dismissed L-1A Case: Retail

identifying data deleted to 
prevent i: i ,, :warranted 
invasion of persui~al privac~ 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
File: EAC 08 202 51233 Office: VERMONT SERVICE CENTER Date: 
IN RE: 
OCT 1 6 2009 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration and 
Nationality Act, 8 U.S.C. 5 1101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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. 5 103.5 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, as required by 8 C.F.R. 3 103.5(a)(l)(i). 
erry Rhew 
hief, Administrative Appeals Office 
EAC 08 202 51233 
Page 2 
DISCUSSION: The Acting Director, Vermont Service Center, denied the nonimmigrant visa petition. 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 chief executive officer 
as an L- 1 A nonimmigrant intracompany transferee pursuant to section 1 0 1 (a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1 10 1 (a)(15)(L). The petitioner, a Florida corporation, is engaged in the 
retail sale of women's leather accessories. The beneficiary has been employed by the petitioner in L-1A status 
since January 2007 and the petitioner now seeks to extend his employment for two additional years. 
The director denied the petition on October 30, 2008, concluding that the petitioner failed to establish that the 
beneficiary will be employed in a primarily managerial or executive capacity under the extended petition. In 
denying the petition, the director observed that the petitioner failed to substantiate its claim that it employs or 
has ever employed the majority of the employees identified on the petitioner's organizational chart. 
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. The petitioner provided a brief statement as an attachment to 
Form I-290B, Notice of Appeal or Motion, in which it states that the beneficiary is not a first-line supervisor 
and that he is not engaged in the day-to-day work of the company. The petitioner indicated on Form I-290B 
that it would forward a brief and/or evidence to the AAO within 30 days. As of this date, no additional 
evidence has been incorporated into the record of proceeding. Accordingly, the record will be considered 
complete.' 
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 Fonn 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. 
' On September 21, 2009, the AAO contacted the petitioner by facsimile to advise the petitioner that no brief 
or additional evidence had been received in support of the appeal as stated on the Form I-290B, and to allow 
the petitioner an opportunity to re-submit any timely filed evidence within five business days. The petitioner 
has not responded to this correspondence. 
EAC 08 202 5 1233 
Page 3 
(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 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The sole issue addressed by the director is whether the petitioner established that the beneficiary will be 
employed in a primarily managerial or executive capacity under the extended petition. 
Section 10 l(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 
(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 10 l(a)(44)(B) of the Act, 8 U.S.C. 5 1 10 l(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. 
EAC 08 202 5 1233 
Page 4 
The petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, on July 16, 2008. The petitioner 
stated on Form 1-129 that it is engaged in wholesale and retail activities, and that it has a staff of ten 
employees. According to the submitted lease agreements, the petitioner rents two adjacent carts or kiosks in a 
shopping mall totaling 64 square feet in area, and is engaged in the retail sale of belts and handbags. 
In a statement submitted at the time of filing, the petitioner indicated that the beneficiary performs the 
following duties in his role as chief executive officer: 
1. 
 Planning, developing, and establishing long-range goals and objectives of business 
organization in accordance with board directives and corporation charter. (Planning, 
developing and implementing company strategy, Planning future expansion of the 
business) 
2. 
 Conferring with advisors to plan business objectives, to develop organizational policies 
to coordinate functions and operations, and to establish responsibilities and procedures 
for attaining objectives, and also in then implementing goals through subordinate 
administrative personnel and sub-contractors. 
3. 
 All aspects of the Company's finance (budget and accounts receivable), administration, 
and marketing. (Managing finances, insure profit based on estimated budget, profit 
goals). 
4. 
 Reviewing activity reports and financial statements to determine progress and status in 
attaining objectives and revising objectives and planning in accordance with current 
conditions. 
5. 
 Directing and coordinating formulation of financial program to prove funding for new 
or continuing operations to maximize returns on investments, and to increase 
productivity. 
6. 
 Liaison activities with the accountants and lawyers who contract with the Company. 
7. 
 Hiring staff and other personnel actions, including promotions, transfers, discharges, or 
disciplinary measures. 
8. 
 Administrative control and conformance with legal requirements of the firm. 
9. 
 Negotiate and deal with suppliers, providers, general manager, accountants, agents and 
legal counsel of the company. 
The petitioner submitted a list of eight subordinate employees by name, job title and job duties. The petitioner 
indicated that it employs: (I) a secretary who performs clerk duties, filing, customer service 
and taking phone calls; (2) six sales personnel whose duties include "take care of the locations at the 
- - 
Mall, assistance to customers, credit card transactions, etc."; and (3) a general manager,= 
who is "in charge of general operations of the company," "supervises sales persons in six locations," 
EAC 08 202 5 1233 
Page 5 
establishes goals and policies, exercises control over all departments or divisions, and reports to the company 
president, who is identified as '" 
The petitioner submitted copies of its IRS Forms W-2, Wage and Tax Statement, for 2007. During 2007, the 
petitioner paid wages of $26,666.60 to the beneficiary and $33,600.00 to. According to the 
petitioner's IRS Form W-3, Transmittal of Wage and Tax Statements, the petitioner paid total wages of 
$62,266.60 during 2007 and issued three Forms W-2. 
