dismissed EB-1A Case: Music

U.S. Department of fIomeland Security 
U S Clt~zenshlp and Imm~grat~on Serwces 
If.. -A,- 
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 Office of Adm~nlstratlve Appeals 
pre~""~ C1c;;.b '-1. . ., i -. ..:d 
Wash~ngton, DC 20529-2090 
invasion of personal privacy 
 U.S. Citizenship 
and Immigration 
X1, 
Office: NEBRASKA SERVICE CENTER Date: MAR 1 7 2009 
LIN 06 267 52541 
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. 6 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 
 103.5(a)(l)(i). 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks classification as an "alien of extraordinary ability" in the arts, pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), .8 U.S.C. $ 1153(b)(l)(A). The director 
determined the petitioner had not established the sustained national or international acclaim necessary 
to qualifL for classification as an alien of extraordinary ability. 
On appeal, counsel submits a brief and an additional letter of recommendation. For the reasons 
discussed below, the petitioner has not overcome the director's valid and well-reasoned concerns. 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority workers. -- Visas shall first be made available . . . to qualified immigrants who are 
aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this subparagraph if -- 
(i) the alien has extraordinary ability in the sciences, arts, education, 
business, or athletics which has been demonstrated by sustained national or 
international acclaim and whose achievements have been recognized in the 
field through extensive documentation, 
(ii) the alien seeks to enter the United States to continue work in the area of 
extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit 
prospectively the United States. 
U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization Service 
(INS) have consistently recognized that Congress intended to set a very high standard for individuals 
seeking immigrant visas as aliens of extraordinary ability. See 56 Fed. Reg. 60897,60898-9 (Nov. 29, 
1991). As used in this section, the term "extraordinary ability" means a level of expertise indicating 
that the individual is one of that small percentage who have risen to the very top of the field of 
endeavor. 8 C.F.R. tj 204.5(h)(2). The specific requirements for supporting documents to establish that 
an alien has sustained national or international acclaim and recognition in his or her field of expertise 
are set forth in the regulation at 8 C.F.R. 5 204.5(h)(3). The relevant criteria will be addressed below. 
It should be reiterated, however, that the petitioner must show that he has sustained national or 
international acclaim at the very top level. 
This petition seeks to classify the petitioner as an alien with extraordinary ability as a violinist and 
violin instructor. The petitioner is a member of the faculty at Peabody Institute of Music, Johns 
Hopkins University. The regulation at 8 C.F.R. $204.5(h)(3) indicates that an alien can establish 
sustained national or international acclaim through evidence of a one-time achievement (that is, a 
major, international recognized award). Barring the alien's receipt of such an award, the regulation 
outlines ten criteria, at least three of which must be satisfied for an alien to establish the sustained 
acclaim necessary to qualifjr as an alien of extraordinary ability. The petitioner has submitted evidence 
that, he claims, meets the following criteria.' 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 
The petitioner received a Prix du Conservatoire for the 1997-1 998 academic year issued by the Quebec 
Conservatoire de Musique et d'Art Drarnatique where the petitioner received his Master's degree. In 
addition, in 2002 the petitioner received a $7,500 Presser Music Award based on the petitioner's 
nomination by his institution and the Presser Foundation's approval of the petitioner's plan for "the 
constructive use of these Award funds." The letter advising the petitioner of the Presser Music Award 
also refers to it as a "stipend." Materials submitted about Theodore Presser reveal that the Presser 
Music Award is limited to students. 
The record contains two Certificates of Distinction from the French Ecoles D'Art Americaines 
Conservatoire Americain, Palais de Fontainebleau. The certificates identify the petitioner as a 
participant in the school during the surnmer sessions of 2000 and 2001. In 2000, the petitioner received 
scholarships from the Quebec Organization for Youth and the Peabody's Career Development Fund to 
pay the registration fees for the summer program at the Conservatoire Americain in Fontainebleau. 
