dismissed EB-1A Case: Athletics

(b)(6)
DATE: Office: NEBRASKA SERVICE CENTER 
APR 2 3.2013 
INRE: Petitioner: 
Beneficiary: 
,U.S. J)epartJil.eilt ~f.Home.limdS~curity 
U.S. Citizenship and Immigration Services 
A_dministrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship · 
and I_mmigration 
Services · 
( 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals· Office in your case. All of the documents 
related tothis matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your. case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you inay file a motion to reconsider or a motion to reopen. , The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originall·y decided your case by filing a Form I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F~R § 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
){IJWrVJ.u . , . 
~ Ron Rosenberg · . 
[(Acting Chief, Administrative Appeals Office 
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.. 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based irtunigrant visa 
petition on Aprilll, 2012. · On October 22, 2012, the Administrative Appeals Office (AAO) summarily 
dismissed the appeal because the petitioner failed to identify specifically any erroneous conclusion of · 
law or statement of fact for the appeal. The matter is now before the AAO on a motion to reopen or 
reconsider. The motions will be dismissed. The previous decision of the AAO will be affimied, and 
the petition will remain denied. · 
Regarding motions to reopen or reconsider, 8 C.F.R. § 103.5(a)(l)(ii) states in relevant pai:t: "The 
official having jurisdiction is the official who made· the latest decision in the proceeding unless the 
affected party moves to a new jurisdiction." The latest decision was the AAO's October 22, 2012 
decision summarily dismissing the appeal. Therefore, a review of any claims or assertions that the 
petitioner's motion raises is limited in scope and is restricted to the AAO's prior decision. Jn addition, 
to properly file a motion, the regulation at 8 C.F.R. § 103.5(a)(1)(iii) requires that the motion must be 
"[a]ccompanied by a statement about whether or not the validity of the unfavorable decision has been or 
is the subject of any judicial proceeding and, if so, the court, nature, date, and status or result of the 
proceeding." Furthermore, the regulation at 8 C.F.R. § 103.5(a)(4) requires that "[a] motion that does 
not meet applicable requirements shall be dismissed." In this case, the petitioner failed to submit a 
statement regarding whether the validity of the AAO's decision has been, or is, the subject of any 
judicial proceeding. The regulation mandates that this shortcoming alone requires U.S. Citizenship and 
Imffiigration Services (USCIS) to dismiss the motions. See 8 C.F.R. § 103.5(a)(4). 
Notwithstanding the fatal defect noted above, the AAO will consider the petitioner's motion and 
accompanying evidence. To the extent that the petitioner intends the current motion to be a motion to 
reconsider, a motion to reconsider must state the reasons for reconsideration and be supported by any 
pertinent precedent decisions to establish that the decision was based on an incorrect application of law 
or USCIS policy. 8 C.F.R. § 103.5(a)(3). A motion to reconsider contests the correctness of the 
original decision based on the previous factual record, as opposed to a motion to reopen which seeks 
a new hearing based on new or previously unavailable evidence. See Matter of Cerna, 20 I&N Dec. 
399, 403 (BIA 1991). 
Moreover, a motion to reconsider cannot be used to raise a legal argument that could have been 
raised earlier in the proceedings. See Matter of Medrano, 20 I&N Dec. 216, 220 (BIA 1990, 
1991). Rather, the "additional legal arguments" that may be.raised in a motion to reconsider should 
flow from new law or a de novo legal determination reached in its decision that · could not have been 
addressed by the party. · Further, a motion to reconsider is not a process by which a party may 
submit, in essence, the same brief presented on appeal and seek reconsideration by generally alleging 
error in the prior decision. Matter of 0-S-G-, 24 I&N Dec. 56, 58 (BIA 2006). Instead, the moving 
party must specify the factual and legal issues raised on appeal that were decided .in error ·or 
overlooked in the initial decision or must show how a change in law· materially affects the prior 
decision. /d. at 60. 
In the present motion to reconsider, counsel fails .to identify legal errors in the AAO's October 22, 
2012. Moreover, the statement accompanying tl)e Form I-290B fails to reference or mention the 
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Page3 
AAO's previous decision. lristead, counsel attempts to raise for the first time legal arguments that 
go toward the merits of the underlying 1-140 petition., Counsel could have presented all of the legal 
arguments previously, as the motion does not identify any change in law since the AAO's prior 
decision. As noted above, a motion to reconsider must include specific allegations as to how the 
AAO erred as a matter of fact or law in its prior decision, and it must be supported by pertinent legal 
authority. 8 C.F.R. § 103.5(a)(3); see Matter of Medrano, 20 I&N at 219; Matter ofO-S-G-; 24 I&N 
Dec. at 58-60. Accordingly, the motion to reconsider will be dismissed. · 
To the extent that the petitioner intends the current motion to be. a motion to reopen, motions for the 
reopening of immigration proceedings are disfavored for the same reasons as are petitions for rehearing 
and motions for a new trial on the basis of newly discovered evidence. INS v. Doherty, 502 U.S. 314, 
323 (1992)(citing INS v. Abudu, 485 U.S. 94 (1988)). A party seeking to reopen a proceeding bears a 
''heavy burden." INS v. Abudu, 485 U.S. at 110. A motion to reopen must state the new facts to be 
provided and be supported by affidavits or other documentary evidence. 8 C.F:R. § 103.5(a)(2). 
Based on the plain me~g of "new," a new fact is found to be evidence that was not available and 
could not have been . discovered or presented in the previous proceeding.1 Along with the motion, 
counsel submits some. previously submitted evidence in addition to new articles, including online 
articles, which are dated from December 2011 through September 2012.· Counsel also mentions the 
petitioner's and the 
The AAO's October 22, 2012 decision specifically found that the petitioner could 
not rely on awards based on the 2011-2012 season and articles that post-date his filing deadline of 
January 2011. See 8 C.F.R. §§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l 
Comm'r 1971). · · 
lri conclusion, a review of the evidence that the petitioner submits on motion reveals no fact that could 
be considered "new" under 8 C.F.R. § 103.5(a)(2), or is otherwise excludable, and, therefore, cannot be 
considered a proper basis for ;:t motion' to reopen. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the 
Act, 8 U.S:C. § 1361. Here, the petitioner has not sustained that burden. Accordingly, the motion will 
be dismissed. 
ORDER: The motions are dismissed, the AAO's October 22, 2012 decision is affirmed, and the 
petition 
remains denies. 
· 1 The word "new" is defmed as "1: having recently rome into existence: RECENT, MODERN •. 2a (1): having 
been seen, used, or known for a short time: NOVEL <rice was a new crop for the area>." 
http:Uwww.merriam-webster.com/dictionary/new, accessed on April2, 2013.