dismissed L-1A Case: Cosmetics

U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
identifyingdatadeletedto
preventclearlyunwarranted
invasionofpersonalprivacy
PUBLICCOpy
FILE: WAC 07 14652027 Office: CALIFORNIA SERVICE CENTER Date: NOV 0' 2001
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.c. § 1101(a)(l5)(L)
ON 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.
~ef
Arinistrative Appeals Office
www.uscis.gov
WAC 07 14652027
Page 2
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The
m~tter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal.
The petitioner filed this nonimmigrant petition seeking to extend the employment of its president as an L-1A
nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality
Act (the Act), 8 U.S.C. § I 101(a)(15)(L). The petitioner, a California corporation, states that it is engaged in
the import and wholesale of cosmetics and other products. The petitioner claims that it is a subsidiary of S.G.
Korea Co. Ltd., located in Korea. The beneficiary was initially approved for a one-year period in L-1A
classification in order to open a new office in the United States, and the petitioner now seeks to extend the
beneficiary's status for two additional years.
The director denied the petition concluding that the petitioner did not establish that the beneficiary would be
employed in a primarily managerial or executive capacity under the extended petition.
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 facts on
record are sufficient to meet the petitioner's burden of proof to establish that the beneficiary will be employed
in a primarily managerial capacity. Counsel contends that the volume of business conducted and the number
of employees hired within the first year of operations warrant the extension of the beneficiary's L-lA status.
Counsel submits a brief and additional evidence in support ofthe appeal.
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. § 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 (1)(I)(ii)(G) ofthis 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.
(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 him/her to perform the intended
WAC 07 14652027
Page 3
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. § 214.2(l)(l4)(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 III
paragraph (1)(1)(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.
The sole issue addressed by the director is whether the petitioner established that the beneficiary will be
employed by the United States entity in a primarily managerial or executive capacity.
Section 101(a)(44)(A) of the Act, 8 U.S.c. § 1101(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,
functions at a senior level within the organizational hierarchy or with respect to the
function 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.
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Section 101(a)(44)(B) of the Act, 8 U.S.c. § 1101(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.
The nonimmigrant petition was filed on April 16, 2007. In a letter dated April 13, 2007, the petitioner
indicated that the beneficiary has been employed as president, "a position involving executive functions." The
petitioner indicated that the beneficiary "is responsible for the developing and overseeing of all U.S.
operations, including setting corporate policies, developing strategies for marketing, fiscal and personnel
matters." The petitioner emphasized that the company employs six professionals and achieved gross sales of
$1.67 million in 2006.
The director issued a request for additional evidence on June 20, 2007, in which she instructed the petitioner
to submit the following: (1) a detailed, specific description of the beneficiary's duties, and the percentage of
time he devotes to each duty; (2) an organizational chart for the U.S. company which includes the names and
job titles of all employees; (3) information regarding subordinate employees, including their job duties,
educational level, annual salary/wages and immigration status; and (4) copies of the petitioner's California
Form DE-6, Employer's Quarterly Report for the last four quarters.
In a response dated July 9, 2007, counsel for the petitioner stated that the beneficiary has functioned in a
primarily managerial capacity during the first year of operations and currently oversees five employees.
Counsel provided information regarding the names, job titles, educational level and salary of the beneficiary's
subordinate employees, and the dates on which they were hired, but included little information regarding their
job duties. The petitioner also submitted an organizational chart depicting the company's structure. The
employees, as identified on the organizational chart, include a marketing director/general manager, a sales
manager, a sales associate, a marketing associate, and an administrative secretary. Based on the petitioner's
California Form DE-6 for the second quarter of 2007, all employees work on a full-time basis.
Counsel for the petitioner further explained the petitioner's organizational structure as follows:
The corporate structure at [the petitioner] is basic yet effective. It is a four-tier system, similar
both in appearance and functionality to the Parent Company.
