dismissed L-1A Case: Software Solutions

U.S. Department of IIomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
identifying data deleted to 
 and Immigration 
prevent clearly unwarranted 
invasion of personal privacj 
mLK: COPY 
FILE: WAC 04 2 18 509 19 Office: CALIFORNIA SERVICE CENTER Date: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 l(a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. tj 1 101(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. 
obert P. Wiemann, Chief 
2dministrat:ve Appeals Office 
WAC 04 218 50919 
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, a California corporation, claims to be engaged in the producti 
solutions for industry. The petitioner states that it is a wholly-owned subsidiary of 
located in Germany. Accordingly, the United States entity petitioned 
Immigration Services (USCIS) to classify the beneficiary as a nonimrnigrant intracompany transferee (L- 
1A) pursuant to section 101(a)(15)(L) of the Act (the Act), 8 U.S.C. $ 1101(a)(15)(L). The beneficiary 
was initially granted a one-year period of stay to open a new office in the United States and was 
subsequently granted a one-year extension. The petitioner now seeks to extend the beneficiary's stay in 
order to continue to fill the position of president. 
The director denied the petition concluding that the record contains insufficient evidence to demonstrate 
that the beneficiary will be employed in a primarily managerial or executive capacity. The director also 
noted that the petitioner failed to fully respond to the request for evidence, and that the petitioner did not 
provide any evidence of additional employees employed by the U.S company. 
On appeal, counsel for the petitioner states the following on the Form I-290B, Notice of Appeal: 
The service erred in finding that the position of president of petitioner was not executive 
or managerial because: 
1. It failed to take into account the reasonable needs of petitioner in light of its overall 
purpose and stage of development. 
2. It erred in not finding the positions of the subordinate employees to be 
"professional". 
3. It failed to understand that beneficiary was acting as a "functional manager" 
Counsel submits a brief in support of the appeal. 
To establish eligibility under section 10 1 (a)(15)(L) of the Act, the petitioner must meet certain criteria. 
Specifically, within three years preceding the beneficiary's application for admission into the United 
States, a firm, corporation, or other legal entity, or an affiliate or subsidiary thereof, must have employed 
the beneficiary for one continuous year. Furthermore, 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) further 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. 
WAC 04 218 50919 
Page 3 
(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 services in the United States; however, the work in the United States 
need not be the same work which the alien performed abroad. 
The issue in this matter is whether the beneficiary will be employed in a primarily managerial or 
executive capacity under the extended petition. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. $ 1 101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment withn 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 withn the organizational hierarchy or with respect to the function managed; and 
(iv) 
 exercises discretion over the day-to-day operations of the activity or hnction 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. 
In addition, section 101(a)(44)(B) of the Act, 8 U.S.C. 9 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment withn an organization in which the employee 
primarily- 
WAC 04 218 50919 
Page 4 
(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-malung; and 
(iv) 
 receives only general supervision or direction from higher level executives, the 
board of directors, or stockholders of the organization. 
The nonirnrnigrant petition was filed on August 2, 2004. The Form 1-129 indicates that the beneficiary will 
continue to be employed in the position of President. The beneficiary's proposed duties in the United States 
are described as "general director of operations," and "establishment and exp[a]nsion of sales-/Marketing 
[sic] systems customer service base for U.S. market." The petitioner stated that it had two employees as of 
the date of filing. The petitioner did not submit supporting documentation with the petition. 
On March 4, 2005, the director requested additional evidence to establish that the beneficiary will be 
performing the duties of a manager or executive with the U.S. company. Specifically, the director requested: 
(1) an organizational chart for the U.S. entity, including names and job titles for all employees, job duties, 
educational level, annual salaries and immigration status; (2) a more detailed description of the beneficiary's 
job duties, indicating who the beneficiary supervises and percentage of time spent in each of the listed duties; 
and (3) copies of the U.S. company's California Employment Development Department (EDD) Form DE-6, 
Employer Quarterly Wage Reports for all employees for the last four quarters. 
