dismissed EB-2 NIW Case: Education Research

.
U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-K-0-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 12. 2018 
MOTION ON AOMINISTRA TIVE APPEALS OFFICE DECISION 
PETITION : FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a teacher and autism spectrum disorder education researcher. seeks second preference 
immigrant classification as a member of the professions holding an advanced degree. as well as a 
national interest waiver of the job offer requirement attached to this EB-2 classification. ,)'ee 
Immigration and Nationality Act (the Act) section 203(b)(2). 8 U.S.C. ~ 1153(b)(2). Atter the 
petitioner has established eligibility for EB-2 classification . U.S. Citizenship and Immigration 
Services (USCIS) may, as matter of discretion. grant a national interest waiver if the petitioner 
demonstrates: (1) that the foreign national's proposed endeavor has both substantial merit and 
national importance: (2) that the foreign national is well positioned to advance the proposed 
endeavor: and (3) that. on balance. it would be beneficial to the United States to waiv e the 
requirements of a job otler and thus of a labor certification . Matter o( Dhanosar. 26 I&N Dec. 884 
(AAO 2016). 
The Director of the Texas Service Center denied the Form I-140. Immigrant Petition for Alien 
Worker. finding that the Petitioner qualitied for classification as a member of the professions 
holding an advanced degree. but that she had not established that a waiver of a job ofTcr, and thus of 
a labor certification. would be in the national interest. 
The Petitioner appealed the matter to us. We dismissed the Petitioner's appeal. and reaffirmed that 
decision in two subsequent motion adjudications.' The matter is now before us on a third motion. 
With the motion. the Petitioner submits a statement and other documents claiming that her first two 
attorneys provided ineffective assistance ? She asks that we grant her motion to reopen and approve 
her request tor a national inter est waiver. Upon review. we will den y the motion. 
I. LAW 
1 
Matt er ci(C-K-D-. ID# 687588 (AAO Aug. 22 , 2017) was our most recent decision in this matter. 
~ The Petitioner was initially represented in these proceedings by attorney On appeal and for part of 
the first motion. the Petitioner was represented by attorney withdrew her 
appearance in October 2016. The Petitioner was s ubsequently represented by attorney tC.)r the first 
and second motions. With respect to the current motion, the Petitioner is not represented by counsel. 
Maller ofC-K-D-
According to 8 C.F.R. § I 03.5(a)(2). a motion to reopen must state the new facts to be provided in the 
reopened proceeding and be supported by atlidavits or other documentary evidence. 
The Board of Immigration Appeals (the Board) established a framework for asserting and assessing 
claims of ineffective assistance of counsel. See Maller of Lo:::.ada. 19 I&N Dec. 637 (BIA 1988). 
aff"d, 857 F.2d I 0 (I st Cir. 1988). 
First, Lozada sets forth the following threshold documentary requirements for asserting a claim of 
inetlective assistance: 
• A written affidavit of the pettlioner attesting to the relevant facts. The affidavit should 
provide a detailed description of the agreement with fom1er 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 inetlective 
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 filed a complaint with the appropriate 
disciplinary authorities (e.g .. with a state bar association) or an explanation why the 
petitioner did not tile a complaint. 
!d. at 639. These documentary requirements are designed to ensure we possess the essential 
information necessary to evaluate ineffective assistance claim and to deter meritless claims. Jd. 
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 may deny a claim of ineffective assistance if any of the Lozada threshold documentary 
requirements are not met. Castillo-Perez v. INS. 212 F.3d 518. 525 (9th Cir. 2000). Second. if the 
petitioner satisfies these threshold documentary requirements. she must also show that former 
counsel's assistance was so deficient that the she was prejudiced by the performance. 3 Specifically. 
the petitioner must show that there is a reasonable probability that the outcome would have been 
diflerent without former counsel's mistakes, 4 and that she had at least a plausible ground for relief. 5 
1 
Lozada at 632. In Lozada. the Board determined that Lozada was not prejudiced by counsel's failure to tile 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 immigrationjudge·s decision was supported by the record. 
