custody and that the children were too young to express opinions.   The court determined that these factors did not favor either party.   The district court found that the children’s cultural background was not a relevant factor, and that there was no evidence of domestic abuse;  thus, this was also not a relevant factor.   Appellant does not challenge the district court’s determinations on these factors.   We now review the remaining factors.

Primary caretaker

Appellant argues that she was the primary caretaker.   The district court found that appellant was the primary caretaker until August 5, 2009;  since then, respondent has been the primary caretaker.   This finding is supported by the record that shows that appellant has had sporadic contact with her sons since December 2009, and no contact since June 2010.   Additionally, the district court found that when the children were in appellant’s care, she failed to exercise good judgment and failed to provide emotional nurturing and intellectual stimulation.   The record shows that when appellant was the primary parent one of the children spilled acid on his legs and suffered burns and scarring when appellant left him in her father’s care.   The GAL reported that there was no concern regarding respondent’s ability to care for the children.   The district court found that this factor weighs in favor of respondent.   Based on this record, the district court’s finding is not clearly erroneous.

Intimacy of the parent-child relationship

The district court found that since the children have been solely with respondent, he has established a loving and caring relationship with the children.   The district court found that appellant has failed to visit the children on a regular basis and was asked to leave the visiting center on one occasion for inappropriate language and behavior.   The district court found that this factor weighs in favor of respondent, and this finding is not clearly erroneous.


The district court found that since August 2009, the children have had minimal contact with anyone related to appellant.   The district court found that the children’s paternal extended family “provide[s] an emotional and intellectual benefit to [the children] and ․ a stable and secure environment.”   The court found that this factor weighs in favor of respondent, and this finding is not clearly erroneous.

Adjustment to home, school, and community;  Length of time in a stable environment;  Permanence of the existing or proposed custodial home

The district court combined these factors and found that the children have adjusted well in respondent’s care;  respondent provides a stable home and dependable child care when he works, has stable employment, and takes the children to church.   The district court found that appellant resided in her home with her daughters and the father of one of her daughters.   The children never lived in this home because when they lived with appellant she lived with her father;  thus, they have no connection with the home, the neighborhood or community, and they have never met the man living with appellant.   The court found that this factor weighs in favor of respondent, and this finding is not clearly erroneous.

Mental and physical health

Appellant challenges the district court’s reliance on her personality-disorder diagnosis.   Both parties underwent psychological evaluations.   Dr. Renken testified that there was no evidence that respondent has any mental-health issue.   Dr. Renken testified that appellant has an adjustment disorder with depressed mood and a personality disorder.   He stated that a person with a personality disorder should receive therapy or the condition will not change.   Appellant argues that Dr. Renken stated that appellant’s personality disorder may have caused her to respond to the custody dispute in the manner in which she did, but that he did not say for certain that her personality disorder caused her behavior.   But appellant’s behavior—deceit, false reporting, and unreasonable, inappropriate, and emotionally overblown responses to stress—is exactly as Dr. Renken illustrated in describing the reaction of a person with a personality disorder.   Therefore, the district court appropriately relied on Dr. Renken’s testimony.   The district court determined that this factor weighs in favor of respondent because he “demonstrated an ability to maintain a safe and secure environment for the minor children, to provide for their financial support, and to maintain his emotional and mental equilibrium despite [appellant’s] abduction of his children and false allegations.”   This finding is not clearly erroneous.

Capacity of the parties to offer love, affection, and guidance

The district court found that appellant “lacks the necessary emotional skills and mental health status to adequately parent” the children.   The district court noted that there is evidence that appellant failed to protect one of her daughters from the other.   The district court also noted that appellant is unable to provide guidance and care based on her inappropriate conduct at the visitation center.   The district court found that this factor weighs in favor of respondent because the GAL testified that the children are thriving with respondent.   Further, respondent provides guidance, love, affection, and support, and provides the benefits available through a supportive family and church.   This finding is not clearly erroneous.

The disposition of each parent to encourage and permit contact by the other parent with the children

Finally, the district court found that respondent has fully cooperated in bringing the children to the visitation center to see appellant.   Conversely, the district court found that appellant did not allow respondent contact, she kidnapped the children, and she made false allegations against respondent in an attempt to deprive him of his parental rights by way of the court system.   The district court found that this factor weighs “heavily in favor” of respondent, and this finding is not clearly erroneous.