The petitioner also received the Theodore A. Martin Violin Scholarship from the Peabody Institute to 
attend that institution. 
Finally, in 1998, upon graduation from the Quebec Conservatory, the petitioner received a scholarship 
from the alumni association, which requires the receipt of both the Prix du Conservatoire and the 
Diplome d7Etudies Superieures 11, which the translation equates to a Master's degree. 
On June 13, 2007, the director requested evidence as to the criteria, scope and nature of the above 
competitions and noted that competitions restricted to youth or students cannot serve to demonstrate 
that the petitioner is at the top of his field, including the most experienced and renowned members of 
the field. In response, counsel asserted that while each award individually may not indicate national or 
international acclaim, the awards in the aggregate serve to meet this criterion. The petitioner submitted 
a June 3,2007 Excellence in Teaching honor from the Peabody Institute. 
1 
 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this 
decision. 
Page 4 
The director concluded that the awards submitted initially were academic or student awards and that the 
teaching award submitted subsequently postdated the filing of the petition and, thus, could not be 
considered. In reaching this decision, the director relied on Matter of Katigbak, 14 I&N Dec. 45, 49 
(Reg'l. Comm'r. 1971). 
On appeal, counsel asserts that not all students at the Conservatoire de Musique in Quebec receive the 
Prix du Conservatoire and that the judges of the competition for this award are independent of the 
conservatory. Finally, counsel asserts that the Excellence in Teaching award, while issued after the 
petition was filed, was in recognition of qualities the petitioner possessed at that time and that its 
significance is not diminished by being limited to faculty at a preeminent institution. 
Counsel is not persuasive. The pool of candidates for the Prix du Conservatoire is limited to graduating 
students at the Conservatoire de Musique. As the most experienced and renowned members of the 
field do not compete for this award, it cannot serve to demonstrate that the petitioner is within the small 
percentage at the top of his field. Similarly, the most experienced and renowned members of the field 
do not compete for scholarships and, thus, they cannot serve to meet this criterion. 
The regulation requires evidence of the "alien's receipt" of qualifying prizes or awards, not merely 
eligibility for such a prize or award. It remains, the teaching award postdates the filing of the 
petition. The director correctly cited Matter of Katigbak, 14 I&N Dec. at 49. See also 8 C.F.R. 
$5 103.2(b)(l), (12). We cannot "consider facts that come into being only subsequent to the filing of 
a petition." Matter of Izummi, 22 I&N Dec. 169, 176 (Comm'r. 1998) citing Matter of Bardouille, 
18 I&N Dec. 1 14 (BIA 198 1). Regardless, while the Peabody Institute may be a prestigious 
institution, a teaching award limited to teachers at the institute cannot serve to meet this criterion. 
In light of the above, the petitioner has not established that he meets this criterion. 
Documentation of the alien S membership in associations in the field for which classification is 
sought, which require outstanding achievements of their members, as judged by recognized national 
or international experts in their disciplines or$elds. 
The petitioner initially submitted evidence of his membership in the Society of Pi Kappa Lambda and 
the College Music Society (CMS). While the director failed to raise concerns about these memberships 
in the request for additional evidence, counsel's appellate brief does not challenge the director's 
conclusion, based on Internet research, that the petitioner did not establish that either society requires 
outstanding achievements of its members. Thus, we reaffirm the director's conclusion that the 
petitioner has not established that he meets this criterion. 
Page 5 
Published material about the alien in professional or major trade publications or other major 
media, relating to the alien's work in the field for which classlJication is sought. Such evidence 
shall include the title, date, and author of the material, and any necessary translation. 