The director issued a request for additional evidence (RFE) on August 25, 2008, in which he instructed the 
petitioner to submit: (I) a comprehensive description of the beneficiary's proposed duties; (2) a description of 
the staff of the U.S. company including the number of employees, their job titles and duties, and the salaries 
and wages paid to each employee; (3) copies of all IRS Forms 1099 issued by the petitioner during 2007; and 
(4) complete copies of the petitioner's IRS Forms 941, Employer's Quarterly Federal Tax Return, for all four 
quarters of 2007 and the first two quarters of 2008. 
In response to the WE, the petitioner submitted the following description of the beneficiary's duties: 
He manages, controls and coordinates our projects. Participation with other members of the 
organization, Manages and organizes the work of the employees under his supervision; He 
hires employees for the correct functioning of the enterprise, he names and fixes salaries and 
bonuses; He directs sales and service outlets of the organization; He negotiates contracts with 
foreign and national sales. He reports to the Board of Directors his yearly actions, and present 
the Balance Sheet and a project of the distribution of the utilities. He arranges shipping 
details, such as licenses, customs declarations, and packing and shipping, and routing of 
products. He identifies potential trading deals. He coordinates sales distribution by 
establishing sales territories, quotas, and goals and advises dealers, distributors, and clients 
concerning sales and advertising techniques. He supervises a team of top management 
personnel who run the day-to-day operations at the Corporation in the United States. He sets 
guidelines for quality management, technical support management, and attends trade shows. 
He identifies potential trading deals. He directs and controls work flow, setting the standards 
for the general guidelines. 
In addition, the petitioner submitted a letter dated October 6, 2008, in which it stated that the beneficiary 
allocates his time among the following responsibilities: 
1. Setting strategy and vision - 20% 
2. Building culture - 5% 
3. Personnel Building - 10% 
4. Capital allocation - 10% 
5. Entering and negotiating contracts on behalf of the company - 15% 
6. Conferring with advisors to plan business objectives, develop policies and coordinate 
functions - 5% 
7. All aspects of the company's finance (budget and accounts receivable), administration, 
and marketing. - 10% 
EAC 08 202 5 1233 
Page 6 
8. Directing and coordinating formulation of financial program to prove funding for new or 
continuing operations to maximize returns on investments, and to increase productivity. - 
10% 
9. Liaison activities with the accountants and consultants who contract with the company - 
10% 
10. Administration, control and conformance with legal requirements of the firm. - 5% 
The petitioner provided a revised organizational chart for the U.S. company which indicates that the 
beneficiary directly supervises the accountant and the general manager, The chart indicates 
that supervises an accountant and a store manager, who in turn supervises six sales personnel. 
The petitioner submitted position descriptions for the "administration manager" (identified on the 
organizational chart as accountant), the sales personnel, and the general manager. The petitioner did not 
provide a description of the "store manager" position. 
Finally, the petitioner submitted copies of its IRS Forms 941, Employer's Quarterly Federal Tax Returns, for 
the requested periods, and also included copies of its Florida Forms UCT-6, Employer's Quarterly Report, for 
all four quarters of 2007 and the first quarter of 2008. According to the submitted documentation, the 
beneficiary and have been the only employees of the petitioning company since the third 
quarter of 2007. During the first four months of 2007, the petitioner paid a total of $2,000 to one of the 
individuals identified as a sales representative. No other employees were listed on any of the submitted 
federal or state wage reports. The petitioner did not submit copies of Forms 1099 or any other evidence of 
wages paid to contractors in 2007 or 2008. 
The director denied the petition on October 30, 2008, concluding that the petitioner failed to establish that the 
beneficiary would be employed in a primarily managerial or executive capacity. In denying the petition, the 
director observed the significant discrepancy between the petitioner's organizational chart, which listed ten 
positions subordinate to the beneficiary, and its Forms W-2 and Forms 941, which indicate that the petitioning 
company has only two employees, including the beneficiary. The director concluded that the petitioner had 
not established how the beneficiary is relieved from performing the day-to-day non-managerial duties of the 
petitioner's business. 
On appeal, the petitioner "strongly disagrees" with the director's determination and asserts that the beneficiary 
performs duties that are both managerial and executive in nature. The petitioner contends that the beneficiary 
supervises professional employees, is not a first-line supervisor, and is not engaged in the day-to-day work of 
the petitioning company. 
Upon review, and for the reasons stated herein, the petitioner has not established that the beneficiary will be 
employed in a primarily managerial or executive capacity under the extended petition. 
