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Nwauwa v. Ugochukwu

United States District Court, W.D. Texas, Austin Division

May 10, 2019

CHIOMA NWAUWA, Plaintiff,
v.
KINGSLEY UGOCHUKWU, Defendant.

          ORDER

          ROBERT PITMAN, UNITED STATES DISTRICT JUDGE.

         Before 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.

         I. BACKGROUND

         Under 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).

         Ugochukwu 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 support.[1]

         Nwauwa 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, Dkt. 10-1).

         II. LEGAL STANDARD

         A court 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).

         III. LIKELIHOOD OF SUCCESS ON THE MERITS

         The 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.

         A. Legal Standard

         Under 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 obligations.[2]

         Divorce 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, 2004).[3]

         In 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 ...


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