The petitioner submitted a response on May 27, 2005. In its response, the petitioner submitted a document 
describing the beneficiary's role as president of the company to include the following: 
Manages customer and technical services Customers who purchased a larger number of 
software licenses. 
Manages new products, projects in software and industry automation, such as solutions 
for Messaging systems, solution for water treatment industry. 
Manages marketing activities and contacts to manufacturers for strategical partnerslups 
with a number of software companies to incorporate our product as a part of broader 
software solutions. 
In addition, the petitioner submitted an organizational chart for the U.S. company depicting the beneficiary 
as president who in turn supervises one employee in production, customer and technical services, one 
employee in customer service marketing, and one vice president. The petitioner failed to submit a more 
detailed description of each employee's job duties or evidence of wages paid to employees as requested by the 
director. 
In addition, the petitioner submitted a letter from the foreign entity dated March 24, 2005, describing the 
services the U.S. entity will continue to provide to the petitioner's clients as the following: 
WAC 04 218 50919 
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The customers expect a telephone hotline for sales issues and technical support throughout 
the usual business hours. This is absolutely critically [sic] for customer satisfaction and a 
pre-condition for establishing a customer base. We cannot provide these services from 
Germany, mainly because of the time difference. We cannot afford a call center that is 
available throughout US business hours, because that would mean night work for German 
call center employees. We cannot outsource call center service to some external service 
provider either, due to the lack of control we would have. Therefore, it is important that you 
as [the U.S. company] handle all customer inquiries. In case that you have to employ 
additional personnel, it is critically that you assess all job applicants personally. 
The same is true for support by means of electronic mail. Although the customer does 
usually not expect an immediate response, there is in fact at least a delay of one day, due to 
the time difference between the US west coast and Germany. It is necessary that you 
monitor customer inquiries by email throughout the usual business hours and respond the 
same day whenever possible. 
The customers expect us to be a vendor who is familiar with US business conventions. A 
lot of customers required us to use special forms for purchase orders or vendor registration. 
Clarifying and understanding such requirements from a location in Germany often means a 
delay of one to two days. This delay is not acceptable for our customers who often need 
immediate answer. 
Customers who purchased a larger number of software licenses may require 2417 support 
by service technician. Although this land of service is not provided yet, some customers 
have stated interest in such a kind of services. In case that customers order such service, you 
as [the U.S. company] have to be present at the customer's site for the first time and you will 
have to establish a network of service technicians, if required. 
Some customers expect integrated solutions, that is, solutions that integrate hardware and 
software. It is only possible to provide such integrated solutions if you are able to cooperate 
with hardware vendors and dealers in the US. 
We are consistently loolung for strategical partnerships with a number of software 
companies to incorporate our product as a part of broader software solutions. 
 Such 
partnerships can certainly be established only through personal contact. It is necessary that 
you as [the U.S. company] arrange, establish and maintain these contacts. 
In addition, the petitioner submitted its California, Forms DE-6, Quarterly Wage and Withholding Report, for 
the period from January 2004 through March 2005, which indicated that the United States company had one 
employee, the beneficiary, throughout this period. 
The director denied the petition on August 2, 2005 on the ground that the petitioner provided insufficient 
evidence to establish that the beneficiary will be in a position that is primarily managerial or executive in 
nature. The director stated that although the organizational chart for the U.S. entity indicated four employees, 
the state quarterly wage report for 2004 indicated that the U.S. company had only hired one employee, the 
WAC 04 218 50919 
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beneficiary. In addition, the director stated that the petitioner did not submit a more detailed job description 
for the beneficiary's proposed position as requested by the director. The director further stated that the 
proposed position is primarily comprised of marketing tasks and thus it appeared that the beneficiary will be 
providing a service or producing a product rather then directing subordinates who would relieve the 
beneficiary from performing non-qualifying duties. Finally, the director stated that the beneficiary's 
subordinates do not appear to be professionals or managers. 
