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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Muhammad Nasir,

Plaintiff

 v.

Asfa Ahad Shah, et al.,

Defendants

:

:

:

:

:

Civil Action 2:10-cv-01003

Magistrate Judge Abel

Opinion and Order

This matter is before the Court on defendants Asfa Ahad Shah, Ahad Shah, and

Ismat Arrus Shah’s March 1, 2012 motion for summary judgment (doc. 40) and plaintiff

Muhammad Nasir’s March 1, 2912 motion for summary judgment (doc. 41).

I. Summary

In 2009, plaintiff Muhammad Nasir, a physician, sought legal entry into the

United States. For Nasir to obtain entry, his sponsors–his fiancé and her family–were

required to execute I-864 Affidavits of Support, contractually agreeing to provide Nasir

“any support necessary to maintain him . . . at an income that is at least 125 percent of

the Federal Poverty Guidelines for his . . . household size . . . .” Doc. 1-1, PageID # 12.

Nasir brings this lawsuit alleging that his now ex-wife Asfa Ahad Shah and her parents,

Ahad Shah and Ismat Arrus Shah, breached that contract.

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The affidavit of support is a requirement of 8 U.S.C. § 1183a. That statute

provides that a sponsor must agree “to provide support to maintain the sponsored alien

at an annual income that is not less than 125 percent of the Federal poverty line . . . .”

The purpose of the statute is to insure that the legal residents do not have to depend on

public benefits for their support. 8 C.F.R. § 213a.2(c)(2). To that end, the affidavit

provides that the sponsor’s “income and assets may be considered (‘deemed’) to be

available [to the intending immigrant] in determining whether he . . . is eligible for

certain Federal means-tested public benefits . . . .” Consequently, “household size

includes the sponsor, the sponsor’s spouse and all the sponsor’s children,” and

“household income . . . includes the income of the sponsor, and of the sponsor’s spouse

. . . .” 8 C.F.R. § 213a.

For the reasons stated more fully below, Nasir’s “household” for 2009 included

Asfa Ahad Shah, Ahad Shaw and Ismat Arrus Shah because they lived together, and his

household income for purposes of the statute and affidavit of support included his and

their income. For the first three months of 2010, Nasir and Asfa Shah lived together in

their own apartment. Since there is uncontroverted evidence that their 2009 income

exceeded 125% of the poverty level for a household of four and for the first three

months of 2010 that of a family of two, defendants did not breach their I-864 contract for

that time frame. Similarly, Nasir was a family of one for the remainder of 2010 and all of

2011, and his income for that period exceeded 125% of the poverty level for a household

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of one. There is insufficient evidence about his income for 2012 to determine whether

there was a breach of contract.

For the first three months of 2010, Nasir and Asafa Ahad Shah lived together in

their own apartment. 

II. Arguments of the Parties

A. Defendants’ Motion for Summary Judgment

Defendants argue that the doctrine of res judicata bars plaintiff’s affidavit of

support claim. According to defendants, the Decree of Divorce is a final state court

judgment between plaintiff and defendant Asfa Shah from which neither side appealed.

This action involves the same parties as the divorce action. Although Ms. Shah’s parents

are defendants in this action, their obligations end when Ms. Shah’s obligation ends.

Defendants argue that plaintiff could have litigated his Affidavit of Support claim in the

prior action because state courts have concurrent jurisdiction over I-864 affidavit of

support claims. Defendants further contend that the present action arises out of the

same transaction or occurrence that was the subject matter of the state court divorce

action. This action, like the divorce action, centers around plaintiff’s marriage to Asfa

Shah and their subsequent conflicts over economic and other matters. 

Defendants also argue that they are not liable to plaintiff under the affidavit of

support because he has been maintained at an income level of not less than 125% of the

relevant federal poverty line. 

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B. Plaintiff’s Response

Plaintiff argues that defendants are financially capable of providing plaintiff with

support. He maintains that they hold well-paying jobs and own various properties.

