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Examining Lozada and Ineffective Assistance of...
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EB-1A Claims IAC, Invoking Lozada, MTR Granted...
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(iii) th...
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and lead...
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have dir...
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The reco...
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Regardin...
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Document...
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membersh...
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e.g., ...
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Eviden...
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Accord...
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consid...
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meanin...
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leadin...
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consid...
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THE “LOZADA” REQUIREMENTS
I was somewhat amaz...
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order to send it back to USCIS for a de novo ...
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43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). Fi...
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About the Author
Joseph P. Whalen, Independen...
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Examining Lozada and Ineffective Assistance of Counsel Claims in the Immigration Benefits Application Context - A Sample Case

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No amount of bungling can be the reason to grant any benefit to someone who simply does not qualify for it. The forms of relief are legally limited.

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Examining Lozada and Ineffective Assistance of Counsel Claims in the Immigration Benefits Application Context - A Sample Case

  1. 1. Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 1 Examining Lozada and Ineffective Assistance of Counsel Claims in the Immigration Benefits Application Context - A Sample Case By Joseph P. Whalen (August 14, 2014) INTRODUCTION A USCIS Form I-140, Immigrant Petition for Alien Worker for an Alien of Extraordinary Ability Pursuant to Section 203(b)(1)(A) of the Immigration and Nationality Act; 8 U.S.C. § 1153(b)(1)(A) was denied by the Director of the Nebraska Service Center (NSC). A Motion to Reopen (MTR) was dismissed by the AAO on July 23, 2014, under the signatory authority of Ron Rosenberg, Chief, Administrative Appeals Office of the United States Citizenship and Immigration Services (USCIS), an agency of the Department of Homeland Security (DHS). The following pages include pages 2-16 of that non-precedent administrative decision. I find this case worthy of study and discussion due to the treatment of the claim of ineffective assistance of counsel (IAC) under the terms of the Precedent Decision cited as: Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), aff'd, 857 F.2d 10 (1st Cir. 1988). LIMITED RELIEF FOR IAC IN BENEFITS DETERMINATIONS In this particular case decision, AAO included many citations. I have added many links to the decisions, statutes, and implementing regulations, etc., for the convenience of the reader. As I understand it, when an individual is deprived of a substantive right because of ineffective assistance of counsel (IAC), a claim can be made for relief. Certain forms of relief are within the purview of administrative and judicial bodies while select forms of relief are within the purview of the courts alone. In addition, in the benefits context, no amount of bundling will cause an ineligible applicant or petitioner to suddenly become eligible as a form of relief. It seems that only when one is “cheated out of” a legal entitlement1 can relief be granted. So, in the following case, while the requirements of Lozada were met such that AAO could grant the (MTR) and make a new decision, that decision was constrained to a fresh review of the merits of the underlying case. Unfortunately for the self-petitioner, the evidence did not support a finding of extraordinary ability as a violinist. The record of proceeding, even as supplemented through response to an RFE, an appeal, and the current MTR did not amount to the required “extensive documentation of his sustained national or international acclaim.” Even when AAO allowed for a review of a “corrected” area of expertise due to IAC, that results did not change. More of this article is to follow starting on page 17, below the decision text. 1 SEE: http://www.slideshare.net/BigJoe5/entitlement-vs-discretionary-relief-1-272012, http://www.slideshare.net/BigJoe5/jozef-malewski-v-eric-holder-jr-7th-cir-8-2012-not-entitled-to-discretion, and http://www.slideshare.net/BigJoe5/eb5-entitlement-question-updated-3242012
  2. 2. Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 2 EB-1A Claims IAC, Invoking Lozada, MTR Granted, Petition Denied (AAO JUL232014_02B2203.pdf) _______ Page 2 NON-PRECEDENT DECISION DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Nebraska Service Center. We rejected the subsequent appeal. The matter is before us on a motion to reopen. The motion to reopen will be granted, and our previous decision will be withdrawn. The petition is denied. The director denied the petition on September 1, 2010. The petitioner filed an appeal of that decision on October 5, 2010, 34 days after the decision was issued. We rejected the appeal as it was untimely filed. See 8 C.F.R. §§ 103.3(a)(2)(i) and 103.3(a)(2)(v)(B)(l). The petitioner filed a motion to reopen that decision based on the claim of ineffective assistance of prior counsel in accordance with Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), aff'd, 857 F.2d 10 (1st Cir. 1988). On motion, the petitioner complied with the requirements set forth in the Matter of Lozada. The motion to reopen will be granted, our previous decision rejecting the appeal will be withdrawn, and a new decision dismissing the appeal will be entered into the record.1 The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(A), as an alien of extraordinary ability. The director determined that the petitioner had not established the requisite extraordinary ability and failed to submit extensive documentation of his sustained national or international acclaim. On motion, the petitioner claims to meet at least three of the regulatory criteria at 8 C.F.R. § 204.5(h)(3). I. LAW Section 203(b) of the Act states, in pertinent part, that: (1) Priority workers. -- Visas shall first be made available ... to qualified immigrants who are aliens described in any of the following subparagraphs (A) through (C): (A) Aliens with extraordinary ability. -- An alien is described in this subparagraph if -- (i) the alien has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation, (ii) the alien seeks to enter the United States to continue work in the area of extraordinary ability, and _____________________ 1 The petitioner was first represented by [R E D A C T E D]. On appeal, the petitioner was represented by [R E D A C T E D]. When the petitioner filed the appeal, he indicated that a brief would be submitted to us within 30 days. On October 29, 2010, Ms. [R E D A C T E D] requested an additional 30 days to submit a brief and/or additional documentation. The record of proceeding does not reflect that a brief and/or additional documentation was ever submitted in support of the appeal.