On appeal, counsel for the petitioner asserts that the beneficiary will hold a position of managerial and 
executive capacity. Counsel states that the petitioner submitted a letter describing the beneficiary's duties and 
"the nature and scope of the duties described in thls letter, the status and activities of his subordinate staff and 
his responsibilities and obligations clearly demonstrate that substantially all of his activities are at the 
managerial or executive level." In addition, counsel argues that executives of large companies often promote 
their products, make personal calls or personal appearances, and participate in negotiations. 
Counsel for the petitioner fiu-ther asserts on appeal: 
Petitioner was a little over one year old when it submitted the present petition. In order to 
progress from inception to that of the functioning and viable company, is clear that it, like 
any startup company, needed strong leadership.. .. Clearly then, it is essential to have an 
executive capable and assigned with the duties and responsibilities consistent with the ability 
to make the changes in objectives, goals and styles necessary to maintain growth and 
stability. Therefore, it is 'reasonable' to assume that petitioner a president or executive to 
run their business at ths critical 'stage of development.' 
Finally, counsel for the petitioner asserts that the beneficiary will supervise professional employees who have 
bachelor's degree, and he will manage an essential function of the United States company. 
Upon review of the petition and evidence, the petitioner has not established that the beneficiary would be 
employed in a managerial or executive capacity. 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. 9 
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 definitions of executive and managerial capacity 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 prove 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), 199 1 WL 144470 (9th Cir. July 30, 199 1). 
The beneficiary's position description is too general and broad to establish that the preponderance of his 
duties is managerial or executive in nature. The beneficiary's job description includes vague duties such 
as the beneficiary "manages customer and technical services Customers who purchased a larger number of 
software licenses," "manages new products, projects in software and industry automation, such as solutions 
for Messaging systems, solution for water treatment industry," and "manages marketing activities and 
contacts to manufacturers for strategcal partnerships with a number of software companies to incorporate our 
WAC 04 218 50919 
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product as a part of broader software solutions." 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 his daily routine. The actual duties themselves will reveal the true 
nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 
905 F.2d 41 (2d. Cir. 1990). The petitioner's descriptions of the beneficiary's position do not identify the 
actual duties to be performed, such that they could be classified as managerial or executive in nature. 
Furthermore, the director specifically requested that the petitioner provide a detailed job description, 
including the beneficiary's specific duties and the percentage of time the beneficiary would allocate to 
each duty. The petitioner did not submit the requested job description as requested by the director. 
Failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying 
the petition. 8 C.F.R. 5 103.2(b)(14). The petitioner was put on notice of required evidence and given a 
reasonable opportunity to provide it for the record before the visa petition was adjudicated. The petitioner 
now seeks to clarify the beneficiary's duties on appeal. However, the AAO will not consider this 
evidence for any purpose. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 
I&N Dec. 533 (BIA 1988). The appeal will be adjudicated based on the record of proceeding before the 
director. 
Furthermore, based on the U.S. company's California Forms DE-6, Quarterly Wage and Withholding Report 
for the four quarters in 2004 and the first quarter of 2005, it appears that the beneficiary is the only individual 
employed by the U.S. company. Since there are currently no other employees at the company, it appears that 
the beneficiary will be providing the services of the business rather then directing such activities through 
subordinate employees. Thus, the U.S. company has not hired employees to perform the marketing, 
promotion, customer service, technical support, negotiation and financial development activities of the 
company. According to the record, it is evident that the beneficiary will perform primarily non-qualifying 
duties. An employee who "primarily" performs the tasks necessary to produce a product or provide a service 
is not considered to be "primarily" employed in a managerial or executive capacity. See sections 
101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial or 
executive duties); see also Matter of Church Scientology International, 19 I & N Dec. 593, 604 (Comrn. 
1988). 
Moreover, the organizational chart is inconsistent with other information in the petition. The chart 
indicates that the beneficiary directs three employees: the vice president, one employee in production, 
customer and technical services, and one employee in customer service marketing, however, as noted 
above, the California Form DE-6, Employer Quarterly Wage Report, for 2004 and the first quarter of 
2005, indicate that the only individual employed by the U.S. company is the beneficiary. 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). 
