dismissed EB-1A Case: Unknown

DATE: 
IN RE: 
NOV '£ B 2ni2 
Petitioner: 
lkllcficiar'y': 
orfice: TEXAS SERVICE CENTER 
U.S. Orpnrlrucnt uf Homeland S('("urity 
U.s. Cilii'enship (lild IIl1I1l1grallon "il'rvicl:s 
Admilli~tr;Jli\'L' Arpl'ab O!fiu: (AAO) 
20 M;J~'~:IClllJse(j.., Ave. N W .. MS 21)1)() 
\V:Lc,hinglllll. D( 2051l)-2(jl)() 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Pc:tition for Alic:n Worker as an Alien of Extraonlinary Ahility Pur~u,\llt III Section 
203(b)( I)(A) "I' the Immigration and Nationality Act, ~ U.S.c. ~ 115.1(b)( 1)(,'0.) 
ON BEHALF OF PETITIONER: 
INSTRUCTIO~S: 
Enclosed pIcase find the decision "f the Administrative Appeals Office in your case. All of the dllcuments 
related to this maller have been returned to the ollicc that originally decided your casco Pka~l' be advised that 
any further inquiry that you might havc concerning your case must he made to that ollicc. 
If you helieve the AAO inappropriately applied the law in reaching ils decision, Of you have additional 
information that you wish 10 have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with thc instructions on Form 1-290l:l. Notice of Appeal or Motion, with a ree of $630. The 
specific requirements for filing such a motion can be found at H C.F.R. ~ 103.5. Do not file any motion 
directly with the AAO. Plcase be aware that H C.F.R. § 103.5(a)(I)(i) requires any motion tll he filed within 
J() days of the decision that the motion seeks to reconsider or rcopen. 
Thank you, 
cYt-zt-
Ron Rosenberg V 
Acting Chid, Administrative Appeals Office 
\\:ww.usris.gO\ 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The Administrative Appeals Office (AAO) dismissed a subse4uent appeal on December I, 
2010. The petitioner submitted a motion on January 4, 201 I, and on May 14,2012, the AAO dismissed 
the petitioner's motion to reopen and reconsider and atlirrned the i\i\O's December I. 2010 decision. 
The matter is now before the AAO again as a motion to reopen and reconsider. The motion will be 
dismissed. 
Regarding motions to reopen or reconsider, IS C.F.R. § 103.5(a)( I )(ii) states in relevant part: "Ihe 
official having jurisdiction is the official who made the latest decision in the proceeding unless the 
alleeted party moves to a newjurisctietion." The latest decision was the AA(Ys May 14,2012 decision 
dismissing the appeal. Therefore, a review of any claims or assertions that the petitioner's motion raises 
is limited in scope and is restricted to the AAC),s prior decision. 
To the extent that the petitioner intends the current motion to be a motion to reconsider, 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 USCIS policy. 
IS C.F.R. ~ 103.5(a)(3). A motion 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 hased on 
new or previously unavailable evidence. See Matter ofCema, 20 I&N Dec. 399, 4113 (B1A 1991). 
Moreover, 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, 221l (13IA 1990, 
199 I). Rather. the "additional legal arguments" that may be raised in a Jllotion to reconsider should 
110w from new law or a de /lOVO 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 O-S-G-, 24 I&N Dec. 56, 51\ (BlA 20(6). Instead, the moving 
party must specify the factual and legal issues that were decided in error 01 overlooked in the initial 
decision or must show how a change in law materially affects the prior decision. fd. at 60. In the 
brief supporting the motion, counsel, on behalf of the petitioner, broadly asserts that the evidence 
previously submitted "was overlooked as being irrelevant and therefore lead to an erroneous 
decision." Counsel's asseI1ion that the regulation at 8 C.F.R. § 103.5(a)(l)(i) allows U.S. Citizenship 
and Immigration Services (USClS) to excuse late filed motion in its discretion is not persuasive. First, 
that regulation applies only to motion to reopen and the previous filing was hoth a motion tll reopen and 
a motion to reconsider. Second, the AAO considered that regulation and determined that the petitioner 
had not established that the late filing was reasonable and beyond his control as required under that 
regulation. Counsel does not address that finding in the current motion. Counsel also cites an 
unpublished decision relating to coaches. While the regulation at t\ C.F.R. § !03.3(c) provides that 
AAO precedent decisions are binding on all USCIS employees in the administration of the Act, 
unpublished decisions are not similarly binding. 
