dismissed L-1A Case: International Trade

U.S. Department of Homeland Security 
20 Mass. Ave, N.W. Rm. A3042 
Washington, DC 20529 
identifying data deleted to 
prevent clearly unwarranted 
hasion of personal privacy 
U.S. Citizenship 
and Immigration 
WC COPY 
Y 
File: WAC 03 040 5 1698 Office: CALIFORNIA SERVICE CENTER Date: dll?d 1 3 2Lb5 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 I 10 l(aX 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. 
obert P. Wiemann, Director e 8 
dministrative Appeals Office 
WAC 03 040 5 1698 
Page 2 
DISCUSSION: The Director, California 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 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. 3 1 10 1 (a)(15)(L). The petitioner, a California corporation, is the subsidiary of Pacific 
Link International, S.A., located in Manila, Philippines, and is engaged in international trade. 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 filed an appeal in response to the denial. On appeal, counsel for the petitioner asserts that the 
denial was erroneous and alleges that the petitioner submitted ample evidence to establish eligibility for the 
benefit sought. In addition, counsel alleges that the director improperly considered the regulation applicable 
to new offices when reviewing the petition. In support of these contentions, counsel submits a brief and 
additional evidence. 
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. 3 214.2(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. 
(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 
WAC 03 040 51698 
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. 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. 
The primary issue in this matter is whether the beneficiary has been and will continue to 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. Lj 1 10 1 (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 
WAC 03 040 51698 
Page 4 
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. 5 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. 
In the initial petition, counsel submitted a letter from the petitioner, dated November 15, 2002, which 
provided an overview of the U.S. entity's business dealings and the beneficiary's role within this structure. 
With regard to the beneficiary, the petitioner stated: 
[The beneficiary] fill[ed] an executive position with our organization in the past year. In this 
position, she [was] responsible for the overall management of [the petitioner] and the 
development of the company's businesses. She perform[ed] the following executive and 
managerial duties: (1) plans, develops, and establishes the policies and objectives for the 
company's development under the supervision of the Board of Directors; (2) [elxercises wide 
latitude and discretionary decision-making in the management and direction of the company's 
overall business activities; (3) [dlirects the implementation of the annual business plans and 
operation policies; (4) [elstablishes the most advantageous courses of action for the 
management of the business operations; (5) [mleets regularly with department managers to 
review the company policies and procedures and develop appropriate plans for the current 
market conditions; (6) [elxercises authority in regard to hiring, firing, training, promotions, 
and delegation of assignments for managerial staffs; (7) [rleports to President of the parent 
company: represents the unique concerns and requirements of the international operations and 
provides significant contributions in the formulation of strategic business plans for the parent 
company. 
The petitioner further stated that the beneficiary's position required a minimum of three years of experience in 
a managerial position with the parent company as well as a four year bachelor degree, and confirmed that the 
beneficiary met all of these requirements. 
On December 2, 2003, the director requested additional evidence pertaining to the nature of the beneficiary's 
position in the U.S. business. The request specifically asked the petitioner to submit the following 
documentation: copies of the petitioner's federal and state Quarterly Wage Reports (Form DE-6 and Form 
WAC 03 040 51698 
Page 5 
941) for the last four quarters; copies of the petitioner's payroll summary, including W-2 and W-3 forms 
evidencing wages paid to employees; and evidence that the petitioner had been doing business for the 
previous year as defined by the regulations. In its response dated April 30, 2003, the petitioner submitted 
several documents, including its federal and state Quarterly Tax Returns, its payroll summary, W-2 and W-3 
forms, its 2002 Form 1120, U.S. Corporation Income Tax Return, and copies of recent bank statements. In 
addition, the petitioner provided an organizational chart outlining the structure of the U.S. entity, as well as a 
detailed description of the beneficiary's duties and how they satisfied the definitions of both managerial and 
executive capacity. 
On August 11, 2003, the director denied the petition. The director, who reviewed the record to determine 
eligibility under both managerial and executive capacity, found that the evidence in the record was 
insufficient to establish that the beneficiary was primarily employed in either capacity. The director further 
concluded that the evidence submitted did not indicate that the beneficiary had sufficient staff members to 
relieve her of performing many or all of the day-to-day tasks essential to the petitioner's business operations. 
On appeal, counsel for the petitioner introduces new evidence in the form of updated payroll records and 
current quarterly wage reports and further contends that the beneficiary's managerial and executive duties 
qualify under the statutory definitions. Counsel alleges that the beneficiary's job duties were sufficiently 
explained prior to adjudication, and he reiterates those duties in detail in his brief. Counsel contends that the 
beneficiary qualifies as a manager and an executive, and finally asserts that the director erroneously relied on 
staffing levels as a basis for finding that the beneficiary would not be performing primarily managerial or 
executive duties. 
