dismissed L-1A Case: Retail

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Oftice ofAdministrative Appeals, MS 2090 
identifjir.2 data deleted to 
Washington, DC 20529-2090 
prevent clearly clnwarranted U.S. Citizenship 
invsion of personal privacy 
 and Immigration Services 
File: WAC 08 089 51302 Office: CALIFORNIA SERVICE CENTER Date: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration and 
Nationality Act, 8 U.S.C. fj 1101(a)(15)(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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. fj 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
ing Chief, Administrative Appeals Office 
WAC 08 089 51302 
, 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 appeal will be dismissed. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary 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. tj 1101(a)(15)(L). The petitioner, an Ohio corporation, intends to operate a retail store. It claims to be 
an affiliate of M/s Pradipkumar Mangaldas Patel, located in Ahmedabad, India. The petitioner seeks to 
employ the beneficiary as ownedmanager of its new office in the United States for a three-year period.' 
The director denied the petition concluding that the petitioner failed to establish: (1) that the petitioner is 
doing business as defined in the regulations; and (2) that the beneficiary would be employed by the U.S. 
entity in a primarily managerial or executive capacity within one year. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the director 
misapplied the regulations governing new office petitions and contends that the petitioner has fully complied 
with the requirements set forth at 8 C.F.R. 5 214.2(1)(3)(~). Counsel submits a brief and documentary 
evidence in support of the appeal. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 l(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. 5 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(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 
1 
 Pursuant to the regulation at 8 C.F.R. 5 214.2(1)(7)(i)(A)(3), if the beneficiary is coming to the United States 
to open or be employed in a new office, the petition may be approved for a period not to exceed one year. 
WAC 08 089 51302 
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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)(3)(~) also provides that if the petition indicates that the beneficiary is 
coming to the United States as a manager or executive to open or to be employed in a new office in the United 
States, the petitioner shall submit evidence that: 
(A) 
 Sufficient physical premises to house the new office have been secured; 
(B) 
 The beneficiary has been employed for one continuous year in the three year period 
preceding the filing of the petition in an executive or managerial capacity and that the 
proposed employment involves executive or managerial authority over the new 
operation; and 
(C) 
 The intended United States operation, within one year of the approval of the petition, 
will support an executive or managerial position as defined in paragraphs (I)(l)(ii)(B) 
or (C) of this section supported by information regarding: 
(I) 
 The proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) 
 The size of the United States investment and the financial ability of the 
foreign entity to remunerate the beneficiary and to commence doing business 
in the United States; and 
(3) 
 The organizational structure of the foreign entity. 
The first issue to be addressed is whether the petitioner established that it will employ the beneficiary in a 
primarily managerial or executive capacity within one year, as required by 8 C.F.R. 5 214.2(1)(3)(v)(C). 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 5 1 101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
WAC 08 089 51302 
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(iv) 
 exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 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. 
The one-year "new office" provision is an accommodation for newly established enterprises, provided for by 
CIS regulation, that allows for a more lenient treatment of managers or executives that are entering the United 
States to open a new office. When a new business is first established and commences operations, the 
regulations recognize that a designated manager or executive responsible for setting up operations will be 
engaged in a variety of low-level activities not normally performed by employees at the executive or 
managerial level and that often the full range of managerial responsibility cannot be performed in that first 
year. In an accommodation that is more lenient than the strict language of the statute, the "new office" 
regulations allow a newly established petitioner one year to develop to a point that it can support the 
employment of an alien in a primarily managerial or executive position. 
Accordingly, if a petitioner indicates that a beneficiary is coming to the United States to open a "new office," 
it must show that it is prepared to commence doing business immediately upon approval so that it will support 
a manager or executive within the one-year timeframe. This evidence should demonstrate a realistic 
expectation that the enterprise will succeed and rapidly expand as it moves away from the developmental 
stage to full operations, where there would be an actual need for a manager or executive who will primarily 
perform qualifying duties. See generally, 8 C.F.R. 5 214.2(1)(3)(~). At the time of filing the petition to open a 
"new office," a petitioner must affirmatively demonstrate that it has acquired sufficient physical premises to 
house the new office and that it will support the beneficiary in a managerial or executive position within one 
year of approval. Specifically, the petitioner must describe the nature of its business, its proposed 
organizational structure and financial goals, and submit evidence to show that it has the financial ability to 
remunerate the beneficiary and commence doing business in the United States. Id. 
The petitioner filed the nonimmigrant petition on February 7, 2008. The petitioner submitted evidence that it 
was established in the State of Ohio in December 2007, and evidence that the company had signed an asset 
purchase agreement to acquire an existing convenience store located in Cincinnati, Ohio. The petitioner did 
not submit a description of the beneficiary's proposed duties as manager or a business plan outlining the 
intended organizational structure and financial goals of the new office. 
