dismissed L-1A Case: Computer Sales And Service

U.S. Department of Hornetand Security 
20 Mass Ave., N.W., Room. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
File: EAC 03 251 56524 Office: VERMONT SERVICE CENTER Date: JUL 1 4 2005 
Petition: Petition for a Nonirnmigrant Worker Pursuant to Section 101 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 3 1 10 1(a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
EAC 03 25 1 56524 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonirnmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seelng to extend the employment of its president as an L-1A 
nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 8 1101(a)(15)(L). The petitioner is a corporation organized in the State of 
Massachusetts that is engaged in the computer sales and service business.' The petitioner claims that it is the 
affiliate of Mildeep Brokerage Private Limited, located in Mumbai, India. The beneficiary was initially 
granted a one-year period of stay to open a new office in the United States, and the petitioner now seeks to 
extend the beneficiary's stay. 
The director denied the petition, concluding that the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the director's 
decision is in error. Counsel submits a brief in support of this assertion. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. 5 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
' The AAO notes that on Form 1-129, the petitioner indicated that it is in the "leisure industry." However, 
that appears to be a description of the foreign company's business. The petitioner stated in an addendum to 
Form 1-129 and in its response to the director's request for further evidence that it is engaged in the computer 
service business. 
EAC 03 251 56524 
Page 3 
(iv) Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. 5 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(A) Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(ii)(H) of this section for the previous year; 
(C) A statement of the duties performed by the beneficiary for the previous year and the 
duties the beneficiary will perform under the extended petition; 
(D) A statement describing the staffing of the new operation, including the number of 
employees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a managerial or executive 
capacity; and 
(E) Evidence of the financial status of the United States operation. 
At issue in the present matter is whether the beneficiary will be employed by the United States entity in a 
primarily managerial or executive capacity. 
Section 10 1(a)(44)(A) of the Act, 8 U.S.C. 5 1 101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
EAC 03 25 1 56524 
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functions at a senior level within the organizational hierarchy or with respect to the 
bction managed; and 
(iv) exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 3 1 101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) directs the management of the organization or a major component or function of the 
organization; 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision making; and 
(iv) receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
In the initial petition, the petitioner described the beneficiary's job duties as follows: 
The Beneficiary will continue to be employed as the President of the Petitioner, and he will 
be responsible for hiring and firing managers; supervising subordinate employees, including 
at least one manager, who will supervises and oversees [sic] subordinate employees; 
overseeing preparation of sales and marketing reports; reviewing and analyzing sales data; 
establishing and implementing policies to manage and achieve marketing goals; review and 
financial reports [sic]; review budgets and expense reports prepared by subordinate 
employees; managing the company; and overseeing marketing campaigns developed by 
subordinate managers. In the performance of his duties, the Beneficiary will receive 
minimum supervision from the other members of the Board of Directors, and the Beneficiary 
will exercises [sic] wide discretion and latitude in the performance of his duties. 
On September 18, 2003, the director requested additional evidence. Specifically, the director requested 
evidence establishing the duties the beneficiary performed in the past year and will perform if the petition is 
extended. The director also requested (I) a list identifying all employees of the U.S. entity by name and title; 
(2) a position description for each employee including the beneficiary; (3) a breakdown of the number of 
hours devoted weekly to each employee's job duties, including the beneficiary; and (4) if contractors are used, 
evidence documenting the number of contractors used and the duties performed. 
In response, the petitioner provided the following breakdown of the beneficiary's duties: 
EAC 03 251 56524 
Page 5 
hiring and firing managers, supervising subordinate employees, including at least one 
manager, who will supervise and oversee subordinate employees (10%) 
overseeing preparation of sales and marketing reports (1 5%) 
reviewing and analyzing sales data (15%) 
establishing and implementing policies to manage and achieve marketing goals (15%) 
reviewing financial reports (1 0%) 
reviewing budgets and expense reports prepared by subordinate employees (10%) 
managing the company (15%) 
overseeing marketing campaigns developed by subordinate managers (1 0%) 
The petitioner further states: 
The Beneficiary will be responsible for reviewing and seeking additional business locations; 
therefore, the Beneficiary will engage in the essential function of the Petitioner's expansion of 
business in the United States. 
