dismissed EB-2 NIW Case: Education

(b)(6)
DATE: JAN Q 9 2014 OFFICE: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration 
and Nationality Act, 8 U.S.C. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form 1-2908) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://w'-"'\v.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
~~'--S~ 
~YRosenbe~ 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the AAO on appeal. The AAO will dismiss the appeal. 
The petitioner seeks classification under section 203(b)(2) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a high school math teacher in 
Since August 2007, the petitioner has taught at The 
petitioner asserts that an exemption from the requirement of a job offer, and thus of a labor certification, 
is in the national interest of the United States. The director found that the petitioner qualifies for 
classification as a member of the professions holding an advanced degree, but that the petitioner has not 
established that an exemption from the requirement of a job offer would be in the national interest of the 
United States. 
On appeal, the petitioner submits a brief and copies of 2012 public school progress reports at the state 
and county levels. The petitioner indicates on appeal that he is appealing the petition pro se. 
Previously, his attorney of record was (hereafter "former counsel"). 
Section 203(b) of the Act states, in pertinent part: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of 
Exceptional Ability. -
(A) In General. - Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or who 
because of their exceptional ability in the sciences, arts, or business, will substantially 
benefit prospectively the national econoiny, cultural or educational interests, or welfare 
of the United States, and whose services in the sciences, arts, professions, or business 
are sought by an employer in the United States. 
(B) Waiver of Job Offer-
(i) ... the Attorney General may, when the Attorney General deems it to be in 
the national interest, waive the requirements of subparagraph (A) that an alien's 
services in the sciences, arts, professions, or business be sought by an employer 
in the United States. 
The director did not dispute that the petitioner qualifies as a member of the professions holding an 
advanced degree. The sole issue in contention is whether the petitioner has established that a waiver of 
the job offer requirement, and thus a labor certification, is in the national interest. 
Neither the statute nor the pertinent regulations define the term "national interest." Additionally, 
Congress did not provide a specific definition of "in the national interest." The Committee on the 
Judiciary merely noted in its report to the Senate that the committee had "focused on national interest by 
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increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, lOlst Cong., 1st Sess., 11 (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT 
90), P.L. 101-649, 104 Stat. 4978 (Nov. 29, 1990), published at 56 Fed. Reg. 60897, 60900 (Nov. 
29, 1991), states: 
The Service [now U.S. Citizenship and Immigration Services (USCIS)] believes it 
appropriate to leave the application of this test as flexible as possible, although clearly 
an alien seeking to meet the [national interest] standard must make a showing 
significantly above that necessary to prove the "prospective national benefit" 
[required of aliens seeking to qualify as "exceptional."] The burden will rest with the 
alien to establish that exemption from, or waiver of, the job offer will be in the 
national interest. Each case is to be judged on its own merits. 
In reNew York State Dep 't of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Comm'r 1998) 
(NYSDOT), has set forth several factors 'Nhieh must be considered when evaluating a request for a 
national interest waiver. First, a petitioner must establish that the alien seeks employment in an area of 
substantial intrinsic merit. Id. at 217. Next, a petitioner must establish that the proposed benefit will be 
national in scope. Id. Finally, the petitioner seeking the waiver must establish that the alien will serve 
the national interest to a substantially greater degree than would an available U.S. worker having the 
same minimum qualifications. Id. at 217-18. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
that the alien's past record justifies projections of future benefit to the national interest. Id. at 219. The 
petitioner's assurance that the alien will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The term "prospective" is included here to require future 
contributions by the alien, rather than to facilitate the entry of an alien with no demonstrable prior 
achievements, and whose benefit to the national interest would thus be entirely speculative. Id. 
