dismissed EB-1C Case: Jewelry

DATE DEC 1 8 2012 
IN RE: Petitioner: 
Beneficiary: 
L.S. Ikparlml'lll of Homdaud Sl'l'Uril~ 
l .. S. Cill/l'll,hlp dIHlllllllli)Ci'.llltlll SCI'\I~\.·'" 
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OFFICE NEBRASKA SERVICE CENTER 
u.s. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien \Vorkcr as a Multinational Executive or ManaglT Pur:-,u;lIlt to 
Section 2m( h)( I )1 C) of the Imm igration and National ity Act. 8 lJ.s.c. ~ I 1 511 h)( I II C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your casco All of the doculllcnts 
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 Il'oj1l'n in 
accordance with the instructions on Form 1-290B, Notice of Appeal or Motion, with a Icc of S610. Till' 
specific requirements for filing SLlch a motion can be found at 8 C.FR. § 103.5. Do not liIe an} llIotioll 
directly with the AAO. Please be aware that 8 C.F.R. ~ I O3.5(a)( 1 )(i) requires all) molloll to bc libl \llthill 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
l4L 
~on Rosenberg 
Acting Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, Nebraska Service 
Celller. The Administrative Appeals Office (AAO) dismissed a subsequent appeaL The petitioner 
filed a second appeal which was rejected as improperly filed, The maller is now before the AAO on 
a motion to reopen, The motion will be dismissed, 
The petitioner is a Califomia corporation engaged in custom and fashion jewelry business, It seeks 
to employ the beneficiary as its manager. Accordingly, the petitioner endeavors to cia"ify the 
beneficiary as an employment-based immigrant pursuant to section 203(b)( I HC) of the Immigration 
and Nationality Act (the Act), 8 U,S,c. ~ 1153(b)(l)(C), as a multinational executive or manager. 
On May 22, 2008, the director denied the petition based on the determination that the petitioner 
failed to establish that it would employ the beneficiary in a managerial or executive capacity, On 
June 18, 2009, the AAO dismissed the appeal concluding that the petitioner failed to estahlish that 
the beneficiary would be employed in a primarily managerial or executive capacity, 
On July 17,2009, the petitioner filed Form 1-290B, Notice of Appeal or Motion, and marked item B 
under Part 2 of the form, which states: "1 am filing an appeaL" In addition, according to thc 
information provided on the Form 1-290B, the petitioner indicated that it was seeking to appeal the 
Nebraska Service Center's decision dated May 22, 2008, 
On January 13, 201 L the AAO rejected the appeal because neither the statute nor the regulatiolls 
permit the petitioner to file more than one appeal with regard to the same petition, As noted in the 
AAO's decision, the petitioner had already sought appellate review of the director'.s May 22, 2()08 
decision, and the AAO's decision provided a comprehensive review of the petitioner's subllli."ions 
and fully addressed all pertinent points, Neither the Form 1-290B nor the accompanying alTid"vit 
from the petitioner made any reference to the AAO's decision datcd June I X, 200'! and 'IS such 
clearly did not seek to reopen that decision. The AAO noted for the record that even if the petitioner 
had filed a motion to reopen instead of an appeal, the petitioner did not submit the evidence needed 
to support its claim of ineffective assistanec of counsel. 
On January 28, 201 L the petitioner filed Form [-290B and indicated that it is filing a motion to reopen 
the AAO's decision dated January 13,2011. According to 8 CFR, § 103.5(a)( I )(ii), jurisdiction over 
a motion resides in the official who made the latcst decision in the proceeding, Since the AAO was 
the last official to enter a decision of this matter, the AAO may review the motion to reopen, 
The regulations at 8 C.FR, 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, " 
Page J 
Based on the plain meaning of "new," a new fact is found to be evidence that wa.' not availahle and 
could not have been discovered or presented in the previous proceeding, I 
A review of the evidence that the petitioner suhmits on motion reveals no fact that could he con,idered 
lleW under 8 CF.R. * I03.S(a)(2). The evidence submitted was either previou,ly availahle amI could 
have been discovered or presented in the previous proceeding. 
On motion, counsel disputes the AAO's rejection of the appeal filed on July 17, 2009, and maintains 
that "Itlhe [-290B was filed as a Motion to Reopen." Counsel acknowledges that the Form 1-290B 
indicated the petitioner's intent to file an appeal. but contends that "pursuant to H CFR ~ 103.3Ia)(2)(ii), 
the AAO treats a properly and timely filed appeal as a Motion to Reopen or Reeon,ider." COUlbc1 
further states that the appeal met the requirements of a motion to reopen and that the AAO should have 
treated it as such. 
Counsel's as>ertions are not persuasive. The petitioner indicated on the Foml [-29IlB filed on July 17, 
2009 that it was seeking to appeal the Nehraska Service Center's decision dated May 22, 20()X and made 
no reference to the AAO's decision. Therefore, the reviewing official pursuant to X CF.R. 
* 103.3(a)(21(ii) was the director of the Nebraska Service Center, and not the AAO. The director 
declined to treat the late appeal as a motion to reopen or reconsider and forwarded the appeal to the 
AAO. The AAO properly rejected the appeal because it has no statutory or regulatory authority to 
adjudicate a second appeal of the same petition denial. The AAO's decision to reject the appeal was 
appropriate as the appeal was improperly filed. 
Counsel for the petitioner contends that the petitioner suhmitted substantial evidence in support of the 
appeal to establish that the petitioner and heneficiary received ineffective assistance from prior counsel. 