The director issued a request for additional evidence (RFE) on March 24, 2008. The director requested 
additional information to establish that the beneficiary will be employed by the U.S. company in a managerial 
WAC 08 089 5 1302 
. Page 5 
or executive capacity, including a more detailed description of the beneficiary's proposed duties, and the 
percentage of time to be spent in each of the listed duties. The director also requested a detailed organizational 
chart for the United States company clearly identifying and describing the types of positions the beneficiary 
would be supervising. 
In response to the RFE, the petitioner submitted the following job description for the beneficiary's proposed 
position: 
[The beneficiary] will be doing research to find out how the sales of the company be [sic] 
increased. He will be developing a strategy for marketing and advertising in the local and 
national market. He will be looking for new products especially ethnic products which can be 
introduced in the market and at the same time the profits be increased. [The beneficiary] will 
strive to make it a[n] international market and look for expanding the horizon. 
[The beneficiary] will prepare the budget which is consumer and supplier friendly and the 
consumer gets the most benefit out of it, which will increase the goodwill in the market. Will 
hire the best available people in the market so that they can handle the business in a 
professional manner. He will make sure that the customer satisfaction is the first priority of 
the people working with the company. 
In addition he will be responsible for duties including but not limited to the following till the 
business comes to a point where he will solely perform the higher managerial duties. 
To run the business effic'iently and profitably. 
To have sufficient number of workers working and supervise them. 
To hire new people whenever the need is. 
To fire the unproductive workers if needed. 
To control inventory in a productive way. 
Develop local marketing and advertising strategies. 
Perform all management responsibilities. 
Openlclose store handle customer service complaints. 
Control all money and prepare daily reports. 
Complete paperwork for inventory, purchasing, accounting, and end of month reports. 
To bring the business to a point where it can be managed by a manager hired to do that. 
WAC 08 089 51302 
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The petitioner did not submit the requested proposed organizational chart for the U.S. company or otherwise 
discuss its hiring plans. The petitioner submitted an affidavit from, owner of Anal Corporation, 
which currently operates the convenience store whose assets the petitioner intends to purchase. - 
indicates that he is the sole employee of the store, and that he receives assistance in operating the business 
from family members as needed. 
also stated that the petitioner has paid him $10,000 earnest money in cash which has not been 
deposited. The petitioner submitted evidence that it has $40,000 in a checking account, which would 
constitute the remaining balance of the purchase cost for the store's assets. According to the purchase 
agreement, the petitioner agreed to pay $50,000 plus the cost of the petitioner's inventory at the time of 
gaining possession. 
The director denied the petition on October 17, 2008, concluding that the petitioner did not establish that the 
U.S. entity would support a managerial or executive position within one year of the petition being approved. 
The director noted that the evidence did not establish the proposed organizational structure of the U.S. entity, 
the size of the United States investment, or the financial ability of the entity to commence doing business in 
the United States. 
On appeal, counsel for the petitioner asserts that the petitioner submitted all required evidence including 
evidence of the organization structure of the foreign company, the proposed investment documents, the 
financial ability of the foreign entity to remunerate the beneficiary and the financial ability of the U.S. 
company to commence doing business in the United States. Counsel emphasizes that the 2006 corporate tax 
return for Anal Corporation shows that the business is "already making money and there is a lot of scope to 
expand." 
Upon review of the petition and the evidence, the petitioner has not established that the beneficiary would be 
employed by the United States entity in a managerial or executive capacity within one year, or that the 
intended United States operation, within one year of the approval of the petition, will support an executive or 
managerial position. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. 5 214.2(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. Beyond the required description of the job duties, USClS 
reviews the totality of the record when examining the claimed managerial or executive capacity of a 
beneficiary, including the petitioner's proposed organizational structure, the duties of the beneficiary's 
proposed subordinate employees, the petitioner's timeline for hiring additional staff, the presence of other 
employees to relieve the beneficiary from performing operational duties at the end of the first year of 
operations, the nature of the petitioner's business, and any other factors that will contribute to a complete 
understanding of a beneficiary's actual duties and role in a business. As discussed above, the petitioner's 
evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it 
moves away from the developmental stage to full operations, where there would be an actual need for a 
manager or executive who will primarily perform qualifying duties. See generally, 8 C.F.R. 5 2 14.2(1)(3)(~). 