  3. 3. Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 3 _______ Page 3 NON-PRECEDENT DECISION (iii) the alien's entry into the United States will substantially benefit prospectively the United States. U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization Service (INS) have consistently recognized that Congress intended to set a very high standard for individuals seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 101st Cong., 2d Sess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). The term "extraordinary ability" refers only to those individuals in that small percentage who have risen to the very top of the field of endeavor. Id.; 8 C.F.R.§ 204.5(h)(2). The regulation at 8 C.F.R. § 204.5(h)(3) requires that the petitioner demonstrate the sustained acclaim and the recognition of his or her achievements in the field. Such acclaim must be established either through evidence of a one-time achievement (that is, a major, international recognized award) or through the submission of qualifying evidence under at least three of the ten categories of evidence listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a petition filed under this classification. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Although the court upheld our decision to deny the petition, the court took issue with our evaluation of evidence submitted to meet a given evidentiary criterion. With respect to the criteria at 8 C.F.R. § 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS may have raised legitimate concerns about the significance of the evidence submitted to meet those two criteria, those concerns should have been raised in a subsequent "final merits determination." Id. at 1121-22. The court stated that our evaluation rested on an improper understanding of the regulations. Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the proper procedure is to count the types of evidence provided (which we did)," and if the petitioner failed to submit sufficient evidence, "the proper conclusion is that the applicant has failed to satisfy the regulatory requirement of three types of evidence (as we concluded)." Id. at 1122 (citing to 8 C.F.R. § 204.5(h)(3)). Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then considered in the context of a final merits determination. In this matter, we will review the evidence under the plain language requirements of each criterion claimed. As the petitioner did not submit qualifying evidence under at least three criteria, the proper conclusion is that the petitioner has failed to satisfy the regulatory requirement of three types of evidence. Id. II. AREA OF EXPERTISE In Part 6 of Form I-140, Immigrant Petition for Alien Worker, the petitioner listed his job title as "music director." In addition, the petitioner indicated his job description as "conducts, directs, plans, _____________________ 2 Specifically, the court stated that we had unilaterally imposed novel substantive or evidentiary requirements beyond those set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(iv) and 8 C.F.R. § 204.5(h)(3)(vi).
  4. 4. Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 4 _______ Page 4 NON-PRECEDENT DECISION and leads instrumental and/or vocal performances." In the petitioner's cover letter accompanying the petition, however, the petitioner indicated that he was seeking classification as a violinist. In response to the director's request for evidence (RFE) pursuant to the regulation at 8 C.F.R. § 103.2(b )(8), the petitioner claimed that he "anticipated" to be a music director, but he is seeking classification as an alien of extraordinary ability as a violinist. On motion, the petitioner claims that his area of expertise was mischaracterized by his first attorney by claiming that he was seeking classification as a music director instead of as a violinist. On motion, the petitioner clarifies that he seeks classification as a violinist. Therefore, the petitioner must rely on his accomplishments as a violinist to meet the requirements of the regulation at 8 C.F.R. § 204.5(h)(3) rather than as a music director. The statute and regulations require the petitioner's national or international acclaim to be sustained and that he seeks to continue work in his area of expertise in the United States. Sections 203(b)(l)(A)(i) and (ii) of the Act, 8 U.S.C. § 1153(b)(l)(A)(i) and (ii), and 8 C.F.R. § 204.5(h)(3) and (5). III. ANALYSIS A. Translations Although the petitioner submitted English language translations, the translations are not certified, and some are partial or abbreviated translations. The regulation at 8 C.F.R. § 103.2(b) provides in pertinent part: (3) Translations. Any document containing foreign language submitted to USCIS shall be accompanied by a full English language translation which the translator has certified as complete and accurate, and by the translator's certification that he or she is competent to translate from the foreign language into English. As cited above, the regulation at 8 C.F.R. § 103.2(b)(3) specifically requires that any foreign language document that is submitted to USCIS must be accompanied by a full and certified English language translation. The petitioner did not comply with the regulation at 8 C.F.R. §103.2(b)(3). Accordingly, the translations have no probative value and will not be considered in this proceeding. B. Primary Evidence The regulation at 8 C.F.R. § 103.2(b)(2) provides in pertinent part: (i) The non-existence or other unavailability or required evidence creates a presumption of ineligibility. If a required document, such as a birth or marriage certificate, does not exist or cannot be obtained, an applicant ·Or petitioner must demonstrate this and submit secondary evidence, such as church or school records, pertinent to the fact at issue. If secondary evidence also does not exist or cannot be obtained, the applicant or petitioner must demonstrate the unavailability of both the required document and relevant secondary evidence, and submit two or more affidavits, sworn to or affirmed by persons who are not parties to the petition who
  5. 5. Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 5 _______ Page 5 NON-PRECEDENT DECISION have direct personal knowledge of the event and circumstances. Secondary evidence must overcome the unavailability of primary evidence, and affidavits must overcome the unavailability of both primary and secondary evidence. The regulation at 8 C.F.R. § 103.2(b)(2)(i) provides that the non-existence or unavailability of required evidence creates a presumption of ineligibility. According to the same regulation, only where the petitioner demonstrates that primary evidence does not exist or cannot be obtained may the petitioner rely on secondary evidence and only where secondary evidence is demonstrated to be unavailable may the petitioner rely on affidavits. C. Wikipedia A review of the record of proceeding reflects that the petitioner submitted screenshots from Wikipedia. As there are no assurances about the reliability of the content from this open, user-edited Internet site, information from Wikipedia will be accorded no evidentiary weight. See Laamilem Badasa v. Michael Mukasey, 540 F.3d 909 (8th Cir. 2008)3 D. Evidentiary Criteria4 Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) requires "[d]ocumentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor." It is the petitioner's burden to establish that the evidence meets every element of this criterion. Not only must the petitioner demonstrate his receipt of prizes and awards, he must also demonstrate that those prizes and awards are nationally or internationally recognized for excellence in the field of endeavor, which, by definition, means that they are recognized beyond the awarding entity. _____________________________ 3 See also the online content from http://en.wikipedia.org/wiki/Wikipedia: General disclaimer, accessed on June 11, 2014, and copy incorporated into the record of proceeding: WIKIPEDIA MAKES NO GUARANTEE OF VALIDITY. Wikipedia is an online open content collaborative encyclopedia, that is, a voluntary association of individuals and groups working to develop a common resource of human knowledge. The structure of the project allows anyone with an Internet connection to alter its content. Please be advised that nothing found here has necessarily been reviewed by people with the expertise required to provide you with complete, accurate or reliable information. . . . Wikipedia cannot guarantee the validity of the information found here. The content of any given article may recently have been changed, vandalized or altered by someone whose opinion does not correspond with the state of knowledge in the relevant fields. 4 On motion, the petitioner does not claim to meet any of the regulatory categories of evidence not discussed in this decision.
