dismissed L-1A Case: Restaurant

U.S. Citizenship 
and Immigration 
Services 
MATTER OF D-, LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 30.2017 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner. a restaurant specializing in Italian foods and pastries, seeks to temporarily employ the 
Beneficiary as the chief executive oflicer of its new office under the L-lA nonimmigrant 
classification for intracompany transferees. S'ee Immigration and Nationality Act section 
101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). The L-lA classification allows a corporation or other legal 
entity (including its affiliate or subsidiary) to transfer a qualifying foreign employee to the United States 
to work temporarily in an executive or managerial capacity. 
The Director of the Vermont Service Center denied the petition, concluding that the Petitioner did 
not establish, as required, that the Beneficiary would be employed in a managerial or executive 
capacity within one year of approval of the new office petition. We rejected the Petitioner's appeal 
of the Director's decision as untimely and denied the Petitioner's three subsequent combined 
motions to reopen and reconsider as they did not overcome the reasons for rejection of the appeal. 
The matter is now before us on a fourth combined motion to reopen and motion to reconsider. In 
support of its motion. the Petitioner indicates that it submitted a late appeal based on the ineffective 
assistance of previous counsel leading to an ''excusable delay" in the untimely filing of the appeal. 
Upon review, we will deny the combined motion. 
I. MOTION REQUIREMENTS 
To merit reopening or reconsideration. a petitioner must meet the formal filing requirements (such as 
submission of a properly completed Form 1-2908, Notice of Appeal or Motion, with the correct fee). 
and show proper cause for granting the motion. 8 C.F.R. ~ 103.5(a)(1). 
A motion to reopen is based on factual grounds and must ( 1) state the new facts to be provided in the 
reopened proceeding; and (2) be supported by affidavits or other documentary evidence. 8 C.F.R. 
~ 1 03.5(a)(2). A motion to reconsider must establish that our decision was based on an incorrect 
application of law or policy and that the decision was incorrect based on the evidence in the record 
of proceedings at the time of the decision. 8 C.F.R. § 1 03.5(a)(3 ). A motion to reconsider must be 
supported by a pertinent precedent or adopted decision. statutory or regulatory provision, or 
statement of U.S. Citizenship and Immigration Services (USC IS) or Department of Homeland 
Matter of D-, LLC 
Security policy. We may grant a motion to reopen or reconsider that satisfies these requirements and 
demonstrates eligibility for the requested immigration benefit. 
II. ANALYSIS 
The issue in this matter is whether we properly denied the Petitioner's third combined motion to 
reopen and reconsider in our prior decision, issued on April 25. 2017. 
For the reasons discussed below, we will deny the motion to reopen and the motion to reconsider. 
While the current motion includes newly submitted assertions that we incorrectly applied the law 
and USCIS policy to the facts presented, the Petitioner has not shown proper cause for reopening or 
reconsideration. 
A. Motion to Reopen 
First, we note that the Petitioner does not dispute the conclusion in three previous decisions that it 
filed an untimely appeal. The Director of the Vermont Service Center denied the petition and served 
the unfavorable decision by mail on March 31, 2015. USC IS received the Petitioner's appeal on 
May 5, 2015, 35 days after the service date of the unfavorable decision.
1 
Accordingly, we rejected 
the appeal as untimely. 8 C.F.R. § 1 03.3(a)(2)(v)(B)(J). The Petitioner does not contend in this 
motion or in its prior motions that the appeal was actually received by USCIS at the designated tiling 
location on or before the day the appeal was due. 
In the current motion, the Petitioner asserts that it filed an untimely appeal based on a '·disastrous 
lapse in representation'' and "lack of communication" on the part of prior counsel. The Petitioner 
asserts that we should grant an exception in the current matter and reopen the matter de noro. 
contending that the ineffective assistance of counsel represented an "excusable neglect" which led to 
the untimely filed appeal. 
The Board of Immigration Appeals (the Board) established a framework for asserting and assessing 
claims of ineffective assistance of counsel. See Matter o{ Lozada. 19 I&N Dec. 637 (BIA 1988). 
aff"d, 857 F.2d 10 (1st Cir. 1988). 