The USCIS regulation at 8 C.P.R. § 204.5(k)(2) defines "exceptional ability" as "a degree of 
expertise significantly above that ordinarily encountered" in a given area of endeavor. By statute, 
aliens of exceptional ability are generally subject to the job offer/labor certification requirement; 
they are not exempt by virtue of their exceptional ability. Therefore, whether a given alien seeks 
classification as an alien of exceptional ability, or as a member of the professions holding an 
advanced degree, that alien cannot qualify for a waiver just by demonstrating a degree of expertise 
significantly above that ordinarily encountered in his or her field of expertise. 
The petitioner filed the Form I-140, Immigrant Petition for Alien Worker, on June 29, 2012. In an 
accompanying statement, former counsel stated that the "petition for waiver of the labor certification 
is premised on [the petitioner's] Masters Degree in Education, about nineteen (19) years of dedicated 
and progressive teaching experience in STEM [science, technology, engineering, and mathematics] 
Education, the awards and recognitions received by his [sic], among others." 
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Academic degrees, experience, and recognition for achievements are all elements of an exceptional 
ability claim under the regulations at 8 C.F,R. §§ 204.5(k)(3)(ii)(A), (B), and (F), respectively. 
Because the threshold for exceptional ability is lower than the threshold for the national interest 
waiver, evidence of exceptional ability does not necessarily establish eligibility for the waiver. 
Former counsel's statement included an exhibit list, identifying eight "awards and recognitions " 
from as follows: 
• An undated document thankin g tb ~ petitioner "for serving as a Middle States 
Committee Chair." The document reads, in part: "Your selection as a Committee 
Chair was based on your professionalism and continued support of the culture and 
climate change at 
• A July 2009 "Teacher Appreciation" certificate, presented to the petitioner "for 
Patience and Endurance in the Classroom." 
• Three certificates for "Perfect Attendance," dated June 2009, December 2009 and 
March 2010. 
• Two "Summer School Acceptance & Confirmation" forms, respectively from 
2009 and 2011, indicating that the petitioner "accept[ ed] a position as alan Math 
teacher for 'Jumpstart to Graduation' Summer School Program at 
• Most Likely to Give 
a Test Award, Program, May 2012 
The petitioner did not establish the significance of these certificates outside of 
The petitioner submitted letters from administrators and teachers at as well as from students 
and parents of students. The witnesses praised the petitioner ' s skills and character, but did not 
establish that the petitioner's work has influenced the field. 
The director issued a request for evidence on February 11, 2013. The director stated: "The petitioner 
must establish that the beneficiary has a p2:-:t r:er:ord of specific prior achievement with some degree 
of influence on the field as a whole." The director also instructed the petitioner to submit 
documentation to establish the significance of awards that the petitioner has received. 
In response, the petitioner submitted background materials regarding STEM education and federal 
education initiatives, as well as a statement from former counsel. Former counsel stated that, using a 
"strict implementation of In the Matter of New York Department of Transportation, the USCIS­
Texas Service Center has determined National Interest Waiver self petitioner teachers' evidences as 
insufficient and accordingly denied the applications." Former counsel asserted that the director "has 
discretion to enforce said precedent," i.e. NYSDOT. Following published precedent decisions is not 
a matter of discretion. Rather, such decisions are binding on all USCIS employees. See 8 C.F.R . 
§ 103.3(c). Former counsel stated: "the Service has legal and factual bases to approve teachers ' 
National Interest Waiver applications without offending the principles enunciated in the Matter of 
New York Department of Transportation." 
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Former counsel quoted remarks made by then-President George H.W. Bush when he signed 
IMMACT 90: "This bill provides for vital increases for entry on the basis of skills, infusing the 
ranks of our scientists and engineers and educators with new blood and new ideas." Former counsel 
interpreted this passage to mean that Congress created the national interest waiver for educators, but 
the job offer requirement for which the petitioner seeks a waiver was, itself, an integral provision of 
IMMACT 90. President Bush's quoted remarks did not specifically mention the national interest 
waiver, and there is no evidence that the remarks referred particularly to the waiver, rather than to 
IMMACT 90 as a whole. The national importance of "education" as a concept, or "educators" as a 
class, does not lend national scope to the work of a single schoolteacher. 
