dismissed EB-1A Case: Journalism

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FILE: 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington. DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
Office: TEXAS SERVICE CENTER DatJ)CT 2 0 2010 
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. § I I 53(b)(I)(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 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 may 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 originally decided your case by filing a Form 1-290B, Notice of Appeal or 
Motion. The fee for a Form 1-2908 is currently $585, but will increase to $630 on November 23,2010. 
Any appeal or motion filed on or after November 23, 20 I 0 must be filed with the $630 fee. Please be 
aware that 8 C.F.R. § 103.5(a)(I)(i) requires that any motion must be filed within 30 days of the decision 
that the motion seeks to reconsider or reopen. 
Thank you, 
)1t:1JJdn~ (l Perry Rhew 
If Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied this employment-based immigrant 
visa petition on February 11, 2009. The petitioner filed a motion to reopen and reconsider on 
March 16,2009 and the Director, Texas Service Center, denied the motion on March 30, 2009. 
The petitioner filed an appeal on April 29, 2009. The Administrative Appeals Office (AAO) 
dismissed the petitioner's appeal of that decision on October 19,2009. The matter is again before 
the AAO on a motion to reopen and a motion to reconsider. The motions will be dismissed, the 
previous decision of the AAO will be affirmed, and the petition will remain denied. 
The petitioner is seeking to reopen the AAO's October 19,2009 summary dismissal. On motion, 
rather than addressing the AAO's decision, the petitioner attempts to address the director's 
decision, stating that the "director erred by misapplying discretionary authority without 
considering material facts." The petitioner then generally asserts that the petitioner "meets more 
than three criteria pursuant to 8 C.F.R. § 204.5(h)(3)." The petitioner submits additional 
documentation but does not specify to which of the regulatory criteria the evidence purportedly 
applies. On motion, the petitioner submitted the following documentation: 
1. 
2. 
3. 
4. 
5. 
6. 
7. 
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 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. I 
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). All evidence submitted was previously available 
and could have been discovered or presented in the previous proceeding. The petitioner's motion is 
not an opportunity for the petitioner to correct his own defects in the record. The AAO notes that 
some of the evidence . tted on motion is duplicative of previously submitted evidence such as 
the article about the daily. It is further noted that the petitioner has submitted 
evidence with this motion that was originally requested by the director in a request for additional 
evidence (RFE) dated October 29, 2008. For instance, the petitioner submitted evidence of the 
I The word "new" is defined as "1. having existed or been made for only a short time ... 3. Just 
discovered, found, or learned <new evidence> .... " WEBSTER'S II NEW RIVERSIDE UNIVERSITY 
DICTIONARY 792 (1984)( emphasis in original). 
Page 3 
circulation of the Nepalese media in which the articles submitted were published, as previously 
requested by the director in his RFE. Matter of Soriano 19 I&N Dec. 764 (BIA 1988), held that a 
petitioner may be put on notice of evidentiary requirements by regulations, written notice such as a 
request for additional documentation or a notice of intent to deny. As the petitioner was previously 
put on notice and provided with reasonable and numerous opportunities to provide the required 
evidence, the cumulative and repetitive evidence submitted on motion will not be considered "new" 
and will not be considered a proper basis for 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. With the current 
motion, the petitioner has not met that burden. The motion to reopen will be dismissed. 
In the motion to reconsider, the petitioner reiterates the same arguments made in the motion 
before the director and on appeal. 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 U.S. Citizenship and Immigration 
(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). 
A motion to reconsider cannot be used to raise a legal argument that could have been raised 
earlier in the proceedings. 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 may 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. 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. See 
Matter of Medrano, 20 I&N Dec. 216, 219 (BIA 1990, 1991). 
In this case, the petitioner failed to support his motion with any legal argument or precedent 
decisions to establish that the decision was based on an incorrect application of law or USCIS 
policy. The motion to reconsider 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. 
ORDER: The motion to reopen and the motion to reconsider are dismissed, the decision of the 
AAO dated October 19, 2009, is affirmed, and the petition remains denied.