dismissed L-1A Case: Unknown

PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
 WAC 07 13 1 52 189 
 OFFICE: CALIFORNIA SERVICE CENTER 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)( 15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 
 1101(a)(15)(L) 
IN 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. 
-""- 41 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
WAC 07 131 52189 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, California Service Center. The 
petitioner subsequently filed an appeal. The Administrative Appeals Office (AAO) determined that the filing 
was untimely and rejected the appeal. The matter is now before the AAO on a combined motion to reopen 
and reconsider. The motion will be dismissed. 
The petitioner seeks to classify the beneficiary as a nonimmigrant intracompany transferee pursuant to section 
101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 101(a)(l5)(L). 
The director denied the petition on July 9, 2007. On August 22, 2007, counsel for the petitioner filed an 
appeal seeking review of the director's decision.' After reviewing the record, the AAO rejected the appeal as 
it had not been filed in a timely manner. Any appeal that is not filed within the time allowed must be rejected 
as improperly filed. 8 C.F.R. 5 103.3(a)(2)(v)(B)(l). The AAO further found that the appeal was unsigned 
and was therefore deemed improperly filed on this additional basis. 
The petitioner has now filed a motion seeking to reopen the appeal that was rejected as improperly filed. In a 
supplemental statement, the petitioner's new counsel urges the AAO to reconsider its prior detennination, 
asserting that the petitioner's prior counsel was to blame for initially submitting the appeal with an improper 
fee, thereby causing the appeal to be untimely filed and ultimately rejected. 
However, 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 of 
Lozada, 19 I&N Dec. 637 (BIA 1988), afd, 857 F.2d 10 (1st Cir. 1988). In the present matter, current 
counsel has not provided any evidence or documentation to show that the petitioner has taken any of the 
remedial measures discussed above. 
Additionally, the scope of the AAO's review on motion is limited by the provisions cited in 8 C.F.R. 
5 9 103.5(a) and (b), which pertain to the motions to reopen and reconsider, respectively. 
The regulations at 8 C.F.R. 
 103.5(a)(2) state, in pertinent part, that 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. 
' As fully addressed in the AAO's prior decision, the petitioner's initial attempt to file the appeal within the regulatory 
time limitation was unsuccessful due to the submission of an improper filing fee. 
WAC 07 131 52189 
Page 3 
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.2 
In the present matter, the only new information presented by current counsel is the claim that the petitioner's 
prior counsel's negligence was the reason for the untimely filing of the appeal. However, as indicated above, 
without documentary evidence to support the claim, the assertions of counsel will not satisfy the petitioner's 
burden of proof. The unsupported statements of counsel on appeal or in a motion are not evidence and thus 
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). Counsel has not presented any facts or evidence that meet 
the requirements of 8 C.F.R. 9 103.5(a)(2) such that would permit or prompt the AAO to reopen this matter 
for further analysis. 
Next, with regard to the petitioner's motion to reconsider, 8 C.F.R. fj 103.5(a)(3) 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 CIS 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. 
In the instant case, counsel does not cite any legal precedent or applicable law that would indicate an error on 
the part of the AAO in rejecting the petitioner's appeal. Therefore, the motion will be dismissed in 
accordance with 8 C.F.R. tj 103.5(a)(4), which states, in pertinent part, that a motion that does not meet 
applicable requirements shall be dismissed. 
As a final note, the proper filing of a motion to reopen and/or reconsider does not stay the AAO's prior 
decision to reject an appeal or extend a beneficiary's previously set departure date. 8 C.F.R. tj 103.5(a)(l)(iv). 
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, the petitioner has not sustained that burden. 
ORDER: The motion is dismissed. 
The word "new" is defmed as " 1. having existed or been made for only a short time . . . 3. Just discovered, 
found, or learned <new evidence> . . . ." WEBSTER'S I1 NEW RIVERSIDE UNIVERSITY DICTIONARY 792 
(1 9 84)(emphasis in original).