The top tier consists of the President whose decisions are penultimate pronouncements
regarding the direction of [the petitioner]. The second tier is occupied by the general
manager of [the petitioner] who ensures the ultimate wishes of the CEO. The general
manager's responsibility is to oversee all matters of the company relating to marketing, sales
WAC 07 146 52027
PageS
and general procedures. The third tier consists of marketing and sales.managers who oversee
their respective branches in [the petitioning company]. The marketing manager's role includes
consultation, domestic advertising and international trade between Korea and the U.S.
regarding the company's product. The sales manager primarily focuses on the management of
product inventories, organizational and procedural issues, supervision of sales associates and
lesser executive decisions. Two sales associates and a marketing associate represent the
fourth tier, focusing on day to day sales of the products manufactured, customer service
issues, and basic advertising.
1
Counsel stated that the "high volume of professional and managerial employees hired in this short period of
time, combined with substantial cash flow proves [the petitioner] properly functioned under the Beneficiary in
its probationary period." The petitioner provided resumes for its sales associate, marketing director/general
manager, sales manager and marketing associate. The record indicates that the sales associate has a bachelor's
degree in theatre and experience in sales and marketing; the marketing director has an associate's degree in
electronic communication and extensive marketing experience in the petitioner's industry, the sales manager
was enrolled in university-level business management and marketing programs, but it is unclear whether she
graduated; and the marketing associate has an educational background in pharmacy.
With respect to the beneficiary's position, counsel further described his role as follows:
Currently, as the paramount executive of [the petitioner], Beneficiary has a monopoly over
the development and oversight of every U.S. operation. Such duties include establishing and
enforcing corporate policies, developing and delegating strategies for marketing, and
management and delegation of fiscal matters.
Furthermore, Beneficiary due to his penultimate executive status has complete, unadulterated
discretion to hire any additional employees and fire any of his six subordinates. Beneficiary's
annual salary is approximately $120,000.00 USD, a salary befitting a manager of his rank.
Within [the petitioner], Beneficiary has no superior, no peer.
Moreover, the business future of [the petitioner] is luminescent. A second subsidiary of the
Parent Company, Beautique, Inc. (hereinafter "Beautique") was incorporated by the laws of
the state of California in January of 2007. The primarily [sic] purpose of Beautique is to act
as a retail branch of both Parent company and [the petitioner]. Currently, Beautique under the
leadership of Beneficiary is in a preliminary opening stage, attempting to hire its first
management and retail employees. This expansion was planned by Beneficiary in his role as
President of [the petitioner], and he is currently also functioning as the President and CEO of
Beautique.
The petitioner provided the articles of incorporation, seller's permit, and Statement of Information for
Beautique, Inc., and copies of recruitment advertisements placed on behalf of the company for the positions of
"Accounting" and "Marketing & Sales," during the months of April, May and June 2006.
1 The AAO notes that the petitioner's organizational chart identifies only one sales associate and one
marketing associate.
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Page 6
The director denied the petition on July 17,2007, concluding that the petitioner had failed to establish that the
beneficiary would be employed in a managerial or executive capacity under the extended petition. The
director acknowledged the evidence submitted with respect to the beneficiary's subordinates, and concluded
that "it appears that the beneficiary has been and/or will be performing many aspects of the day-to-day
operations of the business." The director found insufficient evidence to establish that the beneficiary would
be functioning at a senior level within an organizational hierarchy, primarily supervising a subordinate staff of
managerial, supervisory or professional employees, or managing an essential function of the company.
On appeal, counsel for the petitioner asserts that the director's decision consisted of conc1usory statements and
provided an unclear basis for the denial of the petition. Counsel contends that the facts on record clearly
establish that the beneficiary is functioning in a managerial capacity and not performing the "day-to-day
operations," as concluded by the director. Counsel suggests that when considering the extension of a petition
involving a new office, the director should consider whether the petitioner demonstrated significant growth in
cash flow and in the number of employees. Counsel states that the petitioner's growth during the first year of
operations supports the beneficiary in a managerial position, and also supports two lower-level managers.