Defendants have previously sponsored three physician immigrants. Plaintiff maintains

that defendants’ lack of cooperation led to a difficult and protracted divorce intended to

torture plaintiff. Plaintiff was forced to borrow funds from friends and has incurred

severe debts. Plaintiff argues that the assets of his family are not relevant to this action.

The contract is between defendants and the United States. No one from plaintiff’s

family has visited the United States. Plaintiff has never been involved in his family’s

business or financial matters. Plaintiff’s family had no responsibility to pay his tuition. 

Since his arrival in the United States, plaintiff contends that he has only held joint

accounts with Asfa Shah. He has not received any money from his family. He argues

that defendants have attempted to confuse the Court by only highlighting deposits to

his account and not the withdrawals from one account to the other accounts of plaintiff.

He maintains that he has maintained just one back account since December 2011. 

Plaintiff further argues that money received from other sources cannot be used to

mitigate defendants’ responsibility. Plaintiff maintains that he has not received any

other income other than his wages from his employment at the Ohio State University.

His position at Ohio State University was eliminated. 

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Plaintiff maintain that the state domestic relations court told him to file a civil

action to enforce the I-864. He maintains that there are no cases where I-864 obligations

were dismissed on the basis of res judicata. 

Plaintiff maintains that defendants acknowledge that the household size was

four until April 2010. In 2009, plaintiff only earned $4,386.22, Plaintiff also has had loans

to repay. Plaintiff argues that the household size can only be changed if there is a noted

change in the situation, and defendants failed to file form I-865. 

Plaintiff argues that even if the household size changed, plaintiff has the right to

receive support at or above 125% of the poverty level. There is no maximum, and

plaintiff’s demand for $35,000.00 per year is reasonable.

III. Summary Judgment

Summary judgment shall be granted “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). A party asserting the absence or presence of a

genuine dispute must support that assertion by either “(A) citing to particular parts of

materials in the record, including depositions, documents, electronically stored

information, affidavits or declarations, stipulations (including those made for purposes

of the motion only), admissions, interrogatory answers, or other materials”; or “(B)

showing that the materials cited do not establish the absence or presence of a genuine

dispute, or that an adverse party cannot produce admissible evidence to support the

fact.” Fed. R. Civ. P. 56(c)(1).

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A party may object that the cited material “cannot be presented in a form that

would be admissible in evidence,” and “[t]he burden is on the proponent to show that

the material is admissible as presented or to explain the admissible form that is

anticipated.” Fed. R. Civ. P. 56(c)(2); Fed. R. Civ. P. 56 advisory committee’s note. If a

party uses an affidavit or declaration to support or oppose a motion, such affidavit or

declaration “must be made on personal knowledge, set out facts that would be

admissible in evidence, and show that the affiant or declarant is competent to testify on

the matters stated.” Fed. R. Civ. P. 56(c)(4).

While the court must consider the cited materials, it may also consider other

materials in the record. Fed. R. Civ. P. 56(c)(3). However, “[i]n considering a motion for

summary judgment, the district court must construe the evidence and draw all

reasonable inferences in favor of the nonmoving party.” Revis v. Meldrum, 489 F.3d 273,

279 (6th Cir. 2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986)). “The central issue is ‘whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so one-sided that one party

must prevail as a matter of law.’” Id., 489 F.3d at 279–80 (citing Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 251–52 (1986)).

V. Discussion

Under 8 U.S.C. § 1183a, immigrants who are likely to become a public charge are

ineligible for admission into the United States unless their applications for admission are

accompanied by an Affidavit of Support Form I-864. A person petitioning for the

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 Section 1183a(a)(1) of title 8 of the United States Code states: 

No affidavit of support may be accepted by the Attorney General

or by any consular officer to establish that an alien is not excludable

as a public charge under section 1182(a)(4) of this title unless such

affidavit is executed by a sponsor of the alien as a contract--

(A) in 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;

(B) that is legally enforceable against the sponsor by the sponsored

alien, the Federal Government, any State (or any political

subdivision of such State), or by any other entity that provides any

means-tested public benefit (as defined in subsection (e) of this

section), consistent with the provisions of this section; and

(C) in which the sponsor agrees to submit to the jurisdiction of any

Federal or State court for the purpose of actions brought under

subsection (b)(2) of this section.