In the instant matter, the petitioner's description of the beneficiary's proposed duties fails to establish that such 
duties would be primarily managerial or executive in nature within one year. For example, the petitioner's 
WAC 08 089 51302 
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description includes vague duties such as "to run the business efficiently and profitably," and to "perform all 
management responsibilities," which provide little insight into the specific managerial tasks the beneficiary 
would perform. 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. 1 103 (E.D.N.Y. 1989), afSd, 905 F.2d 41 (2d. 
Cir. 1990). 
Furthermore, many of the duties attributed to the beneficiary do not clearly fall under the statutory definition 
of managerial or executive capacity. For example, the beneficiary would be responsible to control inventory, 
open and close the store, perform market research, handle customer service complaints, control money and 
prepare daily reports, and complete paperwork for inventory, purchasing and accounting, and there is no 
indication as to when or if these operational and administrative tasks would be delegated to subordinate staff. 
An employee who "primarily" performs the tasks necessary to produce a product or to provide services or 
other non-managerial duties 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 Intn 'l., 19 I&N Dec. 593, 
604 (Comm. 1988). 
Based on the current record, the AAO is unable to determine whether the claimed managerial duties would 
constitute the majority of the beneficiary's duties, or whether the beneficiary will primarily perform non- 
managerial administrative or operational duties associated with operating a retail store. Although specifically 
requested by the director, the petitioner's description of the beneficiary's job duties does not establish what 
proportion of the beneficiary's duties will be managerial in nature, and what proportion will be non- 
managerial. See Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). Therefore, the job 
description alone falls significantly short of establishing that his duties will be primarily managerial or 
executive in nature within one year of commencing operations. 
The totality of the record must be considered in analyzing whether the proposed duties are plausible 
considering the petitioner's anticipated staffing levels and stage of development within a one-year period. 
With respect to the petitioner's staffing levels, the petitioner failed to provide a proposed organizational chart 
for the company and simply stated that the beneficiary will hire and supervise a "sufficient number of 
workers." The petitioner has provided no business, financial or hiring plan to demonstrate its plans for 
growth. Any failure to submit requested evidence that precludes a material line of inquiry shall be grounds for 
denying the petition. 8 C.F.R. $ 103.2(b)(14). Absent information regarding the number and types of workers 
to be hired, the AAO cannot conclude that the beneficiary would be relieved from performing primarily non- 
managerial duties within one year. 
Although the director noted the lack of evidence with respect to the company's proposed staffing in the notice 
of denial, the petitioner has not addressed the petitioner's proposed staffing levels on appeal. Instead, the 
petitioner emphasizes that the tax returns for the retail store's current owner demonstrate the store's potential 
for growth. The evidence submitted shows that the store has been operating since 2005 and had only one paid 
employee as of June 2008. The most recent tax return submitted, for 2006, shows net income of $1,159. This 
minimal evidence does not in fact establish a reasonable expectation that the business will rapidly expand to 
the point where it requires a manager or executive to primarily perform the high-level duties contemplated by 
the statutory definitions. 
WAC 08 089 51302 
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A related issue also addressed by the director is whether the petitioner provided sufficient evidence of the size 
of the financial investment in the new United States office, as required by 8 C.F.R. 9 214.2(1)(3)(v)(C)(2). 
Although the petitioner has provided evidence that the petitioner has $40,000 in a bank account, and claims 
that it has paid $10,000 in cash to the seller of the convenience store, the petitioner has not established that 
$50,000 is sufficient to complete the purchase of the store, much less sufficient to cover all of its start-up 
expenses. According to the terms of the purchase agreement, the petitioner would be required to pay the 
seller $50,000 plus an unidentified additional sum for the store's inventory. The petitioner has not established 
that it has the funds to pay for the cost of the inventory. Further, the petitioner has not outlined its anticipated 
capital requirements and start-up costs, and it is thus impossible to evaluate whether it anticipates any 
expenses beyond the purchase of the store itself. 
Therefore, the AAO's review of this issue is severely restricted by the petitioner's failure to submit evidence 
or information regarding the proposed nature of the office, the anticipated scope of the entity, and its financial 
goals, as required by 8 C.F.R. 9 214.2(1)(3)(~)(2). While a business plan is not explicitly required by the 
regulations, the petitioner has provided no explanation regarding the intended scope of the organization or its 
financial goals, no timeline for hiring additional employees, insufficient evidence of the size of the investment 
required for start-up operations, and no financial objectives or projections for the company's first year of 
business. Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). The AAO cannot speculate as 
to when or how many employees might be hired or otherwise determine how many employees the company 
would support at the end of the first year of operations, or who would be performing the day-to-day, non- 
managerial functions of the retail store. 
The AAO does not doubt that the beneficiary will have supervisory authority over the petitioner's business. 