  6. 6. Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 6 _______ Page 6 NON-PRECEDENT DECISION The record of proceeding reflects that the petitioner claims eligibility for this criterion based on the following: Regarding items 1 - 4, the petitioner submitted foreign language documents without any certified English language translations pursuant to the regulation at 8 C.F.R. § 103.2(b)(3), and the petitioner did not submit any other primary evidence pursuant to the regulation at 8 C.F.R. § 103.2(b)(2) regarding his receipt of the purported prizes or awards. Therefore, the petitioner did not demonstrate his "receipt" of prizes or awards. Moreover, the petitioner did not establish that his purported prizes or awards are nationally or internationally recognized for excellence in the field consistent with the plain language of this regulatory criterion. Although the petitioner submitted screenshots regarding the [************REDACTED*************], Dr. [***************REDACTED********** ******], who confirmed that the petitioner won his competition. Although the petitioner submitted screenshots regarding [REDACTED] including screenshots from Wikipedia, the petitioner did not submit any documentary evidence reflecting that his prize is nationally or internationally recognized for excellence in the field. Regarding the petitioner's participation in a master course at the, the petitioner submitted a screenshot reflecting the conditions for participation; however there is no evidence demonstrating that the petitioner's participation equates to "prizes or awards," and the petitioner did not submit any documentary evidence establishing his participation is nationally or internationally recognized for excellence in the field. Regarding the prize at the [************REDACTED*************] the petitioner submitted a foreign language document without a certified English language translation pursuant to the regulation at 8 C.F.R. § 103.2(b)(3). The petitioner did submit, however, a letter from [*****REDACTED- *****] who confirmed that the petitioner won his competition. Although the petitioner submitted screenshots regarding [REDACTED] including screenshots from Wikipedia, the petitioner did not submit any documentary evidence reflecting that his prize is nationally or internationally recognized for excellence in the field.
  7. 7. Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 7 _______ Page 7 NON-PRECEDENT DECISION Regarding the prize at the [*****REDACTED*****] the petitioner submitted a certified English language translation evidencing his receipt of the prize. The petitioner also submitted a document regarding the academy and a screenshot from [**************REDACTED*****************] that lists the previous winners and provides the prize's selection criteria; however the documentary evidence does not reflect whether the prize is nationally or internationally recognized for excellence in the field. On motion, the petitioner additionally claims that he won the bronze medal at the [***REDACTED ***********REDACTED*********** REDACTED ********************* REDACTED ***********REDACTED**************** REDACTED ****************** REDACTED ***********REDACTED************ REDACTED *********************** REDACTED ***************REDACTED**********************REDACTED*********** REDACTED ***************************** REDACTED ***************]. Besides the third prize at [*****REDACTED********REDACTED******], a review of the record of proceeding does not reflect that the petitioner previously claimed these prizes, awards, or selections for this criterion at either the initial filing of the petition or in response to the director's RFE. Moreover, the record of proceeding does not contain any documentary evidence to support the petitioner's assertions that he received the prizes or awards, including the third prize at the [********REDACTED********** **REDACTED***]. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). Moreover, the petitioner did not submit any documentary evidence demonstrating that any of these awards are nationally or internationally recognized for excellence in the field. Finally, on motion, the petitioner claims that since he filed his petition, he also won second prize at the [************************REDACTED**********************]. The petitioner did not submit any documentary evidence to support his assertion. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 165. Regardless, eligibility must be established at the time of filing. 8 C.F.R. § 103.2(b) (1), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). A petition cannot be approved at a future date after the petitioner becomes eligible under a new set of facts. Matter of Izummi, 22 I&N Dec. 169, 175 (Comm'r 1998). That decision further provides, citing Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981), that USCIS cannot "consider facts that come into being only subsequent to the filing of a petition." Id. at 176. Further, the petitioner did not submit any documentary evidence establishing that prize is nationally or internationally recognized for excellence in the field. As discussed, the plain language of this regulatory criterion specifically requires that the petitioner demonstrate his receipt of nationally or internationally recognized prizes or awards for excellence in his field. The petitioner did not establish that he has received the claimed prizes or awards, and/or that they are nationally or internationally recognized prizes or awards for excellence in the field. Accordingly, the petitioner did not establish that he meets this criterion.