The petitioner submitted a press release and announcements in what appears to be a local Annapolis 
paper, The Strad and a Peabody Conservatory Office of Career Counseling and Placement newsletter 
regarding the selection of several new musicians, including the petitioner, to positions with the 
Annapolis Symphony Orchestra (ASO). The petitioner also submitted an article in the Washington 
Post about a competition at the Kennedy Center which mentions that the Peabody Quartet presented the 
premiere of the winning composition. This article does not mention the petitioner by name. The 
petitioner also relies on schedules of events listing upcoming performances by the petitioner included in 
Johns Hopkins' Gazette, the information bulletin of the Gatineau Music Conservatory and the Fairfax 
County Public Library's newsletter. The record includes a brief acknowledgement of a St. Benit-Abbe 
Church concert that included the petitioner posted on b The petitioner did not 
submit evidence suggesting that website can e cons1 ere a publication or other major 
media. 
A 2002 review in the Washington Post praises a concert by five students of the Conservatoire 
Americain Fontainebleau. The petitioner was named in this review. A 2002 edition of Fontainebleau's 
alumni bulletin contains a photograph of the French Ambassador to the United States with several 
Fontainebleau students, including the petitioner. A 2001 edition of the same publication has a 
photograph of the petitioner receiving a prize at the conservatory. The petitioner is not identified by 
name in this publication. The petitioner also relies on a promotion of the petitioner's upcoming concert 
at the Universite Lava1 in the school's own newsletter and a press release promoting the same event by 
the university. The record also contains a review of a concert by the Conservatoire Arnericain 
Fontainebleau in La Republique de Seine-et-Marne that does not mention the petitioner by name. A 
1996 article in Le Soleil discusses a tour by 75 students of Quebec's conservatories. The petitioner is 
quoted in this article. Finally, one of the more than 1,000 citations contained in "The Violin: A 
Research and Information Guide" cites to the petitioner's Ph.D. dissertation, which appears to be 
unpublished. 
The director requested evidence as to the importance of the publications covering the petitioner. In 
response, counsel asserts that the petitioner is now providing information about three of the 
publications and notes that, after the date of filing, AS0 concerts were reviewed in the Baltimore Sun. 
Counsel requested that the director "consider the extent to which [the petitioner's] performances and 
music have been referred to in other media sources. The above references to the newspapers [are] U. 
addition to other websites and forums that reference and report on him and his various exulted 
performances." (Emphasis in original.) 
The petitioner submitted March 23, 2007 and April 20, 2007 reviews of an AS0 performance in the 
Baltimore Sun. One review devotes a single sentence to the petitioner while the other does not mention 
him at all. Both reviews postdate the filing of the petition. AS0 concerts were also reviewed after the 
Page 6 
date of filing in the Washington Post and Hometown Annapolis. Neither review mentions the petitioner 
by name. 
The petitioner also submits evidence that the circulation of the Washington Post is 71 5,181 on 
weekdays, 660,182 on Saturdays and 983,243 on Sundays and that the weekly circulation of Quebec's 
Le Soleil is 61 8,982. Other information about Se Soleil reveals that it is primarily a Quebec newspaper. 
The information about Le Soleil is all from the collaborative online encyclopedia, wikepedia2 
Reliance on Wikipedia is inappropriate. See Badasa v. Mukasey, 540 F. 3d 909 (gth Cir. 2008). The 
petitioner also submitted general information about the Baltimore Sun that does not provide circulation 
numbers or whether the paper enjoys a significant national distribution. 
The director concluded that the materials were not primarily about the petitioner, noting that several of 
them failed to mention him at all. The director also concluded that some of the publications were 
institutional or regional and, thus, could not be considered major media. The director acknowledged 
that the Washington Post is nationally circulated, but concluded that the petitioner had not 
demonstrated that the reviews appeared in a nationally circulated section of that paper. Regardless, the 
director noted that one review in this paper did not mention the petitioner at all and that the other was 
not "about" him as required by the regulation at 8 C.F.R. 5 204.5(h)(3)(iii). Finally, the director noted 
that the articles submitted in response to the request for additional evidence were not about the 
petitioner and, regardless, postdated the filing of the petition and, therefore, could not be considered. 
See 8 C.F.R. 5s 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. at 49. 