The district court thoroughly analyzed the best-interest factors and determined that respondent should be awarded sole legal and sole physical custody of the children.   The record supports this determination.

Appellant also argues that the GAL was biased against her.   Appellant’s examples of this bias include that the GAL:  (1) indicated that appellant made “dubious recent allegations” against respondent;  (2) failed to mention that respondent assaulted appellant’s nephew;  (3) failed to mention appellant’s interaction with the children;  and (4) alleged that appellant kidnapped the children, but failed to mention that the “kidnapping was staged by respondent and his extended family.”   The record shows that appellant did make serious allegations against respondent that turned out to be false.   Respondent admitted to assaulting appellant’s nephew and explained the surrounding circumstances;  thus, the district court considered this information.   The GAL discussed her observations of appellant’s interaction with the children;  that the GAL did not find that the interaction was positive does not indicate that the GAL was biased.   Finally, appellant pleaded guilty to depriving respondent of his parental rights by taking the children to Florida when the children were court-ordered to be in respondent’s care.   Therefore, the GAL did not falsely allege that appellant kidnapped the children;  indeed, appellant kidnapped the children.   The record does not show any bias on the part of the GAL.

Parenting time

Appellant next argues that the district court abused its discretion by conditioning her parenting time on her participation in therapy.   District courts have broad discretion in deciding parenting-time questions, and a reviewing court will reverse the district court’s conclusions only when that discretion is abused.  Olson v. Olson, 534 N.W.2d 547, 550 (Minn.1995).   A district court abuses its discretion by making findings unsupported by the evidence or improperly applying the law.  Pikula, 374 N.W.2d at 710.   Findings of fact are reviewed for clear error.  Id.

The district court ordered that appellant be allowed supervised parenting time once she participates in therapy for her personality disorder.   The district court did not eliminate appellant’s parenting time, but put a condition on it because of safety concerns.   If appellant seeks therapy, she can be allowed parenting time.   The record supports the district court’s determination that, based on balancing the best-interest factors, the safety of the children depends on appellant addressing her mental-health issues.   The district court did not clearly err in finding that appellant must meet this condition in order to receive parenting time.

Attorney fees

Finally, appellant argues that the district court abused its discretion in awarding respondent conduct-based attorney fees because she did not unreasonably contribute to the length and expense of the proceedings.   The district court found:

That [appellant] made allegations against [respondent] alleging he had sexually molested [her] daughters․  That [respondent] incurred $11,774.85 in attorney fees and costs in defending himself against those allegations [which were determined to not be credible]․  That [respondent] would not have incurred these fees and costs but for the false allegations made by [appellant].

That [respondent] has incurred $23,304.19 in attorney fees and costs in this paternity custody and parenting time proceeding.   That [respondent] incurred $4,130.80 in attorney’s fees and costs in defending himself against the [h]arassment [r]estraining [o]rder proceeding which was brought by [appellant] and dismissed.   That [respondent] incurred $1,300.40 in attorney fees and costs in defending himself against the [OFP] proceeding which was brought by [appellant] and dismissed.

That the misconduct, false allegations, and deprivation of parental rights by [appellant] have caused [respondent] to incur substantial attorney’s fees and costs.

A district court may award conduct-based attorney fees “in its discretion ․ against a party who unreasonably contributes to the length or expense of the proceeding.”  Minn.Stat. § 518.14, subd. 1 (2010).   A district court may award conduct-based fees regardless of the recipient’s need for fees and the payor’s ability to pay.  Geske v. Marcolina, 624 N.W.2d 813, 818 (Minn.App.2001).   This court reviews an award of conduct-based attorney fees for an abuse of discretion.  Szarzynski v. Szarzynski, 732 N.W.2d 285, 295 (Minn.App.2007).

The record shows that appellant unreasonably contributed to the length and, more importantly, the expense of the proceeding.   While a large portion of the fees relate to respondent defending himself against false accusations in a criminal setting, appellant raised the false allegations in an effort to deprive respondent of custody and/or parenting time.   See Brodsky v. Brodsky, 733 N.W.2d 471, 477 (Minn.App.2007) (stating that a party is entitled to conduct-based fees incurred in an ancillary proceeding if the ancillary proceeding is sufficiently related to the proceeding at issue).   The district court made adequate findings supporting the award of attorney fees;  therefore, the district court did not abuse its discretion.