  8. 8. Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 8 _______ Page 8 NON-PRECEDENT DECISION Documentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields. On motion, the petitioner does not further claim eligibility for this criterion. Therefore, the petitioner abandoned this issue. See Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2005); Hristov v. Roark, No. 09-CV-27312011, 2011 WL 4711885, at *1, *9 (E.D.N.Y. Sept. 30, 2011) (the court found the plaintiff's claims to be abandoned as he failed to raise them on appeal). Nonetheless, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ii) requires "[d]ocumentation of the alien's membership in associations in the field for which is classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields." In order to demonstrate that membership in an association meets this criterion; a petitioner must show that the association requires outstanding achievement as an essential condition for admission to membership. Membership requirements based on employment or activity in a given field, minimum education or experience, standardized test scores, grade point average, recommendations by colleagues or current members, or payment of dues do not satisfy this criterion as such requirements do not constitute outstanding achievements. Further, the overall prestige of a given association is not determinative; the issue here is membership requirements rather than the association's overall reputation. In response to the director's RFE, the petitioner claimed eligibility for this criterion based on his purported memberships with the [**** *****************************REDACTED***************************]. Regarding [REDACTED] the petitioner submitted a screenshot from [*********************REDACTED*******************] reflecting that [REDACTED] "is a membership organization for string and orchestra teachers and our players, helping them to develop and refine their careers." The petitioner did not submit any documentary evidence supporting his assertion that he is a member of [REDACTED]. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at165. Moreover, the screenshot reflects the mission of [REDACTED] without providing any evidence of [REDACTED] membership requirements, so as to establish that it requires outstanding achievements its members, as judged by recognized national or international experts in their disciplines or fields. Regarding [REDACTED] the petitioner submitted a screenshot from [***REDACTED***] and a recommendation letter from [REDACTED] Director of [REDACTED] who stated that the petitioner "has coached groups at [REDACTED] and provided sectionals as well as Violin Performance Classes and Master Classes for our students." However, Mr. [REDACTED] did not state that the petitioner is a member of[REDACTED] and the petitioner did not submit any other documentation establishing that he is a member of [REDACTED] Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 165. Furthermore, the screenshot reflects the benefits of[REDACTED] without providing any evidence of [REDACTED]
  9. 9. Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 9 _______ Page 9 NON-PRECEDENT DECISION membership requirements, so as to demonstrate that it requires outstanding achievements its members, as judged by recognized national or international experts. As discussed, the plain language of this regulatory criterion specifically requires that the petitioner has memberships with associations that require outstanding achievements. The petitioner did not demonstrate that he is a member of the associations and that they are associations requiring outstanding achievements for membership, as judged by recognized national or international experts. Accordingly, the petitioner did not establish that he meets this criterion. Published material about the alien in professional or major trade publications or other major media, relating to the alien's work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires "[p]ublished material about the alien in professional or major trade publications or other major media, relating to the alien's work in the field for which classification is sought." In general, in order for published material to meet this criterion, it must be about the petitioner and, as stated in the regulations, be printed in professional or major trade publications or other major media. To qualify as major media, the publication should have significant national or international distribution. Some newspapers, such as the [REDACTED] nominally serve a particular locality but would qualify as major media because of significant national distribution, unlike small local community papers.5 Furthermore, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires that "[s]uch evidence shall include the title, date, and author of the material, and any necessary translation." On motion, the petitioner claims that he has been "profile[ d] in various media outlets throughout the U.S. Europe and South America." A review of the record of proceeding reflects that the petitioner submitted numerous articles that did not contain certified English translations as required pursuant to the regulation at 8 C.F.R. §§ 103.2(b )(3) and 204.5(h)(3)(iii). Moreover, it appears that several of the translations were only partially translated, such as the articles entitled [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]For these reasons alone, the translations have no probative value. Furthermore, most of the translations reflect material about concerts and competitions that mention the petitioner but are not about the petitioner. For example, the translation for the article entitled [REDACTED] [REDACTED] [REDACTED] is about a concert in the Golden Hall of the Augsburg Conservatory, and the translation for the article entitled [REDACTED] [REDACTED] is about the XXII International Competition for Musical Performance. Although the petitioner is mentioned as a performer or competitor, the articles are about the concerts and competitions rather than about the petitioner. Articles that are not about the petitioner do not meet this regulatory criterion. See, ______________________________________ 5 Even with nationally-circulated newspapers, consideration must be given to the placement of the article. For example, an article that appears in the [REDACTED] but in a section that is distributed only in County, Virginia, for instance, cannot serve to spread an individual's reputation outside of that county.
  10. 10. Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 10 _______ Page 10 NON-PRECEDENT DECISION e.g., Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at *1, *7 (D. Nev. Sept. 8, 2008) (upholding a finding that articles about a show are not about the actor). In addition, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires that "[s]uch evidence shall include the title, date, and author of the material." The majority of the petitioner's translations do not include the date and/or author of the material. For instance, the translation for the article entitled [REDACTED] [REDACTED] [REDACTED] did not contain the date of the article, and the translation of the article entitled [REDACTED] [REDACTED] [REDACTED] [REDACTED] did not contain the author of the article. Further, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires that the published material be "in professional or major trade publications or other major media." In response to the director's RFE, the petitioner submitted a list of publications with circulation statistics and provided the website addresses for the publications. The petitioner did not submit the screenshots of the websites and did not indicate the source of the circulation statistics. There is no evidence supporting the petitioner's assertions. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 165. Moreover, even if the circulation statistics originated from the publications, the petitioner did not submit independent, object evidence demonstrating that the publications are professional or major trade publication or other major media. USCIS need not rely on the self promotional material of the publisher. See Braga v. Poulos, No. CV 06 5105 SJO (C. D. CA July 6, 2007) aff'd 2009 WL 604888 (9th Cir. 2009)2 (concluding that self-serving assertions on the cover of a magazine as to the magazine's status is not reliable evidence of major media). Finally, the petitioner submitted four articles that were written in the English language: [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] . None of the articles are about the petitioner relating to his work; rather the articles are about concerts in which the petitioner is mentioned as one of the performers. Again, articles that are not about the petitioner do not meet this regulatory criterion. See, e.g., Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at *7. Moreover, the petitioner did not include the author for the [REDACTED] [REDACTED] [REDACTED] article. Finally, the petitioner did not submit any documentary evidence, and they were not included in his compiled list mentioned above, demonstrating [REDACTED] [REDACTED] [REDACTED] and [REDACTED] [REDACTED] are professional or major trade publications or other major media. As discussed above, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires "[p]ublished material about the alien in professional or major trade publications or other major media, relating to the alien's work in the field for which classification is sought." The petitioner's documentary evidence does not reflect published material about him relating to his work in professional or major trade publications or other major media. Accordingly, the petitioner did not establish that he meets this criterion. 2 Braga v. Poulos, 317 Fed.Appx. 680 (9th Cir. 2009) [Footnote not in original decision].