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. Id. 
The description of duties provided by the petitioner in the initial petition did little to describe the beneficiary's 
actual duties, nor did it describe the nature of the beneficiary's day-to-day tasks. Instead, it merely provided a 
generic description of the nature of her duties and at times merely paraphrased the regulatory definitions. As 
previously stated, the initial evidence submitted was insufficient to warrant approval, and consequently, the 
director requested more specific information, including updated quarterly wage reports and payroll records. 
The petitioner submitted this requested evidence, which the director found to be insufficient to establish that 
the beneficiary's duties qualified under the requested classification. 
The AAO, upon review of the record of proceeding, concurs with the director's finding that the beneficiary 
will not be primarily employed in either a managerial or executive capacity. First, the petitioner failed to 
specifically articulate the nature of the beneficiary's duties. 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. Suva, 724 F. 
Supp. 1103 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). Although the petitioner provided detailed 
descriptions of the beneficiary's duties in both the initial petition and the response to the request for evidence, 
WAC 03 040 5 1698 
Page 6 
these descriptions did not articulate of what a specific day in the role of the beneficiary would consist. 
Instead, the descriptions merely paraphrased the regulatory definitions of both managerial and executive 
capacity and failed to introduce job-specific tasks or obligations the beneficiary was required to perform. For 
example, in response to the request for evidence, the petitioner stated the major duties of the beneficiary 
involved: 
1. To plan, establish, and administer the company administrative policies, commercial and 
financial goals, and strateges for international business development (compare to 8 C.F.R. 5 
214.2(1)(1)(ii)(C)(Z), which states: Establishes the goals and policies of the organization, 
component or function); 
2. To exercise a wide latitude of discretionary decision making over the overall operations 
(compare to 8 C.F.R. 9 214,2(1)(I)(ii)(C)(3), which states: exercises wide latitude in 
discretionary decision-making); 
3. To direct the implementation of the business plans focusing on establishing a nationwide 
network for the sale of our product in the United States (compare to 8 C.F.R. 5 
214.2(l)(l)(ii)(~)(l), which states: Directs the management of the organization or a major 
component or function of the organization; 
4. To supervise and control the work of Business Manager and Financial Manager (compare to 
8 C.F.R. 5 214.2(1)(1)(ii)(B)(2), which states: 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). 
Clearly, these statements are conclusory in nature and heavily paraphrase the language of the regulations 
without affording Citizenship and Immigration Services (CIS) a true idea of the beneficiary's daily duties. 
Conclusory assertions regarding the beneficiary's employment capacity are not sufficient. Merely repeating 
the language of the statute or regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., 
Ltd. v. Suva, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), aff'd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, 
Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
Second, whether the beneficiary is a manager or executive employee turns on whether the petitioner has 
sustained its burden of proving that her duties are "primarily" managerial or executive. See sections 
101(a)(44)(A) and (B) of the Act. Here, the petitioner provides virtually no detail or discussion of the 
beneficiary's actual duties prior to adjudication. Instead, the petitioner merely claims that the services of the 
beneficiary are essential and, that as a result of the beneficiary's work experience and education 
qualifications, she is the ideal candidate for the position. 
On appeal, counsel again restates the description of the duties that were previously deemed insufficient. 
Counsel paraphrases the statutory definitions of both managerial and executive capacity and provides a one to 
two sentence explanation of how each of the criteria pertains to the beneficiary. These explanations, 
however, are once again not specific. Based on the current record, the AAO is unable to determine whether 
the claimed managerial andlor executive duties constitute the majority of the beneficiary's duties, or whether 
the beneficiary primarily performs non-managerial administrative or operational duties. As previously stated, 
specifics are clearly an important indication of whether a beneficiary's duties are primarily executive or 
WAC 03 040 5 1698 
Page 7 
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. 1 103 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 
1990). 