1.  FN1. Respondent is not the biological father of appellant’s two daughters.

WORKE, Judge

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Another Contribution to Caselaw

It is altruistic to execute an affidavit of support for an immigrant relative to get an immigrant visa in the United States.  But the act can expose a person to litigation.  In Dahhane v. Stanton, this is exactly what is going on.  If you are sponsoring a  relative for an immigrant visa in the United States, please make sure that you understand the affidavit of support contract that you are executing.


CIVIL NO. 15-1229 (MJD/JJK).

Adam Dahhane, Plaintiff, v. Linda Lorraine Stanton a/k/a Linda Lorraine Stanton-Dahhane, and Bonnie Lynn Stanton, Defendants.

United States District Court, D. Minnesota.
August 4, 2015.

Adam Dahhane, pro se Plaintiff.

Amadu Edward Swaray, Esq., for the Defendants.


JEFFREY J. KEYES, Magistrate Judge.

This case is before the Court, United States Magistrate Judge Jeffrey J. Keyes, on Plaintiff’s Motion to Strike Defendants’ Affirmative Defenses and Jury Demand and to Dismiss Defendants’ Counterclaims (Doc. No. 12). The matter has been referred to this Court for a Report and Recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.1. For the reasons discussed below, the Court recommends that Plaintiff’s motion be granted in part and denied in part.


Plaintiff commenced this action to enforce contractual financial obligations which he alleges that Defendants owe him under provisions of the Immigration & Nationality Act (“INA”). Plaintiff is a native of Morocco. He came to the United States in 2001 and was married to Defendant Linda Stanton on September 22, 2001, in Minnesota. Plaintiff’s eligibility to immigrate and remain in the United States required that his immigration sponsor execute an Affidavit of Support Form I-864 (“Form I-864”). 8 U.S.C. § 1183a. The purpose of the Form I-864 is “to show that an intending immigrant has adequate means of financial support and is not likely to become a public charge.” (Doc. 1-1, Compl., Attach. 1.) On October 8, 2001, Linda Stanton and her mother, Bonnie Stanton, signed separate Form I-864s as joint sponsors for Plaintiff’s immigration. Sponsorship eligibility requires that the sponsor(s) agree to “provide the sponsored immigrant(s) whatever support is necessary to maintain the sponsored immigrant(s) at an income that is at least 125 percent of the Federal poverty guidelines,” and provides that the support obligation continues until: (1) the sponsor’s death; or (2) the sponsored immigrant becomes a U.S. citizen, can be credited with 40 quarters of work, departs the U.S. permanently, or dies. (Id.)

Plaintiff and Defendant Linda Stanton permanently separated on November 15, 2008 and were divorced on February 27, 2013. Plaintiff commenced this lawsuit by Complaint filed on March 11, 2015, alleging that the Defendants failed to honor their Form I-864 contract obligations to financially maintain Plaintiff at 125 percent of the Federal poverty level. Count I alleges that Defendant Bonnie Stanton did not honor her financial obligation from 2001 to 2007, but Plaintiff “reserves” the issue of damages on that count. Count II alleges that both Defendants failed to honor financial obligations from 2008 to 2011. The Defendants filed separate but identical Answers in which they admitted, denied or qualified the individual allegations in the Complaint. Also, the Answers contained identical listings of concisely stated affirmative defenses, as well as a counterclaim which consists of numerous fact assertions, culminating in a claim for attorney fees and costs incurred in defending this action. Finally, the Answers each contain a demand for jury trial.

Plaintiff now moves, pursuant to Fed. R. Civ. P. 12(f), to strike the affirmative defenses on grounds they are not supported by plausible facts sufficient to satisfy pleading requirements under Bell Atlantic Corp. v. Twombly, 550 U.S. 570 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009).1 Plaintiff moves to dismiss the counterclaim allegations on grounds that that they are insufficient and redundant, and that the counterclaim should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a legal claim for relief, and pursuant to Iqbal and Twombly for failure to assert facts sufficient to state a plausible claim. Plaintiff moves to strike the jury trial demand on grounds that the cause of action in this case is based on a statutory provision that creates no explicit right to a jury trial, and this action is not one in the nature of a suit at common law for which a jury trial is typically allowed.


