United States District Court, W.D. Virginia, Lynchburg Division
K. MOON, UNITED STATES DISTRICT JUDGE.
to 8 U.S.C. § 1183a, Plaintiff brought suit to enforce
the terms of an Affidavit of Support executed by Defendant on
her behalf. Defendant has filed two motions to dismiss.
First, Defendant argues that this court lacks subject matter
jurisdiction because an action to enforce an Affidavit of
Support is simply a contract suit under state law and does
not arise under federal law. Second, Defendant asserts that
Plaintiff has failed to state a claim because she has not
attached an executed copy of the Affidavit of Support to her
have split over whether an action to enforce an Affidavit of
Support arises under 8 U.S.C. § 1183a. However, the best
reading of the statute is that it creates a federal cause of
action, granting this court jurisdiction under 28 U.S.C.
§ 1331. Defendant's second argument lacks merit. He
cites no authority for the proposition that failure to attach
the executed Affidavit prevents a party from suing to enforce
it, and the complaint easily meets the
Twombly/Iqbal standard for stating a claim.
Therefore, both motions will be denied.
Facts as Alleged
parties were married in Argentina in 2007 and have two
daughters together, born in 2011 and 2012. (Dkt. 2 at 1-2).
To enable Plaintiff to immigrate to the United States and
achieve lawful permanent resident status without conditions,
Defendant executed an Affidavit of Support (Form I-864)
pursuant to 8 U.S.C. § 1183a. (Id. at 1). Under
the terms of the Affidavit, Defendant promised to maintain
Plaintiff's household at an income level exceeding 125%
of the poverty level. (Id. at 2).
2015, a friend of Defendant exposed himself to one of the
young daughters. (Id.) Defendant, however, refused
to remedy the situation by preventing further contact with
the friend. (Id.) Defendant's refusal initiated
the dissolution of the marriage, as Plaintiff filed for
custody of the children soon after. (Id.) Defendant
then abandoned the marital home, and Plaintiff was ultimately
granted custody of their children. (Id.) On July 27,
2016, Plaintiff filed for divorce. (Id.) Plaintiff
now alleges that Defendant has failed to comply with the
terms of the Affidavit because he has not maintained her
household at 125% of the poverty level.
classes of immigrants are not admitted to the United States
as permanent residents if they are likely to become a public
charge. See 8 U.S.C. § 1182(a)(4). However, a
current United States resident may sponsor an immigrant for
permanent residency by executing an Affidavit of Support,
created by filling out Form I-864. The Affidavit creates an
enforceable contract wherein the sponsor (current United
States resident) promises to financially support the
sponsored alien (immigrant seeking residency) at 125% of the
poverty level. See 8 U.S.C. §
1183a. Either the United States or the sponsored
alien may bring suit to enforce the Affidavit of Support
against the sponsor. See 8 U.S.C. 1183a(e).
Motion to Dismiss for Lack of Subject Matter
to the subject matter jurisdiction of a complaint under Rule
12(b)(1) are either facial or factual. A facial challenge is
one which argues that “the complaint simply fails to
allege facts upon which subject matter jurisdiction can be
based.” Adams v. Bain, 697 F.2d 1213, 1219
(4th Cir. 1982). A factual challenge is one in which it is
“contended that the jurisdictional allegations of the
complaint were not true.” Id. For facial
challenges, “all the facts alleged in the complaint are
assumed to be true and the plaintiff, in effect, is afforded
the same procedural protection as he would receive under a
Rule 12(b)(6) consideration.” Id.
the challenge is facial. Defendant asserts that
Plaintiff's only avenue for subject matter jurisdiction
is under 28 U.S.C. § 1331, but that her cause of action
sounds in state contract law and does not arise under the
laws of the United States. There are no disputed facts; the
only question is whether an action to enforce an Affidavit of
Support is one that arises under federal law. Therefore, the
challenge is facial and the normal Rule 12(b)(6) standard
Analysis 1. Re ...