dismissed L-1A Case: Household Appliances

U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
Office: TEXAS SERVICE CENTER Date: APR 1 1 ZOOl
u.S. Citizenship
and Immigration
Services
File: SRC 05 054 50555
PUBLIC COpy
~datadeleted to
preventdeedy unwa~ted
invasiODof personalprivacy
IN RE: 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)(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, Chief
Administrative Appeals Office
www.uscis.gov
SRC 05 054 50555
Page 2
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The matter
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal.
The petitioner filed this nonimmigrant visa petition seeking to employ the beneficiary as its sales manager 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. § 1101(a)(l5)(L). The petitioner is a corporation authorized in 2001 to
transact business in Texas and is allegedly a household appliance manufacturer. The petitioner claims a
qualifying relationship with I, of China.
The director denied the petition concluding that the petitioner did not establish (1) that the beneficiary will be
employed in the United States in a primarily managerial or executive capacity; or (2) that the beneficiary has
been employed abroad 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, the petitioner asserts that the director erred in
denying the petition because the record establishes that the beneficiary will be and has been employed
primarily as an executive or manager.
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)(1)(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.
(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
services in the United States; however, the work in the United States need not be the
same work which the alien performed abroad.
SRC 05 054 50555
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The first 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 IOI(a)(44)(A) of the Act, 8 U.S.C. § 110l(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.
Section IOl(a)(44)(B) of the Act, 8 U.S.C. § 1I01 (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.
Although the petitioner does not clarify in the initial petition whether the beneficiary is claiming to be
primarily engaged in managerial duties under section IOI(a)(44)(A) of the Act or primarily executive duties
under section 101(a)(44)(B) of the Act, the gist of the petition and supporting documentation is that the
petitioner is seeking to classify the beneficiary as a manager. Given the ambiguity, the AAO will consider the
appeal as if the petitioner is asserting that the beneficiary will be employed primarily as either a manager or,
in the alternative, an executive.
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In a letter dated December 6, 2004 appended to the initial Form 1-129, the petitioner describes the
beneficiary's proposed job duties as follows:
As Sales Manager, [the beneficiary] will be supervising the sales department, which currently
consists of two assistant sales managers, both of whom will be reporting directly to [the
beneficiary]. He will be responsible for expanding, organizing, directing, and developing this
department.
[The beneficiary] will also be responsible for future staffing, trammg and evaluating
performance to develop and control our sales programs. [The beneficiary] will coordinate
sales distribution for all of North America by working closely with our marketing department
who [sic] is currently working on approaching key u.S. and Canadian accounts for our OEM
customers such as GE, Frigidaire, Applica and retail customers such as Wal-Mart, Target and
Home Depot. [The beneficiary] will be reviewing market analyses to determine customer
needs, volume potential, price schedules, and discount rates, and develop sales campaigns to
accommodate goals of [the] company. He will also advise other dealers, distributors, and
clients concerning sales and advertising techniques.
Furthermore, due to our relatively recent entry into the North American market and the
unfamiliarity of our products outside of Asia, it will be essential for [the beneficiary] to direct
product simplification and standardization to eliminate unprofitable items from our sales line.
[The beneficiary] will also be representing our company at trade associations meetings to
promote our products.
On December 29, 2004, the director requested additional evidence. The director requested, inter alia, an
organizational chart for the United States entity, wage reports, and a description of the beneficiary's
subordinate employees in the United States.
In response, the petitioner provided a letter dated March 22, 2005 in which it explains that the beneficiary will
supervise two "assistant sales managers" in the United States. The job descriptions for these employees
reveal that they are engaged in product sales, and the petitioner asserts that both of these subordinate
employees have either attended university or have earned university degrees. The petitioner also provided an
organizational chart which shows the beneficiary reporting to the company president and supervising the two
"assistant sales managers." Finally, the petitioner provides a wage report which identifies the two "assistant
sales managers" as employees.
On April 1, 2005, the director denied the petition. The director concluded that the petitioner did not establish
that the beneficiary will be employed in the United States in a primarily managerial or executive capacity.
On appeal, the petitioner asserts that the director erred in denying the petition because the record establishes
that the beneficiary will be employed primarily as an executive or a manager.
Upon review, petitioner's assertions are not persuasive.
SRC 05 054 50555
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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(l)(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. As explained above, 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.