In the performance of his duties, the Beneficiary will continue to receive minimum 
supervision, and the Beneficiary will exercise wide discretion and latitude in the performance 
of his duties. 
The petitioner also submitted an organizational chart depicting the beneficiary as president directly 
supervising the cyber caf6 managerlpublications manager, who in turn supervises a computer instructor, a 
computer engineer, and a cashierhookkeeper. The petitioner also provided a job description with a 
breakdown of duties by percentage for each of the fou subordinate employees. 
On October 3, 2003, the director denied the petition. The director determined that the petitioner has not 
established that the beneficiary would be employed in a primarily managerial or executive capacity by the 
U.S. entity. The director noted that, even though the organizational chart depicts the beneficiary as 
supervising another manager, the evidence suggests that both the beneficiary as well as that manager would 
be required to perform some of the non-qualifying day-to-day operational tasks of the company. The director 
further noted that the petitioner has not established that the company utilizes independent contractors, or that 
the business is complex, such that the beneficiary might qualify as a "functional manager." The director 
found that the petitioner has not demonstrated that the beneficiary will function at a senior level within the 
organization's hierarchy other than in position title, or that the beneficiary will be involved in the supervision 
and control of other supervisory, professional, or managerial employees who will relieve him from 
performing the services of the corporation. 
On appeal, counsel for the petitioner restates in their entirety the job descriptions of the petitioner's employees 
as provided in response to the director's request for further evidence. Counsel claims that the beneficiary's 
position will be solely executive or managerial and does not include doing day-to-day work of the business. 
Counsel further asserts that the beneficiary will primarily supervise and control other managerial or 
professional employees. Counsel also asserts that the beneficiary will be primarily responsible for managing 
EAC 03 251 56524 
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the marketing function of the petitioner and that the beneficiary also directs the major function or component 
of the petitioner's efforts to expand in the United States. 
Upon review, counsel's assertions are not persuasive. When examining the executive or managerial capacity 
of the beneficiary, the AAO will look first to the petitioner's description of the job duties. See 8 C.F.R. 
5 2142(1)(3)(ii). The petitioner's description of the job duties must clearly describe the duties to be 
performed by the beneficiary and indicate whether such duties are either in an executive or managerial 
capacity. Id. The petitioner must specifically state whether the beneficiary is primarily employed in a 
managerial or executive capacity. Here, the petitioner did not specify whether the beneficiary would be 
primarily employed in a managerial or executive capacity. In fact, the job description provided by the 
petitioner combines some elements of the statutory definitions for both "managerial capacity" and "executive 
capacity," and counsel claims on appeal that the beneficiary's position "will be solely executive or 
managerial." A petitioner cannot claim that some of the duties of the position entail executive 
responsibilities, while other duties are managerial. A beneficiary may not claim to be employed as a hybrid 
"executive/manager~~ and rely on partial sections of the two statutory definitions. 
Counsel asserts that the beneficiary will primarily supervise and control other managerial or professional 
employees. Although the beneficiary is not required to supervise personnel, if it is claimed that his duties 
involve supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See 5 101(a)(44)(A)(ii) of the Act, 8 U.S.C. 5 1 10 1(a)(44)(A)(ii). The record in 
this matter does not establish that the beneficiary's subordinate staff is composed of supervisory, professional, 
or managerial employees. Upon reviewing the job descriptions for the beneficiary's subordinates, the AAO 
cannot conclude that any of these employees truly function in a managerial or supervisory capacity. Of the 
four subordinate employees, only one has a managerial title - the cyber caf6 manager/publications manager. 