1. Affirmative Defenses

Plaintiff’s motion to strike Defendants’ affirmative defenses should be denied. Fed. R. Civ. P. 12(f) states that the court may strike an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. Plaintiff does not argue that the Defendants’ affirmative defenses are immaterial, impertinent, or scandalous, but contends that the defenses are insufficiently pled in light of the plausibility standards underTwombly and Iqbal. The alleged affirmative defenses are:

(1) Plaintiff lacks standing to bring his claims;

(2) Plaintiff fails to state a claim upon which relief can be granted;

(3) The statute of frauds precludes Plaintiff’s claims;

(4) The parole evidence rule bars Plaintiff’s claims;

(5) Defendants owe Plaintiff no duty that they have breached for which Plaintiff should be compensated;

(6) Plaintiff’s claims fail on grounds of fraud; and

(7) Plaintiff’s 8 U.S.C. § 1183a and Form I-864 contract claims are barred on the ground they cannot be retroactively asserted.

Fed. R. Civ. P. 8(c) states that in responding to a pleading, a party must affirmatively state any avoidance or affirmative defense and provides a list which specifically includes, but is not limited to, fraud and statute of frauds. A motion to strike a defense should be denied “if the defense is sufficient as a matter of law or if it fairly presents a question of law or fact which the court ought to hear.” Lutzeier v. Citigroup, Inc., 305 F.R.D. 107, 111 (E.D. Mo. 2015) (quoting Lunsford v. United States, 570 F.2d 221, 229 (8th Cir. 1977)). Motions to strike under Fed. R. Civ. P. 12(f) are disfavored and infrequently granted and should not be granted unless the defense, as a matter of law, cannot succeed under any circumstances. Id. (citations omitted). A motion to strike should not succeed unless the moving party shows prejudice by inclusion of the defense or that the defense confuses the issues. Id. (citations omitted).

As to whether an affirmative defense must satisfy the plausibility standards of Twomblyand Iqbal, it has been held in this district that those standards do not apply to the pleading of affirmative defenses because those cases are grounded in a need, under Fed. R. Civ. P. 8(a)(2), to provide a statement showing that a “claim for relief” is plausible, and an affirmative defense is not a claim for relief. Wells Fargo & Co. v. U.S., 750 F.Supp.2d 1049, 1051 (D. Minn. 2010). Also, it is unfair to impose a plausibility pleading standard on a defendant who has a mere 21 days to answer, unlike a plaintiff who may have had months or years to investigate a claim before pleading. Id. And, as in this case, imposing the Twombly and Iqbal pleading standard would simply introduce a largely unnecessary and burdensome round of motions asserting the futility of affirmative defenses. Id.

Here, the motion to strike affirmative defenses is based on Plaintiff’s contention that theTwombly/Iqbal plausibility standard applies. This contention is incorrect. Moreover, Plaintiff has shown no prejudice or confusion that is likely to arise as a result of the affirmative defenses. “In a typical case, it quickly becomes apparent that most of the affirmative defenses are not viable, and the parties simply ignore them. No judicial intervention is necessary.” Wells Fargo & Co. v. U.S., 750 F.Supp.2d 1049 at 1051. To the extent that either side in this case seeks to flesh out further facts and information relating to asserted defenses, there is no indication that anything more that modest and appropriately directed discovery would be required. Plaintiff’s motion to strike should be denied as to affirmative defenses.

2. Counterclaims

Plaintiff’s motion to dismiss Defendants’ counterclaims should be granted, and the counterclaims should be dismissed without prejudice for failure to state a claim for relief. The pleading that Defendants have designated as a “counterclaim” is merely a recitation of Defendants’ defense to the Complaint, explaining why Plaintiff is not entitled to prevail because Defendants claim they owe Defendant nothing. The counterclaims consist primarily of recitations of background facts and conclusions as to each Defendant’s compliance with Form I-864 obligations, but do not seek damages or other relief from the Plaintiff. Other than a claim for attorney fees and costs, the counterclaim in each Answer does not assert a cognizable legal grounds for relief as required under Fed. R. Civ. P. 8(a)(2).