The petitioner has failed to prove that the beneficiary will act in a "managerial" capacity. In support of its
petition, the petitioner has provided a vague and nonspecific description of the beneficiary's duties that fails
to demonstrate what the beneficiary will do on a day-to-day basis. For example, the petitioner states that the
beneficiary's duties will include coordinating sales distribution and directing product simplification and
standardization. The petitioner did not, however, specifically define these duties, or describe with specificity
how the beneficiary will perform these duties. Equally important, some of these vaguely described duties
likely include operational or administrative tasks. For example, marketing the petitioner's products to
prospective customers is not a managerial or executive duty, and Citizenship and Immigration Services (CIS)
cannot determine whether the beneficiary is primarily employed as a manager absent a detailed breakdown of
how much time the beneficiary will spend performing such non-qualifying tasks. An employee who
"primarily" performs the tasks necessary to produce a product or to provide services is not considered to be
"primarily" employed in a managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act
(requiring that one "primarily" perform the enumerated managerial or executive duties); see also Matter of
Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). 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. Comm. 1972). 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 (E.D.N.Y. 1989), ajf'd, 905 F.2d 41 (2d. Cir. 1990).
The petitioner also failed to prove that the beneficiary will supervise and control the work of other
supervisory, professional, or managerial employees, or that he will manage an essential function within the
organization. While the petitioner did supply an organizational chart, the job descriptions provided for the
"assistant sales managers" reveal that these employees are performing the tasks necessary to produce a
product or to provide a service and have no supervisory or managerial functions. In view of the above, the
beneficiary would appear to be a first-line supervisor, the provider of actual services, or a combination of
both. A managerial or executive employee must have authority over day-to-day operations beyond the level
normally vested in a first-line supervisor, unless the supervised employees are professionals.
101(a)(44)(A)(iv) of the Act; see also Matter of Church Scientology International, 19 I&N Dec. at 604.
Moreover, the job descriptions provided for the subordinate employees do not establish that they are
professionals.' Therefore, the record does not establish that the beneficiary will be acting in a managerial
capacity.
!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.
SRC 05 054 50555
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On appeal, counsel to the petitioner asserts that the beneficiary is not a first-line supervisor, that the
beneficiary manages a component of the organization, and that the director erroneously relied on staffing
levels in denying the petition. Counsel's arguments are not persuasive. First, the record is clear that the
beneficiary is acting as a first-line supervisor in his oversight of the "assistant sales managers." While the
inclusion of this duty does not alone disqualify the beneficiary from being classified as a managerial
employee, it is nevertheless a non-qualifying duty, and the petitioner must otherwise show that he is primarily
employed in a managerial capacity. As explained above, absent a more specific description of his remaining
duties and a breakdown revealing how much time the beneficiary spends performing non-qualifying tasks,
i.e., acting as a first-line supervisor, the AAO cannot conclude that the beneficiary is primarily employed in a
managerial capacity.
Second, while the petitioner has not specifically argued that the beneficiary manages an essential function of
the organization, counsel alludes to this on appeal by claiming that the beneficiary manages a "component of
the organization." The record does not support this position. The term "function 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 101(a)(44)(A)(ii) of the
Act. 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 in managing the essential function, i.e., identify the function with
specificity, articulate the essential nature of the function, and establish the proportion of the beneficiary's
daily duties attributed to managing the essential function. See 8 C.F.R. § 214.2(l)(3)(ii). In addition, the
petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary manages the
function rather than performs the duties related to the function.
In this matter, the petitioner has not provided evidence that the beneficiary manages an essential function.
The petitioner's vague job description, which includes operational and administrative tasks and indicates that
he will likely have first-line supervisor responsibilities, fails to document what proportion of the beneficiary's
duties would be managerial functions and what proportion would be non-managerial. Absent a clear and
credible breakdown of the time spent by the beneficiary performing his duties, the AAO cannot determine
Section 101(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), states that "[t]he term profession 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 of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968);
Matter ofShin, 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 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. In the instant case, the petitioner has not, in fact, established that a bachelor's degree is
actually necessary, for example, to perform the work of the "assistant sales managers."
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what proportion of his duties would be managerial, nor can it deduce whether the beneficiary is primarily
performing the duties of a function manager. See IKEA US, Inc. v. Us. Dept. ofJustice, 48 F. Supp. 2d 22,
24 (D.D.C. 1999).
