dismissed EB-1A Case: Taekwondo

DATE: DEC 1 9 2011 Office: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Securit)· 
lJ .S. Citi7enship and Immigration Services 
Administrative Appeals Office (AAO) 
20 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 Section 
203(b)( I )(A) of the Immigration and Nationality Act, 8 U .S.C. § 1153(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, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.S(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, 
)Jbijdnc~ 
. (Perry Rhew 
r Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition on June 10, 2009. The Administrative Appeals Office (AAO) dismissed the petitioner's 
appeal of that decision on April 22, 2010. The matter is now before the AAO on a motion to reopen. 
The motion to reopen will be dismissed as untimely filed. 
In order to properly file a motion to reopen, the affected party or the attorney or representative of record 
must file the motion within 30 days of service of the unfavorable decision unless the filing party 
demonstrates that the delay was reasonable and was beyond their control. If the decision was mailed, 
the motion must be filed within 33 days. See 8 C.F.R. § 103.5a(b). The date of filing is not the date of 
mailing, but the date of actual receipt. See 8 C.F.R. § 103.2(a)(7)(i). 8 C.F.R. § 103.5(a)(4) provides 
that, "A motion that does not meet applicable requirements shall be dismissed." 
The record indicates that the AAO issued the appellate decision on April 22, 2010. It is noted that the 
AAO properly gave notice to the petitioner that it had 30 days to file the motion. Although counsel 
dated the Form 1-2908 May 21, 2010, it was not received until May 26, 2010, or 34 days after the 
decision was issued. The filing party provided no explanation for the late filing and made no assertion 
that the delay was reasonable and beyond the afTected party's control. Accordingly, the motion was 
untimely filed. 
Notwithstanding the motion's untimeliness, the petitioner also claims ineffective assistance of counsel 
related to her former attorney. When a motion to reopen 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 B1A in Maller of Lozada, 19 I&N Dec. 637 (B1A 1988). The Lozada decision requires the 
submission of: 
I. 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 o/Lozada, 191&N at 639. 
On motion, the petitioner provides current counsel's brief, a statement from the petitioner, a copy of the 
Form 1-140, Immigrant Petition for Alien Worker denial, the Form I-797C, Notice of Action receipt 
notices related to the Form 1-140, the Form 1-485, Application to Register Permanent Residence or 
Adjust Status, and a copy of the AAO's appeal decision. 
~ 
Page 3 
The petitioner has failed to establish she met Malter of Lozada's first requirement noted above. Her 
affidavit dated May 21, 20 I 0, indicates that her former attorney "must have reviewed" her documents 
and that he "must have known" that she was qualified for the classification as a competitor and not as an 
instructor. However, she does not state that she specifically requested her former attorney to file her 
petition as a taekwondo competitor. The record lacks evidence that the petitioner and former counsel 
engaged in a detailed agreement in reference to what action former counsel should take and how he 
failed to uphold his portion of the agreement. As a result, the petitioner has failed to comply with 
Ma1ler of Lozada's first requirement. 
The petitioner has failed to comply with Matter of Lozada 's second requirement. Page five of current 
counsel's brief asserts that the petitioner has complied with this requirement. However, going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of 
Treasure Craji of CalijiJrnia, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). The petitioner provides no 
evidence that her former counsel has been put on notice of her claims. She did not even address this 
requirement within her affidavit. Consequently, the petitioner has failed to establish that she complied 
with Malter of Lozada 's second requirement. 
It is not apparent that the petitioner has complied with Malter (!l Lozada's third requirement; her reasons 
for not filing a complaint with the disciplinary authority are insufficient. The petitioner provides the 
following reasoning for not filing a complaint with the disciplinary authority regarding her former 
counsel's conduct, "I do not wish to file an ethics complaint against [the petitioner's previous counsel] 
because I do not have the resources, money and level of education to complaint [sic] against him." The 
petitioner need not engage in any legal maneuvering or possess a certain level of education to send a 
letter to the state bar. It is current counsel's responsibility to inform the petitioner of any legal 
requirements related to her case. Current counsel acknowledges the petitioner's reasoning for not filing 
a complaint within his brief, and he should have also notified the petitioner of the simple steps needed 
to meet Lozada's third requirement. Therefore, the petitioner has failed to comply with Matter of 
Lozada's third requirement. 
Finally, it is not clear that the outcome would have been any different if the original petition listed the 
petitioner as a competitor rather than an instructor. In fact, the AAO's decision dated April 22, 2010, 
addresses this scenario by stating, "even if the petitioner established her eligibility to continue to work 
in the United States as a competitor, the documentation submitted by the petitioner fails to establish 
eligibility for this criterion as a taekwondo competitor." The AAO's decision continues by discussing 
why the petitioner did not meet any of the criteria, even as a competitor. Moreover, while current 
counsel faults prior counsel for failing to provide translations, he otTers none on motion to rectify this 
shortcoming. Accordingly, even if not dismissed as untimely, the petitioner has not complied with 
Matter of Lozada or demonstrated any prejudice based upon the actions of her former counsel. 
As the motion was untimely filed, it must be dismissed. 
-Page 4 
ORDER: The motion to reopen is dismissed. The decision of the AAO dated April 22, 2010. is 
affirmed, and the petition remains denied.