Any appeal or motion hased upon a elaim of ineffective assistance of counsel requires: (I) that the 
claim he supported by an affidavit of the allegedly aggrieved respondent setting forth in detail the 
agreement that was entered into with counsel with respect to the actions to be taken and what 
representations counsel did or did not make to the respondent in this regard, (2) that counsel whose 
integrity or competence is being impugned be informed of the allegations leveled against him and be 
given an opportunity to respond, and (3) that the appeal or motion reflect whether a complaint has 
heen filed with appropriate disciplinary authorities with respect to any violation of counsel's ethical 
or legal responsibilities, and if not. why not. Mutlero(LoZlIdu, 19 [&N Dec. h37 (BIA 19XX). "11'd. 
857 F.2d 10 (1 st Cir. 1988). 
I The word "new" is defined as "I. having existed or been made for only a short time ... 1. Ju.'[ discovered. 
found, or learned <new evidence> WEtlSTER'S II NEW RIVERSIDE lJsiIvERsrn DICTIOl\ARY 792 
(1984)(emphasis in original) 
Page 4 
In support of the appeal filed on July 17,2009, the petitioner submitted an affidavit from the heneficiary 
explaining the agreement that was entered into with former counsel. The beneficiary contends that he 
hired an attomey, but was also working with another attomey. _ The 
beneficiary states that he did not wish to change attomeys from and did not want _ 
_ as his attomey. In the affidavit, the beneficiary stated in paragraph 14 the following: 
Around Scptcmbcr 2007, I stopped I met with both. 
_and_ They explained that it was the proper time for Ithe petitlonerl 
to file an 1-140 immigrant visa petition on my behalf so I could bccome a lawful 
permanent rcsident. I agreed and they explained that they would also conCllITently file 
an 1-485 adjustment of status applications for both wife and myself based on this 1-
140 petition. It was again my understanding that be handling my 
case. Thus, when~ presented his Attomey Client Fee Agrecment to me I 
signed it. Unfortunately, I do not havc a copy of this document any longer. But I do 
recall that it was from office and I paid all legal fees to him in 
installments. A copy of one installment check is attached as Exhibit "3". This Attomey 
Client Fee Agreement stated office will be preparing and filing the 1-
140 petition and 1-485 applications for adjustment of status. The total legal ICes I 
believc was $2,000. 
The affidavit from the beneficiary does not provide sufficient evidence of ineffcctive counsel. Thc 
affidavit states that the beneficiary's first told him that "he could not assist me at 
that time due to illness." The beneficiary also Attomey Client Fee Agreements with_ 
and stated that this agreement indicated that office will be preparing and fil ing thc 1-140 
petition and 1-485 applications for adjustment status." In addition, the petitioner submitted t(llIr 
checks written by the petitioner to _ that indicated "Altomcy" on the memo I inc of the check. 
In addition, the beneficiary stated that "when the 1-140 petition was denied, I met with __ and 
~,. The record reflecls that filed the appeal which was subsequently dISmissed 
by thc AAO. After that. the beneficiary hired cUlTent counsel. 
In the affidavit, the beneficiary stated that ' __ failed to describe the full nature and score of 
I the petitioner'sl business. Instead, hc focused solely on retail jewelry sector, which i, only one rroduct 
line of my business." Howevcr. this is not sufficient evidence to establish inefficient representation by 
counsel. The petitioner does not provide any evidence that it provided additional information to counsel 
to include in the 1-140 petition that counsel failed to include. In addition, the pctitioner is required to 
sign the From 1-140 under Part 8. Signature, and certify, under penalty and peljury under the laws of the 
United States of America, that this petition and the evidence submitted with it was are truc and correct. 
The petitioner failed to provide any evidence that former counsel added or deleted imrortant 
information that was not approved by the petitioner. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these rrocecdings. Moffer 
Page 5 
o(Sot/ie;,22 I&N Dec. 158,165 (Comm'r 1998) (citing Matter of" Treusllre Cmf; "(C,,iij(!/"/Iiu. 14 
I&N Dec. 190 (Reg. Comm'r 1972)). 
petitioner written to the 
states that the petitioner is filing a complaint against the Law Offices 
petitioner did not submit any evidence to establish that this lettcr was filed with the State Bar of 
California or proof of acceptance from the State Bar of Califomia. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof III 
these proceedings. Malter o(Softie;, 22 I&N Dec. at 165. 
Furthermorc, as stated above, any appeal or motion based upon a clailll of ineffective assistance of 
counsel requires that counsel whose integrity or competence is being impugned bc informed oj the 
allegations leveled against him and be given an oppo!1unity to respond. The petitioner Jailed to 
provide any evidence to establish this criterion. Again, going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden oj prooJ ill these 
proceedings. Matter o( Sot/iei, 22 I&N Dec. at 165. The AAO correctly determined that the 
petitioner's improperly filed appeal did not meet the requirements for an appeal or motion based on a 
claim of ineffective assistance of counsel. 
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 discovered evidence. iNS \. 
Doherty, 502 U.S. 314, 323 (I 992)(citing INS P. Ahudu, 485 U.S. 94 (1988)). A party seeking to reopen 
a proceeding bears a "heavy burden." INS v. Ahlldll, 485 U.S. at 110. With the current motion, the 
movant has not met that burdell. 
The burden of proof in these proceedings rests solely with the petitioner. Sectioll 29 I of the Act, 8 
u.s.c. 1361. The petitioner has not sustained that burden. 8 C.F.R. ~ I03.5(a)(4) states that "[a[ 
motion that docs not meet applicable requirements shall be dismissed." Accordingly, the motioll 
will be dismissed, the proceedings will not be reopened or reconsidered, and the previolls decisions 
of the director and the AAO will not be disturbed. 
ORDER: The motion is dismissed.