Despite his title, however, 90% of that employee's job appears to be performing sales, marketing and 
customer service tasks. Based on their job descriptions, the remaining three employees - the computer 
engineer, the computer instructor, and the bookkeeperlcashier - clearly have no managerial or supervisory 
role. A first-line supervisor will not be considered to be acting in a managerial capacity merely by virtue of 
his or her supervisory duties unless the employees supervised are professional. Section 101(a)(44)(A)(iv) of 
the Act, 8 U.S.C. 5 1101(a)(44)(A)(iv). Moreover, the petitioner has not provided the level of education 
required to perform the duties of the beneficiary's subordinate employees. Thus, the petitioner has not 
established that these positions require an advanced degree, such that these subordinate employees could be 
classified as professionals. Accordingly, the AAO must conclude that the record is insufficient to show that 
the beneficiary's subordinate employees are supervisory, professional, or managerial, as required by section 
10 1 (a)(44)(A)(ii) of the Act. 
Counsel's assertion that the beneficiary qualifies as a "functional manager" also is not supported by the 
record. The term "functional manager" applies generally when a beneficiary does not supervise or control the 
work of a subordinate staff but instead is primarily responsible for managing an "essential function" within 
the organization. See section 10 l(a)(44)(A)(ii) of the Act, 8 U.S.C. 5 110 1 (a)(44)(A)(ii). The term "essential 
function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an 
essential function, the petitioner must furnish a written job offer that clearly describes the duties to be 
performed, i.e., identify the function with specificity, articulate the essential nature of the function, and 
EAC 03 251 56524 
Page 7 
establish the proportion of the beneficiary's daily duties attributed to managing the essential function. 
See 8 C.F.R. &j 214.2(1)(3)(ii). In addition, the petitioner's description of the beneficiary's daily duties must 
demonstrate that the beneficiary manages the function rather thanpe$orms the duties related to the function. 
Here, counsel claims that the beneficiary is primarily responsible for managing the marketing function of the 
U.S. entity. The beneficiary's job description indicates that his managerial duties in this respect include tasks 
such as "overseeing preparation of sales and marketing reports;" "reviewing and analyzing sales data;" 
"establishing and implementing policies to manage and achieve marketing goals;" "reviewing financial 
reports;" "reviewing budgets and expense reports prepared by subordinate employees;" and "overseeing 
marketing campaigns developed by subordinate managers." The AAO notes that although the beneficiary's 
job description refers to multiple "employees" and "managers" involved in these tasks, a review of the job 
description of all of the petitioner's employees show that only the cyber cafd/publications manager performs 
any marketing or sales task. Even then, that individual's job description does not show that he prepares the 
marketing reports, financial reports, or the budget and expense reports that the beneficiary purportedly 
reviews. Given that no other employee is engaged in the marketing function other than the beneficiary and 
the cyber cafe/publications manager, it is reasonable to conclude that any of the tasks related to that function 
which is not performed by the cyber caf&/publications manager must be performed by the beneficiary himself. 
An employee who primarily performs the tasks necessary to produce a product or to provide services is not 
considered to be employed in a managerial or executive capacity. Boyang, Ltd. v. I.N.S., 67 F.3d 305 (Table), 
1995 WL 576839 (9th Cir, 1995) (citing Matter of Church Scientology International, 19 I&N Dec. 593, 604 
(Comm. 1988)). 
Counsel also claims that the beneficiary "will engage in the essential function of the petitioner's expansion of 
business in the United States." However, in the description of the beneficiary's job duties, there appears to be 
no time allocated to tasks associated with this function, such as "seeking additional business locations," as 
counsel indicated. Thus, counsel's assertion is not persuasive. The actual duties themselves reveal the true 
nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 
905 F.2d 41 (2d. Cir. 1990). Without documentary evidence to support the claim, the assertions of counsel 
will not satisfy the petitioner's burden of proof. 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 (BSA 1983); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
Finally, in support of his claim that the beneficiary is a "functional manager," counsel further refers to an 
unpublished decision involving an employee of the Irish Dairy Board. In the unpublished decision, the AAO 
determined that the beneficiary met the requirements of serving in a managerial and executive capacity for L- 
1 classification even though he was the sole employee. Counsel has furnished no evidence to establish that 
the facts of the instant petition are analogous to those in the Irish Dairy Board matter. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. See Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972). 