Former counsel asserted that section 203(b )(2)(B)(i) of the Act does not contain clear guidance on 
eligibility for the waiver, and claimed that Congress subsequently filled that gap with the passage of 
the No Child Left Behind Act of2001 (NCLBA), Pub.L. 107-110, 115 Stat. 1425 (Jan. 8, 2002): 
Congress has in effect remarkably engraved the missing definition upon the concept 
of 'in the national interest,' centered on the 'Best Interest of American School 
Children.' More importantly, U.S. Congress also provided the means to achieve this 
now defined 'in the national interest,' i.e., 'Hiring and Retaining Highly Qualified 
Teachers.' Interestingly, "NCLB Act" also specified the 'Standard of a Highly 
Qualified Teacher.' 
Indeed, the "NCLB Act" has elucidated the previously dark avenue for educator­
national interest waivers. 
With this, the Service now has a definite working took in defining what is 'in the 
national interest' including the clear standard on what qualifications must be required 
from NIW [national interest waiver] teacher self-petitioners, as mandated by No 
Child Left Behind Act of 2001. There is no longer vagueness or obscurity like what 
happened in the New York State Department of Transportation case, which left the 
Immigration Service with over-reaching discretion in imposing even the impossible 
from NIW teacher self-petitioners. 
Most of former counsel's statement consists of variations on the claim that the NCLBA amounts to a 
legislative mandate for a blanket waiver for highly qualified teachers. The phrase "national interest" 
does not appear in the text of the NCLBi\. The term "best interest," with respect to children, 
appears only in provisions relating to homeless students. The NCLBA contains no mention of the 
national interest waiver or any immigration benefits for foreign teachers, and it did not amend 
section 203(b )(2)(B) of the Act (which created the waiver). Former counsel contended that 
Congress specifically intended to make the waiver available to "highly qualified teachers" when it 
passed the NCLBA, and that "favorable decisions for the NIW teachers" is thereby "honoring the 
Congressional intent in No Child Left Behind Act of 2001." Former counsel, however, cited no 
specific language from the statute itself or its legislative history to support this claim. 
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Statutory interpretation begins with the language of the statute itself. Pennsylvania Department of 
Public Welfare v. Davenport, 495 U.S. 552 (1990). Statutory language must be given conclusive 
weight unless the legislature expresses an intention to the contrary. Int '!. Brotherhood of Electrical 
Workers, Local Union No. 474, AFL-CIO v. NLRB, 814 F.2d 697 (D.C. Cir. 1987). Here, the 
petitioner has not established that Congress intended to exempt teachers from the job offer 
requirement, either through section 203(b)(2) of the Act, the NCLBA, or any other federal 
legislation. 
The NCLBA did not amend section 203(b)(2) of the Act or otherwise mention the national interest 
waiver. In contrast, the Miscellaneous and Technical Immigration and Naturalization Amendments 
of 1991, Pub. L. 102-232, 105 Stat. 1733 (Dec. 12, 1991) made the national interest waiver available 
to members of the professions holding advanced degrees, where previously it was available only to 
aliens of exceptional ability. Following the publication of NYSDOT, section 5 of the Nursing Relief 
for Disadvantaged Areas Act of 1999, Pub.L. 106-95, 113 Stat. 1312 (Nov. 12, 1999), specifically 
amended the Immigration and Nationality Act by adding section 203(b )(2)(B)(ii) to that Act, to 
create special waiver provisions for certain physicians. Thus, Congress not only can amend the Act 
to clarify the waiver provisions, but has in fa<:'t done so on two occasions, first to correct an omission 
of language, and later in direct response to NYSDOT. Former counsel identified no other legislation 
that directly addresses the national interest waiver in this way. In the absence of a comparable 
provision in the NCLBA or any other education-related legislation, there is no basis to conclude that 
the legislation indirectly implied a blanket waiver for teachers. Without clearly expressed 
Congressional authority, USC IS will not designate blanket waivers on the basis of occupation. See 
NYSDOTat 217. 