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity. The
statutory definition of the term "executive capacity" focuses on a person's elevated position within a complex
organizational hierarchy, including major components or functions of the organization, and that person's
authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, a beneficiary must
have the ability to "direct the management" and "establish the goals and policies" of that organization.
Inherent to the definition, the organization must have a subordinate level of employees for the beneficiary to
direct and the beneficiary must primarily focus on the broad goals and policies of the organization rather than
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute
simply because they have an executive title or because they "direct" the enterprise as the owner or sole
managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision making"
and receive only "general supervision or direction from higher level executives, the board of directors, or
stockholders of the organization." Id. As indicated above, the petitioner has failed to establish that the
beneficiary, who will allegedly manage two employees who are apparently engaged in providing services to
customers, will be acting primarily in an executive capacity.
Accordingly, 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. § 214.2(1)(3).
The second issue in the present matter is whether the petitioner has established that the beneficiary has been
employed abroad in a position that was managerial, executive, or involved specialized knowledge as required
by 8 C.F .R. § 214.2(1)(3)(iv).
As the petitioner did not provide a detailed job description for the beneficiary's overseas position, on
December 29, 2004 the director requested additional evidence regarding his duties abroad including
information regarding his subordinate employees.
In response, the petitioner provided a letter dated March 22, 2005 describing the beneficiary's job as "Area
Manager - North America." The petitioner provided the following job description:
A) Responsible for all sales for North America territory including the following:
1. Created detailed annual sales plan for North America which involved plans involving
different areas of the U.S. subsidiary, [the petitioner], including human resources,
marketing, customer relations, product development and timelines.
2. Configuration, training and administration of sales department for all of North
America;
3. Supervised customer files and document management and organized business
information of America area;
4. Managed and authorized the sales expense of the North American territory;
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B) Responsible for the accomplishment of annual sales task:
1. Implemented sales plans for various products and oversaw marketing of the [sic]
those products;
2. Formed sales strategies including customer strategy, pricing strategy and product
lineup strategy; and attended the business negotiations with key accounts.
C) Responsible for the sales network construction and management of North
American territory:
1. Create the sales network layout of America area;
2. Oversaw, evaluated and reviewed performance of the sales network to increase
overall sales;
3. Worked in conjunction with [the foreign entity's] retail customers on marketing, sales
network, and promotion of various [foreign entity] home appliance products [.]
D) Responsible for evaluating business risks of North America territory:
1. Exercised full authority for all sales contracts for North American territory;
2. Analyzed business, marketing and sales plans already in use to forecast future
projections and eliminated those plans that failed to perform up to expectations;
3. Assisted in-house accountants with accounts receivables for North American
territory.
E) Information feedback and product development[:)
1. Gathered and analyzed the market information for North American territory;
2. Reported the problems occurred in sales and marketing for North American territory;
3. Provided information of customer's requirement in product and delivery to
Production Department and R&D Department;
4. Brought out new product development proposals for North American territory;
5. Organized the market research and composed market reports of North American
territory [.]
• Percentage of time spent on each duty
Duty A): 25%
Duty B): 30%
Duty C): 200/0
Duty D): 100/0
Duty E): 15%
The petitioner also explained that the beneficiary supervises two "sales managers" abroad. The job
descriptions for these employees reveal that they are engaged in product sales, and the petitioner asserts that
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both of these subordinate employees have either attended university or have earned university degrees.
On April 1, 2005, the director denied the petition. The director concluded that the petitioner did not establish
that the beneficiary has been employed abroad in a primarily managerial or executive capacity.
On appeal, the petitioner asserts that the director erred in denying the petition because the record establishes
that the beneficiary has been employed primarily as an executive or a manager.
Upon review, petitioner's assertions are not persuasive.