When examining the proposed executive or managerial capacity of the beneficiary, the AAO will look first to 
the petitioner's description of the proposed 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 that will be performed by the beneficiary and 
indicate whether such duties will be either in an executive or managerial capacity. Id. The AAO will then 
consider this information in light of the petitioner's organizational structure, the duties of the beneficiary's 
subordinate employees, the presence of other employees to relieve the beneficiary from performing 
EAC 08 202 51233 
: Page 7 
operational duties, 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. 
Here, the petitioner has failed to provide a sufficiently detailed description of the beneficiary's day-to-day 
duties. The initial position description, despite being quite lengthy, failed to specify any specific tasks the 
beneficiary performs on a daily basis as the chief executive officer of a retail business. For example, the 
petitioner stated that the beneficiary is responsible for "planning, developing and establishing long-range 
goals and objectives," "conferring with advisors to plan business objectives" and "develop organizational 
policies," and generally overseeing "all aspects of the operation." Such duties provide little insight into the 
nature of the beneficiary's day-to-day 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. Sava, 724 F. Supp. 1103 (E.D.N.Y. 
1989), afa', 905 F.2d 4 1 (2d. Cir. 1990). 
The director therefore requested a comprehensive description of the beneficiary's' duties. As noted above, the 
RFE also included a request for a complete description of all employees' duties, and a breakdown of the 
number of hours devoted to each employee's duties on a weekly basis. While the petitioner submitted a 
slightly lengthier description of the beneficiary's duties in response to the WE, it largely restated the initial 
job description and provided little additional explanation as to what the beneficiary primarily does on a day- 
to-day basis. For example, the petitioner added that the beneficiary will be responsible for "building culture" 
and "strategic vision." Reciting the beneficiary's vague job responsibilities or broadly-cast business 
objectives is not sufficient; the regulations require a detailed description of the beneficiary's daily job duties. 
The petitioner has failed to provide any detail or explanation of the beneficiary's activities in the course of her 
daily routine. The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., 
Ltd. v. Sava, 724 F. Supp. at 1 108. 
Furthermore, the AAO notes that the petitioner submitted two completely different position descriptions for 
the beneficiary in response to the WE. In addition to the above-referenced.position description, the petitioner 
indicated that the beneficiary "negotiates contracts with foreign and national sales," "arranges shipping 
details, such as licenses, customs declarations, packing and shipping and routing of products," "establishes 
sales territories, quotas," "advises dealers, distributors and clients concerning sales and advertising 
techniques," and sets guidelines for "technical support management." Not only do these duties bear little 
resemblance to the duties outlined in the other position descriptions, they are not credible when considered in 
light of the nature of the petitioner's business. The petitioner leases two 32 square foot "carts" or kiosks at a 
shopping mall and is engaged in the sale of women's belts and handbags, which appear to be purchased from 
local wholesalers of these products. As such it has no apparent need for an employee to perform any of the 
above-described duties. It does not import or export products, work with distributors, have sales territories or 
provide technical support for the products it sells. 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 of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
The beneficiary's "control," management or direction over a company cannot be assumed or considered 
"inherent" to his position merely on the basis of the beneficiary's job title, placement on a general 
organizational chart or broadly-cast business responsibilities. Furthermore, while the petitioner's descriptions 
of the beneficiary's duties suggests that he holds the highest level of authority within the company, the AAO 
EAC 08 202 51233 
Page 8 
cannot overlook the fact that there is evidence in the record suggesting that 
 is the 
company's president and chief executive officer. The AAO notes that 
 signed the petitioner's 
current lease agreements in his capacity as the petitioner's president. The position description for the general 
manager, submitted at the time of filing, referred to as the company's president. In response to 
the RFE, the petitioner removed this reference from the job description for the position, and indicated that Mr. 
is the company's general manager. The petitioner provided no explanation for this change. Again, 
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 of Ho, 19 I&N Dec. at 591-92. 
Overall, based on these deficiencies and unresolved discrepancies, the petitioner's description of the 
beneficiary's duties is insufficient to establish that the beneficiary would be performing primarily managerial 
or executive duties. 
As noted above, when examining the managerial or executive capacity of a beneficiary, USCIS reviews the 
totality of the record, including descriptions of a beneficiary's duties and those of his or her subordinate 
employees, the nature of the petitioner's business, the employment and remuneration of employees, and any 
other facts contributing to a complete understanding of a beneficiary's actual role in a business. 
Here, the petitioner claims that the beneficiary oversees a multi-tiered organizational structure consisting of a 
general manager, a store manager, and six sales personnel, as well as a secretary and an accountant. As noted 
by the director, the record is devoid of evidence of payments to the majority of employees on the petitioner's 
organizational chart, with the exception of the beneficiary and Jose Contreras, who was not even claimed as 
an employee at the time the petition was filed. The petitioner provided evidence that it employed one part- 
time sales person during the first half of 2007, and it appears that the secretary received wages during 2006. 
