dismissed EB-1A Case: Hockey

DATE: DEC 1 72012 
IN RE: Petitioner: 
Beneficiary: 
Office: NEBRASKA SERVICE CENTER 
U.S. Department of Homeland Sccurit)' 
u.s. Citizenship and immigration Service~ 
Administrative Appeals Office (AAO) 
20 Massachusetts Avc., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.c. § 1153(b)(1)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this 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 he made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form 1-29013, Notice of Appeal or Motion, with a fcc of S630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~r~ 
Vir- ~ 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, California Service Center, initially granted the employment-based 
immigrant visa petition on October 9, 20lH. On September 10, 2010, the Director, Nebraska Service 
Center (the director), issued a notice of intent to revoke (NOIR) the approval of Form 1-140, the 
Immigrant Petition for Alien Worker. In a Notice of Revocation (NOR), dated October 19,2010, the 
director ultimately revoked the approval of the petition. On appeal, the Administrative Appeals Office 
(AAO) affirmed the director's adverse decision on the petition on May 1, 2012. The matter is now 
before the AAO on a motion to reopen. l The motion will be dismissed. The previous decision of the 
AAO will be affirmed, and the petition will remain denied. 
Regarding motions to reopen or reconsider, 8 C.F.R. § I 03.5(a)(1 )(ii) states in relevant part: "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 May 1, 2012 decision 
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. In addition, to properly file a motion, 
the regulation at 8 C.F.R. § 103.5(a)(l)(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 
Immigration Services (US CIS) to dismiss the motions. See 8 C.F.R. § 103.5(a)(4). 
Notwithstanding the fatal defect noted above, the AAO will consider the motion to reopen and the 
purported new evidence. However, 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)(citinglNS v. Ablldll, 485 U.S. 94 
(1988)). A party seeking to reopen a proceeding bears a "heavy burden." INS v. Ahlldll, 485 U.S. at 
110. 
As an initial matter, the record reflects that the petitioner is represented by a new counsel on the 
motion currently before the AAO. In the brief supporting the motion, petitioner's current counsel 
asserts that the petitioner suffered prejudice and would have been able to establish her eligibility as 
an alien of extraordinary ability pursuant to section 203(b)(1)(A) of the Immigration and Nationality 
Act (the Act), 8 U.S.c. § 1153(b)(I)(A), but for the ineffective assistance of her former counsel. An 
alien making an ineffective assistance of counsel claim must comply with the requirements sct forth by 
the Board of Immigration Appeals (BIA) in Matter of Lozada, 19 I&N Dec. 037 (BiA 1988). The 
I On May 31, 2012, counsel submitted a brief titled "Petitioner's Motion to Reopen Revocation of Her 
Immigration Petition for Alien Worker (Form 1-140)" (hereforth "brief in support of the motion") and also 
submitted a second brief titled "Respondent's Motion to Accept Supplemental Brief' (herefOith 
"supplemental brief'). The AAO will consider all arguments and evidence submitted along with both briefs 
collectively as part of one motion that is currently before the AAO. 
Page 3 
Lozada decision requires the submission of: 
1. An affidavit setting forth in detail the agreement with former counsel concerning what action 
would be taken and what counsel did or did not represent in that regard; 
2. Proof that the alien notified former counsel of the allegations in the ineffective assistance of 
counsel claim and allowed counsel an opportunity to respond; and 
3. If a violation of ethical or legal responsibilities is claimed, a statement as to whether the alien 
has filed a complaint with the disciplinary authority regarding counsel's conduct or, if a 
complaint was not filed, an explanation for not doing so. 
Matter of Lozada, 19 I&N at 639. While counsel for the petitioner acknowledges that a claim of 
ineffective assistance of counsel must comply with the procedural requirements of Lozada and correctly 
outlines those requirements in the brief supporting the motion, counsel makes no effort to comply with 
them. Instead, counsel states that once petitioner is: "given the opportunity to investigate, if 
appropriate, will seek to supplement this motion to reopen with a detailed affidavit, as well as inform 
former counsel of such allegations, in order to comply with the criteria for ineffective assistance of 
counsel set out by the BrA in Matter of Lozada." The procedural requirements need to be met at the 
time the motion to reopen is submitted. The intent to meet the requirements at a subsequent time is 
insufficient. The BIA reasoned that the high procedural standard is necessary to have a basis for 
assessing the substantial number of claims of ineffective assistance of counsel and where essential 
information is lacking, it is impossible to evaluate the substance of such a claim. See Matter oJLozada, 
19 I&N at 639. The petitioner's inetTective assistance of counsel claim, because it fails to meet all three 
procedural requirements, cannot be a basis for reopening. Moreover, while counsel focuses on prior 
counsel's failure to provide translations that comply with 8 C.P.R. ~ 103.2(b)(3), the absence of 
qualifying translations was not the AAO's sole basis for concluding that the evidence did not establish 
the petitioner'S eligibility under the various criteria. 
A motion to reopen, furthermore, 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 meaning 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.' Counsel fails to explain why any of the evidence submitted with 
this motion could not have been discovered or presented in the previous proceeding. The petitioner has 
been afforded at least three opportunities to submit this evidence: at the time of the original petition 
filing on June 4, 20m, in response to the director's September 10, 2010 NOIR, and at the time she filed 
the appeal on November 3, 2010. A review of the evidence that counsel submits on motion reveals no 
2 The word "new" is defined as "1: having recently come into existence: RICI,\I, 'I(lP! " 2a (I) : having 
been seen, used, or known for a short time : :\ov I' I <rice was a new crop for the area> ." 
http://www.mcrriam-lVcbstcLcom!di<;tiol1arv!nc\V, accessed on November 13, 2012. 
Page 4 
fact that could be considered "new" under 8 C.F.R. § 103.5(a)(2) and, therefore, cannot be considered a 
proper basis for a motion to reopen. 
Along with the motion, counsel has submitted two documents issued from the Armenian Hockey 
Federation: (1) a document stating that the petitioner played and competed at the highest level since 
1980 and noting that in 1985 she won the highest team voucher; (2) a document stating that the 
petitioner, following her 1985 graduation from the Yerevan State Institute of Physical Culture, was 
appointed as an Assistant Coach and from 1997 to 1999, prepared high class players at the Track and 
Field School as a trainer. Given that 1999 is the most recent year to which the evidence refers, 
counsel's failure to explain why this evidence was previously unavailable undermines any claim that 
the two documents are "new" evidence. 
Moreover, while counsel maintains that there is sufficient evidence for the petitioner to meet three of 
the ten regulatory requirements outlined in 8 CF.R. § 204.5(h)(3), such evidence was not submitted 
along with the motion to reopen. A motion to reopen must meet the requirements of a motion to 
reopen when filed. While the regulation at 8 CF.R. § 103.3(a)(2)(vii) allows a petitioner to supplement 
an appeal, no similar provision allows a petitioner to supplement a motion. The AAO will not reopen a 
matter for the purpose of awaiting more evidence. Thus, counsel's request that the AAO reopen the 
matter to afford another opportunity to submit qualifying translations is not a proper basis for a 
motion to reopen. 
For all the reasons discussed above, the motion to reopen will be dismissed. 
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 motion is dismissed, the AAO's May 1, 2012 decision is affirmed, and the petition 
remains denied.