To the extent that the petitioner requests the current motion to be considered as a motion to reopen, a 
motion to reopen must state the new facts to be provided and be supported by affidavits or other 
Pagl: 3 
documentary evidence. S C.F.R. ~ 103.5(a)(2). In the previous motion before the AAO, the 
petitioner's Ii.mner counsel maintained that the petitioner submitted supplemental documentation, which 
the ;\;\0 tailed to consider beli.lre rendering the December L 2010, dismissal of the petitioner's appeal 
li'om the director's decision. In the May 14,2012 decision dismissing the prior motion to reopen. the 
AAO properly disqualified the accompanying evidence because the motion was untimely. The 
petitioner provides no legal authority, and the AAO is unaware of any, that would allow the 
petitioner to cure a previously late filed motion by simply timely moving to reopen and reconsider 
the decision that rejected the untimely motion. Rather, the petitioner bears the burden of 
establishing that the dismissal as untimely was itself in error. The petitioner does not address why 
the prior January 4, 20 II motion was untimely filed other than to assert that the petitioner's ii.ml1er 
counsel was responsible for the late filing. 
Furthermore, while the record re!lects that the petitioner is represented by a new attorney on the motion 
currently before the AAO. the petitioner has not specifically asserted a claim of indfective assistance of 
counsel pursuant to Maller of IJlZada, ILJ I&N Dec. 637 (BIA 19S5). An alien making an ineffective 
assistance of counsel claim must comply with the requirements set forth by the Board of Immigration 
Appeals (BIA) in Mafler oI Lozada, 19 I&N Dec. 637 (BIA 1988). The I.()wi/a decision requires the 
submission of: 
I. An affidavit selling forth in detail the agreement with fonner counsel concerning what action 
would be taken and what counsel did or did not represent in that regard; 
2. Proof that the ,dien 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. 
Maller of Lozada, I l) I&N at 63'). The petitioner has failed to submit an affidavit with the details of 
representation with his former counsel along with the current motion. Similarly, the petitioner has 
submilled no evidence indicating that his former counsel has been notified on the allegations of 
ineffective assistance of counsel and provided him with an opportunity to respond to the allegations. 
Finally, the petitioner has failed to state whether or not he has filed a complaint with the proper 
disciplinary authority. Thus, the petitioner in this instance has failed to mecl all three of the procedural 
requirements outlined in the Lozada decision. The BIA reasoned that the high procedural standard is 
necessary to have a basis for assessing the substantial number of claims of ineffective assistance of 
counsel and where essential information is lacking, it is impossible to evaluate the substance of such a 
claim. Sec Matter of I. ()zada , 19 I&N at 639. TI1e petitioner's ineffective assistance of counsel claim 
lacks essential information and therefore cannot be the basis for reopening. 
Consequently. because the previous motion was untimely filed and the petitioner cannot show that the 
finding of untimely filing was made in error, the motion must be dismissed. 
Page ..:1-
Motions for the reopening of immigration proceedings are disfavored for the same reasons as arc 
petitions for rehearing and motions for a new trial on the basis of newly ciiscovered evidence. INS 1'. 
Doherty, 502 U.S. 314, 323 (1992)( citing INS v. Ahlldll, 485 U.S. 94 (l9/l/l)). A part} seeking to reopen 
a proceeding bears a "heavy burden." INS v. A hlldll , 485 U.s. at 110. In this instance, the AAO has 
already considered and rendered a decision on a motion to reopen and reconsider that the petitioner 
submittcd. The petitioner has failed to show in the current motion that the last AAO decision 
dismissing the first motion was erroneous. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the 
Act. /l U.s.c. ~ \J61. Here. the petitioner has not sustained that burden. Accordingly, the motion will 
be dismissed. 
ORDER: The motion is dismissed. the AAO's May 14. 2012 decision is affirmed, the AAO's 
December I, 2010 decision is affirmed, and the petition remains denied.