The NCLBA and other federal initiatives establish that the federal government places a priority on 
improving the quality of education, but former counsel did not establish that any of these programs 
had the express or implied result of changing immigration policy toward teachers. Section 
203(b )(2)(A) of the Act remains in effect, aud therefore teachers, "highly qualified" or otherwise, 
remain subject to the job offer requirement. 
Former counsel claimed that the labor certification process would pose a "dilemma" because the 
petitioner's qualifications exceed the minimum requirements for the position, and "the employer is 
required by No Child Left Behind (NCLB) Law ... to employ highly qualified teachers." Former 
counsel did not show that these two considerations are incompatible. Section 9101(23) of the NCLB 
Act defines the term "highly qualified teacher." By the statutory definition, a "highly qualified" school 
teacher: 
• has obtained full State certification as a teacher or passed the State teacher licensing 
examination, and holds a license to teach in such State; 
• holds at least a bachelor's degree; and 
• demonstrates competence in the academic subjects he or she teaches. 
Section 9101(23)(A)(ii) of the NCLB Act further indicates that a teacher is not "Highly Qualified" if 
he or she has "had certification or licensure requirements waived on an emergency, temporary, or 
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provisional basis." Former counsel did not explain how the above requirements are incompatible with 
the existing labor certification process, and the petitioner submitted no evidence that the labor 
certification has resulted in the widespread employment of teachers who are less than "highly 
qualified." The minimum degree requirement is the same for labor certification as it is for a highly 
qualified teacher (i.e., a bachelor's degree). 
Former counsel stated that the petitioner had already "presented the following evidences of his 
achievements." Former counsel then listed the petitioner's previously identified certificates. Former 
counsel did not explain how certificates praising the petitioner's "perfect attendance" and naming 
him "Most Likely to Give a Test" were "evidences of his achievements." The director, in the 
request for evidence, had instructed the petitioner to submit evidence of the awards' significance. 
Simply listing them again cannot suffice in this regard. 
The director denied the petition on May 23, 2013, stating that the petitioner had met only the first 
(intrinsic merit) prong of the NYSDOT national interest test. The director stated that the petitioner 
"is a dedicated educator," but that the evidence submitted does not demonstrate national scope or 
establish that the petitioner "has a history of demonstrable prior achievements with some degree of 
influence on the field as a whole." 
On appeal, the petitioner asserts: "the 
national educational interest should underpin the application of 
the NYSDOT factors." The petitioner quotes various materials from the legislative history of 
IMMACT 90, noting several references to "educators." IMMACT 90 mentioned educators, and it 
created the national interest waiver, but did not create a blanket waiver for educators. Rather, the 
legislation specified that teachers, as members of the professions, are subject to the job offer 
requirement at section 203(b)(2)(A) ofthe Act. 
The petitioner contends that NYSDOT contains "ambiguity as to the precise parameters for 
implementing the job offer waiver," but "Congress has unequivocally spelled out in the NCLB the 
national interest underpinning public elementary and secondary education." Public education as a 
whole serves the national interest, but this attests to the intrinsic merit of the petitioner's occupation. It 
does not give national scope to the work of any one secondary school teacher, and it does not pertain 
specifically to the petitioner or establish his irnpact and influence on his field. The petitioner, like 
former counsel, offers several variations on the claim that IMMACT 90 and the NCLBA collectively 
imply a blanket waiver for teachers, or at least for "highly qualified teachers" as the NCLBA defines 
that term. The NCLBA does not contain any immigration provisions, and it does not mention the 
national interest waiver or the phrase "national interest" in any context. The intrinsic merit of 
education, however explained, meets only the first prong of the three-pronged NYSDOT national 
interest test. 
