dismissed EB-1A Case: Not Specified

(b)(6)
DATE: JUN 1 0 2013 Office: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washin~on, DC 20529-2090 
U.S. citizenship 
and Immigration 
Services 
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 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 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 I-290B, Notice of Appeal or Motion, with a fee of $630. 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)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~r1J_ 
(-
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, revoked the employment-based immigrant visa 
petition on March 10, 2011 and reaffirmed that decision on motion. The AAO summarily dismissed 
a subsequent appeal and reaffirmed that decision on motion. The matter is now before the AAO a 
second time on a motion to reopen and a motion to reconsider. The motion to reconsider will be 
dismissed. The motion to reopen will be dismissed. The previous decisions of the AAO will be 
affirmed, and the petition will remain revoked. 
The petitioner filed the initial motion to reopen with the director on March 25, 2011 (motion #1), 
which the director dismissed on May 13, 2011, basedon the petitioner's failure to provide new facts 
with the motion as required by the regulation. The director stated: "If you desire to appeal this 
decision, you may do so." (Emphasis added.) 
On appeal, prior counsel indicated that he would submit a brief and/or additional evidence to the 
AAO within 30 days of filing the appeal, but failed to do so. On the Form I-290B Notice of Appeal 
or Motion, part 3, prior counsel asserted generally that the petitioner is eligible for the classification 
sought, but did not contest the director's most recent decision that the March 25, 2011 filing did not 
meet the requirements of a motion. As the petitioner failed to file a substantive appeal and did not 
submit supplement the appeal with additional evidence and/or a brief, the AAO summarily dismissed 
the petitioner's appeal of motion #1 on March 22, 2012. 
The petitioner subsequently filed a motion to reopen on April 25, 2012 (motion #2), claiming 
ineffective assistance of prior counsel, When a motion is based on a claim of ineffective 
assistance of counsel, it requires the alien claiming such ineffectiveness to comply with the 
requirements set forth by the BIA in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), aff'd, 857 F.2d 10 
(1
51 
Cir. 1988), reaffirm ed in Matter of Compean, 25 I&N Dec. 1 (A.G. 2009). The 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; 
3. Any subsequent response from counsel, or report of counsel's failure or refusal to respond, is to 
be submitted with the motion; and 
4. If a violation of ethical or legal responsibilities is claimed, the motion should reflect 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. 
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In addition to complying with the Lozada requirements discussed above, the petitioner must also show 
prejudice as a result of his former counsel's ineffectiveness. Matter of Lozada, 19 I&N Dec. at 640. 
Prejudice exists when the performance of former counsel is so inadequate that there is a reasonable 
probability that but for the counsel's negligence, the outcome of the proceedings may have been 
different. Matter of D-R-, 25 I&N Dec. 445, 457 (BIA 2011) (citing Maravilla Maravilla v. Ashcroft , 
381 F.3d 855, 858 (9th Cir. 2004). "To prevail, the respondent must show that the conduct of former 
counsel was so egregious that it rendered [the] hearing unfair." Matter of B-B-, 22 I&N Dec. 309, 311 
(BIA 1998). 
The AAO dismissed motion #2 on December 7, 2012, for the following reasons: (1) the motion was 
not accompanied by a statement indicating whether the "whether or not the validity of the 
unfavorable decision has been or is the subject of any judicial proceeding" in accordance with 
8 C.F.R. § 103.5(a)(1)(iii)(C); (2) the petitioner failed to provide sufficient proof that he complied 
with the second Lozada requirement listed above; (3) the petitioner failed provide sufficient proof that 
he complied with the fourth Lozada requirement listed above; and (4) the petitioner did not demonstrate 
that his previous counsel's actions were prejudicial and that previous counsel's assistance was 
ineffective. 
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 Services (USCIS) policy. 8 C.F.R. § 103.5(a)(3). The Board of 
Immigration Appeals (BIA) generally provides that a motion to reconsider asserts that at the time of 
the previous decision, an error was made. It questions the decision for alleged errors in appraising 
the facts and the law. The very nature of a motion to reconsider is that the original decision was 
defective in some regard. See Matter of Cerna, 20 I&N Dec. 399, 402 (BIA 1991). A motion to 
reconsider is based on the existing record and petitioners may not introduce new facts or new 
evidence relative to their arguments. 
Additionally, 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. Id. at 60. 
