dismissed EB-1A Case: Thangka Art

(b)(6)
DATE: 
INRE: 
APR 1 8 2013 
Petitioner: · 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative ' Appeals Office (AAO) 
20 M~ssachusetts Ave., N.W., MS 2090 
Washington, DC 20529~2090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE: TEXAS SERVICE CENTER 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(l)(A) ofthe Immigration and Nationality Act; 8 u.s~c. § 1153(b)(l)(A) . 
ON BEHALF OF 
PETITIONER: 
· INS1RUCTIONS: 
Enclosed please fmd the decision of the Administrative ' Appeais 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, 
• 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscls.gov 
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DISCUSSION: The Director, Texas Service Center, denied the employment'-based immigrant 
visa petition on December 7, 2011. The Administrative Appeals Office (AAO) dismissed the 
petitioner's appeal of that decision on October 19, 2012. The matter is now 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 afflnned, and the petition will remain denied. 
In order to properly file a motion, the regulation at 8 C.F.R. § 103.5(a)(l)(iii) requires that the 
motion must be "[a]ccompanied by a· statement about whether or not the validity of the 
unfavorable decision has been or is the subject of any judicial proceeding and, if so, the court, 
nature, date, and status or result of the proceeding." The regulation at 8 C.F.R. § 1 03.5(a)(4) 
requires that "[a] motion that does not meet applicable requirements shall be dismissed. Counsel 
failed to submit a statement regarding whether the validity of the decision of the AAO has been 
or is subject of any judicial proceeding. 
Notwithstanding the above, in the decision of the AAO dismissing the petitioner's appea~ the 
AAO found that the petitioner failed to meet at least three of the regulatory criteria pursuant to 
the regulation at 8 C.F.R. § 204.5(h)(3). The AAO specifically and thoroughly discussed the 
petitioner's evidence and determined that the petitioner met the artistic display criterion pursuant 
to the regulation at 8 C.F.R. § 204.5(h)(3)(vii), but he failed to establish eligibility for the awards 
criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(i), the membership . criterion 
pursuant to the regulation at .8 C.F.R. § 204.5(h)(3)(ii), the published material criterion pursuant 
to the regulation at 8 C.F.R. § 204.5(h)(3)(iii), the judging criterion pursuant to the regulation at 
8 C .. F.R. § 204.5(h)(3)(iv), the original contributions criterion pursuant .to the regulation at 8 
C.F.R. § 204.5(h)(3)(v), the leading or .critical role criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(viii), the high salary criterion pursuant to the regulation at 8 C.F.R. § 
204.5(h)(3)(ix), and the commercial successes criterion pursuant to the regulation at 8 C.F.R. § 
204.5(h)(3)(x). Moreover, the AAO determined that the petitioner failed to demonstrate his 
intent to enter 
the United States and continue working in his area of expertise. 
On motion, instead of contesting the specific findings in the AAO's decision, counsel essentially 
ignores the AAO's decisioq and bases his motion on the director's prior decision. For instance, 
counsel states that ''the petitioner through his counsel files this motion 
to reconsider and reopen 
·against the earlier denial dedsion of the director and to approve his form 1 .. 140 petition." 
The plain language ofthe regulation at 8 C.FJt § 103.5(a)(l)(i) states that ''when the affected 
party files a motion, the official having jurisdiction may, for proper cause shown, reopen the 
proceeding or reconsider the prior decision [emphasis added]." In this case, the prior decision is 
the AAO's dismissal of the petitioner's appeal on October 19, 2012, rather than the director's 
denial of the petition on December 7, 2011. Moreover, if counsel wanted to contest the 
director's findings, he had . those opportunities when he filed his earlier appeal. The AAO 
conducted the appellatereview on a de novo basis. Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004). 
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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. 1 
In this case, counsel simply resubmitted evidence that was previously submitted. A review of the 
evidence that counsel submits on motion reveals no fact that could be considered "new" under 8 
C.F.R. § 103.5(a)(2) and, therefore, cannot be considered a proper basis for a motion to reopen. 
Motions for the reopening of immigration proceedmgs 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. 
On motion, counsel requests another 30 days to submit additional documents and 
evidence. As of 
the date of this decision, courisel has not submitted any additional documents. Regardless, the 
regulation at 8 C.F.R. § 103.3(a)(2)(vii) allows for limited circumstances in which a petitioner can 
supplement an already-submitted appeal. This regulation, however, applies only to appeals, and not 
to motions to reopen or reconsider. There is no analogous regulation which allows a petitioner·to 
sUbmit new evidence in furtherance of a previously-filed motion. A motion must meet the 
r~gulatory requirements of a motion to reopen or reconsider at the time it is filed; no provision exists 
for United States Citizenship and Immigration Services (USCIS) to grant an extension in order to 
await future correspondenCe that may or may not include evidence or arguments. 