First, Lozada sets forth the following threshold documentary requirements for asserting a claim of 
ineffective assistance: 
• A written affidavit of the petitioner attesting to the relevant facts. The affidavit should 
provide a detailed description of the agreement with former counsel (i.e., the specific actions 
1 
Appeals are due 30 days after service of the decision. 8 C.F.R. § 103.3(a)(2)(i). Because the Director's decision was 
served by mail, three days were added to the prescribed 30-day period. 8 C.F.R. § 103.8(b). Because the due date for 
the appeal fell on a Sunday, the appeal was due on the next business day. Monday. May 4. 2015. 8 C.F.R. § 1.2. 
2 
Matter of D-, LLC 
that counsel agreed to take), the specific actions actually taken by former counseL and any 
representations that former counsel made about his or her actions. 
• Evidence that the petitioner informed former counsel of the allegation of inetlective 
assistance and was given an opportunity to respond. Any response by prior counsel (or 
report of former counsers failure or refusal to respond) should be submitted with the claim. 
• If the petitioner asserts that the handling ofthe case violated former counsers ethical or legal 
responsibilities, evidence that the petitioner filed a complaint with the appropriate 
disciplinary authorities (e.g., with a state bar association) or an explanation why the 
petitioner did not file a complaint. 
!d. at 639. These documentary requirements are designed to ensure we possess the essential 
information necessary to evaluate ineffective assistance claim and to deter meritless claims. !d. 
Allowing former counsel to present his or her version of events discourages baseless allegations. and 
the requirement of a complaint to the appropriate disciplinary authorities is intended to eliminate any 
incentive for counsel to collude with his or her client in disparaging the quality of the representation. 
We may deny a claim of ineffective assistance if any of the Lozada threshold documentary 
requirements are not met. Castillo-Perez v. INS, 212 F.3d 518, 525 (9th Cir. 2000). 
Second, if the petitioner satisfies these threshold documentary requirements, it must also show that 
former counsel's assistance was so deficient that it was prejudiced by the performance. 2 
Specifically, the petitioner must show that there is a reasonable probability that the outcome would 
have been different without former counsel's mistakes, 3 and that it had at least a plausible ground for 
relief.4 There is no prejudice if the adverse decision would have been issued even without former 
counsel's errors. See. e.g .. Minhas v. Gonzales. 236 Fed. Appx. 981 (5th Cir. 2007). 
The Petitioner has not met any of the evidentiary requirements set forth in Lozada with respect to 
demonstrating ineffective assistance of counsel. The Petitioner contends that prior counsel failed to 
timely notify the Petitioner of the Director's denial and prepare an appeal or motion, thereby leaving 
the Petitioner to "urgently seek a new attorney'' to contest the Director's findings. However, the 
Petitioner previously brought these circumstances to our attention and we previously acknowledged 
the Petitioner's claims with respect to prior counsel in our decision dated June 6. 2016. We interpret 
"new facts'' to mean facts that are relevant to the issue(s) raised on motion and that have not been 
previously submitted in the proceeding. Reasserting previously stated facts or resubmitting 
previously provided evidence does not constitute ''new facts.·· 
2 Lozada at 632. In Lozada, the Board determined that Lozada was not prejudiced by counsel's failure to file an appeal 
brief (resulting in the summary dismissal of the appeal) because: he received a full and fair hearing at his deportation 
hearing, at which he was given every opportunity to present his case; he did not allege any inadequacy in the quality of 
prior counsel's representation at the hearing; the immigration judge considered and properly evaluated all the evidence 
presented; and the immigration judge's decision was supported by the record. 
3 Yu Tian Li v. United States, 648 F.3d 524. 527 (7th Cir. 20 II); Delhaye v. Holder, 338 Fed. Appx. 568. 570 (9th Cir. 
2009). 
4 See Martinez-Hernandez v. Holder, 778 F.3d I 086, I 088 (9th Cir. 20 15). 
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Matter of D-, LLC 
Regardless, even if we are to accept the Petitioner's claims with respect to former counsel as new 
facts, it has not supported these assertions with the supporting documentation required by Lozada. 
For instance, the Petitioner does not submit a written affidavit relevant to the facts surrounding the 
alleged breach on the part of prior counsel, evidence that this prior attorney was given the 
opportunity to respond, or that a complaint was filed against this prior counsel. 
Further, even if the Petitioner had satisfied the requirements of Lozada, the evidence does not 
indicate that the alleged ineffective assistance of previous counsel led to the filing of the untimely 
appeal. As we have noted in our previous decisions, current counsel was able to file an appeal. 
