dismissed L-1A Case: Cafe Management

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: LIN-03-016-52947 Office: NEBRASKA SERVICE CENTER Date: JUL 1 4 
IN RE: 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. § 1 10 1 (a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in yow case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
, ,d- " -"-- 
 - .- 
-& . ". 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
LIN-03-016-52947 
Page 2 
DISCUSSION: The director, Nebraska Service Center, denied the petition for a nonirnmigrant visa. The 
petitioner subsequently filed a motion to reopen. The director granted the motion to reopen but upheld the 
prior decision to deny the petition. The petitioner then filed an appeal. The Administrative Appeals Office 
(AAO) summarily dismissed the appeal for failing to submit a brief or otherwise identify specifically any 
erroneous conclusion of law or statement of fact for the appeal. The matter is now before the AAO on a 
motion to reopen and reconsider. The motion will be dismissed. 
The petitioner states that it is operating a cafe. It seeks to extend its authorization to employ the beneficiary 
temporarily in the United States as its managing director. The director denied the petition concluding that the 
petitioner had not established that the beneficiary has been or will continue to be employed in a managerial or 
executive capacity. 
The motion stems from the petitioner's failure to timely submit a brief in support of its appeal of the 
director's decision on motion to uphold the initial decision to deny the petition. The MO summarily 
dismissed the appeal because a brief specifically identifying an erroneous conclusion of law or fact had not 
been submitted. The petitioner filed a motion to reopen and reconsider the AAO's decision, asserting that a 
brief was timely filed. In support of this assertion it submits an unprocessed mailing label showing that a 
brief was mailed to the Nebraska Service Center. The regulation at 8 C.F.R. § 103.3(a)(Z)(viii) and the 
instructions to the Form I-290B Notice of Appeal require the affected party to submit the brief directly to the 
AAO, not the Nebraska Service Center. Because the affected party did not follow the regulation or the 
instructions, the AAO was not in possession of plaintiffs brief and therefore did not consider it on appeal. 
Therefore, the AAO's decision to summarily dismiss the appeal for failure to submit a brief clearly 
identifying an erroneous conclusion of fact or law was proper. 
The regulation at 8 C.F.R. 9 103.5(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." 
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 in the previous proceeding.' 
On motion, counsel for the petitioner submits a copy of the brief and additional evidence, which he claims 
was previously submitted to the AAO in June 2003.~ As argument, counsel principally states: "The [AAO] 
states that no brief was received regarding this matter. However, our office did mail a brief to the [AAO] on 
June 5,2003. Please refer to attached affidavit of [counsel] attesting to sending the mailing. We also attach a 
copy of the brief that was mailed on June 5,2003." 
A review of the evidence that the petitioner submits on motion reveals no fact that could be considered "new" 
under 8 C.F.R. 103.5(a)(2). Based on counsel's and the petitioner's own admission, all evidence submitted 
was previously available and could have been discovered or presented in the previous proceeding. As noted 
above, the regulations and the 1-290B instructions clearly indicated that the brief should have been submitted 
directly to the MO. As the .petitioner was previously put on notice and provided with a reasonable 
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 I1 NEW RIVERSIDE UNIVERSIW DICTIONARY 792 
(1 984)(emphasis in original). 
Contrary to counsel's claim that the appeal was submitted directly to the AAO, the record indicates that, if a 
brief was mailed, it was submitted to the Nebraska Service Center. 
LIN-03-016-52947 
Page 3 
opportunity to provide the required evidence, the evidence submitted on motion will not be considered "new" 
and will not be considered a proper basis for a motion to reopen. 
Motions for the reopening of immigration proceedings are disfavored for the same reasons as 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 reopen a proceeding bears a 
"heavy burden." INS v. Abudu, 485 U.S. at 110. With the current motion, the movant has not met that 
burden. The motion to reopen will be dismissed. 
Furthermore, 8 C.F.R. 3 103.5(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. 
Although counsel has submitted a motion entitled "Motion to Reopen and Reconsider," counsel does not 
submit any document that would meet the requirements of a motion to reconsider. Counsel does not state any 
reasons for reconsideration nor cite any precedent decisions in support of a motion to reconsider. Counsel 
does not argue that the previous decision to summarily dismiss the matter was based on an incorrect 
application of law or Service policy. Other than the title of the motion, counsel does not assert that a motion 
to reconsider should be considered as an alternative to the motion to reopenq3 Assuming, arguendo, that the 
petitioner intended to file a motion to reconsider, the petitioner's motion will be dismissed. 
Even if the petitioner's motion were granted, counsel's brief primarily restates portions of the Immigration and 
Nationality Act (the Act) and various sections of Title 8 of the Code of Federal Regulations, repeatedly 
claiming that the petitioner is eligible for the benefit sought, and rewrites the beneficiary's job description in 
an attempt to qualify the beneficiary for this classification 
However, the director did a thorough analysis and specifically discussed inconsistent representations by the 
petitioner and the petitioner's failure to justify, explain or reconcile those inconsistencies. In addition to 
counsel's failure to timely submit a brief on appeal, counsel's general objections to the denial of the petition 
in the appeal brief, without specifically identifyrng any new fact to be considered for the motion, or any errors 
on the part of the director in rendering the decision, are simply insufficient to overcome the well-founded and 
logical conclusions the director reached based on the evidence submitted by the petitioner. The assertions of 
counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter Of 
Laureano, 19 I&N Dec. 1 (BIA 1983); Matter ofRamirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). Going 
on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Corn. 1972). 
3 
 Based on a review of the motion, it appears that counsel for the petitioner has submitted a simple motion to 
reopen which is erroneously titled "Motion to Reopen and Reconsider." Counsel does not explicitly claim that 
there are two motions made in the alternative, nor does counsel cite to any regulation that would clarify the 
intended motion. 
LIN-03-016-52947 
Page 4 
Contrary to counsel's assertions, the facts of the case do not speak for themselves, particularly in light of the 
director's detailed list of reasons for denying the petition. Rather, the record shows a number of inconsistent 
representations. It is incumbent upon the petitioner to resolve any inconsistencies in the record by 
independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice 
unless the petitioner submits competent objective evidence pointing to where the truth lies. Mutter of Ho, 19 
I&N Dec. 582, 591-92 (BIA 1988). In the instant case, counsel fails to acknowledge, much less resolve the 
inconsistencies discussed in the denial. 
Finally, it should be noted for the record that, unless Citizenship and Immigration Services (CIS) directs 
otherwise, the filing of a motion to reopen or reconsider does not stay the execution of any decision in a case 
or extend a previously set departure date. 8 C.F.R. 5 103.5(a)(l)(iv). 
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. 4 103.5(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, and the previous decisions of the director and the AAO will not be 
disturbed. 
ORDER: The motion is dismissed.