8 U.S.C. § 1183a 

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admission of a family-sponsored immigrant must sign a Form I-864 affidavit, which is a

legally enforceable contract between the sponsor and the sponsored immigrant. By

signing the affidavit, 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. 8 U.S.C. § 1183a(a)(1)(A).1

To determine whether damages are appropriate, courts compare the plaintiff’s

annual income for the particular years at issue against the 125% poverty threshold for

each particular year rather than the aggregate income for the entire period. Any wages

earned by the plaintiff during the years in question will mitigate the defendants’

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obligation under the affidavit. See Younis v. Farooqi, 597 F. Supp. 2d 552, 556 (D. Md.

2009). 

Plaintiff argues that he is entitled to the 125% of the federal poverty line for a

household of four. Although plaintiff was initially a member of a four person household,

plaintiff is not entitled to 125% of the poverty level for the original household size:

Not only would the Plaintiff be placed in a better position than had the

breach not occurred, but such an interpretation would have a higher

potential of depleting the sponsor’s income through support obligations to

the sponsored alien alone, leaving other family members living below the

poverty level and likely to become public charges. This was surely not

Congress’s intent. 

Stump v. Stump, No. 1:04-CV-253-TS, 2005 WL 2757329 at * 6 (N.D. Ind. Oct. 25, 2005). 

Additionally, plaintiff appears to suggest that he is entitled to a net gain of 125%

of the Federal poverty guideline. Because plaintiff has debts which he must pay, he

believes that he is entitled to money to offset those debts in addition to an amount

equaling 125% of the federal poverty guideline. This is a fundamental misunderstanding

of the statute. Plaintiff is not entitled to a sum of money that equals 125% of the federal

poverty level after taking into account his debts or loans. The purpose of the statute is

not to provide for the sponsored alien’s financial security or to enable him to incur debt

and pay it back. The purpose of 8 U.S.C. § 1183a is to insure that the legal residents do

not have to depend on public benefits for their support. 8 C.F.R. § 213a.2(c)(2). Plaintiff is

entitled to be maintained at 125% of the federal poverty level, and no more. 

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Plaintiff further argues that he is entitled to support for his educational debt

because the statute provides that he is entitled to “at least 125% “ of the poverty level.

There is no case law supporting that position. The literal language of the status binds the

person petitioning the admission of a family-sponsored immigrant to provide support 

in the amount of 125% of the poverty level. The petitioner may provide more support

than that, but in line with the statutory purpose to avoid the alien becoming a public

charge the additional money does not reduce his support obligation for succeeding

years. 

From January through November 2009, plaintiff and Asah lived with her parents.

In December 2009 to March 2010, plaintiff and Asah had an apartment together. In

March 2010, Asah moved out of the apartment she shared with plaintiff. After March

2010, plaintiff’s household size was reduced to one. In 2009, Ahad Shah earned $25,814.

In 2009, Ismat Arrus Shah earned $23,562.85, and Asfa Sha earned $18, 193. 75. As a

result, the household income for 2009 was well over $27,562.00. Plaintiff is not entitled to

any compensation for 2009. 

Plaintiff maintains that the Court is only supposed to take into account his

earnings when considering whether he was maintained at 125% of the poverty level.