There is no evidence that the petitioner employs or ever employed the remaining five salespeople, the store 
manager, the "administration manager"/accountant, or the person claimed to hold the position of general 
manager at the time the petition was filed. (Jeffrey Budge). 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 ofCalgornia, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). 
Although the unresolved discrepancies in the petitioner's staffing levels and the petitioner's failure to 
document the claimed employees constituted the primary basis for denial of the petition, the petitioner does 
not address these discrepancies on appeal. Therefore, in the absence of persuasive evidence to the contrary, 
the AAO concurs with the director's determination that the petitioner's only employees are the beneficiary and 
Jose Contreras. 
On appeal, the petitioner claims that the beneficiary manages professional employees and is not a first-line 
supervisor. It appears that the petitioner is claiming that the beneficiary is employed in a managerial capacity 
as a "personnel manager." The statutory definition of "managerial capacity" allows for both "personnel 
managers" and "function managers." See section 101(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. 9 
1101(a)(44)(A)(i) and (ii). Personnel managers are required to primarily supervise and control the work of 
other supervisory, professional, or managerial employees. Contrary to the common understanding of the 
word "manager," the statute plainly states that 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 
EAC 08 202 5 1233 
. Page 9 
are professional." Section 101(a)(44)(A)(iv) of the Act; 8 C.F.R. 8 214.2(1)(l)(ii)(B)(2). If a beneficiary 
directly supervises other employees, the beneficiary must also have the authority to hire and fire those 
employees, or recommend those actions, and take other personnel actions. 8 C.F.R. 5 214.2(1)(1)(ii)(B)(3). 
The AAO acknowledges that the petitioner has assigned the only other employee of the company the position 
title "General Manager," and indicates that he possesses a bachelor's degree. The petitioner claims that the 
general manager oversees sales staff in six locations when, in fact, the petitioner has not documented that it 
employs any sales staff and it has only one retail location, or, at most, two locations if one counts the adjacent 
kiosks as two separate units. The petitioner's evidence must substantiate that the duties of the beneficiary and 
his or her subordinates correspond to their placement in an organization's structural hierarchy; artificial tiers 
of subordinate employees and inflated job titles are not probative and will not establish that an organization is 
sufficiently complex to support an executive or manager position. In the present matter, the totality of the 
record does not support a conclusion that the beneficiary's sole documented subordinate is a supervisor, 
manager, or professional. As discussed above, the evidence of record does not even persuasively document 
that the petitioner's second employee is subordinate to the beneficiary. 
A company's size alone, without taking into account the reasonable needs of the organization, may not be the 
determining factor in denying a visa to a multinational manager or executive. See 5 101(a)(44)(C) of the Act, 
8 U.S.C. 5 1101(a)(44)(C). However, in reviewing the relevance of the number of employees a petitioner 
has, federal courts have generally agreed that USCIS "may properly consider an organization's small size as 
one factor in assessing whether its operations are substantial enough to support a manager." Family Inc. v. 
US. Citizenship and Immigration Services 469 F. 3d 1313, 1316 (9th Cir. 2006) (citing with approval 
Republic of Transkei v. INS, 923 F 2d. 175, 178 (D.C. Cir. 199 1); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 
(2d Cir. 1990)(per curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003)). 
Furthermore, it is appropriate for USCIS to consider the size of the petitioning company in conjunction with 
other relevant factors, such as a company's small personnel size, the absence of employees who would 
perform the non-managerial or non-executive operations of the company, or a "shell company" that does not 
conduct business in a regular and continuous manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 
(D.D.C. 2001). 
At the time of filing, the petitioner was a six-year-old company engaged in the operation of a small retail 
operation in a shopping mall. The terms of the lease agreement require the petitioner to keep its store open for 
business during the mall's regular operating hours, likely at least 60 hours per week. The company employed 
the beneficiary as chief executive officer and one general manager, both of whom are claimed to be engaged 
in managerial duties. The petitioner has a reasonable need for employees to purchase inventory and supplies, 
greet customers, handle retail sales transactions, operate a cash register and perform day-to-day finance and 
administrative functions. The petitioner has not established how one managerial employee could relieve the 
beneficiary from participating in the day-to-day, non-managerial functions of the store. Rather, it is evident 
that the petitioner would require the beneficiary's and the general manager's regular participation in such non- 
qualifying functions in order for the business to remain operational. The petitioner has not established that it 
has a reasonable need for the beneficiary to be primarily engaged in the claimed managerial or executive 
duties. 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 Intn'l., 19 I&N Dec. 593,604 (Comm. 1988). 
EAC 08 202 5 1233 
Page 10 
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. 
ORDER: The appeal is dismissed.