Counsel also further explains the petitioner's business activities, noting that the company initially served
solely as an importer of foreign nail products, selling raw materials for beauty products to manufacturers and
retailers. Counsel notes that the introduction of the Beautique retail department has brought an
"overwhelmingly positive response." The petitioner submits reference letters from two of the petitioner's
clients, who attest to the success of the U.S. company and the beneficiary's leadership role. Counsel further
notes that the petitioner recently hired a customer service and support employee "at the complete discretion of
Beneficiary. "
Counsel's assertions are not persuasive. The petitioner has not established that the beneficiary would be
employed in a managerial or executive capacity under the extended petition. However, as a preliminary
matter, the AAO notes that when denying a petition, a director has an affirmative duty to explain the specific
reasons for the denial; this duty includes informing a petitioner why the evidence failed to satisfy its burden of
proof pursuant to section 291 of the Act, 8 U.S.C. § 1361. See 8 C.F.R. § 103.3(a)(1)(i).
Upon review of the director's decision, the reasons given for the denial are conclusory with few specific
references to the evidence entered into the record or why such evidence failed to establish the petitioner's and
beneficiary's eligibility for the benefit sought. As the AAO's review is conducted on a de novo basis the AAO
will herein address the petitioner's evidence & eligibility. See Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir.
1989)(noting that the AAO reviews appeals on a de novo basis).
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. § 214.2(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. ld.
The petitioner initially provided a vague and nonspecific description of the beneficiary's duties that failed to
demonstrate what the beneficiary does on a day-to-day basis. Initially, the petitioner merely indicated that the
beneficiary's position include "developing and overseeing of all U.S. operations, including setting corporate
policies, developing strategies for marketing, fiscal and personnel matters." The petitioner did not, however,
WAC 0714652027
Page 7
identify any specific tasks to be performed by the beneficiary as part of his responsibility for the overall
management of the business, nor were the beneficiary's policies or strategies explained or defined. Reciting
the beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient; the regulations
require a detailed description of the beneficiary's daily job duties. The petitioner failed to provide any detail
or explanation of the beneficiary's activities in the course of his daily routine. The actual duties themselves
will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108
(E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990).
The definitions of executive and managerial capacity have two separate requirements. First, the petitioner
must show that the beneficiary performs the high-level responsibilities that are specified in the definitions.
Second, the petitioner must prove that the beneficiary primarily performs these specified responsibilities and
does not spend a majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d
1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991). While the initial description suggested that the
beneficiary exercises the appropriate level of authority over the U.S. company, it provided no meaningful
information regarding his actual duties or the amount of time he is required to devote to managerial or
executive functions.
Therefore, upon review of the job description submitted, the director requested additional evidence that would
assist in a determination as to whether the beneficiary performs primarily managerial or executive duties. The
director specifically requested a detailed position description, a list of specific duties, and the percentage of
time spent in each of the listed duties. The petitioner acknowledged the director's request, but declined to add
any meaningful detail to the initial job description provided for the beneficiary. Counsel's statements that the
beneficiary has "a monopoly over the development and oversight," "penultimate executive status," "complete
unadulterated discretion," over the company, and "exclusively executive and managerial duties," confirm the
beneficiary's authority over the company, but add no insight into what he actually does on a day-to-day basis.
Counsel also added that the beneficiary is also serving as president and chief executive officer of a second
company, but offered no explanation as to the beneficiary's specific duties or functions with respect to
Beautique, Inc. Going on record without supporting documentary evidence is not sufficient for purposes of
meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998)
(citing Matter of Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972».