The petitioner claims that "an automatic application of the NYSDOT factors to an NIW application 
connected with a job in a public school district, without appropriate consideration of the NCLB, would 
be inapposite." Noting that the beneficiary in l/YSDOT was a civil engineer, the petitioner states: "In 
adjudicating NIW applications, the USCIS applies the NYSDOT threshold factors across the board, that 
is, regardless of the type of profession to which the alien belongs and the specific employment sector in 
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which the alien professional seeks to work." NYSDOT involved a civil engineer, but the three-pronged 
national interest test is deliberately broad; it was not optimized for civil engineers or designed with only 
civil engineers in mind. Apart from the physician provisions at section 203(b )(2)(B)(ii) of the Act 
(which postdate NYSDOT), there is no provision in the statute that would entitle workers in some 
professions (such as teaching) to a different national interest standard than workers in other professions 
(such as engineering). While the NCLBA does not contain any immigration provisions and did not 
create a blanket waiver for teachers, NYSDOT is a published precedent decision and, as such, is binding 
on all USCIS employees under 8 C.F.R. § 103.3(c). Therefore, applying NYSDOT to teachers is not 
"inapposite." 
The petitioner asserts that the director erred in finding that the benefit from his employment would not 
be national in scope, and asserts that the director "cited the third footnote in NYSDOT as providing the 
guiding principle" in the decision even though that footnote is "a superfluous comment." The footnote 
served as an illustrative example: "while educ::ition is in the national interest, the impact of a single 
schoolteacher in one elementary school would not be in the national interest for purposes of waiving the 
job offer requirement of section 203(b)(2)(B) of the Act." NYSDOT at 217, n.3. The petitioner, on 
appeal, has not established that this example does not apply. 
Under section 291 ofthe Act, 8 U.S.C. § 1361, a party seeking an immigration benefit bears the burden 
of proof to establish eligibility for that benefit. There is no presumption of eligibility. The petitioner, 
on appeal, seeks to meet this burden by stating "it is [in] the national educational interest of the United 
States that all children have the opportunity to obtain a high-quality education." This assertion concerns 
the intrinsic merit of education; it affects "all children" through the collective efforts of all teachers, 
rather than through the individual efforts of the petitioner or any one teacher. The petitioner quotes 
various sources indicating that individual teachers have a great impact on the education of their 
students, but this relates to the teacher's local impact. 
The petitioner claims "a verifiable track record of being an effective frontline champion of the national 
educational interest of ensuring that all children reach proficiency on challenging State academic 
achievement standards and academic assessments by closing the achievement gaps between minority 
and nonminority students, and between disadvantaged and more advantaged children." To support this 
claim, the petitioner submits excerpts from the Maryland Re ort Card 2012 Progress Report, 
showing "2012 School Progress" for the state as a whole; and 
specifically. The petitioner states: "the results of the MSA-HAS [Maryland School Assessment and 
High School Assessment] Algebra/Data Analysis offer an independent and objective metric to 
determine whether I am effective in promoting the national educational interest of closing the 
achievement gaps in Math proficiency." These statistics show aggregate data, and do not distinguish 
the petitioner's impact from that of other teachers in Maryland, 
The submitted statistics show some narrowing of the achievement gap at the statewide level, but they 
also show that, in some important areas, the county lags behind the state, and behind the 
county. For example (all figures shown as percentages): 
State County 
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Attendance Rate 
2011 
2012 
Cohort Graduation Rate, class of 2011 
Four-year 
Five-year 
Algebra/Data Analysis Proficiency Levels 
2011 
2012 
The last statistic shows a drop in math proficiency at 
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92.3 
92.2 
82.82 
85.51 
83.6 
83.9 
90.2 
91.2 
74.63 
78.91 
67.9 
67.7 
from 
2011 to 2012. 
