Metropolitan News-Enterprise


Monday, October 21, 2019


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Ninth Circuit:

Fraud in Inducing Marriage No Defense to Support Obligation

Man Who Entered Into Contract With U.S. to Support Ukrainian Woman If She Were Granted Entry Must Meet Obligation Even If She Agreed to Marry Him for Sole Purpose of Gaining Green Card


By a MetNews Staff Writer


A man who agreed to support a woman if she were granted admittance to the United States cannot evade his obligation on the basis of her alleged fraud in inducing him to marry her, the Ninth U.S. Circuit Court of Appeals held Friday.

The memorandum opinion upholds a judgment in favor of Ukrainian citizen Tetyana Dorsaneo who sued her ex-husband, U.S. citizen Edward Dorsaneo, for support, garnering a judgment for $49,775.81 in damages and $94,259.68 in attorneys’ fees. It also affirms an order that veteran San Francisco lawyer Jeffrey B. Neustadt be reported to the State Bar of California for having accused Tetyana Dorsaneo of criminally violating the Immigration Marriage Fraud Act (“IMFA”) of 1986.

At issue was the enforceability of a contract Edward Dorsaneo entered into with the U.S. Government in signing a “Form 184” by which he agreed that if his then-fiancee were allowed into the country, he would support her at least at 125 percent of the poverty level. He claimed that was not binding, in light of her fraud.

Judgment on Pleadings

In granting the woman partial judgment on the pleadings on July 31, 2017, District Court Judge Vince Chhabria of the Northern District of California wrote:

“His argument is that he has no obligation to pay, or should be excused from any such obligation, because he signed the 1-864 in reliance on Tetyana’s statement to him that she wanted to ‘create a family’ with him, and this statement turned out not to be true. Edward alleges that Tetyana knew her statements about wanting to create a family were false when she made them, and that she said those things to persuade Edward to help her immigrate to the United States.”

The judge went on to say:

“Fraud in the inducement cannot be a defense to an 1-864 enforcement action. Permitting a sponsor to evade his support obligation by asserting a defense of fraud in the inducement is inconsistent with the purpose of the 1-864 requirement, because it would place lawful permanent residents at risk of becoming dependent on the government for subsistence. The statute and implementing regulations show that the purpose of the support obligation is to ensure that family-sponsored immigrants do not become a ‘public charge.’…The support obligation terminates only after the immigrant has obtained citizenship or circumstances have changed such that the immigrant no longer requires support.”

On Feb. 24, 2018, Chhabria granted the woman summary judgment, setting the damages, and on April 4, 2018, he sanctioned Neustadt in the amount of $500 and ordered that he be reported to the State Bar.

Ninth Circuit’s Opinion

Affirming, a three-judge panel quoted the circuit’s 2016 opinion in Erler v. Erler as saying that the purpose of the Form 1-864 contract “is to prevent the admission to the United States of any alien who is likely at any time to become a public charge” and “that purpose is best served by interpreting the affidavit in a way that makes prospective sponsors more cautious about sponsoring immigrants.”

The court Friday observed:

“Edward was not sufficiently cautious.”

In opposing summary judgment, it was contended that fraud was committed by Tetyana Dorsaneo not only in professing to be entering into a marriage in good faith, but also in concealing that in the Ukraine, under the name “Elena,” she worked as a prostitute.

The opposition pointed to a federal statute that provides: “Any alien who…has engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status…is inadmissible.”

It was argued:

“Plaintiff knowingly represented to both the United States and Defendant that she had not engaged in prostitution.”

The misrepresentations were criminal, the opposition said, adding:

“Accordingly, this evidence should be referred by the Court to law enforcement for investigation.”

Chhabria ordered that both Edward Dorsaneo and Neustadt show cause why they should not be sanctioned for including extraneous allegations of criminal misconduct.

Lawyer’s Response

Neustadt protested that he has been a lawyer “for a total of 48 years” and, as he saw it, was simply discharging his duty to his client. He quoted the California Supreme Court’s 1983 decision in People v. McKenzie as saying:

“The duty of a lawyer both to his client and to the legal system is to represent his client zealously within the bounds of the law,” insisting:

“The fact of criminal conduct, or criminal intent, in the formation of the I-864 contract is fully and directly relevant to the defenses raised by the defendant.”

Neustadt went on to say:

“In my opinion, this Court has disregarded the clear meaning and intent of the IMFA in favor of a lifetime support obligation against the sponsor spouse. I have received communications from several practitioners and colleagues around the country who are disappointed with this Court’s ruling…that declares that fraud perpetrated by the immigrant spouse has no bearing on the support obligation nor on the validity of the I-864 contract.”

He added:

“In my opinion, this Court has also disregarded both centuries of common law and California statutory laws that distinguish between the formation of a valid contract and those events which may terminate a valid contract. In my opinion, a valid contract was never formed due to requisite intent of the sponsored immigrant spouse, and a valid contract was also never validly formed as due to the later discovered facts regarding the Plaintiff’s misrepresentations on her immigration petitions.”

Chhabria’s Ruling

Chhabria ruled:

“Neustadt violated California Rule of Professional Conduct 5-100, which prohibits members of the California bar from threatening to present criminal charges to obtain an advantage in a civil dispute. Specifically, the defendant’s brief opposing summary judgment asserted that Tetyana violated federal immigration and criminal law and argued that the Court should refer the matter to law enforcement for investigation….Instead of withdrawing these assertions, Neustadt’s response to the order to show cause reaffirmed them, declaring, in fact, that Neustadt presented these allegations not just to the Court but also separately to law enforcement….

“Not only were these allegations inappropriate, they were also nonresponsive to the motion being briefed. Neustadt raised these claims as a purported defense to Edward’s liability in a motion that focused solely on the question of how much Edward owed Tetyana in damages.  The Court had already ruled on the issue of liability.”

The judge found that Edward Dorsaneo was not to blame for the content of the opposition.

The Ninth Circuit opinion says, in affirming the order that a report be made to the State Bar:

“The irrelevant nature of the presentation at the summary judgment hearing, including its scandalous and not well supported attack on Tetyana’s character, strongly suggested that it was being used for an improper purpose….That sufficed to justify the referral, especially in light of the further exacerbation of the attack in the sanction proceeding itself.”

The case is Dorseano v. Dorseano, 18-15487.


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