Although counsel states on appeal that the petitioner has three additional subordinate employees as listed 
on the U.S. organizational chart, the petitioner has neither presented evidence to document the existence 
of these employees nor identified the services these individuals provide. Additionally, the petitioner has 
WAC 04 218 50919 
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not explained how the services of the three employees obviate the need for the beneficiary to primarily 
conduct the petitioner's business. Without documentary evidence to support its statements, the petitioner 
does not meet its burden of proof in these proceedings. Matter of Sof$ci, 22 I&N Dec. 158, 165 (Comm. 
1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
As the United States company has only employed the beneficiary, it is reasonable to assume, and has not 
been proven otherwise, that the beneficiary is performing all sales, customer service and marketing 
functions and financial development, and all of the various operational tasks inherent in operating the 
company on a daily basis, such as participating in negotiations, contacting new clients, and responding to 
customer service inquiries. Based on the record of proceeding, the beneficiary's job duties are principally 
composed of non-qualifying duties that preclude him from functioning in a primarily managerial or 
executive role. Since the record as presently constituted is not persuasive in demonstrating that the 
beneficiary has been or will be employed in a primarily managerial or executive capacity, the appeal will 
be dismissed. 
Furthermore, on appeal, counsel for the petitioner asserts that the beneficiary manages "professional" 
employees. As noted above, the petitioner has not submitted evidence that the subordinate employees are 
in fact employed by the United States company. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of 
Sof$ci, 22 I&N Dec. at 165. Absent evidence that the petitioner actually employed the claimed 
subordinates as of the date the petitioner was filed, the AAO need not consider whether the beneficiary's 
claimed subordinates are professionals. However, the AAO does concur with counsel that the director 
had no legitimate basis for concluding that "it is apparent that these types of positions are not ones that 
would normally require a college graduate," particularly in light of the fact that the petitioner did not 
submit job descriptions for the beneficiary's claimed subordinates. The director's comment is withdrawn. 
The petitioner's minimal evidence regarding its proposed business, the lack of job descriptions provided 
for the beneficiary and his proposed subordinates, and the lack of evidence to establish that the 
subordinates are in fact employed by the U.S. company, collectively, fail to demonstrate that the 
beneficiary would be employed in a primarily managerial or executive capacity. 
On appeal, counsel for the petitioner asserts that the beneficiary will act as a function manager for the 
U.S. company. The term "function manager" applies generally when a beneficiary does not supervise or 
control the work of a subordinate staff but instead is primarily responsible for managing an "essential 
function" within the organization. See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. tj 1101(a)(44)(A)(ii). 
The term "essential function" is not defined by statute or regulation. If a petitioner claims that the 
beneficiary is managing an essential function, the petitioner must furnish a written job offer that clearly 
describes the duties to be performed in managing the essential function, i.e. identify the function with 
specificity, articulate the essential nature of the function, and establish the proportion of the beneficiary's 
daily duties attributed to managing the essential function. See 8 C.F.R. tj 214.2(1)(3)(ii). In addition, the 
petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary manages the 
function rather than performs the duties related to the function. 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. Boyang, Ltd. v. I.N.S., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 
1995)(citing Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988)). In this 
WAC 04 218 50919 
Page 9 
matter, the petitioner has not provided evidence that the beneficiary manages an essential function. The 
petitioner's unsupported assertion that the beneficiary manages all the essential functions of the 
corporation is insufficient to meet the petitioner's burden of proof. The fact that the beneficiary manages 
a business does not necessarily establish eligibility for classification as an intracompany transferee in a 
managerial or executive capacity within the meanings of sections 101(a)(15)(L) of the Act. See 52 Fed. 
Reg. 5738.5739 (Feb. 27, 1987). The record must establish that the majority of the beneficiary's actual 
duties are managerial or executive in nature. The actual duties themselves reveal the true nature of the 
employment. Fedin Bros. v. Suva, 724 F. Supp. at 1108. 