Plaintiff argues that in 2009, he only earned $4,386.22 and 125% of poverty level for a

family of four was $27,562. As a result, plaintiff maintains that he is entitled to the

difference between what he personally earned ($4,386.22) and $27,562.00 in addition to

$14,210.00 for loans that he paid. Household income means the income of all members of

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Section 213a.1 of title 8 of the Code of Federal Regulations defines household

income:

Household income means the income used to determine whether

the sponsor meets the minimum income requirements under

sections 213A(f)(1)(E), 213A(f)(3), or 213A(f)(5) of the Act. It includes

the income of the sponsor, and of the sponsor's spouse and any other

person included in determining the sponsor's household size, if the spouse

or other person is at least 18 years old and has signed the form designated

by USCIS for this purpose, on behalf of the sponsor and intending

immigrants. The “household income” may not, however, include the

income of an intending immigrant, unless the intending immigrant is

either the sponsor's spouse or has the same principal residence as the

sponsor and the preponderance of the evidence shows that the intending

immigrant's income results from the intending immigrant's lawful

employment in the United States or from some other lawful source

that will continue to be available to the intending immigrant after

he or she acquires permanent resident status. The prospect of

employment in the United States that has not yet actually begun

will not be sufficient to meet this requirement.

8 CFR § 213a.1 (Emphasis added.) 

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the household.2 Plaintiff’s assertion that he personally is entitled to $27,562.00 is without

merit. 

Plaintiff’s assertion that he was “abused financially” is irrelevant. Plaintiff

complains that he was forced to pay rent when he and Asfa stayed with her parents in

2009. Plaintiff was also forced to make payments on Asfa’s student loans and credit

cards with his money. The fact remains that in 2009, the household was supported at

income far surpassing 125% of the federal poverty guideline. Disagreements as to how

the household income was allocated is beyond the scope of the I-864 contract and

irrelevant to plaintiff’s claim.

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Defendants have submitted evidence demonstrating that plaintiff was maintained

at 125% of the Federal poverty guidelines for the years 2009 through 2011:

Year Household Size Federal

Poverty

Guideline

125% of Federal Poverty

Guideline

Household

income

2009 (Jan. - Nov.) 4 

(Dec.) 2

$22,050.00

$14,570.00

$27,562.50

(11 months = $25,265.63)

$18,212.50

(1 month = $1,517.71)

$71,956.82

2010 (Jan. - Mar.) 2

(Mar. - Dec.) 1

$14,570

$10,830

$18,212.50

(3 months = $4,553.13)

$13,537.50

(9 months = $$10,153.13)

$16,614.62

(Plaintiff’s

income. See

doc. 39-2 at

25.)

$21,285.16

(Asah)

2011 1 $10,890 $13,612.00 $18,949.99

(See 36-1 at 1.)

Defendant also submitted plaintiffs’ bank statements as purported evidence of financial

support from family and/or friends. The bank statements by themselves are not

sufficient to demonstrate that Plaintiff received additional income. In his deposition,

plaintiff testified that he received approximately $6,000 from a friend, but he maintained

that he was loaned the money and was required to pay it back. Doc. 39-1 at p. 14, pl’s

dep. 50:2-53:18. Defendants have not offered any evidence linking specific deposits or

amounts reflected on the bank statements with specific sources from which plaintiff may

have received income. 

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With respect to the year 2012, defendants maintain that plaintiff has already

received $9,076.26. For 2012, 125% of Federal poverty guideline equals $13,962.50.

Defendants, however, do not point to any evidence in the record to demonstrate that

plaintiff has received $9,076.26 in income. 

Defendants’ argument that plaintiff’s claim is barred on the basis of res judicata is

without merit. Whether or not plaintiff sought or was entitled to spousal support is

irrelevant to defendants’ obligation to maintain plaintiff at 125% of the Federal poverty

guideline. While it is true that spousal support would have offset any amount that was

due to plaintiff under I-865, plaintiff is still entitled to attempt to enforce the I-864

Because plaintiff was maintained at an income above 125% for the years 2009

through 2011, defendants’ motion for summary judgment is GRANTED in part.

Plaintiff’s claim for support based on 2012 remains pending. Plaintiff Muhammad

Nasir’s March 1, 2912 motion for summary judgment (doc. 41) is DENIED.

s/ Mark R. Abel 

United States Magistrate Judge 

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