Furthermore, while 8 C.F.R. &j 103.3(c) provides that AAO precedent decisions are binding on all CIS 
employees in the administration of the Act, unpublished decisions are not similarly binding. 
EAC 03 25 1 56524 
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In light of the foregoing, the AAO agrees with the director's determination that the petitioner has not 
established that the beneficiary will be employed in a primarily managerial or executive capacity, as required 
by 8 C.F.R. 5 214.2(1)(3). 
Beyond the decision of the director, the record contains insufficient evidence to establish that the foreign 
entity employed the beneficiary in a primarily managerial or executive capacity. On the attachment to the 
Form 1-129, the petitioner states that prior to coming to the United States, the beneficiary was employed as 
the managing director of the foreign entity. The petitioner described the beneficiary's job duties as follows: 
The Beneficiary was responsible for supervising subordinate employees who prepare 
marketing and sales strategy; reviewing and analyzing data relating to market conditions; and 
sales reports; [sic] establishing and implementing policies to manage and achieve marketing 
goals; reviewing and approving budgets prepared by controller and chartered accountants and 
directing management of the company. 
The Beneficiary received minimum supervision in the performance of his duties, and he 
supervised at least four (4) subordinate managers and employees. 
The petitioner submitted no other evidence to substantiate the above assertion. First, the AAO notes that 
nowhere in the record did the petitioner specify the dates of the beneficiary's employment with the foreign 
company. Furthermore, the description of the beneficiary's duties that the petitioner has provided is vague 
and nonspecific and fails to demonstrate what the beneficiary did on a day-to-day basis when he worked for 
the foreign company. Moreover, although the petitioner asserted that the beneficiary managed a subordinate 
staff, the record contains no information relating to the beneficiary's subordinate staff at the foreign company, 
such that the AAO could determine whether that staff was composed of supervisory, professional, or 
managerial employees. See section 10 1 (a)(44)(A)(ii) of the Act, 8 U.S.C. 5 1 10 1(a)(44)(A)(ii). 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. Specifics are clearly an 
important indication of whether a beneficiary's duties are primarily executive or managerial in nature, 
otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., 
Ltd. v. Sava, 724 F. Supp. 1103. In light of the foregoing, the AAO finds the evidence of record does not 
establish that the foreign entity employed the beneficiary in a primarily managerial or executive capacity for 
the time period required under the regulation at 8 C.F.R. 3 2 14.2(1)(3)(iii). 
In addition, the petitioner has not provided sufficient evidence that the United States and foreign entities are 
still qualifying organizations, as required by 8 C.F.R. 3 214.2(1)(14)(ii)(A). The regulations and case law 
confirm that ownership and control are the factors that must be examined in determining whether a qualifying 
relationship exists between U.S. and foreign entities for purposes of this visa classification. Matter of Church 
Scientology International, 19 I&N Dec. 593; see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 
362 (BIA 1986); Matter of Hughes, I8 I&N Dec. 289 (Comrn. 1982). In context of this visa petition, 
ownership refers to the direct or indirect legal right of possession of the assets of an entity with full power and 
authority to control; control means the direct or indirect legal right and authority to direct the establishment, 
management, and operations of an entity. Matter of Church Scientology International, 19 I&N Dec. at 595. 