  11. 11. Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 11 _______ Page 11 NON-PRECEDENT DECISION Evidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought. On motion, the petitioner does not contest the decision of the director or further claim eligibility for this criterion. Therefore, the petitioner abandoned this issue. See Sepulveda v. U.S. Att'y Gen., 401 F.3d at 1228 n. 2; Hristov v. Roark, No. 09-CV-27312011, 2011 WL 4711885, at *9. Nevertheless, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iv) requires "[e]vidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought." A review of the record of proceeding reflects that at the initial filing of the petition, the petitioner claimed eligibility for this criterion based on a workshop he created to teach violin and viola players, and the petitioner submitted promotional material and an application. Serving as a teacher to instruct students does not constitute participation as a judge of the work of others in the field. The phrase "a judge" implies a formal designation in a judging capacity, either on a panel or individually. Teaching in a classroom setting does not meet the elements of this criterion. Moreover, in response to the director's RFE, the Petitioner claimed that he served as a judge at the [REDACTED] [REDACTED] [REDACTED]. The petitioner submitted a pamphlet/brochure regarding the festival that listed the petitioner as an invited faculty member. The documentation does not, however, describe the petitioner's responsibilities at this festival or otherwise indicate that the petitioner served as a judge. The petitioner did not submit any documentation to support his assertion. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 165. The petitioner also claimed that he was going to be a judge at the upcoming [REDACTED] [REDACTED]***[REDACTED] and the petitioner submitted a brochure/application for the festival and screenshots from [REDACTED]**************[REDACTED] listing the petitioner as one of the violin/viola professors. None of the documentation indicates that the petitioner was to be a judge at the festival. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 165. Regardless, the petitioner's intention to serve as a judge is not evidence of his actual participation as a judge of others' work. Even if the petitioner demonstrated that he participated as a judge, which he did not, eligibility must be established at the time of filing. 8 C.F.R. § 103.2(b )(1), (12); Matter of Katigbak, 14 I&N Dec. at 49. A petition cannot be approved at a future date after the petitioner becomes eligible under a new set of facts. Matter of Izummi, 22 I&N Dec. at 175. That decision further provides, citing Matter of Bardouille, 18 I&N Dec. at 114 that USCIS cannot "consider facts that come into being only subsequent to the filing of a petition." Id. at 176. For the reasons discussed above, the petitioner did not demonstrate that he served as a judge of the work of others in the same or an allied field of specification for which classification is sought at the time of the filing of the petition.
  12. 12. Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 12 _______ Page 12 NON-PRECEDENT DECISION Accordingly, the petitioner did not establish that he meets this requirement. Evidence of the alien's original scientific, scholarly, artistic, athletic, or business related contributions of major significance in the field. The plain language of the regulation requires "[e]vidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field." Here, the evidence must rise to the level of original contributions "of major significance in the field. " The phrase "major significance" is not superfluous and, thus, it has some meaning. Silverman v. Eastrich Multiple Investor Fund, L.P., 51 F. 3d 28, 31 (3rd Cir. 1995) quoted in APWV v. Potter, 343 F.3d 619, 626 (2"d Cir. Sep 15, 2003). The petitioner submitted recommendation letters that praised him for his talents and skills. For instance, [REDACTED]***[REDACTED] stated that the petitioner "is one of the outstanding violinists of today - he possess [sic] all the necessary ingredients: a beautiful tone, excellent technique, and imaginative musicianship." [REDACTED] stated that he has "consistently been impressed with [the petitioner's] extraordinary talent, skill, and work ethic." Furthermore, [***** REDACTED] stated that the petitioner "proved to be an outstanding violinist." In addition [REDACTED ******] stated that the petitioner "proved to be an outstanding violinist and a mature young artist in concerts and international competitions." Further, [REDACTED] stated that the petitioner "possesses a big sound, maintains highest technical standards, and has an exceptional large repertoire." Also, [REDACTED] stated that the petitioner "is an artist of extraordinary ability." Finally, [REDACTED] stated that the petitioner "has had a stellar career as a violin soloist." None of the letters, however, indicated how the petitioner's skills or talents are original contributions of major significance in the field. Having a diverse skill set is not a contribution of major significance in and of itself. Rather, the record must be supported by evidence that the petitioner has already used those unique skills to impact the field at a significant level in an original way. Furthermore, assuming the petitioner's skills are unique, the classification sought was not designed merely to alleviate skill shortages in a given field. In fact, that issue properly falls under the jurisdiction of the Department of Labor through the alien employment labor certification process. See Matter of New York State Department of Transportation, 22 I&N Dec. 215, 221 (Assoc. Comm'r 1998). The opinions of the petitioner's references are not without weight and have been considered above. USCIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Comm'r 1988). However, USCIS is ultimately responsible for making the final determination regarding an alien's eligibility for the benefit sought. Id. The submission of reference letters supporting the petition is not presumptive evidence of eligibility; USCIS may evaluate the content of those letters as to whether they support the alien's eligibility. See id. at 795-796; see also Matter of V-K-, 24 I&N Dec. 500, n.2 (BIA 2008) (noting that expert opinion testimony does not purport to be evidence as to "fact"). Thus, the content of the references' statements and how they became aware of the petitioner's reputation are important