As discussed above, the beneficiary's job description appears to include non-qualifying duties associated 
with the petitioner's day-to-day functions, and the petitioner has not sufficiently identified a subordinate 
staff who would relieve the beneficiary from performing routine duties inherent to operating the company 
on a day-to-day basis. The fact that the beneficiary has been given a managerial job title is insufficient to 
elevate her position to that of a "function manager" as contemplated by the governing statute and 
regulations. 
Finally, on appeal, counsel for the petitioner asserts that the "service failed to take into account the 
reasonable needs of petitioner in light of its overall purpose and stage of development." Counsel 
correctly observes that 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. 
As required by section 101(a)(44)(C) of the Act, if staffing levels are used as a factor in determining 
whether an individual is acting in a managerial or executive capacity, CIS must take into account the 
reasonable needs of the organization, in light of the overall purpose and stage of development of the 
organization. 
At the time of filing, the petitioner was a two-year-old company that claimed to have two employees and 
a gross annual income of $80,000 to $100,000. According to the Form DE-6, Employer Quarterly Wage 
Report for 2004 and the first quarter of 2005, the company only employed the beneficiary. The AAO 
notes that the petitioner did not submit evidence that it employed any subordinate staff members who 
would perform the actual day-to-day, non-managerial operations of the company. The petitioner 
reasonably requires employees to market and promote its products, respond to telephone and electronic 
mail inquiries from customers, regarding sales and technical issues, maintain relationships with vendors, 
and handle the company's day-to-day financial and administrative tasks. Based on the petitioner's 
representations, it does not appear that the reasonable needs of the petitioning company might plausibly 
be met by the services of the beneficiary as president. Regardless, the reasonable needs of the petitioner 
serve only as a factor in evaluating the lack of staff in the context of reviewing the claimed managerial or 
executive duties. The petitioner must still establish that the beneficiary is to be employed in the United 
States in a primarily managerial or executive capacity, pursuant to sections 101(a)(44)(A) and (B) or the 
Act. As discussed above, the petitioner has not established this essential element of eligibility. 
To establish that the reasonable needs of the organization justify the beneficiary's job duties, the petitioner 
must specifically articulate why those needs are reasonable in light of its overall purpose and stage of 
development. In the present matter, the petitioner has not explained how the reasonable needs of the 
petitioning enterprise justify the beneficiary's performance of non-managerial or non-executive duties. 
WAC 04 218 50919 
Page 10 
Again, going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Soflci, 22 I&N Dec. at 165. 
Furthermore, the reasonable needs of the petitioner will not supersede the requirement that the beneficiary 
be "primarily" employed in a managerial or executive capacity as required by the statute. See sections 
101(a)(44)(A) and (B) of the Act, 8 U.S.C. § 1101(a)(44). The reasonable needs of the petitioner may 
justify a beneficiary who allocates 5 1 percent of his duties to managerial or executive tasks as opposed to 
90 percent, but those needs will not excuse a beneficiary who spends the majority of his or her time on 
non-qualifying duties. 
On appeal, counsel refers to several unpublished decision in which the AAO determined that the 
beneficiary met the requirements of serving in a managerial and executive capacity for L-1 classification 
even though he was the sole employee. Counsel has furnished no evidence to establish that the facts of 
the instant petition are analogous to those in the unpublished decision. While 8 C.F.R. $ 103.3(c) 
provides that AAO precedent decisions are binding on all CIS employees in the administration of the Act, 
unpublished decisions are not similarly binding. 
Based upon evidence submitted, it is evident that the beneficiary has been and will be performing the 
services of the U.S. entity rather than performing primarily managerial or executive duties as its president 
and general manager. 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 Int'l., 19 I&N Dec. 593, 604 
(Comm. 1988). The petitioner has not demonstrated that the beneficiary will be functioning at a senior 
level within an organizational hierarchy other than in position title. Accordingly, the petitioner has failed 
to demonstrate that the beneficiary has been or will be employed primarily in a qualifying managerial or 
executive capacity. For this reason, the appeal will be dismissed. 
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as 
an independent and alternative basis for denial. In visa petition proceedings, the burden of proving 
eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 
1361. Here, that burden has not been met. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.