dismissed EB-1C Case: Freight Air Transportation

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-E- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY22,2018 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a freight air transportation service company, seeks to permanently employ the 
Beneficiary as its vice president under the first preference immigrant classification for multinational 
executives or managers. See Immigration and Nationality Act (the Act) section 203(b)(l)(C), 
8 U.S.C. § 1153(b)(I)(C). This classification allows a U.S. employer to permanently transfer a 
qualified foreign employee to the United States to work in an executive or managerial capacity. 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner did 
not establish, as required, that: (1) it has a qualifying relationship with the Beneficiary's toreign 
employer; and (2) the Beneficiary was employed abroad in a managerial or executive capacity. We 
dismissed the Petitioner's appeal and denied its three subsequent motions, including two combined 
motions to reopen and reconsider and one motion to reconsider. 1 
The matter is now before us on another combined motion to reopen and reconsider. The Petitioner 
contends that the current motion was timely filed and asks us to consider the merits of the previously 
filed combined motion· to reopen and reconsider, which we denied based on its untimely filing. 
Upon review, we will deny the combined motion to reopen and reconsider. · 
I. MOTION REQUIREMENTS 
A motion to reopen is based on factual grounds and must (I) state the new facts to be provided in the 
reopened proceeding; and (2) be supported by affidavits or other documentary evidence. 8 C.F.R. 
§ !03.5(a)(2). A motion to reconsider is based on legal grounds and must (I) state the reasons for 
reconsideration; (2) be supported by any pertinent precedent decisions to establish that. the decision 
was based on an incorrect application of law or policy; and (3) establish that the decision was 
incorrect based on the evidence of record at the time of the initial decision. 8 C.F.R. § 103.5(a)(3). 
1 On April IS, 2016, we dismissed the Petitioner's appeal. We subsequently denied the Petitioner's combined motion to 
reopen and reconsider on September 27, 2016, and on April 27, 2017, we denied its motion to reconsider. On June 5, 
2017, the Petitioner filed another combined motion to reopen and reconsider. We denied that motion as untimely on 
September 20, 2017. The instant motion challenges the September 20, 2017 motion denial. 
Maller of A-E- Inc. 
II. ANALYSIS 
The issue in this matter is whether the ineffective assistance of counsel in the filing of an untimely 
combined motion to reopen and reconsider warrants us to excuse the untimely filing so that we must 
consider the merits of that combined motion. 
As a threshold matter, we will address the Petitioner's reliance on the claim that an ineffective 
assistance of counsel resulted in the untimely filing of its combined motion to reopen and reconsider. 
See Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), ajf'd, 857 F.2d 10 (1st Cir. 1988). The 
Petitioner contends that, but for prior counsel's failure to file a timely motion, we would have 
considered the merits of that motion. We note that the Petitioner does not dispute the propriety of 
our decision to deny an untimely filed motion, nor does it contend that it would have prevailed, had 
the combined motion been timely filed. 
The Board of Immigration Appeals (the Board) established a framework for asserting and assessing 
claims of ineffective assistance of counsel. See id. 
First, Lozada sets forth the following threshold documentary requirements for asserting a claim of 
ineffective assistance: 
• A written affidavit of the petitioner attesting to the relevant facts. The affidavit should 
provide a detailed description of the agreement with former counsel (i.e., the specific actions 
that counsel agreed to take), the specific actions actually taken by former counsel, and any 
representations that former. counsel made about his or her actions. 
• Evidence that the petitioner informed former counsel of the allegation of ineffective 
assistance and was given an opportunity to respond. Any response by prior counsel (or 
report of former counsel's failure or refusal to respond) should be submitted with the claim. 
• If the petitioner asserts that the handling of the case violated former counsel's ethical or legal 
responsibilities, evidence that the petitioner tiled a complaint with the appropriate 
disciplinary authorities (e.g., with a state bar association) or an explanation why the 
petitioner did not file a complaint. 
!d. at 639. These documentary requirements are designed to ensure we possess the essential 
information necessary to evaluate an ineffective assistance claim and to deter meritless claims. !d. 
Allowing former counsel to present his or her version of events discourages baseless allegations, and 
the requirement of a complaint to the appropriate disciplinary authorities is intended to eliminate any 
incentive for counsel to collude with his or her client in disparaging the quality of the representation. 