On appeal, counsel asserts that the only reviews for a classical musician performing in an orchestra will 
be reviews of the entire performance. Counsel fin-ther asserts that the materials are, in fact, about the 
petitioner (including those materials that do not mention him by name) in addition to also being about 
the performance as a whole. Finally, counsel asserts that both Washington Post reviews appeared in the 
nationally circulated portion of the paper. The unsupported assertions of counsel do not constitute 
evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of Laureano, 19 I&N 
Dec. 1,3 n.2 (BIA 1983); Matter ofRamirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
2 
 Online content from "Wikipedia" is subject to the following general disclaimer: 
Wikipedia is an online open-content collaborative encyclopedia, that is, a voluntary 
association of individuals and groups working to develop a common resource of human 
knowledge. The structure of the project allows anyone with an Internet connection to alter its 
content. Please be advised that nothing found here has necessarily been reviewed by people 
with the expertise required to provide you with complete, accurate or reliable information. 
See http://en.wikipedia.ordwiki/Wikipedia:General disclaimer, accessed on March 4,2009 and incorporated 
into the record. 
First, schedules posted in institutional newsletters cannot be considered published materials in major 
media. Similarly, local or regional publications cannot typically serve to meet this criterion. Second, 
the regulation does not simply require evidence of published material about the alien's work, compare 
8 C.F.R. 5 204.5(i)(3)(i)(C) relating to outstanding researchers and professors, but materials that are 
about the alien relating to his work. While we recognize that the petitioner performs in ensembles, the 
statute requires individual acclaim. We will not presume such acclaim by association, either with the 
institution where he teaches or the ensemble with which he performs. The petitioner's inability to meet 
this criterion does not suggest that we may waive the plain language requirements of the regulation at 
8 C.F.R. 5 204.5(h)(3)(iii). It cannot be credibly asserted that an article that does not mention the 
petitioner at all is somehow "about" him. Moreover, we are not persuaded that reviews and articles that 
include only a sentence about the petitioner are sufficiently "about" him to meet this criterion. 
In light of the above, the petitioner has not established that he meets this criterion. 
Evidence of the alien's participation, either individually or on a panel, as a judge of the work of 
others in the same or an alliedjield of specification for which classification is sought. 
The petitioner is a faculty member at the Peabody Institute. His contract reveals that the inherent duties 
of all faculty include attending placement auditions, assisting with and sewing on exam committees, 
participating in the program feedback process and adjudicating signature recitals as assigned by the 
Dean. 
The director requested evidence that the petitioner's teaching duties set him apart from other music 
teachers. As noted by the director in the final decision, the petitioner's response did not address this 
criterion. On appeal, however, counsel once again asserts that the petitioner meets this criterion 
through his faculty position and Principal Second Violin position with the ASO. Counsel asserts that 
the petitioner judged competitions at the Peabody Institute and at other unidentified locations. Counsel 
continues that the petitioner served on committees at the Peabody Institute evaluating other faculty and 
has been invited to observe other strings faculty in the Baltimore-Washington area. According to 
counsel, the petitioner served as the Accompanist Coordinator for the String Department at the Peabody 
Institute, hiring professional accompanists for the students and auditioned new members for the ASO. 
As stated above, the unsupported assertions of counsel do not constitute evidence. Matter of 
Obaigbena, 19 I&N Dec. at 534 n.2; Matter of Laureano, 19 I&N Dec. at 3 n.2; Matter of Ramirez- 
Sanchez, 17 I&N Dec. at 506. 
The record does not support counsel's assertions. As stated above, many of the duties counsel asserts 
are significant are contained in the boilerplate faculty contract submitted initially. Thus, they are 
inherent to the petitioner's position. Moreover, extra collateral duties within his own institution do not 
demonstrate his recognition outside of that institution. Inquiries from other professors in the Baltimore- 
Washington area do not demonstrate national or international acclaim. Finally, while the Second 
Principal Violinist may be the leader of the second violins of a given orchestra, the record does not 
establish that this position is a judging position. 