The regulation states that the petitioner shall submit additional evidence as the director, in his or her
discretion, may deem necessary. The purpose of the request for evidence is to elicit further information that
clarifies whether eligibility for the benefit sought has been established, as of the time the petition is filed. See
8 C.F.R. §§ 103.2(b)(8) and (12). The evidence requested regarding the beneficiary's and his subordinates'
specific job duties is absolutely critical to a determination of whether the beneficiary will serve in a primarily
managerial or executive capacity. See 8 C.F.R. § 214.2(l)(3)(ii). The failure to submit requested evidence that
precludes a material line of inquiry shall be grounds for denying the petition. 8 C.P.R. § 103.2(b)(l4).
Therefore, while the petitioner has broadly addressed the beneficiary's claimed executive level of authority
within the organization, the record is devoid of any evidence that would suggest what duties he actually
performs on a daily basis and what proportion of those duties are qualifying duties. Whether the beneficiary is
a managerial or executive employee turns on whether the petitioner has sustained its burden of proving that
his duties are "primarily" managerial or executive. See sections 101(a)(44)(A) and (B) of the Act. The word
"primarily" is defined as "at first," principally,' or "chiefly." Webster's II New College Dictionary 877
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Page 8
(2001). Where an individual is "principally" or "chiefly" performing the tasks necessary to produce a product
or to provide a service, that individual cannot also be "principally" or "chiefly" performing managerial or
executive duties. The regulations require that USCIS determine that the beneficiary is primarily engaged in a
managerial or executive capacity. To make such a determination it is necessary to require a detailed
description of the beneficiary's duties and the time the beneficiary devotes to these duties. The AAO cannot
accept counsel's unsupported assertion that the beneficiary's duties are all managerial or executive in nature
in lieu of the required detailed position description. Without documentary evidence to support the claim, the
assertions of counsel will not satisfy the petitioner's burden of proof. The unsupported assertions of counsel
do not constitute evidence. Matter o/Obaigbena, 19 I&N Dec. 533, 534 (B1A 1988); Matter o/Laureano, 19
I&N Dec. 1 (BIA 1983); Matter o/Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980).
Although the beneficiary is not required to supervise personnel, if it is claimed that his managerial duties
involve supervising employees, the petitioner must establish that the subordinate employees are supervisory,
professional, or managerial. See § 101(a)(44)(A)(ii) ofthe Act.
In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor.
Section 101(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), states that "[t]he termpro/ession shall include but not
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of
endeavor. Matter 0/Sea, 19 I&N Dec. 817 (Comm. 1988); Matter 0/Ling, 13 I&N Dec. 35 (R.C. 1968);
Matter ojShin, 11 I&N Dec. 686 (D.D. 1966).
Therefore, the AAO must focus on the level of education required by the position, rather than the degree held
by a subordinate employee. The possession of a bachelor's degree by a subordinate employee does not
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is
defined above. Based on the evidence submitted, only one employee, the sales associate, has been established
to possess a bachelor's degree. However, the petitioner has not established that a bachelor's degree in theatre
is required to engage in the day-to-day sales of cosmetic products. The AAO acknowledges that two of the
petitioner's lower-level employees are claimed to be supervisors or managers, however, the petitioner has
provided minimal information regarding their job duties and areas of responsibility, and has not indicated the
amount of time the beneficiary would devote to supervising subordinate employees. The minimal evidence
submitted regarding the beneficiary's duties and those performed by his subordinate employees prohibits a
finding that he is primarily engaged in the supervision of supervisory or managerial personnel.
When examining the managerial or executive capacity of a beneficiary, Citizenship and Immigration Services
(CIS) reviews the totality of the record, including descriptions of a beneficiary's duties and those of his or her
subordinate employees, the nature of the petitioner's business, the employment and remuneration of
employees, and any other facts contributing to a complete understanding of a beneficiary's actual role in a
business. The evidence must substantiate that the duties of the beneficiary and his or her subordinates
correspond to their placement in an organization's structural hierarchy; artificial tiers of subordinate
employees and inflated job titles are not probative and will not establish that an organization is sufficiently
complex to support an executive or manager position.
