dismissed L-1A Case: Trade And Travel

U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
1)1
FILE: SRC 03 206 50591 Office: TEXAS SERVICE CENTER Date: ~N 202007
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(a)(l5)(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.
)7 /
11ut~te:i<-----
~obert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
SRC 03 20650591
Page 2
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa, and the
Administrative Appeals Office (AAO) dismissed the subsequently filed appeal. The matter is now before the
AAO on motion to reopen and motion to reconsider. The motion will be dismissed.
The petitioner claims to be engaged in trade and travel. It seeks to employ the beneficiary temporarily in the
United States as its president. The director determined that the petitioner had not established that the
beneficiary would be employed in a managerial or executive capacity in the United States. The AAO
affirmed this determination on appeal, and noted further that the petitioner had not been doing business as
required by the regulations.
On motion, counsel submits additional evidence to address the grounds of the director's denial and the
findings of the AAO. Counsel for the petitioner claims that the petitioner was prejudiced by former counsel's
failure to file a brief in support of the appeal by the AAO, and contends that had a brief been filed, "the
requisite evidence necessary for a finding that [the beneficiary] was employed in an executive capacity"
would have been provided. Counsel further claims that the negligent exclusion of the evidence now provided
on motion should be fully considered, as the evidence is "consistent with the principle of fundamental fairness
and the interest s of justice." Counsel does not state any reasons for reconsideration, nor does counsel furnish
any new facts to be provided in the reopened proceeding. Counsel merely claims that former counsel's failure
to submit a brief prejudiced the petitioner, and the motion now before the AAO is intended to supplement the
record with the evidence necessary to overcome the director's initial findings.
The regulation at 8 C.F.R. § 103.5(a)(2) states, in pertinent part: "A motion to reopen must state the new facts
to be provided in the reopened proceeding and be supported by affidavits or other documentary evidence."
Based on the plain meaning of "new," a new fact is found to be evidence that was not available and could not
have been discovered or presented in the previous proceeding. I
In support of the motion, counsel for the petitioner has submitted a brief and a job description for the
beneficiary and breakdown percentage of the beneficiary's duties, as well as those of his subordinate
personnel at both the time of the extension as well as currently. Counsel also submits an organizational chart,
copies of the request for evidence, the initial denial notice, the AAO's decision dismissing the appeal, and the
petitioner's U.S. Corporation Income Tax Return for 2003. A review of the evidence that the petitioner
submits on motion reveals no fact that could be considered "new" under 8 C.F.R. § 103.5(a)(2). All evidence
submitted was previously available and could have been discovered or presented in the previous proceeding.
It is further noted that the petitioner has submitted evidence with this motion that was originally requested by
the director in the request for additional evidence dated September 16,2003. As the petitioner was previously
put on notice and provided with a reasonable opportunity to provide the required evidence, the evidence
submitted on motion will not be considered "new" and will not be considered a proper basis for a motion to
reopen.
1 The word "new" is defined as "1. having existed or been made for only a short time ... 3. Just discovered,
found, or learned <new evidence> "WEBSTER'S II NEW RIVERSIDE UNIVERSITY DICTIONARY 792
(1984)(emphasis in original).
SRC 03 20650591
Page 3
A motion to reopen must provide new facts and be supported by affidavits or other documentary evidence. 8
C.F.R. § 103.5(a)(2). The statements by the petitioner with regard to the beneficiary's duties and the
petitioner's overall structure are not affidavits as they were not sworn to or affirmed by the declarant before
an officer authorized to administer oaths or affirmations who has, having confirmed the declarant's identity,
administered the requisite oath or affirmation. See Black's Law Dictionary 58 (7th Ed., West 1999). Nor, in
lieu of having been signed before an officer authorized to administer oaths or affirmations, do they contain the
requisite statement, permitted by Federal law, that the signers, in signing the statements, certify the truth of
the statements, under penalty of perjury. 28 U.S.C. § 1746. Such unsworn statements made in support of a
motion are not evidence and thus, as is the case with the arguments of counsel, are not entitled to any
evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); Matter of Ramirez-Sanchez, 17
I&N Dec. 503 (BIA 1980).
Motions for the reopening of immigration proceedings are disfavored for the same reasons as petitions for
rehearing and motions for a new trial on the basis of newly discovered evidence. INS v. Doherty, 502 U.S.
314, 323 (1992)(citing INS v. Abudu, 485 U.S. 94 (1988)). A party seeking to reopen a proceeding bears a
"heavy burden." INS v. Abudu, 485 U.S. at 110. With the current motion, the petitioner has not met that
burden. The motion to reopen will be dismissed.
Furthermore, 8 C.F.R. § 103.5(a)(2) states, in pertinent part:
A motion to reconsider must state the reasons for reconsideration and be supported by any pertinent precedent
decisions to establish that the decision was based on an incorrect application of law or Service policy. A
motion to reconsider a decision on an application or petition must, when filed, also establish that the decision
was incorrect based on the evidence of record at the time of the initial decision.
Although counsel has submitted a motion entitled "Motion to Reopen or Reconsider," counsel does not
submit any document that would meet the requirements of a motion to reconsider. Counsel does not state any
reasons for reconsideration nor cite any precedent decisions in support of a motion to reconsider. Counsel
does not argue that the previous decisions were based on an incorrect application of law or U.S. Citizenship
and Immigration Services (USCIS) policy. Counsel merely contends that the petitioner's former counsel was
negligent in her failure to submit a brief in support of the appeal, and contends that the petitioner deserves the
opportunity for proper review of the record as now supplemented. Other than the title of the motion, counsel
does not assert that a motion to reconsider should be considered as an alternative to the motion to reopen.
Assuming, arguendo, that the petitioner intended to file a motion to reconsider, the petitioner's motion will be
dismissed.
It is noted that the appeal contains a claim alleging ineffective assistance of the petitioner's formal counsel.
Any appeal or motion based upon a claim of ineffective assistance of counsel requires: (1) that the claim be
supported by an affidavit of the allegedly aggrieved respondent setting forth in detail the agreement that was
entered into with counsel with respect to the actions to be taken and what representations counsel did or did
not make to the respondent in this regard, (2) that counsel whose integrity or competence is being impugned
be informed of the allegations leveled against him and be given an opportunity to respond, and (3) that the
appeal or motion reflect whether a complaint has been filed with appropriate disciplinary authorities with
respect to any violation of counsel's ethical or legal responsibilities, and if not, why not. Matter ofLozada, 19
SRC 03 20650591
Page 4
I&N Dec. 637 (BIA 1988), aff'd, 857 F.2d 10 (1st Cir. 1988). In this matter, the petitioner has failed to meet
the requirements in support of this claim.
Finally, it should be noted for the record that, unless USCIS directs otherwise, the filing of a motion to reopen
or reconsider does not stay the execution of any decision in a case or extend a previously set departure date. 8
C.F.R. § 103.5(a)(1)(iv).
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. §
1361. The petitioner has not sustained that burden. 8 C.F.R. § 103.5(a)(4) states that "[a] motion that does
not meet applicable requirements shall be dismissed." Accordingly, the motion will be dismissed, the
proceedings will not be reopened, and the previous decisions of the director and the AAO will not be
disturbed.
ORDER: The motion is dismissed.