Under Fed. R. Civ. P. 8(d) the court could treat a mistakenly designated counterclaim as a defense without striking the allegation. Here, the defense was already effectively stated as affirmative defense (5): “Defendants owe Plaintiff[s] no duty that they have breached for which Plaintiff should be compensated.” Redesignation would serve no apparent purpose. Defendants will not be deemed to have admitted Plaintiff’s fact assertions by virtue of the absence of counterclaim allegations. With respect to Defendants’ claims for attorney fees and costs, those claims are appropriately presented after the merits of the case have been considered and liabilities have been determined. The dismissal of the mistakenly designated counterclaims will not bar Defendants from moving for sanctions under Fed. R. Civ. P. 11, or seeking other relief as may be appropriate.

3. Jury Trial Demand

Plaintiff’s motion to strike Defendants’ jury trial demands is premature and should be denied without prejudice. Under Fed. R. Civ. P. 38(a), the right of trial by jury established under the Seventh Amendment, or as provided by federal statute, is preserved to the parties inviolate. Defendants have properly demanded a jury trial pursuant to Rule 38(b). Therefore, trial of this case shall be by jury unless the court, on motion or on its own, finds that there is no federal right to a jury trial as to some or all issues. Fed. R. Civ. P. 39(a).

Plaintiff argues that no right to a jury trial exists in this case because the statute that establishes grounds for the action, 8 U.S.C. § 1183a, contains no authorization for a jury trial, and the cause of action is equitable in nature. Defendants contend that the claim for breach of Form I-864 affidavits is for breach of contract, a common law cause of action on which a right to jury trial exists under the Seventh Amendment.

A Form I-864 affidavit has consistently been held to constitute a binding and enforceable contract between a sponsored immigrant and the sponsor. Cheshire v. Cheshire, No. 3:05-cv-453, 2006 WL 1208010 at *3 (M.D. Fla. May 4, 2006) (citing cases), see also Al-Mansour v. Shraim, No. CCB-10-1729, 2011 WL 345876, *2 (D. Md. Feb. 2, 1011) (citingShumye v. Felleke, F. Supp. 2d 1020, 1023 (N.D. Cal. 2008)). The federal statute, 8 U.S.C. § 1183a, is not the basis for the cause of action, but expressly states that an affidavit must be executed by a sponsor and provides authorization for enforcement of a Form I-864 agreement as a contract. Breach of contract is a claim at law to which the Seventh Amendment right to a jury trial attaches. Smith Flooring, Inc. v. Pennsylvania Lumbermens Mut. Ins. Co., 713 F.3d 933, 937 (8th Cir. 2013).

Whether a jury trial may be held in this case is secondary to the question of whether particular issues survive to the point of trial. For that reason, the final determination as to whether a right to jury trial exists in this matter must properly await further discovery and possible dispositive motion practice. In light of a more fully developed fact record, and as previously discussed in regard to affirmative defenses, it is not uncommon for defendants to abandon or ignore affirmative defenses that are simply not viable, Wells Fargo & Co. v. U.S., 750 F. Supp. 2d at 1051. And the court may find that a right to jury trial exists as to some issues, but not others. Fed. R. Civ. P. 39(a)(2). A final determination on the right to a jury trial, or any trial at all, may be contingent upon which claims and defenses survive discovery and summary judgment. Al-Mansour, 2011 WL 345876 at *2 (determining that plaintiff was entitled to partial summary judgment on liability on a Form I-864 claim to the extent that a valid and enforceable contract existed, but that summary judgment was not appropriate on damages). A decision as to the nature and scope of any trial in this action is premature, and the motion to strike the jury trial demand should therefore be denied.


It is recommended that Plaintiff’s Motion to Strike Defendants’ Affirmative Defenses and Jury Demand and to Dismiss Defendants’ Counterclaims (Doc. No. 12) be DENIED IN PART AND GRANTED IN PART as follows:

1. Plaintiffs motion to strike affirmative defenses should be DENIED.

2. Plaintiff’s motion to dismiss Defendants’ counterclaims should be GRANTED; and

3. Plaintiff’s motion to strike Defendants’ demand for a jury trial should be DENIED.

Under Local Rule 72.2(b) any party may object to this Report and Recommendation by filing with the Clerk of Court, and serving all parties by August 18, 2015, a writing which specifically identifies those portions of this Report to which objections are made and the basis of those objections. Failure to comply with this procedure may operate as a forfeiture of the objecting party’s right to seek review in the Court of Appeals. A party may respond to the objecting party’s brief within fourteen days after service thereof. All briefs filed under this rule shall be limited to 3500 words. A judge shall make a de novo determination of those portions of the Report to which objection is made. This Report and Recommendation does not constitute an order or judgment of the District Court, and it is therefore not appealable directly to the Circuit Court of Appeals.

