dismissed EB-1C Case: Consumer Goods Distribution

(b)(6)
. : 
DATE: 
FEB 0 -~ 2013 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department nf Homdand Security 
U.S. Citiz.:nship and Immigration Services 
Administrati\•c Appeals Office (AAO) 
20 Massachusclls Ave .. N.W .. MS 20'10 
Washington. DC 20529-2090 
U.S. Citizenship 
ail.d Immigration 
Services 
FILE: 
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. § 1153(b)( I)(C) 
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 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-2908, 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. § I 03.5. 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, 
p~ •. 
Acting Chief, Administrative Appeals Office 
www. uscis.go'' 
(b)(6)
\ 
Page 2 
DISCUSSION: The preference via petition was denied by the director, Texas Service Center. 
The petitioner appealed the matter to the Administrative Appeals Office (AAO), where the 
appeal was dismissed. The matter is now before the AAO on a motion to reopen and a motion to 
reconsider. The motion will be dismissed and the difector's and the AAO's decisions will not be 
disturbed. 
The petitioner is a distributor of consumer goods that seeks to employ the beneficiary ·as its 
general manager. 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. § 1153(b)(l)(C), as a multinational executive or manager. 
On April 12, 2010, the director denied the immigrant petition determining that the petitioner 
failed to establish that the beneficiary is an employee and that the beneficiary will be employed 
in a managerial or executive capacity. 
The petitioner subsequently filed an appeal which the AAO summarily 
dismissed pursuant to the 
regulation at 8 C.F.R. § IQ3.3(a)(l)(v). The AAO noted that the petitioner failed to identify any 
erroneous conclusion of law or statement of fact as a basis for the appeal. Although counsel had 
indicated on the Form I-290B, Notice of Appeal or Motion, that he would submit a brief and/or 
additional evidence to the AAO within 30 days of filing the appeal, the record reflected that he 
did not file a brief or supplemental evidence within the allowed .timeframe. 
On May 2, 2012, counsel filed Form I-290B and stated that the petitioner is filing a motion to 
reopen and a motion to reconsider, and a brief and/or additional evidence is attached. 
On the Form I-290B, counsel states that the "attached brief was submitted in a timely manner by 
US Mail to the appropriate office." Counsel also submits a document entitled, "Brief in Support 
of Appeal (Previously Filed and Pending)." 
As a preliminary matter, the AAO notes that while an appeal and a motion are both remedial 
actions, the legal purpose of an appeal is entirely distinct from that of a motion to 
reopen/reconsider. The AAO reviews appeals on a de novo basis, allowing the petitioner to 
supplement · the record with any evidence or documentation that the filing part feels may 
overcome the grounds for the underlying adverse decision. See Soltane v. DOJ, 381 F.3d 143, 
145 (3d Cir. 2004). However, the AAd's review of a motion to reopen or a motion to reconsider 
is limited to evidence that fits the specific criteria discussed at 8 C.F.R. § 103.5(a)(2) and 8 C.F.R. 
§ 103.5(a)(3), respectively. Submitting evidence that does not fit the regulatory criteria specified 
at 8 C.F.R. § 103.5(a)(2) or 8 C.F.R. § 103.5(a)(3), depending on the type of motion the petitioner 
has filed, will not suffice even if such evidence may have overcome the grounds for denial if it 
have been submitted on appeal. · 
. The regulations at 8 C.F.R. § 103.5(a)(2) states, in pertinent part: "A motion to reopen must state the 
new facts to be provided in the reopened proceeding and be supported by affidavits or other 
documentary evidence." 
(b)(6)
Page 3 
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 iri the previous proceeding. 1 
On motion, counsel for the petitioner states that .the AAO erred in summarily dismissing the appeal 
since a brief in support of the appeal was in fact sent to the_ appropriate office. On motion, counsel 
submits an un-dated document entitled, "Brief in Support of Appeal (Previously Filed and 
Pending)." However, counsel does not provide any supporting evidence to establish that this 
appeal brief was in fact timely filed to the appropriate office. In fact, counsel does not even 
indicate when or with which office the brief was claimed to have been submitted. The AAO 
reviewed the entire file and did not fmd the brief in support of the appeal that counsel claimed 
was sent previously. Without documentary evidence to support the claim-, the assertions of 
counsel will not satisfy the petitioner's burden of proof. The unsupported assertions of c·ounsel 
do not constitute evidence. Matter ofObaigbena, 19 I&N Dec. 533,534 (BIA 1988); Maller (d. 
Laureqno, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez;l7 I&N Dec. 503, 506 (B lA 
1980). As such, the AAO cannot consider the un~dated brief alone to be "new" evidence and 
will not grant the motion to reopen. 
Furthermore, counsel's assertions do not satisfy the requirements of a motion to reconsider. 8 
C.F.R. § 103.5(a)(3) states, in pertinent part: 
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 Service policy. A motion to reconsider a decision 
on an application or petition must, when filed, also establish that the decision was 
incorrect based on the evidence of record at the time of the initial decision. 
On motion, counsel for the petitioner claims that a brief in support of the appeal was filed "by 
US mail to the appropriate office." However, as noted above, counsel did not submit any 
evidence to corroborate this Claim. On motion, the petitioner does not establish that the AAO's 
decision was based on an incorrect application of law or Service policy. The brief does not 
provide information or evidence that would meet the requirements of a · motion to reconsider. 
Going on record without supporting docume~tary 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 Craft of California, 14 I&N Dec. 190 (Reg. Comm ' r 
1972)), Therefore, the AAO's decision to summarily dismiss the petitioner's appeal will not be 
disturbed. 
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 (1988)). A party seeking to 
f· 
1 The word "new" is defined as "I . having existed or been made for only a short time ... 3. Just discovered, 
found, or learned <new evidence> .... " Webster's Ii New College Dictionary 736 (2001 )(emphasis in 
original). 
(b)(6)Page4 
.) 
reopen. a proc~eding bears a "heavy burden." INS v. Abudu, 485 U.S. at 110. With the current 
motion, the movant has not met that burden. 
The.burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. 1361. The petitioner has not sustained that burden. 8 C.F.R. § 103.5(a)(4) states that 
"[a] motion that does not meet applicable requirements shall be dismissed." Accordingly, the 
motion will be dismissed, the proceedings will not. be reopened or reconsidered, and the previous 
decisions of the director and the AAO will not be disturbed. 
ORDER: The motion is dismissed. The director's and AAO's decisions will be undisturbed.