United States District Court, W.D. Texas, Austin Division
PITMAN, UNITED STATES DISTRICT JUDGE.
the Court is Plaintiff Chioma Nwauwa's
(“Nwauwa”) Motion for a Preliminary Injunction,
filed on April 4, 2019. (Dkt. 10). Nwauwa seeks an order
compelling Defendant Kingsley Ugochukwu
(“Ugochukwu”) to perform his obligations under a
Form I-864 Affidavit of Support. (Id.). Ugochukwu
filed a response, (Dkt. 15), and Nwauwa filed a reply, (Dkt.
17). The Court held a hearing on the motion on April 24,
2019. Having considered the parties' submissions, the
supporting evidence, and the relevant law, the Court finds
that the motion should be denied.
the Immigration and Nationality Act, a citizen may sponsor a
prospective immigrant who would otherwise be barred as a
“public charge” likely to depend on public
benefits. See 8 U.S.C. § 1182(a)(4); 8 U.S.C.
§ 1183a(a). A sponsor who signs an Affidavit of Support
agrees to maintain the sponsored immigrant at an annual
income that is not less than 125 percent of the Federal
poverty line. 8 U.S.C. § 1183a(a)(1)(A).
sponsored Nwauwa after they married in 2013. (See
Ugochukwu Testimony, Hr'g Tr., 39:23-40:2). Ugochukwu is
a United States citizen residing in Austin, Texas. (Compl.,
Dkt. 1, ¶ 11). Nwauwa is a citizen of Nigeria and a
lawful permanent resident (“LPR”) of the United
States. (Id. ¶ 10). In July of 2016, Nwauwa
left the marital home, taking their infant son. (Mot., Dkt.
10, at 9). She now resides with their son in Kansas City,
Missouri. (Compl., Dkt. 1, ¶ 10). The parties are
currently finalizing their divorce. (See Hr'g.
Tr., at 40:24-41:5) Since their separation in 2016, Ugochukwu
has made regular bank transfers to Nwauwa, provided health
insurance for Nwauwa and their son, and maintained a joint
bank account with her until she caused him repeated overdraft
charges. Pursuant to their current divorce negotiations,
Ugochukwu is now also paying $1, 850 in monthly child
contends that on top of these payments, the Affidavit of
Support requires Ugochukwu to pay her an additional monthly
income of $1, 301. She filed this lawsuit asserting a claim
for financial support under the Form I-864 Affidavit of
Support on December 31, 2018, (Compl., Dkt. 1), and the
instant motion for a preliminary injunction on April 4, 2019,
(Mot., Dkt. 10). Specifically, Nwauwa requests an injunction
ordering Ugochukwu “to cease violating his duty under
the Form I-864, Affidavit of Support” and pay her $1,
301 per month until (1) Nwauwa becomes employed, (2) this
case is resolved in Ugochukwu's favor, or (3) a
terminating event occurs under the statute. (Proposed Order,
may issue a preliminary injunction under Rule 65.
Fed.R.Civ.P. 65(a)(1). The party seeking a preliminary
injunction must establish: “(1) a substantial
likelihood of success on the merits; (2) a substantial threat
of irreparable harm if the injunction is not granted; (3)
that the threatened injury outweighs any harm that the
injunction might cause to the defendant; and (4) that the
injunction will not disserve the public interest.”
Opulent Life Church v. City of Holly Springs, Miss.,
697 F.3d 279, 288 (5th Cir. 2012). “[A]
preliminary injunction is an extraordinary remedy which
should not be granted unless the party seeking it has
‘clearly carried the burden of persuasion' on all
four requirements.” PCI Transp., Inc. v. Fort Worth
& W. R. Co., 418 F.3d 535, 545 (5th Cir. 2005)
(quoting Miss. Power & Light Co. v. United Gas Pipe
Line Co., 760 F.2d 618, 621 (5th Cir. 1985)). The
decision to grant a preliminary injunction is to be treated
as the exception rather than the rule. Valley v. Rapides
Parish Sch. Bd., 118 F.3d 1047, 1050 (5th Cir. 1997).
LIKELIHOOD OF SUCCESS ON THE MERITS
parties do not dispute that Ugochukwu sponsored Nwauwa by
signing a Form I-864 Affidavit of Support. But because Nwauwa
has not clearly shown that Ugochukwu is in breach of his
obligations under the Affidavit, the Court finds that Nwauwa
has not clearly carried the burden of persuasion to show a
sufficient likelihood of success on the merits in order to
justify a preliminary injunction.
the Immigration and Nationality Act, a citizen may
“sponsor” a prospective immigrant by executing an
Affidavit of Support “to establish that [the] alien is
not excludable as a public charge” and not likely to
rely on the U.S. government for financial support. 8 U.S.C.
§ 1183a(a). The Affidavit is “a contract” by
which “the sponsor agrees to provide support to
maintain the sponsored alien at an annual income that is not
less than 125 percent of the Federal poverty line during the
period in which the affidavit is enforceable.”
Id. at § 1183a(a)(1)(A). The sponsored
immigrant has a private right of action to enforce the
Affidavit. Id. at § 1183a(a)(1)(B). The
Affidavit form itself warns sponsors of these
does not terminate an Affidavit of Support. Ainsworth v.
Ainsworth, No. CIV.A. 02-1137-A, 2004 WL 5219037, at *2
(M.D. La. May 27, 2004) (“[N]either in the statute nor
in the I.N.S. regulation is divorce listed as an event that
ends the enforceability of the contract.”). An
Affidavit is enforceable until one of five terminating
events: (1) the sponsored immigrant is naturalized as a U.S.
citizen; (2) the sponsored immigrant has worked 40 qualifying
quarters of coverage under the Social Security Act; (3) the
sponsored immigrant ceases to hold the status of permanent
resident and departs the United States; (4) the sponsored
immigrant receives an adjustment of status during removal
proceedings; or (5) the sponsored immigrant or the sponsor
dies. See 8 U.S.C. § 1183a(a)(2)-(3), 8 C.F.R.
§ 213a.2(e)(2); see also Ainsworth, No. CIV.A.
02-1137-A, 2004 WL 5219037, at *2 (M.D. La. May 27,
order to serve as a sponsor, a person must demonstrate that
his or her “reasonably expected household income for
the year . . . would equal at least 125 percent of the
Federal poverty line for the sponsor's household
size.” 8 C.F.R. § 213a.2(c)(2)(i)(C)(1). The
Affidavit does not require a sponsor to show that ...