Unless the parties stipulate that the District Court is not required by 28 U.S.C. § 636 to review a transcript of the hearing in order to resolve all objections made to this Report and Recommendation, the party making the objections shall timely order and file a complete transcript of the hearing within ten days of receipt of the Report.


1. Under Twombly and Iqbal, a claim for relief is plausible if its factual content would allow the Court to make the reasonable inference that the defendant is liable for the misconduct alleged.Iqbal, 555 U.S. at 678.

This case is currently been argued in The United States District Court in the District of Minnesota on behalf of the Defendants by Amadu Edward Swaray at Swaray Law Office in Brooklyn Center, Minnesota. Swaray is a general practice attorney with immigration law as one of his specialty areas. Brooklyn Center is one of the northern suburbs in the Twin Cities of Minneapolis and St. Paul.  The city is contiguous to Brooklyn Park, Crystal, Plymouth and Fridley, among others.


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Should I Execute a Form I-864 Affidavit of Support for my Immigrant Relative?

For those who want to file immigrant visas for their relatives, a Form I-864 Affidavit of Support, is critically important to the process.  It is a form prepared by the Department of Homeland Secuirty (DHS) and used by immigrant sponsors to make a contract Affidavit of support 1to be financially responsible for their relatives that they help to bring to the United States at a household income of 125% of the federal poverty guideline, and to protect them from being a public charge.  The DHS, in turn, grants the relative an immigrant visa or a Green Card.

The contract is executed only by the DHS and the sponsor, not the relative.  The relative only promises, under the contract, to assist the sponsor with financial obligations created by a relative that accompanied her under her immigrant visa visa to the United States.  Affidavit of support 2The sponsored immigrant is the third party beneficiary to the contract.  This means that she is entitled to the benefits of the contract even though only the DHS and the sponsor executed it.

The sponsor must have sufficient income and or assets to qualify for the sponsorship.  The value of the income or asset is determined by the federal poverty guideline.  In 2015, for instance, the sponsor must earn at least $19, 912 to be eligible for the sponsorship of an immigrant houshold of two persons.  If the sponsor does not have enough income or asset, a joint sponsor may be enlisted to provide the required income.  The joint sponsor must, however, also be a United States citizen or permanent resident.

Affidavit of Support 3

Once he executes the contract with the DHS, the sponsor’s obligation to his relative continues until the sponsor or the relative dies; or the relative becomes a United States citizen; or deported from the United States; or placed in a removal proceedings and gets an immigration relief through another source under a new affidavit of support contract.  Divorce or separation from the relative does not extinguish the sponsor’s obligation.

The sponsor’s failure to support his relative is a breach of contract for which the DHS and or the immigrant relative can sue for damages.  DHS could sue the sponsor for reimbursement of any financial assistance given to the sponsored.  The immigrant relative can sue her sponsor for damages for failure to provide support.  Under the federal laws guiding the contract, the suits can be brought in any appropriate federal, state or local court.  Given the nature, the suit may be tried before a judge or jury.

Most people that elect to provide sponsorship to their immigrant relatives are motivated by the desire to help with the successful immigration of the relative.  Most of them, though fully aware of the legal Affidavit of support 4consequences of their support, would still bind themselves to the contract.  Most do not expect to be sued by the relative, and in many cases, the relatives do not sue their sponsors.  They are ususally very grateful for the support and after they get their immigrant visas, they focus on the challenges of their lives in the United States.Affidavit of support 5

Some, however, would seek to enforce their rights in the event of the sponsor’s breach of the contract.  These few usually do so as a reaction to conflicts that germinated in their relationships with their spouses.  For example, their spousal relationship results in a divorce, in which the sponsor successfully pursues his immigrant relative for child support, child custody, spousal maintenance, and also gets a significant chunk of the marital asset that the relative individually acquired during the marriage.

This article is produced by an attorney at Swaray Law office situated in Brooklyn Center in Minnesota.  Brooklyn Center is contiguous to Minneapolis and its northern cities of Brooklyn Park, Crystal, Plymouth and St. Louis Park, among others.  The law office has a proud record of providing legal services to communities across the United States for over 15 years.