However, its lateness was due to the sender requesting two-day rather than one-day delivery service. 
Therefore, even if we assume that prior counsel did not act in a timely fashion. it appears that this 
inaction was not directly linked to the Petitioner's filing of an untimely appeal. 
Beyond its assertion of ineffective assistance of counsel, the Petitioner does not submit new facts to 
support a motion to reopen our previous decision. The Petitioner merely reiterates previous 
assertions specific to the untimeliness of the appeal which we have already addressed in our previous 
decisions, including asserting that the owner of the Petitioner (or the Beneficiary) was dealing with 
family medical issues, Federal Express failed to deliver documents as directed. the Beneficiary was 
observing Catholic "Holy Week," and we failed to consider a brief provided in support of the 
previous motion dated in September 2016. We have addressed these assertions at length in our three 
previous decisions and decline to address them further here. In short, the Petitioner has not met the 
requirements of a motion to reopen by submitting new facts or evidence. For this reason, the motion 
to reopen is denied. 
C. Motion to Reconsider 
In support of the current motion to reconsider, the Petitioner asserts that we did not properly 
consider the doctrine of "excusable neglect" where an aggrieved party is provided with ''exceptions 
in cases where neglect was the consequence of accident, unavoidable hindrance. reliance on legal 
counsel, or reliance on promises made by the adverse party:· The Petitioner contends that based on 
the ineffective assistance of counsel, we should grant an exception to the untimely appeal and 
consider the current matter de novo on its merits. 
First, we note that the concept of "excusable neglect" cited by the Petitioner is from the Federal 
Rules of Civil Procedure. Our appellate authority is based primarily on a delegation from the 
Secretary of Homeland Security. 5 We are bound by applicable statutes and regulations in our 
5 
See DHS Delegation Number 0150.1 (effective March. I, 2003). The Secretary may delegate any authority or function 
to administer and enforce the immigration laws to any official. officer. or employee of the DHS. 6 LJ.S.C. ~ 112(b)(l); 
8 C.F.R. § 2.1. Courts have upheld our appellate authority based on the delegation. Sec United States r. Gon::ali!:: & 
Gonzalez Bonds & Ins. Agency, Inc., 728 F. Supp. 2d I 077. I 083-84 (N.D. Cal. 20 I 0) ("[TJhe Secretary's delegation of 
appellate jurisdiction to the AAO is valid without publication in the Federal Register. so long as it is a rule of agency 
organization, procedure or practice."); see also Rahman v. Napolitano, 814 F. Supp. 2d I 098. II 03 (W .D. Wash. 20 II). 
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Matter of D-. LLC 
adjudication of this administrative matter. We are not a federal court bound by the federal civil rules 
of procedure. As such, the Petitioner's citation to the concept of "excusable neglect"" is misplaced. 
An appeal must be filed within 33 calendar days of the date that USCIS served the unfavorable 
decision by mail. 8 C.F.R. §§ I 03.3(a)(2)(i); 1 03.8(b). There are no ··exceptions" to this 
requirement set forth in the regulations or other applicable law. 
If an untimely appeal meets the requirements of a motion to reopen or a motion to reconsider. the 
field office that made the unfavorable decision must treat the untimely appeal as a motion. and make 
a new decision on the merits of the case. The official having jurisdiction over a motion is the otlicial 
who made the last decision in the proceeding, in this case. the Director of the V crmont Service 
Center. 8 C.F.R. § I 03.5(a)(l )(ii). As noted in our initial decision rejecting the appeaL the Director 
declined to treat the late appeal as a motion and forwarded the matter to our otlice. 
Further, even if we did consider an ''exception" to the late appeaL as we have clearly noted. the 
Petitioner has provided no evidence to support its assertion that ineffective assistance of counsel led 
to the untimely filed appeal. Despite the Petitioner's repeated requests for a de novo review of the 
entire record of proceeding and the merits of the underlying case. we will not consider the merits of 
an appeal that was improperly filed. 
The Petitioner has not submitted any evidence that would meet the requirements of a motion to 
reconsider. Accordingly, the motion to reconsider must be denied. 
III. CONCLUSION 
For the reasons discussed, the Petitioner has not shown proper cause to reopen the proceeding or 
proper cause for reconsideration. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter ofD-. LLC, ID# 79I258 (AAO Nov. 30, 2017)