Page 8 
In light of the above, the petitioner has not established that he meets this criterion. 
Evidence of the alien's original scientijic, scholarly, artistic, athletic, or business-related 
contributions of major significance in the$eld. 
Counsel initially asserted that the petitioner meets this criterion through his performances with 
distinguished groups at distinguished venues. Counsel referenced the evidence of performances by the 
petitioner, the awards discussed above and reference letters. The initial letters are all from individuals 
who have taught or played with the petitioner and provide general praise of the petitioner's talent rather 
than identifying specific contributions and explaining their impact on the field. 
The director requested documentary evidence of the petitioner's original contributions of major 
significance to the field. In response, counsel reiterates that the petitioner has performed with 
distinguished groups at distinguished venues. Counsel references the evidence submitted to meet the 
awards, published material, display and leading role criteria. 8 C.F.R. $9 204.5(h)(3)(i), (iii), (vii), 
(viii). That evidence has been considered above and below as it relates to those criteria. Counsel also 
reviews the reference letters submitted. The petitioner submits new letters. some from more 
independent sources such as Los Angeles philharmonic Orchestra. while, Principal 
Concertmaster for this orchestra provides praise of the petitioner, whose performances he has seen, he 
does not identify any specific original contributions or explain their impact., author of 
the book that cited the petitioner's dissertation, asserts that the dissertation "is an important work that 
offers a welcome reassessment of an unjustly neglected composition." The record lacks evidence, 
however, that the petitioner's dissertation is frequently cited or assigned reading at multiple institutions. 
The director concluded that the petitioner had not demonstrated an impact on the field through 
objective documentary evidence. On appeal, counsel asserts that the director's conclusion is based on a 
misunderstanding of classical music. Counsel asserts that violin performing has not changed and that 
the "contributions of violinists have always been measured through their involvement in performances 
and their teaching." Counsel concludes that the petitioner's contribution involves "passing along the 
great principles of violin playing of the Franco-Belgian school of violin to generations of American 
students." 
The regulation requires both that an alien's contributions be "original" and of "major significance." 
The static nature of violin playing techniques cannot overcome the plain wording of the regulation at 
8 C.F.R. $ 204.5(h)(3)(v). Passing on an established technique is not original. Moreover, a single 
citation of the petitioner's unpublished dissertation cannot establish a widespread impact. 
In light of the above, while the petitioner has clearly impressed his immediate circle of colleagues, 
talent alone is not an original contribution of major significance that can serve to meet this criterion. 
- Page 9 
Evidence of the alien's authorship of scholarly articles in thejeld, in professional or major trade 
publications or other major media. 
The petitioner submitted evidence that his dissertation is catalogued in Johns Hopkins' library. As 
stated above, this dissertation was cited as one of over 1,000 citations in a book. The regulation at 
8 C.F.R. tj 204.5(h)(vi) requires evidence of scholarly articles "in professional or major trade 
publications or other major media." (Emphasis added.) While the record contains no evidence that the 
petitioner's dissertation has appeared in any publication or other major media, the director did not 
contest that the petitioner had one published work and requested evidence as to its impact. Rather, the 
director ultimately concluded that authorship of a dissertation, by itself, was not commensurate with the 
regulation at 8 C.F.R. tj 204.5(h)(3)(vi). 
On appeal, counsel no longer asserts that the petitioner meets this criterion and we concur with the 
director's conclusion that the petitioner does not. As stated above, the record lacks evidence that the 
petitioner's dissertation was published. Thus, he has not established that he meets this criterion. 
Evidence of the display of the alien's work in thejield at artistic exhibitions or showcases. 
The petitioner submitted evidence of several performances, including as a member of the ASO. The 
director's request for additional evidence noted that performing is inherent to the field of performing 
artist. In response, counsel asserts that the petitioner has performed at more than 60 concerts, which 
have been well publicized. The petitioner submits additional information about some of the events at 
which the petitioner has performed. 