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Page 9
Although the director appeared to base her decision partially on the size of the enterprise and the number of
staff, it is not clear whether the director considered the reasonable needs of the enterprise. As required by
section 101(a)(44)(C) of the Act, if staffing levels are used as a factor in determining whether an individual is
acting in a managerial or executive capacity, CIS must take into account the reasonable needs of the
organization, in light of the overall purpose and stage of development of the organization.
At the time of filing, the petitioner was a two-year-old import and wholesale company that claimed to have a
gross annual income of nearly $1.7 million. The finn employed the beneficiary as president, a marketing
director, a sales manager, a sales associate, a marketing associate, and a secretary. The analysis of this issue
is complicated by the petitioner's failure to fully explain how the operation of the retail business known as
"Beautique" is integrated into the petitioner's operations. The petitioner did not mention the formation of this
company at the time of filing. When responding to the request for evidence in July 2007, counsel suggested
that the retail business was not yet operational, but noted that the beneficiary would be responsible for
managing the business and leading it through its preliminary stages of hiring employees. On appeal, counsel
suggests that the Beautique has been operational and quite successful, and submits evidence that the company
was doing business at least since April 2007. 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
ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988).
If the petitioner's five lower-level employees are in fact responsible for both the petitioner's import and wholesale
business and a retail business, it is questionable whether they are able to relieve the beneficiary from perfonning
non-managerial functions associated with both companies. Moreover, the AAO notes that, with the exception of
the secretary who performs general clerical functions, all of the employees are claimed to be engaged in sales and
marketing tasks. It is unclear who is responsible for purchasing, import, logistics, distribution, shipping, and
routine financial functions that would reasonably be essential to an import, wholesale and retail business. The
AAO will not speculate as to who performs these tasks and will not assume that the beneficiary is relieved from
performing non-qualifying duties associated with these functions. The AAO acknowledges the significant growth
achieved by the petitioner during the first year of operations in regard to sales and number of employees.
However, the petitioner must still establish that the beneficiary performs primarily managerial or executive duties,
and that someone other than the beneficiary perfonns the majority of the non~managerial duties associated with
the business. The petitioner has not met this burden.
The fact that the beneficiary manages a business, regardless of its size, does not necessarily establish
eligibility for classification as an intracompany transferee in a managerial or executive capacity within the
meaning of sections 101(a)(15)(L) of the Act. See 52 Fed. Reg. 5738, 5739 (Feb. 26, 1987). Therefore,
counsel's argument that the beneficiary is in charge of a business with substantial staffing and income is
insufficient to establish the beneficiary's employment in a qualifying capacity. 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), afJ'd, 905 F.2d 41 (2d. Cir. 1990). Here, the actual duties perfonned by the beneficiary cannot be
detennined as a result of the petitioner's failure to submit a meaningful response to the director's request for a
comprehensive description of his duties. Again, going on record without supporting documentary evidence is
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofflci, 22 I&N
Dec. at 165.
· ~ . .
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Page 10
The AAO acknowledges the petitioner's assertions that the U.S. company and the related entity, Beautique,
Inc., anticipated hiring additional employees and expanding their business operations in the future, and notes
that one additional employee appears to have been hired after the petition was filed. However, the petitioner
must establish eligibility at the time of filing the nonimmigrant visa petition. A visa petition may not be
approved based on speculation of future eligibility or after the petitioner or beneficiary becomes eligible
under a new set of facts. See Matter ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978); Matter of
Katigbak, 14 I&N Dec. 45,49 (Comm. 1971).
Based on the foregoing discussion, the petitioner has not established that the beneficiary will be employed
primarily in a qualifYingmanagerial or executive capacity. For this reason, the appeal will 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. § 1361. Here, that burden has not been met.
ORDER: The appeal is dismissed.