EAC 03 251 56524 
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The petitioner indicated in the letter accompanying the Form 1-129 that the foreign entity owns 51% of the 
U.S. entity. The petitioner submitted a copy of the Articles of Incorporation of the U.S. entity, which 
indicates that 200,000 common shares are authorized, and copies of share certificates number 1 and 2 of the 
U.S. entity, indicating that the foreign entity owns 510 shares, and an individual named wns 
490 shares, respectively. No other evidence of share ownership was provided. As g of a 
petitioner's claimed qualifying relationship, stock certificates alone are not sufficient evidence to determine 
whether a stockholder maintains ownership and control of a corporate entity. The corporate stock certificate 
ledger, stock certificate registry, corporate bylaws, and the minutes of relevant annual shareholder meetings 
must also be examined to determine the total number of shares issued, the exact number issued to the 
shareholder, and the subsequent percentage ownership and its effect on corporate control. Additionally, a 
petitioning company must disclose all agreements relating to the voting of shares, the distribution of profit, 
the management and direction of the subsidiary, and any other factor affecting actual control of the entity. 
See Matter of Siemens Medical Systems, Inc., 19 I&N Dec. at 364-365. Without full disclosure of all relevant 
documents, the elements of ownership and control cannot be determined in this instance. 
Moreover, the AAO notes that the copy of the front of the share certificate for the 510 shares lists the foreign 
entity as the shareholder, whereas the copy of the back of that certificate indicates that the shares were issued 
to the beneficiary. In addition, the petitioner provides a copy of a check made payable to the petitioner in the 
amount of $21,300.00, from the beneficiary's personal bank account2 As evidence of $20,000.000 being paid 
to the petitioner by Tushar Pandit, the other shareholder, was also submitted, it appears that these are in fact 
payments for the shares in the U.S. entity. Given that there is conflicting information on the stock certificate 
as to whether the 5 10 shares were issued to the foreign entity or the beneficiary, and payment for those shares 
appears to have come from the beneficiary in his individual capacity rather than from the foreign entity, there 
remains serious doubt regarding the petitioner's claim that it is owned in part by the foreign entity. The 
petitioner has not accounted for these inconsistencies in the record. 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. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Doubt cast on any 
aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the 
remaining evidence offered in support of the visa petition. Id. 
In light of the above described deficiencies in the record, the AAO finds that the evidence is insufficient to 
establish that the United States and foreign entities are still qualifying organizations, as required by 8 C.F.R. 5 
214.2(1)(14)(ii)(A). 
Furthermore, the record does not contain sufficient evidence that the petitioner has been engaged in the 
regular, systematic, and continuous provision of goods andfor services in the United States for the entire year 
prior to filing the petition to extend the beneficiary's status, pursuant to the regulation at 8 C.F.R. 5 
2 The AAO notes that the check bears the beneficiary's signature and has the same account number as 
another check in the record, payable to National Corporate Research, Ltd., with the beneficiary's name clearly 
printed as the account holder. 
EAC 03 25 1 56524 
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214.2(1)(14)(ii)(B). Under the regulations, the petitioner is expected to submit evidence that it has been doing 
business since the date of the approval of the initial petition. The initial petition was approved in October 
2002. The petitioner submitted a number of invoices and bank statements to establish that it has been 
conducting business on a regular basis. However, the earliest bank statement only went back as far as 
December 24, 2002, and the earliest invoice documenting a business transaction carried out by the petitioner 
dates back to April 24, 2003. Furthermore, the AAO notes that the invoices submitted by the petitioner 
evidence the petitioner's purchase of goods and services by the petitioner, rather than the provision of goods 
and services by the petitioner as contemplated by the regulations at 8 C.F.R. 5 214.2(1)(l)(ii)(H). As such, 
the petitioner has not provided sufficient evidence that it has been "doing business," as defined by the 
regulations, for the entire year prior to filing the petition for extension. For this additional reason the petition 
may not be approved. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afyd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews 
appeals on a de novo basis). For these additional reasons, the appeal must be dismissed. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.