The director reiterated that it is inherent to the petitioner's occupation to perform and concluded that 
the petitioner's performances were either in conjunction with university studies, at local venues or as 
part of a large orchestra. On appeal, counsel asserts that the petitioner has performed at prestigious 
venues and that being part of a large orchestra should not preclude eligibility under this criterion. 
This criterion relates to the visual arts. The petitioner is a performing artist. We concur with the 
director that the petitioner's performances, while at distinguished venues, are not comparable to the 
exclusive exhibitions designed to showcase an individual visual artist's work. Thus, the petitioner has 
not established that he meets this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
The petitioner submitted his faculty contract with the Peabody Institute and his contract with the AS0 
in the position of Principal Second Violin. The petitioner submitted materials indicating that the 
Peabody Institute "is one of the nation's major sources of professionally trained musicians" and a 
mission statement for the AS0 indicating that the orchestra serves the region. The record contains 
letters from-, Director of Conservatoire Arnericain Fontainebleau, advising that the 
Page 10 
petitioner served as concertmaster under his direction. The petitioner submitted evidence that the 
conservatory, founded in 1921, "has played a major role in the training of a large number of famous 
American musicians such as Aaron Copland." 
The director requested additional evidence regarding the significance of the Principal Second Violin 
position. 
 In res onse, the petitioner submitted letters discussing the importance of this role. 
Specifically, 
 General Manager of the ASO, explains that each string section has a 
leader. 
 Because of the number of violinists, the violins are divided into two sections. 
 The 
concertmaster leads the first violins and the Second Principal Violin leads the second violins. The 
director concluded that while this role is important, it is not leading or critical as contemplated by the 
regulation at 8 C.F.R. fj 204.5(h)(3)(viii). The director also concluded that the petitioner had not 
established that the AS0 enjoyed a distinguished reputation outside of Maryland. 
On appeal, counsel asserts that the petitioner's faculty position at the Peabody Institute meets this 
criterion and reiterates the importance of the role of a Principal Second Violin. Counsel also challenges 
the director's concerns regarding the limited rehearsal schedule for the ASO. Counsel does not, 
however, address the director's concern that the record does not establish that the AS0 enjoys a 
distinguished reputation outside of Maryland. 
At issue for this criterion is the job or position the petitioner was selected to fill and the reputation of 
the entity that selected him. The job or position must be such that the very selection to fill that position 
is indicative of or consistent with national or international acclaim. While the Peabody Institute enjoys 
a distinguished reputation nationally, we are not persuaded that a general faculty position, even with 
collateral duties, serves as a sufficiently leading or critical role such that it is indicative of or consistent 
with national or international acclaim. 
We do find that a Second Principal Violin is a leading or critical role in an orchestra. As stated above, 
however, the petitioner has not responded to the director's concern that the record does not establish 
that the AS0 enjoys a distinguished reputation outside of Maryland. 
Finally, while the concertmaster position is also leading or critical, we cannot ignore that the 
Conservatoire Americain Fontainbleau was ultimately a student orchestra. 
In light of the above, the petitioner has not established that he meets this criterion. 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate 
that the alien has achieved sustained national or international acclaim and is one of the small percentage 
who has risen to the very top of the field of endeavor. 
Review of the record, however, does not establish that the petitioner has distinguished himself as a 
violin performer and teacher to such an extent that he may be said to have achieved sustained national 
or international acclaim or to be within the small percentage at the very top of his field. The evidence 
Page 11 
indicates that the petitioner shows talent as a violin performer and teacher and is esteemed among his 
immediate colleagues, but is not persuasive that the petitioner's achievements set him significantly 
above almost all others in his field. Therefore, the petitioner has not established eligibility pursuant to 
section 203(b)(l)(A) of the Act and the petition may not be approved. 
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 appeal 
will be dismissed. 
ORDER: The appeal is dismissed.