A motion to reconsider must state the reasons for reconsiderati<;>n and be supported by any 
pertinent precedent decisions to establish that the decision was based on: an incorrect application 
oflaw or USCIS policy. 8 C.F.R. § 103.5(a)(3). Amotion 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. 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). 
1 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> .... " WEBSfER'S ll NEW COLLEGE DICfiONARY 753 (2005)(emphasis in original). 
(b)(6)
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In this. case, oounsel"summarizes the petitioner's claims and refers to the director's decision. 
Regarding the awards criterion, counsel recaps the difector's decision and agrees with the 
favorable finding o_f the director for this criterion. However, counsel does not even address or 
acknowledge the .AAO's decision in which the AAO withdrew the finding of the director, iri part, 
because of conflicting information regarding the 27th National Art and Craft Exhibition and the 
15th National Cottage Excellent Entrepreneur Program Moreover, the AAO determined that the 
petitioner failed to demonstrate 
that the awards were for "excellence in the field" pursuant to the 
regulation at 8 C.F.R. § 204.5(h)(3)(i). · 
. Regarding the remaining criteria addressed on motion, counsel simply quotes the director's 
decision and/or cites to evidence that was listed in the director's decision and then asserts that the 
petitioner meets the criteria. For instance, regarding the original contributions criterion, counsel 
states: · 
In its earlier decision, the director ha5 acknowledged submission of following 
evidence - . . . . However, we respectfully disagree with the unfavor~ble 
determination of the director on this criterion. The evidence on the record clearly 
demonstrat~ that the petitioner's contributior. as a . Thanka Artist is not only 
original, but it is of major significance. in the field. The entire evidence 
demonstrated the major significance of his original contribution in the field of 
arts. Therefore, the evidence submitted meets with this criterion. 
Again, counsel's motion _does not even address the AAO's decision regarding this criterion; 
rather counsel refers to the director's decision. Moreover, oounsel does riot claim that the 
AAO's decision was based on an incorrect application of law or USCIS policy and is not 
supported by any pertinent precedent decisions as required. for· a motion to reconsider pursuant to 
the regulation at 8 C.F.R. § 103.5(a)(3). 
Filially, regarding the petitioner's intent to enter the United States to continue in his area of 
expertise, counsel claims: 
Unlike the director's _earlier finding, the record and statement of the petitioner 
clearly establishes that petitioner has clear intention and opportunities to work 
continuously in his field as a Thanka artist in the United States which will 
substantially benefit prospectively the US. Thus, · the director's decision is not 
supported by evidence on the record. The director's decision is fully arbitrary, 
. and unfavorable exercise of the abuse ~f discretion. Moreover, the director's 
decision on December 7, 2011, was erroneous application oflaw and [sic] or facts 
therefore warrant a reversal. · 
The director never determined in h'is decision that the ·petitioner failed to demonstrate his intent 
to continue to work in his area of expertise in the United States; that determination was made in 
the AAO's dismissal of the appeal. Nonetheless, counsel simply dismisses the fmding as 
arbitrary and an abuse of discretion without supporting his assertions with documentary evidence 
(b)(6)... 
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Page~ 
or legal arguments. The unsupported statements of counsel on appeal or in a motion are not 
evidence and thus are not entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 
183, 188-89 n.6 (1984). 
The motion to reconsider · does not allege that the issues~ as raise9 on appeal, involved . the 
·application of precedent to. a novel situation, or that there is new precedent or a change in law 
that affects the AAO's prior decision 
. . Counsel has also not asserted ·any new facts or provided 
new evidence for consideration on motion. Instead, counset·generally reiterates prior arguments 
and states his own opinions. As noted above, · a motion to reconsider must include specific 
allegations as to how the AAO erred as a matter of fact or law in its prior decision, and it must be 
supported by pertinent legal authority. Because counsel has failed tp raise such allegations of 
error in the motion to reconsider, the AAO will dismiss the motion to reoonsider. See also 
Rehman v. Gonzales, 2006 WL 688992 (7th Cir. 2006) (No. 05 2846) (the court found that 
reconsideration depended on something new, if not necessarily new factual developments, then 
at least new arguments showing that the IJ or BIA overlooked something important; the 
petitioner did no~ have any new arguments and was merely repeating old ones.) · 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 
291 of the Act, 8 U.S. C. § 1361. The petitioner has not sustained that burden. 
ORDER: The motion to reopen and the rnotipnto reconsider are dismissed, the decision·ofthe 
AAO dated . Octo~er 19, 2012 is afftrmed; and the petition remains denied . .