dismissed EB-1C Case: Cargo Transportation

U.S. Department of Homeland Security 
identifying data deleted (a 
 20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529-2090 
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 U. S. Citizenship 
and Immigration 
Services 
LIN 07 058 50505 
PETITION: 
 Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. 5 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any fkther inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 
 103.5(a)(l)(i). 
John F. Grissom, Acting Chief 
Administrative Appeals Off~ce 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be summarily 
dismissed. 
The petitioner, allegedly a cargo transportation business, is a Florida corporation, which claims to be a 
subsidiary of the beneficiary's previous employer in Brazil. Accordingly, the petitioner endeavors to classify 
the beneficiary as an employment-based immigrant pursuant to section 203(b)(l)(C) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 4 1153(b)(l)(C), as a multinational executive or manager. 
The director denied the petition concluding that the petitioner failed to establish that it will employ the 
beneficiary in a primarily managerial or executive capacity. 
On appeal, counsel states the following in the Form I-290B: 
In order to address [the] inconsistencies what were provided to the Petitioner by the person 
engaged in the unauthorized practice of law, the Petitioner herewith submits new evidence to 
help explain how the Principal Beneficiary will perform duties which are clearly managerial 
in nature. Because the Petitioner's [unauthorized practice of law] representative did not 
provide it with copies of any evidence submitted on its behalf, the Petitioner herewith submits 
evidence that it believes is currently not available to [U.S. Citizenship and Immigration 
Services (USCIS)]. 
Counsel also argues in an attached brief that "[dlue to the lack of licensed legal counsel, Petitioner contends 
that based on the ineffective representation of counsel, it did not accurately explain the Principal Beneficiary's 
proffered job duties." Counsel submits evidence with his brief addressing these job duties. 
It is noted that, on appeal, counsel does not contend that the director erred legally or factually in denying the 
petition. Counsel does not identify the unauthorized representative who purportedly prepared the petition. 
Likewise, counsel does not describe the circumstances surrounding the engagement of this individual, the 
preparation of the petition, or the preparation of the response to the director's Request for Evidence. 
Upon review, the AAO concurs with the director's decision and affirms the denial of the petition. 
Regulations at 8 C.F.R. 4 103.3(a)(l)(v) state, in pertinent part: 
An officer to whom an appeal is taken shall summarily dismiss any appeal when the party 
concerned fails to identify specifically any erroneous conclusion of law or statement of fact 
for the appeal. 
Inasmuch as the petitioner has failed to identify specifically an erroneous conclusion of law or a statement of 
fact in this proceeding, the appeal must be summarily dismissed. While counsel gave an explanation for the 
petitioner's failure to submit proper evidence in support of its petition, it nevertheless failed to identify an 
LIN 07 058 50505 
Page 3 
erroneous legal conclusion or factual statement in the decision for the AAO to consider on appeal. 
Consequently, the appeal must be dismissed.' 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. The petitioner has not met this burden. 
ORDER: 
 The appeal is summarily dismissed. 
1 
 On January 7, 2009 the Attorney General issued a precedent decision relating to ineffective assistance of 
counsel, superseding Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), affd, 857 F.2d 10 (1" Cir. 1988). See 
Matter of Compean, et al., 24 I&N Dec. 710 (A.G. 2009). In Compean, the Attorney General held that the 
Constitution affords no right to counsel or effective assistance of counsel to aliens in immigration proceedings 
under the Sixth Amendment or the Due Process Clause of the Fifth Amendment. Id. at 71 1-27. Although the 
Act and regulations also do not afford aliens a right to effective assistance of counsel, USCIS may, in its 
discretion, reopen proceedings based on the deficient performance of an alien's prior attorney. Id. at 727. 
Compean establishes three elements of proof and six documentary requirements that an alien must meet to 
prevail on a claim of deficient performance of counsel. Id. Although Compean addresses deficient 
performance of counsel claims in the context of motions to reopen removal proceedings, the decision also 
applies to claims of deficient performance raised on direct review. Id. at 728 n.6. 
Despite this change, the AAO will evaluate this appeal under Matter of Lozada, the administrative precedent 
that was applicable at the time the instant appeal was filed on May 8, 2008. Under general rules of legal 
construction, a substantive, non-curative, adverse change in administrative rules is not to be applied 
retroactively unless the language of both the administrative rule and the statute authorizing the rule requires 
such a result. Uzuegbu v. Caplinger, 745 F.Supp. 1200, 1215 (E.D. La. 1990). In this matter, the petitioner 
did not properly articulate a claim for ineffective assistance of counsel under Matter of Lozada. A claim 
based upon ineffective assistance of counsel requires the affected party to, inter alia, file a complaint with the 
appropriate disciplinary authorities or, if no complaint has been filed, to explain why not. The instant appeal 
does not address these requirements. In fact, neither counsel nor the petitioner identifies the purported 
unlicensed and ineffective representative or explains the facts surrounding the preparation of the petition or 
the engagement of the representative. Accordingly, the petitioner did not articulate a proper claim based upon 
ineffective assistance of counsel, and the appeal will be summarily dismissed.