  13. 13. Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 13 _______ Page 13 NON-PRECEDENT DECISION considerations. Even when written by independent experts, letters solicited by an alien in support of an immigration petition are of less weight than preexisting, independent evidence that one would expect of a violinist who has made original contributions of major significance in the field. See also Visinscaia, CV No. 13-223, at *1, *6 (D.D.C. Dec. 13, 2013)3 (concluding that USCIS' decision to give little weight to uncorroborated assertions from professionals in the field was not arbitrary and capricious). Although those familiar with the petitioner's work generally describe it as "extraordinary," there is insufficient documentary evidence demonstrating that the petitioner's work is of major significance. This regulatory criterion not only requires the petitioner to make original contributions, the regulatory criterion also requires those contributions to be of major significance. Vague, solicited letters that repeat the regulatory language but do not explain how the petitioner's contributions have already influenced the field are insufficient to establish original contributions of major significance in the field. Kazarian v. USCIS, 580 F.3d 1030, 1036 (9th Cir. 2009) aff'd in part 596 F.3d 1115 (9th Cir. 2010). In 2010, the Kazarian court reiterated that the USCIS' conclusion that the "letters from physics professors attesting to [the petitioner's] contributions in the field" were insufficient was "consistent with the relevant regulatory language." 596 F.3d at 1122. Moreover, the letters considered above primarily contain bare assertions of the petitioner's status in the field without providing specific examples of how those contributions rise to a level consistent with major significance in the field. Repeating the language of the statute or regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, No. 95 CIV. 10729, *1, *5 (S.D.N.Y. Apr. 18, 1997). Without supporting evidence, the petitioner has not met his burden of establishing his present contributions of major significance in the field. Without additional, specific evidence showing that the petitioner's work has been unusually influential, widely applied throughout his field, or has otherwise risen to the level of contributions of major significance, the petitioner has not established that he meets this criterion. Accordingly, the petitioner did not establish that he meets this criterion. Evidence of the display of the alien's work in the field at artistic exhibitions or showcases. On motion, the petitioner does not further claim eligibility for this criterion. Therefore, the petitioner abandoned this issue. See Sepulveda v. U.S. Att'y Gen., 401 F.3d at 1228 n. 2; Hristov v.Roark, No. 09- CV-27312011, 2011 WL 4711885, at *9 (the court found the plaintiffs claims to be abandoned as he failed to raise them on appeal). Notwithstanding the above, the plain language of the regulation requires "[e]vidence of the display of the alien's work in the field at artistic exhibitions or showcases." The petitioner is a violinist. When he is playing the violin, he performs before an audience. As a performing artist, it is inherent to his occupation to perform. If we accept that a performance artist like the petitioner meets this criterion, it would render the regulatory requirement that the petitioner meet at least three criteria 3 Also Known as: Visinscaia v. Napolitano, Civil Action No. 2013-0223 (D.C. 2013)
  14. 14. Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 14 _______ Page 14 NON-PRECEDENT DECISION meaningless as this criterion would effectively be collapsed into the criterion at the regulation at 8 C.F.R. § 204.5(h)(3)(viii). The ten criteria in the regulations are designed to cover different areas; not every criterion will apply to every occupation. The interpretation that this criterion is limited to the visual arts is longstanding and has been upheld by a federal district court. Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ, at *7 (upholding an interpretation that performances by a performing artist do not fall under this criterion). Therefore, while the petitioner's performances have evidentiary value for other criteria , they cannot serve to meet this criterion. Instead, as the petitioner's performances are more relevant to the leading or critical role criterion set forth at the regulation at 8 C.F.R. § 204.5(h)(3)(viii) and the commercial success criterion set forth at the regulation at 8 C.F.R. § 204.5(h)(3)(x), they will be discussed separately within the context of those criteria. Accordingly, the petitioner did not establish that he meets this criterion. Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation. The plain language of the regulation requires "[e]vidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation." The petitioner submitted various concert programs and other documentation evidencing his concerts for numerous orchestras and ensembles. For instance, the petitioner has performed for the [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]. There is no indication from a review of the documentary evidence that the petitioner performed in a leading or critical role. For example, the documentary evidence does not reflect that the petitioner was featured or received top billing in any of the concerts consistent with the meaning of leading or critical. The petitioner did not submit evidence showing his position in relation to that of the other musicians, or to demonstrate how the petitioner's roles within these concerts differentiated him from the other musicians. As the petitioner is a violinist, it is expected that the petitioner will perform. Moreover, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires that the petitioner perform "for organizations or establishments that have a distinguished reputation. " The petitioner did not submit any documentary evidence regarding the reputation of any of the orchestras or ensembles, so as to demonstrate that they have distinguished reputations consistent with the regulatory criterion. Again, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires "[e]vidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation." The burden is on the petitioner to establish that he meets every element of this criterion. Without documentary evidence demonstrating that the petitioner has performed in a
  15. 15. Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 15 _______ Page 15 NON-PRECEDENT DECISION leading or critical role for organizations or establishments that have a distinguished reputation, the petitioner has not established that he meets the plain language of this regulatory criterion. Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales. The plain language of the regulation requires "[e]vidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales." At the initial filing of the petition, the petitioner claimed that his work "has also been featured on compact disc" and submitted a compact disc entitled, [REDACTED] [REDACTED]. As this regulatory criterion requires evidence of commercial successes in the form of "box office receipts" or "sales," the petitioner's submission of a compact disc reflecting his performance without sales data for that compact disc does not meet the plain language of this regulatory criterion. In response to the director's RFE, the petitioner claimed eligibility based on "reviews of his performances over the years to sold-out crowds in Europe, South America, and the United States." Although the petitioner submitted programs, advertisements, and other promotional concert material of his performances, none of the documentation supports the petitioner's assertion that he performed to sold-out crowds. