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Kawai v. UaCearnaigh

United States District Court, D. South Carolina, Columbia Division

April 14, 2017

USHIO KAWAI, Plaintiff,




         Plaintiff filed this action to enforce an affidavit of support pursuant to the Immigration and Nationality Act, 8 U.S.C. § 1183a(a). The Court has jurisdiction over the matter under 28 U.S.C. § 1331. Pending before the Court is Defendant's motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) or, in the alternative, motion for summary judgment (Defendant's motion). Having carefully considered Defendant's motion, the response, the reply, the record, and the applicable law, the Court will grant Defendant's motion to dismiss under Rule 12(b)(1) to the extent it will abstain from exercising jurisdiction under the Younger abstention doctrine.


         The factual history of this case is substantially undisputed. Plaintiff is a citizen of Japan residing in the United States on a student visa. Defendant is a United States citizen. On August 10, 2013, Plaintiff and Defendant married, and they now have two children of the marriage, both born in the United States. In 2014, Plaintiff applied for permanent residency in the United States, securing Defendant to act as her sponsor. In support of Plaintiff's application, on March 21, 2014, Defendant completed and executed an I-864 Affidavit of Support (I-864 Affidavit). Pursuant to the I-864 Affidavit, Defendant committed to provide any support necessary to Plaintiff to ensure an income equal to at least 125% of the federal poverty line. Since the time of the sponsorship, Plaintiff has been a full-time graduate student seeking a Ph.D. Consequently, she is currently unemployed. The parties separated on or about June 28, 2016.

         At that time, Defendant brought an action in the Family Court for Richland County (Family Court Action), seeking to prevent Plaintiff from leaving the United States with his children. The Family Court held multiple hearings, which culminated in written instructions on October 17, 2016. These instructions, among other things, denied Plaintiff's request for temporary spousal support from Defendant.

         On November 22, 2016, Plaintiff filed a Petition to Remove Conditions on Residence by Form I-751 (I-751 Petition) with the United States Citizenship and Immigration Services (USCIS), wherein she acknowledged her conditional residency status and requested changes in the same. The USCIS extended her conditional resident status for one year, presumably until November 24, 2017.

         The Family Court then filed its Temporary Order on December 13, 2016, confirming its denial of Plaintiff's request for temporary spousal support from Defendant. The Family Court Action remains pending as the parties seek a divorce. The parties disagree regarding whether the I-864 Affidavit has been raised as a basis for support in the Family Court Action.

         Plaintiff subsequently filed this case seeking to enforce the I-864 Affidavit executed by Defendant under 8 U.S.C. § 1183a(a). Defendant then filed his motion to dismiss or in the alternative for summary judgment, to which Plaintiff filed her response in opposition and Defendant filed his reply. The Court, having been fully briefed on the relevant issues, is now prepared to discuss the merits of Defendant's motion.


         Federal courts have limited jurisdiction, possessing only that power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A motion to dismiss for lack of subject matter jurisdiction must be granted if the court lacks statutory authority at any time to hear and decide the dispute. Fed.R.Civ.P. 12(b)(1). A The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). If the defendant contends the pleading fails to allege facts upon which subject matter jurisdiction can be based, then 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. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1989). “In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court . . . may refer to evidence outside the pleadings.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).


         In Defendant's motion, he contends he is entitled to a dismissal of this action under both the Younger abstention doctrine and the Colorado River abstention doctrine due to the pending Family Court Action. Defendant, in support of his Younger abstention argument, avers the Family Court Action involves matters of support and property in the context of the parties' anticipated divorce and encompasses this action because the I-864 Affidavit is a contract for support entered into during the parties' marriage. Defendant stresses the Family Court has jurisdiction to consider the I-864 Affidavit in the context of determining support in the Family Court Action. Thus, Defendant seeks dismissal pursuant to Younger abstention due to the pending Family Court Action. Defendant also requests dismissal under Colorado River abstention because the Family Court and this Court exercise concurrent jurisdiction, and the factors weigh in favor of abstention. In addition, Defendant desires dismissal under 8 C.F.R. ' 213a.2(e)(2) because Plaintiff ostensibly has forfeited any right to rely upon the I-864 Affidavit in light of her I-751 Petition before the USCIS. Finally, Defendant urges dismissal under the pending action doctrine.

         Plaintiff disputes Defendant's assertions regarding Younger and Colorado River abstention, but fails to respond to Defendant's arguments for dismissal under ' 213a.2(e)(2) or the pending action doctrine. In Defendant's reply, he ...

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