However, the definitions of executive and managerial capacity each have two parts. First, the petitioner must 
show that the beneficiary performs the high-level responsibilities that are specified in the definitions. Second, 
the petitioner must show 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). Overall, the vague job description provided for the 
beneficiary, the lack of detail regarding the petitioner's business plan and hiring plan for the first year of 
operations, considered with the lack of evidence of the size of the U.S. investment, prohibits a determination 
that the petitioner could realistically support a managerial or executive position within one year. For this 
reason, the appeal will be dismissed. 
The second issue addressed by the director is whether the petitioner is doing business as defined in the 
regulations. "Doing Business" means the regular, systematic and continuous provision of goods and/or 
services by a qualifying organization and does not include the mere presence of an agent or office. 8 C.F.R. 
2 14.2(1)(l)(ii)(H). The director based this conclusion "on the petitioner's failure to produce evidence showing 
the business is operational with all licenses and lease agreements under its name and control." The director 
noted that the petitioner has not finalized the purchase of the business it intends to operate. 
On appeal, counsel for the petitioner emphasizes that the petitioner is a new office established just two 
months prior to the filing of the petition. Counsel asserts that the purchase of the convenience store and 
transfer of the lease and licenses is necessarily contingent upon the approval of the request for the 
WAC08 089 51302 
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beneficiary's L-1A status. Counsel contends that the evidence submitted to establish that the petitioner is in 
the process of securing the business is sufficient to establish eligibility as a new office. 
Upon review, the AAO will withdraw the director's decision with respect to this issue. The regulations 
governing new offices at 8 C.F.R. 5 214.2(1)(3)(~) do not require the petitioner to establish that the U.S. entity 
is already doing business as defined in the regulations. Rather, if a petitioner indicates that a beneficiary is 
coming to the United States to open a "new office," it must show that it is prepared to commence doing 
business immediately upon approval so that it will support a manager or executive within the one-year 
timeframe. Therefore, the denial of the petition on the ground that the petitioner is not doing business is 
inappropriate. 
However, the director did raise a critical evidentiary deficiency in noting that the petitioner does not have a 
lease in its name. The regulation at 8 C.F.R. 214.2(1)(3)(v)(A) requires the petitioner to submit evidence that 
it has secured sufficient physical premises to house the new office as of the date of filing. 
As noted above, the petitioner signed an asset purchase agreement on January 10, 2008 in which it agreed to 
purchase all furnishings, equipment, fixtures, telephone number, good will and inventory of a convenience 
store located in Cincinnati, Ohio, contingent upon approval of the beneficiary's visa petition and final 
approval for transfer of the seller's liquor license. As noted by the director, the bill of sale has not been 
executed. The purchase agreement makes no reference to the physical premises or the transfer of the lease. 
The petitioner submitted a copy of the lease agreement Anal Corporation made with the former owner of the 
building, M & M Main Building, Inc., in June 2005, as well as evidence that the lease was assigned to the 
current owner, TCMH Holdings, LLC, in November 2007. In the RFE issued on March 24,2008, the director 
requested additional evidence to establish that the petitioner has leased premises in the United States, in the 
form of a letter from the owner or property management company confirming that the U.S. company is 
currently maintaining the lease agreement. 
In response, the petitioner submitted a letter dated May 21, 2008 from TCMH Holdings, addressed to the 
owner of Anal Corporation, which refers to a discussion the two parties had regarding the potential 
assignment of Anal's lease agreement. TCMH Holdings indicates that it would allow the assignment under 
certain conditions. However, there is no evidence that the seller and current lessee, Anal Corporation, had 
secured the approval of the owner of the property prior to the filing of this 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 of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978); Matter of 
Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). Furthermore, the letter from TCMH Holdings is vague, does 
not refer to the petitioner by name, and is insufficient to establish that the petitioning company has in fact 
secured the physical premises for its business. Accordingly, the AAO must conclude that the petitioner has 
not met the evidentiary requirement at 8 C.F.R. 5 214.2(1)(3)(v)(A). For this additional reason, the petition 
may not be approved. 
An application or petition that fails to comply with the technical requirements of the law may be denied by the 
AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd. 345 F.3d 683 
(9th Cir. 2003). The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 557(b) 
("On appeal from or review of the initial decision, the agency has all the powers which it would have in 
WAC 08 089 51302 
. Page 10 
making the initial decision except as it may limit the issues on notice or by rule."); see also, Janka v. US. 
Dept. of Transp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority has been long 
recognized by the federal courts. See, e.g. Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). 
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an 
independent and alternative basis for the decision. 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. v. United States, 229 F. Supp. 
2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 (9th Cir. 2003). 
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. fj 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.