In support of the present motion to reconsider, counsel cites to Ray v. Gonzales, 439 F.3d 582 
(9th Cir. 2006). Counsel indicates that in Ray, the court found the respondent met the Lozada 
requirements through providing proof of his "engagement with his attorneys and filing formal 
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grievances with the California State Bar provided notice to the attorneys of his complaints against 
them." Counsel then asserts that "the petitioner has met the Lozada requirements under the 
principles of Ray v. Gonzales in that he proved his engagement with his prior attorney and filed a 
formal complaint with the State Bar which would be considered by the Ninth Circuit sufficient 
notice to the former attorney." In support of motion #2, the petitioner did not demonstrate that he 
filed a formal grievance with the California State Bar; he merely provided an April 23, 2012 
declaration intended for the bar and a photocopy of an envelope addressed to the bar. The petitioner 
did not provide any evidence that, similar to the facts in Ray, the petitioner actually sent the notice 
the bar. In support of the present motion to reopen, the petitioner submits a June 21, 2012 letter 
from the State Bar of California responding to the petitioner's complaint and advising that the Chief 
Trial Counsel has declined to prosecute a violation. The letter, however, does not indicate when the 
petitioner filed his complain. Even assuming the petitioner had corresponded with the state bar prior 
to filing motion #2, the respondent in the Ray decision was denied asylum and was in deportation 
proceedings, wherein he alleged he was aggrieved by the actions of multiple attorneys relating to 
multiple filings of appeals and motions. The Ninth Circuit went so far as to describe the Ray 
situation as "shockingly inadequate representation." 
At issue is whether prior counsel's actions prejudiced the petitioner. Significantly, the petitioner's 
appeal related to motion #1, not to the decision to revoke the petition. Thus, the petitioner must 
establish error within that motion prior to shifting focus to the actual revocation decision. 
Within the brief accompanying motion #2, the petitioner alleges that prior counsel was ineffective 
not only by failing to submit a brief and/or additional evidence on appeal, but also in failing to 
support the motion before the director with new evidence. Specifically, counsel states: "[The 
petitioner] met with attorneys at md was advised that [former counsel] filed a 
deficient Motion to Reopen with TSC [the Texas Service Center] in the first place by failing to 
provide new facts." The petitioner, however, has not submitted the evidence he asserts former 
counsel should have submitted with motion #1 in support of either the appeal or either motion before 
the AAO. Without such evidence, the petitioner has failed to sufficiently demonstrate that former 
counsel's actions were ineffectual or prejudiced his case. As the petitioner failed to provide any 
evidence prior counsel failed to submit with motion #1, he has also not established plausible grounds 
for relief as required under another case counsel cites, Dearinger ex rei. Volkova v. Reno, 232 F.3d 
1042, 1046 (9th Cir. 2000). Similar to the facts in the Lozada case, the petitioner has not shown 
prejudice from prior counsel's failure to, or decision not to assert new facts supported by evidence in 
support of motion #1. Cf Matter of Lozada, 19 I&N Dec. at 640. The petitioner has received at 
least two opportunities to present his case and to submit the evidence that former counsel allegedly 
should have submitted in support of motion #1. Consequently, he has not demonstrated that 
prejudice has resulted from prior counsel's actions. 
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, 108 (1988)). "There is a 
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strong public interest in bringing litigation to a close as promptly as is consistent with the interest in 
giving the adversaries a fair opportunity to develop and present their respective cases." 
INS v. Abudu, 485 at 107. Based on its discretion, "[T]he [USCIS] has some latitude in deciding 
when to reopen a case. [USCIS] should have the right to be restrictive. Granting such motions too 
freely will permit endless delay of deportation by aliens creative and fertile enough to continuously 
produce new and material facts sufficient to establish a prima facie case." Id. at 108. The result also 
needlessly 
wastes the time and efforts of the triers of fact who must attend to the filing requests. Id. 
A party seeking to reopen a proceeding bears a "heavy burden." Id. at 110. With the current 
motion, the petitioner has not met that burden as the new evidence relates to the grievance against 
prior counsel but not how prior counsel's actions prejudiced the petitioner. 
As the present motion fails to meet all the requirements within the Lozada decision, it must be 
dismissed. 
ORDER: The motion to reopen is dismissed. The motion to reconsider is dismissed. The 
decisions of the AAO dated December 7, 2012, and March 22, 2012, are affirmed, and 
the petition remains revoked.