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 165. Furthermore, the petitioner did not submit any documentary evidence reflecting his commercial successes in the form of box office receipts as required pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(x). Similarly, on motion, the petitioner claims that he performed "as a soloist on five continents" and has "produc[ed] and perform[ed] engagements at over 200 concerts since 2002." Again, the petitioner did not submit any documentary evidence of his commercial successes consistent with the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(x). Accordingly, the petitioner did not establish that he meets this criterion. E. Summary The petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. III. CONCLUSION The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate that the alien has achieved sustained national or international acclaim and is one of the small percentage who has risen to the very top of the field of endeavor. Even if the petitioner had submitted the requisite evidence under at least three evidentiary categories, in accordance with the Kazarian opinion, the next step would be a final merits determination that
  16. 16. Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 16 _______ Page 16 NON-PRECEDENT DECISION considers all of the evidence in the context of whether or not the petitioner has demonstrated: (1) a "level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the[ir] field of endeavor" and (2) "that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise." 8 C.F.R. §§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. While we conclude that the evidence is not indicative of a level of expertise consistent with the small percentage at the very top of the field or sustained national or international acclaim, we need not explain that conclusion in a final merits determination.6 Rather, the proper conclusion is that the petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. Id. at 1122. The petitioner has not established eligibility pursuant to section 203(b)(1)(A) of the Act and the petition may not be approved. In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. ORDER: The motion is granted. The petition remains denied. ______________________________________ 6 We conduct appellate review on a de novo basis. See Siddiqui v. Holder, 670 F.3d 736, 741 (7th Cir. 2012); Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004); Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). In any future proceeding, we maintain the jurisdiction to conduct a final merits determination as the office that made the last decision in this matter. 8 C.F.R. § 103.5(a)(1)(ii). See also section 103(a)(1) of the Act; section 204(b) of the Act; DHS Delegation Number 0150.1 (effective March 1, 2003); 8 C.F.R. § 2.1 (2003); 8 C.F.R. § 103.1(f)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding that legacy INS, now USCIS, is the sole authority with the jurisdiction to decide visa petitions). EB-1A Claims IAC, Invoking Lozada, MTR Granted, Petition Denied (AAO JUL232014_02B2203.pdf)
  17. 17. Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 17 THE “LOZADA” REQUIREMENTS I was somewhat amazed that AAO did not reiterate the actual requirements for a Motion to Reopen or Reconsider based upon a claim of ineffective assistance of counsel (IAC) as set forth in Lozada. For the ease and convenience of the reader, I shall recite those requirements. Below is drawn from the first prong of the formal holding of Lozada as posted on the EOIR website’s Virtual Law Library4 (VLL): (1.) A motion to reopen or reconsider based upon a claim of ineffective assistance of counsel requires: (A.) that the motion 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, (B.) 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 (C.) that the 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. In the above case involving our violinist/music director, AAO simply stated that the Lozada requirements were, in fact, met. No specific detail was given nor was any space wasted even making a general or vague disclosure of what steps or actions were taken by the self-petitioner. We just have to accept that they were done. FULL ELIGIBILITY AND ENTITLEMENT REQUIRED FOR IAC RELIEF Back on January 26, 2012, the Third Circuit Court of Appeals decided a non- precedent, and therefore, non-binding case5 that I found most enlightening. In that case, the petitioner, Ms. Jacobo, had been ordered removed in absentia but her case should not have gone to Immigration Court in the first place. The case wound up in Immigration Court due to bureaucratic bungling at the overburdened Legacy INS. Her Motion to the BIA was denied based on legal errors and plain old stubbornness, rigidity, and posturing. The court sent the case back to the BIA for fact-finding which would mean that they should have sent it further back down the line to an IJ who could then have reopened and administratively closed the case in 4 The link is to the main VLL homepagepage. I’s bookmark it if you haven’t done so already. 5 See: http://www.slideshare.net/BigJoe5/jacobo-v-atty-gen-3rd-cir-1262012
  18. 18. Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 18 order to send it back to USCIS for a de novo asylum determination per the ABC class action settlement agreement. Wow! Talk about complex. The relevance of Jacobo is the concept of a legal entitlement to at least be allowed to apply as of right, not the outcome of the due process but rather then due process itself. In the AAO decision above, Visinscaia is referenced for the proposition “that USCIS' decision to give little weight to uncorroborated assertions from professionals in the field was not arbitrary and capricious” as was also the case with our current violinist. By the way, Ms. Visinscaia was a petitioner who was involved in Dance Sport. AAO has issued several decisions involving Dance Sport, it is unclear which one is that of Visinscaia but here is the likely decision: JAN222013_02B2203.pdf Although that decision is heavily redacted, it involves a female ballroom dancer and it dates from January 2012, is consistent with the date mentioned by the District Court. Also consistent is the discussion of the award or prize for someone under age 15. I think there are enough points of similarity but cannot confirm that as a fact. SCOPE OF REVIEW FOR SUMMARY JUDGMENT ON CROSS-MOTIONS The following excerpt from Bloch v. Powell, 227 F. Supp. 2d 25 (D.D.C. 2002) provides one of the best explanations as to the proper scope of review for summary judgment on cross-motions for same in a challenge to a final administrative decision that I have encountered. That is not to say that I have done all that much research on this topic but I have encountered less straight-forward explanations. Others obviously feel the same way because Bloch has been cited by at least 46 other cases according to the information available on the Court Listener website at above link. “B. The Scope of Review Since this case involves a challenge to a final administrative action, the court's review is limited to the administrative record. Fund for Animals v. Babbitt, 903 F.Supp. 96, 105 (D.D.C.1995) (citing Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973)). "Summary judgment is an appropriate procedure for resolving a challenge to a federal agency's administrative decision when review is based upon the administrative record." Id. (citing Richards v. Immigration & Naturalization Serv., 554 F.2d 1173, 1177 (D.C.Cir.1977)). The FSA provides that "any aggrieved party may obtain judicial review of a final action of the FSGB in the district courts of the United States." 