Furthermore, counsel submitted two organizational charts on behalf of the petitioner. The first chart, 
submitted with the initial petition, indicates that the beneficiary, as president, supervises a business manager 
and a financial manager and also exercises supervisory powers over unnamed "sales specialists" and 
accountants secretaries." The second chart, submitted in response to the director's request for evidence and 
current as of January 1, 2003, indicates that the beneficiary supervises an assistant (the former financial 
manager on the first chart), a vice president, a business manager, a market research assistant, a purchaser (the 
former business manager on the first chart), and a sales representative. There are two major problems with 
this evidence. First, the second organizational chart is not persuasive in establishing the beneficiary's 
managerial and executive duties because it represents the structure of the petitioning entity almost two months 
after the petition was filed. The petitioner must establish eligibility at the time of filing the nonimmigrant 
visa petition. A visa petition may not be approved at a future date after the petitioner or beneficiary becomes 
eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). 
Second, the evidence submitted in the form of payroll records and quarterly wage reports confirms that 
through December 3 1, 2002, the petitioner employed only five employees. Since the petition was filed on 
November 19, 2002, CIS is restricted to examining only the time period leading up to this date, and not 
afterwards. Although the second organizational chart indicates that seven employees work for the petitioner 
in 2003, the AAO cannot conslder this chart as acceptable evidence that the beneficiary was not performing 
day-to-day duties during the relevant period from November 3, 2001 through November 2,2002. 
Since the record clearly establishes that the beneficiary and only four other employees worked for the 
petitioner at the time the petition was filed, the AAO will focus on the evidence initially submitted with the 
petition for purposes of the analysis.' The organizational chart indicates that the beneficiary as president 
claims to supervise a business manager and a financial manager. Also listed on the chart are "sales 
specialists" and "accountants secretaries," who are not named or identified on the chart but are later identified 
by name and by position title, namely, "secretary" and "sales specialist," on accompanying documentation. 
The wage statements and payroll records confirm that since the second quarter of 2002, these five employees 
were working for the petitioner. 
Consequently, it is evident that the beneficiary, as president, supervises four employees. The business 
manager is responsible for the management of marketing and business operations, exercising discretion over 
day-to-day operations, managing sales activities, establishing marketing policies and promotional strategies, 
supervising and controlling the work of sales specialists, and hiring and firing sales specialists. The financial 
manager exercises discretion over the day-to-day operations of the financial department, administers the 
I The AAO notes that according to the quarterly wage returns and payroll documentation, the vice president, 
Susan Ong, began working for the petitioner during the fourth quarter of 2002. Since there is no evidence in 
the record to confirm whether she began working for the petitioner before or after November 19, 2002, the 
AAO will rely on the organizational chart submitted with the petition, which omits the position of vice 
president, for purposes of this appeal. 
WAC 03 040 5 1698 
Page 8 
financial policies, supervises and controls the work of accountants and assistants in handling all financial and 
accounting matters, and prepares analytical financial reports. The sales specialist is responsible for business 
negotiation, soliciting potential customers, conducting market research, contacting and negotiating with 
suppliers, placing and tracking orders, and arranging shipment and traclung payment. Finally, the secretary is 
responsible for administrative and clerical duties necessary for the company's operation. Specifically, she 
handles issues regarding reception, customer service, inventory, inquiries, budgetary requests, invoice 
preparation, travel arrangements, and she maintains records of business information and projects. 
Upon review of the description of duties for these employees, it appears that the business manager and 
financial manager are both supervisory employees who supervise subordinate staff members (namely, the 
sales specialist and the secretary). By definition, a beneficiary may be primarily acting in a managerial 
capacity if she "supervises and controls the work of other supervisory, professional, or managerial 
employees." 8 C.F.R. 3 214.2(1)(l)(ii)(B)(2). On the surface, the claims of the petitioner appear to qualify 
the beneficiary as a manager under the regulatory definitions, since the remainder of the beneficiary's stated 
duties conform, albeit simplistically, to the regulatory requirements. However, the only evidence in the 
record with regard to these duties is a one-page statement from the petitioner describing these duties. Going 
on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of Treasure Cru$ of California, 14 I&N Dec. 190 (Reg. Comm. 1972). 
Furthermore, counsel's aversions on appeal are also not supported by any independent evidence. 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 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 
506 (BIA 1980). 
Upon further review, however, the issue before the AAO is not whether the beneficiary's duties satisfy the 
regulatory requirements, but rather, whether the employment situation presented by the petitioner is credible. 
