dismissed EB-1A Case: Science

(b)(6)
DATE: AUG 2 1 2013 Office: TEXAS SERVICE CENTER R 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and IIIIIIligratioil. Services 
Administrative Appeals Office (AAO) 
2o Massachusetts AVe., 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 Se.ction 
203(b)(l)(A)ofthe Immigration and Nationality Act, 8 U.S.C § ll53(b)(l)(A) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed please fiil<i the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not a}mounce new construction:~ of law nor establish agency 
policy through non-precedent decisions. lfyou believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a m()fion to reconsider ()r a 
motion to reopen, r~spectively. Any motion must be filed on a Notice ofAppeal or Motion (Form 1-29013) 
within 33 days of the date of this decision. Please review/ the Form I-290B instruc:tions at 
http://www.uscis.gov/forms for the latest information on fee, tiling location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
>L<1/--
··~s:berg f-
Chief, Administrative Appeals Office 
www.usds.gov 
(b)(6) NON-PRECEDENT DECISION 
Page2 
DISCUSSION: The Director, Texas Service Center, denied the employmenhbased immigrant vis~ 
petition on June 12, 2012. the Administrative Appeals Office (AAO) dismissed the petitioner's 
appeal of that decision on November 3, 2012. The AAO also dismissed the petitioner's motion to 
reopen on May 7, 2013. The matter is again before the AAO on a motion to reopen. The motion to 
reop~n will be dismissed. The previous decision of the AAO will be affifii1ed, and the petition will 
remain denied.· 
The petitioner's ·brief accompanying the present motion reiterates previous claims regarding the 
petitioner's eligibility for the exclusive classification. The petitioner makes no attempt in his current 
motion to address the AAO's most recent decision, which concluded that the filing did not meet the 
regulatory requirements for a motion to reop~n or a motion to reconsider. 
As stated in the AAO's lllOSt recent decision, in order to properly file a Il10tion, the regulation at 
8 C.F.R. § 103.5(a)(l)(iii) requites that the motion must be "[a]ccompartied by a statement about 
whether or 110t the validity of the unfavorable decisioq 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 regl!lation 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 again failed to submit a statement 
regarding if the validity of the decision of the AAO has been or is the subject of any judicial 
proceeding. As such, the motion must be dismissed pursuant to the regulation at 8 C.f .R. § 
l03.?(a)(4). · 
Motion to 
Reopen 
A niotion to reopen must state the new facts to be provided and be supported by affidavits or other 
doc\lmentary evidence. 8 C.F.R. § 103.5(a)(2). Based on the plain meaning of "new," anew fact is 
found to be evidence that was not available and could not have been discovered or presented in the 
previous proceeding. 1 · 
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~ 
strong public interest in bringing litigation to a close as promptly as is consistent vvith the interest in 
giving the adversaries a fair opportunity to develop and present their respective cases." INS v. 
Abud11, 485 a.,t 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 motio11s too freely will 
petmit endless delay of deport~;ttion by aliens creative . and fertile eno11gh to co_I1tin11ously produce 
new and material facts sufficient to establish a prima facie case." /d. at 108. The result also 
1 
The word "new" is defined as "1. having exis~ed or been made for only a sho_rt tirne ... 3. Just discovered, 
found, or learned <new evidence> .... " Webster's II New Riverside University Dictionary 792 (1984) 
(Emphasis in original.) 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
needlessly wastes the time and efforts of the triers of fact who must attend to the filing requests. !d.. 
A PartY seeking to reopen a proceeding b~ars a, "heavy burden." !d. at llO. With the current 
motion, the petitioner has not met .that burden. 
A motion to reopen is a fundamentally different motion than a motion to reconsider. !d. at 402 
(citing Sanchez v. INS, 707 F.2d 1523, 1529 (D.C.Cir.l983); Chudshevid v. INS, 641 F.2d780, 783 
(9th Cir.1981) ). It does not contest the correctness of (or simply request a reevaluation of) th~ prior 
decision on the previous factual record. Rather, a motion to reopen proceedings seeks to reopen 
proceedings so that new evidence can be presented and so that a new decision. can be entered, 
notmally after a further evidentiary hearing. Matter of Cerna, 20 I&N Dec. at 403. "A motion to 
reopen must state the new facts to be proved in the reopened proceeding and be supported by 
· affidavits or other documentary evidence." (Emphasis added) 8 C.F .R. § 103.5(a)(2). The petitioner 
presents the same facts within this motion that he presented in a previous proceeding and the only 
new evidence submitted is a certifi.ed translation dated June 3, 20 l3 fbr an email that appears to have 
b~en sent on October 1, 2011, regarding the '"International Science and Peace Week'" ¢onference, 
for which there is no supporting docU!llentation or evidence tha,t it was addressed to the petitioner, or 
that he even attended. The petitioner also submitted art email addressed to poposp21 @yahoo.co.jp 
dated JWie 3, 20B regarding "'The SCience of Placebo"' conference, but that evid~nce cc:mnot be 
considered here. Eligibility must be established atthe time of filing. 8 C.F.R. §§ 103.2(b)(l), (12); 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). A petition cannot be approved at a 
future date after the petitioner becomes eligible under a new set of facts. Matter of Izummi, 22 I&N 
Dec~ 169, 175 (Comm'r 1998), That decision further provide_s, citing Matter of Qatdouil/e, 18 I&N 
Dec. 114 (BIA 1981), that USCIS cannot "consider facts that come into being only subsequent to the 
filing of\a petition.'' !d. at 176. Furthermore, the present motion may only address the elements 
contained in the. most recent AAO decision, finding that the petitioner's December 3, 2012 filing did 
not meet the requirements of a motion. Therefore, the petitioner has failed to meet the regulatory 
requirements for fiiing a motion to reopen. · 
In vis(l petition proceedings, it is the petitioner's burden to establish eligibility for the in:u:11igra,tioiJ 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORJ)ER: The motion to reopen is dismissed. The decision of the AAO dated May 7, 2013, is 
affirmed, and the petition remains denied.