85.0 
83.9 
59.21 
67.32 
55.7 
53.4 
2012 School Progress Index measured the school's progress on ten "High School Indicators." 
The school met three of the ten goals, specifically English achievement, graduation gap reduction 
and dropout gap reduction. The report indicates that "scores will be broken into five strands. . 
. . 
Schools in Strand 1 will be schools meeting all targets and schools not meeting any of their targets 
will be in Strand 5." is in Strand 4. 
The cited figures show where stood after the petitioner had worked there for five years. The 
petitioner did not submit earlier figures to show that his arrival at coincided with an accelerated 
rate of improvement in math scores there, or to show that he was largely responsible for any such 
improvement. The figures provided show a decline from 2011 to 2012. Whatever the petitioner's 
individual skills as a teacher, the available data do not show that his several years at have raised 
achievement levels at that one school or on a wider basis. 
The petitioner claims that Maryland's "public school system was ranked first in the nation for the 
fifth consecutive year in Education Week's Quality Counts 2013 report card on the state of 
American education." The petitioner does not establish that his work played a significant role in that 
accomplishment. The submitted statistics show that HSA math scores at are more than 30 
points lower than the statewide average. The cited figures do not establish that the petitioner has 
had, or will have, a national impact on math education. 
The petitioner states: "The presence of an effective highly qualified teacher in the classroom is the 
proverbial pebble that causes the ripple." If the petitioner means to state that educational reform will 
result from having highly qualified teachers i.n all classrooms, then he speaks of the cumulative 
effect of such teachers, rather than the individual effect from any one teacher. It~ on the other hand, 
the petitioner means to state that he individually is sending out "ripples" to other classrooms and 
other school systems, then he must provide specific evidence to support that claim; statistical 
evidence that combines his work with that of other teachers is insufficient. 
The petitioner claims to "have been at the helm of promoting college and career readiness in the 
students at " This claim, on its face, emphasizes the local impact of his work, by 
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defining that impact in terms of a single school. Furthermore, the submitted statistics show that 
graduation levels at while rising, remain substantially below the county and state averages. 
The petitioner's employment at an underperforming school at a time when there is a trend toward 
improvement does not demonstrate or imply that the petitioner is largely responsible for that 
improvement. The record does not demonstrate that the petitioner's past performance as an educator 
stands out to an extent that warrants the special immigration benefit of the national interest waiver. 
The petitioner cites the previously submitted witness letters as evidence of "a past history of 
achievement with some degree of influence on the field of public secondary education as a whole," 
but he does not show that the letters identified any specific influential achievements apart from test 
score improvements at one school. The petitioner repeats the assertion that individual teachers have 
great influence over individual students, but the petitioner does not show any influence over students 
except those in his classrooms at the specific schools where he has taught. The petitioner's own 
students represent a very small fraction of all high school students in the United States, and he has 
not shown that his work has had, will have, nationally significant results. 
The petitioner has not established a past record of achievement at a level that would justify a waiver of 
the job offer requirement. The petitioner need not demonstrate notoriety on the scale of national 
acclaim, but the national interest waiver conternplates that his influence be national in scope. NYSDOT 
at 217, n.3. More specifically, the petitioner "must clearly present a significant benefit to the field of 
endeavor." Id at 218. See also id at 219, n.6 (the alien must have "a past history of demonstrable 
achievement with some degree of influence on the field as a whole."). 
As is clear from a plain reading of the statute, it was not the intent of Congress that every person 
qualified to engage in a profession in the United States should be exempt from the requirement of a job 
offer based on national interest. Likewise, it does not appear to have been the intent of Congress to 
grant national interest waivers on the basis of the overall importance of a given profession, rather than 
on the merits of the individual alien. On the basis of the evidence submitted, the petitioner has not 
established that a waiver of the requirement of an approved labor certification will be in the national 
interest of the United States. 
The AAO will dismiss the appeal for the above stated reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act; 
Matter o.fOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the petitioner has not met that burden. 
ORDER: The appeal is dismissed.