22 U.S.C. § 4140. The FSA further provides that the APA "shall apply without limitation or exception" to a district court's review. 22 U.S.C. § 4140(a). The APA requires a reviewing court to set aside an agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706. Moreover, the agency's decision must evince "a rational connection between the facts found and the choice made." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,
  19. 19. Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 19 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). Finally, "[w]here the agency has failed to provide a reasoned explanation, or where the record belies the agency's conclusion, [the court] must undo its action." AT & T Co. v. Fed. Communications Comm'n, 974 F.2d 1351, 1354 (D.C.Cir.1992). As the Supreme Court has explained, "the scope of review under the `arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency." Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43, 103 S.Ct. 2856. In reviewing the action of an agency under 5 U.S.C. § 706(2)(A), the court must determine whether the agency has examined the relevant data and articulated a satisfactory explanation for its action. Id. "In thoroughly reviewing the agency's actions, the court considers whether the agency acted within the scope of its legal authority, whether the agency has explained its decision, whether the facts on which the agency purports to have relied have some basis in the record, and whether the agency considered the relevant factors." Fund for Animals, 903 F.Supp. at 105 (citing Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989)). In addition, the plaintiff has the burden of showing "by cogent and clearly convincing evidence" that the decision was the result of a material legal error or injustice. McDougall v. Widnall, 20 F.Supp.2d 78, 82 (D.D.C.1998) (Green, J.) (internal citations omitted).” At pp. 30-31 Visinscaia cites to the following 12 cases:  Auer v. Robbins, 519 U.S. 452 (1997) Supreme Court of the United States | Feb. 19, 1997 | Cited 826 times  Barnhart v. Walton, 535 U.S. 212 (2002) Supreme Court of the United States | March 27, 2002 | Cited 201 times  Bloch v. Powell, 227 F. Supp. 2d 25 (D.C. 2002) District Court, District of Columbia | Aug. 8, 2002 | Cited 46 times  Compton James Richards v. Immigration and Naturalization Service, 554 F.2d 1173 (D.C. Cir. 1977) Court of Appeals for the D.C. Circuit | March 18, 1977 | Cited 141 times  Kazarian v. US CITIZENSHIP AND IMMIGRATION, 596 F.3d 1115 (9th Cir. 2010) Court of Appeals for the Ninth Circuit | March 4, 2010 | Cited 9 times  Lee v. Ziglar, 237 F. Supp. 2d 914 (N.D.Ill. 2002) District Court, N.D. Illinois | Dec. 24, 2002 | Cited 4 times  Loma Linda University Medical Center v. Sebelius, 684 F. Supp. 2d 42 (D.C. 2010) District Court, District of Columbia | Feb. 16, 2010 | Cited 24 times  Motor Vehicle Mfrs. Assn. of United States,Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29 (1983) Supreme Court of the United States | June 24, 1983 | Cited 2312 times  Muni v. INS, 891 F. Supp. 440 (N.D.Ill. 1995) District Court, N.D. Illinois | May 19, 1995 | Cited 4 times  National Association of Home Builders Southern Arizona Home Builders Association Home Builders Association of Central Arizona, Defenders of Wildlife Southwest Center for BiodiversityFriends of the Owls Peter Galvin, Intervenors- Appellees v. Gale A. Norton Jamie Rappaport Clark Fish and Wildlife Service, 340 F.3d 835 (9th Cir. 2003) Court of Appeals for the Ninth Circuit | Aug. 19, 2003 | Cited 32 times  Rijal v. US Citizenship & Immigration Services, 772 F. Supp. 2d 1339 (W.D. Wash. 2011) District Court, W.D. Washington | Feb. 22, 2011 | Cited 2 times  St. Marks Place Housing v. US Dept. of Housing, 610 F.3d 75 (D.C. Cir. 2010) Court of Appeals for the D.C. Circuit | June 25, 2010 | Cited 10 times That’s my two-cents, for now!
  20. 20. Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 20 About the Author Joseph P. Whalen, Independent EB-5 Consultant, Advocate, Trainer & Advisor 238 Ontario Street | No. 6 | Buffalo, NY 14207 Phone: (716) 604-4233 or (716) 768-6506 E-mail: joseph.whalen774@gmail.com web http://www.slideshare.net/BigJoe5 or http://eb5info.com/eb5-advisors/34-silver-surfer DISCLAIMER: Work is performed by a non-attorney independent business consultant and de facto paralegal. It is the client's responsibility to have any and all non-attorney work products checked by an attorney. I provide highly- individualized training based on consultation with my clients. I serve Regional Center Principals and their counsel, potential EB-5 investors, immigration attorneys, and project developers. I am not an attorney myself although I have trained numerous attorneys and INS/USCIS adjudicators in complex issues within immigration and nationality law when I was an adjudicator there for many years. I do not prepare forms, write business plans, or create economic analyses. I do review them for clients prior to submission and suggest corrections and/or modifications to run by your attorney and investment advisor. NOTE: I have over a decade of experience as an adjudicator for INS and USCIS and direct EB-5 Regional Center Adjudications experience having been instrumental in reviving, greatly enhancing, and expanding the EB-5 Regional Center Program for USCIS. NAICS Code: 611430 Professional and Management Development Training 2012 NAICS Definition 611430 Professional and Management Development Training This industry comprises establishments primarily engaged in offering an array of short duration courses and seminars for management and professional development. Training for career development may be provided directly to individuals or through employers' training programs; and courses may be customized or modified to meet the special needs of customers. Instruction may be provided in diverse settings, such as the establishment's or client's training facilities, educational institutions, the workplace, or the home, and through diverse means, such as correspondence, television, the Internet, or other electronic and distance-learning methods. The training provided by these establishments may include the use of simulators and simulation methods.

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