Again, 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(l)(3)(ii). In this matter, the petitioner has
failed to establish that the beneficiary has acted in a "managerial" capacity overseas. In support of its petition,
the petitioner has ascribed broad, yet vaguely described, responsibilities to the beneficiary covering all aspects
of the foreign entity's North American sales. However, the petitioner has failed to specifically explain how
the beneficiary performs duties such as creating and implementing sales plans, creating sales networks, and
gathering market information, especially when the beneficiary manages only two staff members who
apparently perform the actual sales work. Given the breadth of the beneficiary's duties and the lack of a
subordinate staff, it is not credible that the beneficiary would not be primarily performing the tasks necessary
to do the duties ascribed. As explained above, an employee who "primarily" performs the tasks necessary to
produce a product or to provide services is not considered to be "primarily" employed in a managerial or
executive capacity. See sections 101(a)(44)(A) and (B) of the Act; see also Matter of Church Scientology
International, 19 I&N Dec. at 604.
Moreover, the petitioner also failed to prove that the beneficiary has been supervising and controlling the
work of other supervisory, professional, or managerial employees, or that he has managed an essential
function within the organization. The job descriptions provided for the two subordinate employees reveal that
these employees are performing the tasks necessary to produce a product or to provide a service and have no
supervisory or managerial functions. Therefore, the beneficiary would appear to be a first-line supervisor, the
provider of actual services, or a combination of both. A managerial or executive employee must have
authority over day-to-day operations beyond the level normally vested in a first-line supervisor, unless the
supervised employees are professionals. 101(a)(44)(A)(iv) of the Act; see also Matter of Church Scientology
International, 19 I&N Dec. at 604. Also, the job descriptions provided for the subordinate employees do not
establish that they are professionals or that a university degree is necessary for the positions. Finally, the
record does not establish that the beneficiary will manage an essential function of the organization for the
same reasons articulated above for the United States position. Therefore, the record does not establish that
the beneficiary will be acting in a managerial capacity.
Similarly, the petitioner has failed to establish that the beneficiary has acted in an "executive" capacity. As
indicated above, the petitioner has failed to establish that the beneficiary, who is allegedly managing two
employees who are apparently engaged in providing services to customers, will be acting primarily in an
executive capacity.
Accordingly, the petitioner has not established that the beneficiary has been employed abroad in a primarily
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managerial or executive capacity as required by 8 C.F.R. § 214.2(l)(3)(iv).
The regulation at 8 C.F.R. § 214.2(1)(3)(i) states that a 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.
8 C.F.R. § 214.2(i)(l)(ii)(G) defines a "qualifying organization" as a firm, corporation, or other legal entity
which "meets exactly one of the qualifying relationships specified in the definitions of a parent, branch, affiliate
or subsidiary specified in paragraph (l)(l)(ii) of this section." A "subsidiary" is defined, in part, as a legal entity,
including a limited liability company, which "a parent owns, directly or indirectly, more than half of the entity
and controls the entity."
The regulation and case law confirm that ownership and control are the factors that must be examined in
determining whether a qualifying relationship exists between United States 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 ofHughes, 18 I&N Dec. 289 (Comm.
1982). In the 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.
In this matter, the petitioner provided no evidence establishing the ownership and control of the United States
entity. While the petitioner did provide a copy of its Texas certificate of authority, the petitioner did not
provide a copy of its articles of incorporation, stock certificates, or any other organizational materials.
Moreover, the record is rife with inconsistencies regarding the petitioner's state of incorporation. For
example, the certificate of authority indicates that the petitioner is a Delaware corporation, the lease provided
by the petitioner indicates that it is a Texas corporation, and the petitioner's 2003 New York Form CT-4
(General Business Corporation Franchise Tax Return Short Form) indicates that the petitioner is a New York
corporation. Moreover, the petitioner is not listed in the foreign entity's annual report as an affiliated entity.
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). Therefore, as the petitioner has failed to establish the ownership and control of the United
States entity, the petition may not be approved for failure to establish a qualifying relationship with the
foreign entity.'
2A review of Texas state corporate records indicates that the petitioner's authority to transact business in
Texas has ended and the corporation no longer has standing. Therefore, as the State of Texas has forfeited the
petitioner's corporate privileges and the petitioner has failed to establish that it is incorporated and authorized
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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.n. Cal. 2001), aff'd, 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).
The petition will be denied for the above stated reasons , with each considered as an independent and
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043.
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. Accordingly, the
appeal will be dismissed .
ORDER: The appeal is dismissed.
to do business in any other state , the company can no longer be considered a legal entity in the United States.
As this clearly and unequivocally renders the petitioner ineligible for the classification sought, the petition
could not be approved even if the appeal were not being dismissed for the other reasons articulated herein.