1 
Yu Tian Li v. United States. 648 F.3d 524, 527 (7th Cir. 20 II): De/hare v. Holder. 338 Fed. Appx. 568. 570 (9th Cir. 
2009). 
2 
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Mal!er (?fC-K-D-
There is no prejudice if the adverse decision would have been i ssued even without former counse l" s 
errors. See. e.g. Minhas v. Gonzales, 236 Fed. Appx . 981 (5th Cir. 2007) . 
II. ANALYSIS 
In denying the previous motion , we determined that the Petitioner had not demonstrat ed that she 
meet s the second and third pron gs set forth in the Dhanasar analytical framework. The present motion 
offers no new facts or evidence addressing her eligibilit y or overco ming our finding s. 
Rather , the motion includes a statement from the Petition er asserting that her initial attorn ey. 
hastil y filed the Form I-140 without waiting for her tirst resea rch article to be published. 
In addition, she contend s that her subsequent attorney. sent in her supporting 
evidence six months later and indicated to her that this documentation submitted ··atter the initial 
tiling date would be admi ssible .·· The Petitioner further states that her attorneys "continued to take 
money." did not provide prop er representation. and took advantage of her. She also submits a 
"Serv ice Obligation Exit Certification" between her and the and Florid a Bar 
Inquiry /Complaint Forms detailing her interactions with counsel. Furthermore, the Petition er oftcrs 
email communications with her former attorneys relating to the preparation of her Form 1-140 and 
her child's Form 1-485. Appli cation to Register Perm anent Resi dence or Adjust Status. Lastly. she 
presents a June 2017 letter she sent to and stating that they cause d 
her ··personal and financial hardships" and reque sting a refund of her attorney fees and USC IS tilin g 
fees.0 
The Petitioner has not provided documents meeting the evidentiary requirements set forth in Lozada. 
While the Petitioner's motion includes a signed statement and Florida Bar Inquiry /Complaint Forms 
listin g the dates her docum ents were submitted to USCIS and discussing her issues with coun sel's 
representation. she did not provide a detailed description of their agreement outlining the spec ific 
actions counsel would take. Furthermore. the June 2017 refund request letter is not sutli cient 
evidence indicating that she informed former counsel of the allegat ion of ineffecti ve assis tance and 
that they were given an opportunity to respo nd to that allegation. 7 
Moreover , the Petition er has not shown that former counsels' actions prejudi ced the outcome of the 
pro ceedings. Even if her prior attorneys had dela yed filing the Form 1-140 until after publicati on of 
the Petitioner 's tirst article and had submitted all supporting doc umentation at the time of tiling, the 
record docs not show that the o utcome of this matter would have been different. Finall y, the present 
motion does not offer new facts or evidence demon strating that the Petitioner satisfies the seco nd and 
third prongs of the Dhanasar analy1ical framework. 8 The motion to reopen will therefore he denied. 
5 See Mar tine::.-Hernand e:: r. Holder. 778 F.3d I 086 . I 088 (9th Cir. 20 15). 
6 
This letter does not inform and that the Petitioner was tiling a comr laint with the 
Florida Bar. 
7 Nor does the record contain a response by or 
R We note that represented the Petitioner for both the first and second motions. The Petitioner' s current 
.
Maller (?lC-K-D-
III. CONCLUSION 
The Petitioner has not met the relevant evidentiary requirements identified in Lozada. nor has she 
satisfied the three prongs set forth in the Dhanasar analytical framework. Accordingly , we find that 
she has not established eligibilit y for or otherwise merits a national interest waiver as a matter of 
discretion. 
ORDER: The motion to reopen is denied. 
Cite as Mauer olC-K-D-, 10# 943846 (AAO Feb. 12. 2018) 
motion does not allege that provided ineffective assistance. Thus. the Petition\.'r has had opportunities to 
remedy or address any deficiencies in the information and evidence that initial coun sel provided to USCIS. 
4