We note, however, that solely meeting these threshold documentary requirements is not enough; the 
petitioner must also show that former counsel's assistance was so deficient that it was prejudiced by 
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Matter of A-E- Inc. 
the performance. 2 Specifically, the petitioner must show that there is a reasonable probability that 
the outcome would have been different without former counsel's mistakes, 3 and that it had at least a 
plausible ground for relief 4 There is no prejudice if the adverse decision would have been issued 
even without former counsel's errors. See, e.g., Minhas v. Gonzales, 236 Fed. Appx. 981 (5th Cir. 
2007). 
We find that the Petitioner was not prejudiced by former counsel's error. The record shows that we 
considered the merits of the Petitioner's claims on three prior occasions- first on appeal, and then in 
two consecutive motions. Having considered the merits of the Petitioner's claims, we dismiss~d the 
appeal and denied the two subsequent motions. As previously noted, although the Petitioner filed a 
third motion, we determined that the tiling was untimely and denied the motion on that basis. 
We note that when a motion is filed, the petitioner may seek reopening or reconsideration of the 
immediate prior decision. See 8 C.F.R. § 103.5(a)(l)(i). In this instance, the Petitioner asks us to 
consider evidence it submitted in support of an untimely combined motion, which sought to reopen and 
reconsider our decision from April 2017 (which was a denial of the Petitioner's motion to reconsider). 
In order to establish merit for reconsideration of that decision, the Petitioner must have: (I) stated the 
reasons why it believes that decision was based on an incorrect application of law or policy; and 
(2) specifically cited laws, regulations, precedent decisions, and/or binding policies that we misapplied 
in our prior decision where we dismissed the motion to reconsider. In order to establish merit for 
reopening that same decision denying a motion to reconsider, the Petitioner would have to have offered 
documentary evidence of new facts. 
Here, the only evidence offered to support the untimely motion included a statement from the 
Petitioner's former counsel, an atlidavit from the Beneficiary, and previously submitted evidence in the 
form of an employment certificate and letter from the Petitioner's president. The Petitioner did not cite 
any laws or precedent decisions establishing that we incorrectly applied law or policy when we denied 
the prior motion to reconsider. The Petitioner also did not point to new facts that would cause us to 
reopen our decision to deny that motion to reconsider. As the Petitioner's submissions in support of the 
combined motion did not meet the above requirements for a motion to reopen. or reconsider, our 
decision pertaining to the Petitioner's prior motion to reconsider would have remained undisturbed, 
even if former counsel had filed a timely motion to reopen and reconsider. Therefore, we do not tind 
that, but for an ineffective assistance of counsel, the result of the Petitioner's previously tiled motion 
would have been different. 
2 Lozada at 632. In Lozada, the Board determined that Lozada was not prejudiced by counsel's failure to file an appeal 
brief (resulting in the summary dismissal of the appeal) because: he received a full and fair hearing at his deportation 
hearing, at which he was given every opportunity to present his case; he did not allege any inadequacy in the quality·of 
prior counsel's representation at the hearing; the immigration judge considered and properly evaluated all the evidence 
presented; and the immigration judge's decision was supported by the record. 
3 Yu Tian Li v. United States, 648 F.3d 524,527 (7th Cir. 2011); Delhaye v. Holder, 338 Fed. Appx. 568, 570 (9th Cir. 
2009). 
4 See Martinez-Hernandez v. Holder, 778 F.3d I 086, I 088 (9th Cir. 20 15). 
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Matter of A-E- Inc. 
The above discussion addresses the Petitioner's foremost contention that former counsel's negligence 
resulted in the denial of a previously filed motion to r~open and reconsider. The Petitioner does not 
make any further arguments, cite to law or precedent decisions, or point to any new facts to support the 
current motion. Therefore, the Petitioner has not submitted evidence that would meet the requirements 
of a motion to reopen and reconsider. Accordingly, the current combined motion to reopen and 
reconsider must be denied. 
III. CONCLUSION 
For the reasons discussed, the Petitioner has not shown proper cause for reopening or reconsidering 
the prior decision. 
ORDER: The motion to reopen is denied. 
FURTHER ORDERED: The motion to reconsider is denied. 
Cite as Matter of A -E- Inc., ID# I I 02276 (AAO May 22, 20 18) 
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