A critical analysis of the nature of the petitioner's business undermines counsel's assertion that the subordinate 
employees relieve the beneficiary from performing non-qualifying duties. The most relevant documentary 
evidence submitted in this matter is the payroll history and quarterly wage reports for the petitioner during 
2002. According to the records, the wages paid to the subordinate employees during the period from January 
I, 2002 through December 3 1, 2002 are as follows: 
0313 112002 0613012002 0913012002 1213 112002 
Business Manager (Sau Shui Lui): $3,000.00 $3,000.00 $2,566.80 $2,400.00 
Financial Manager (Magdalena Ng Tan): $2,400.00 $2,400.00 $2,65 1 .OO $3,000.00 
Sales Specialist (William B. Tay): $ 800.00 $1,200.00 $1,498.00 $ 870.00 
Secretary (Shirley T. Que): ------------ $1,200.00 $1,200.00 ------------ 
When tallying the total income for these employees, it appears that the business manager earned $10,966.80, 
the financial manager earned $10,451.00, the sales specialist earned $4,368.00, and the secretary, who 
departed in the last quarter of 2002, earned $2,400.00. 
WAC 03 040 5 1698 
Page 9 
The petitioner urges this office to accept as true the evidence submitted, which on the surface indicates a 
president with four subordinate employees to carry out the day-to-day tasks essential to the operation of the 
business. However, the wages paid to the subordinate employees suggest that they are employed part-time, or 
perhaps only on an as-needed basis. For example, the payroll records for 2002 indicate that the business 
manager earned $10,966.80. Assuming, as the petitioner would like us to believe, that the business manager 
was a full-time employee, it appears that he only earned $5.27 per hour if he worked a standard 40-hour 
workweek for 52 weeks. More disturbing are the earnings of the sales specialist, whose hourly salary, 
assuming the same work schedule, amounts only to a mere $2.10 per hour. Interestingly, the AAO notes that 
in 2002, the minimum wage in the state of California was $6.75 per hour. Consequently, the evidence in the 
record suggests that these employees, who allegedly worked full-time for the petitioner, were paid grossly 
less than the minimum wage. 
As addressed by the director, the low wages paid to the subordinate employees suggest that the employees are 
not full-time employees. Since no specifics with regard to their actual work schedules have been provided, 
the AAO cannot concluded that these employees were there on a regular basis to relieve the beneficiary from 
the basic, day-to-day tasks essential to the operation of a profitable and growing business. Furthermore, the 
payroll records indicate that the secretary, whose duty was to perform all administrative and customer service 
functions, only worked two quarters that year and departed the company on or before September 30, 2002. 
Consequently, there is insufficient evidence in the record to confirm that the beneficiary was not required to 
perform many, if not all, of the essential and routine functions of the business. Absent evidence to the 
contrary, it appears that the beneficiary's job duties are principally composed of non-qualifying duties that 
preclude her from functioning in a primarily managerial or executive role. 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. Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 
1988). 
Although counsel on appeal submits additional payroll records and wage reports intended to show the 
petitioner's expansion in 2003, this evidence is not persuasive nor will it be considered. As previously stated, 
the petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. A visa petition 
may not be approved at a future date after the petitioner or beneficiary becomes eligible under a new set of 
facts. Matter of Michelin Tire Corp., 17 I&N Dec. at 248. 
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary has been 
or will be employed in a primarily managerial or executive capacity. The petitioner indicates that it has hired 
and plans to hire additional managers and employees in the future. However, 8 C.F.R. 5 214.2(1)(3)(v)(C) 
allows the intended United States operation one year within the date of approval of the petition to support an 
executive or managerial position. There is no provision in CIS regulations that allows for an extension of this 
one-year period. If the business is not sufficiently operational after one year, the petitioner is ineligible by 
regulation for an extension. Since the record lacks evidence to establish that the petitioner employed any 
other full time employees at the end of the first year of operations, it is clear that the petitioner has not 
reached the point that it can employ the beneficiary in a predominantly managerial or executive position. For 
this reason, the petition may not be approved. 
WAC 03 040 5 1698 
Page 10 
Beyond the decision of the director, the record reflects that the petitioner did not file the petition for an 
extension within the required time frame. The regulation at 8 C.F.R. 5 214.2(1)(14)(i) provides, in pertinent 
part, that a petition extension may be filed only if the validity of the original petition has not expired. In the 
present case, the beneficiary's authorized period of stay expired on November 2, 2002. However, the petition 
for an extension of the beneficiary's L-1A status was filed on November 18, 2002, more than two weeks after 
the expiration of the beneficiary's status. Pursuant to 8 C.F.R. 5 214.1(~)(4), an extension of stay may not be 
approved for an applicant who failed to maintain the previously accorded status or where such status expired 
before the application or petition was filed. As the extension petition was not timely filed, it is noted for the 
record that the beneficiary is ineligible for an extension of stay in the United States. 
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), affd. 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 MO reviews 
appeals on a de novo basis). 
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.