CONTRACT RIGHTS UNDER THE I-864 AFFIDAVIT OF SUPPORT: SEVENTH CIRCUIT'S REASONING BINDS COURTS' HANDS IN A SHIFTING LANDSCAPE FOR PUBLIC CHARGE DOCTRINE

"10 If they fail to do so, they will be deemed inadmissible and will be unable to enter the United States.11 While the United States Citizenship and Immigration Services ("USCIS") has historically defined a "public charge" as "an individual who is likely to become primarily dependent on the government for subsistence,"12 the Attorney General and consular officers retain considerable discretion in their determination, using a set of statutorily defined factors.13 While factors like the immigrant's age, health, family status, financial health, and education are all part of the public charge determination, the Attorney General may also consider the Affidavit.14 In practice, the I-864 has been treated as an enforceable contract, which has meant that "a valid Form I-864 is virtually always sufficient to avoid inadmissibility on public charge grounds," except in cases relating to extreme medical conditions.15 This setup has created a contractual scheme where, in consideration for undertaking the enforceable support obligations under the Affidavit,16 the Government virtually guarantees that the immigrant will not be deemed inadmissible as a public charge.17 For a commonly executed contract that has been enforceable in court for nearly twenty years, case law has been sparse.18 Specifically, it remains unclear whether common-law defenses like fraud, duress, "unclean hands," and unconscionability apply to the Affidavit in most jurisdictions.19 While still an open question in many jurisdictions, the greatest volume of case law for common-law contract defenses in the Affidavit has addressed a mitigation of damages defense.20 In the prototypical fact pattern, an immigrant, treated as third-party beneficiary to the Affidavit, seeks to enforce her rights against the sponsor, who pleads an affirmative mitigation duty in the hopes it will reduce his liability to the immigrant.21 One such case, Liu v. Mund, analyzes not only the issue of whether a mitigation of damages defense should apply to the Affidavit, but also larger issues pertaining to the fundamental character and purposes of the form.22 Courts are currently split on the issue of whether a mitigation of damages defense is available to sponsors to the Affidavit.23 Leading cases, including Liu, rely upon the unique nature of the form to assert that such defenses are precluded.24 This Note will argue that the I-864 should be treated under the same principles as a typical common-law contract. [...]Part III will offer a