Case 8:12-cv-01351-AG-MLG Document 1-7 Filed 08/21/12 Page 19 of 25 Page ID #:196.~· U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Administrative Appeals Office (AAO) 20 Massachusetts Ave., N.W., MS 2090 Washington, DC 20529-2090 U.S. Citizenship and Immigration Services JAEMOON CHUNG 21 SHEARWATER IRVINE, CA 92604 DATE: MAR 1 9 2012 Office: CALIFORNIA SERVICE CENTER FILE: A58 708 046 WAC 08 246 00355 INRE: Petitioner: JAEMOON CHUNG PETITION: Petition by Entrepreneur to Remove Conditions Pursuant to Section 216A of the Immigration and Nationality Act, 8 U.S.C. § 1186(b) This is the case of one EB-5 investor ·ON BEHALF OF PETITIONER: who invested in that failed South Dakota Dairy Farm. This is the AAO JAMES J. PARK Dismissal of the final MTR before the HANUL PROFESSIONAL LAW CORPORATION case went to court. The Complaint was 2677 N. MAIN ST., SUITE 1070 filed in the Central District of California SANTA AN A, CA 92705 on August 21, 2012. INSTRUCTIONS: Complaint posted separately. Enclosed please find the decision of the Administrative Appeals 0 ffice in your case. All of the documents related to this matter have been returned to the office that originally decided your case.. Please be advised that any further inquiry that you might have concerning your case must be made to that office. If you believe the law was inappropriately applied by us in reaching our decision, or you have additional information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appe.al or Motion, with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any motion must be filed within 30 days of the decision that the motion seeks to reconsider or reopen. Thank you, r~~ PerryRhew Chief, Administrative Appeals Office ( Exhibit M ) www.uscis.gov
Case 8:12-cv-01351-AG-MLG Document 1-7 Filed 08/21/12 Page 20 of 25 Page ID #:197 A58 708 046 Page2 DISCUSSION: The Director, CalifOrnia Service Center, denied the petition to remove conditions. The Administrative Appeals Office (AAO) affirmed the directors decision on certification and entered a finding of material misrepresentation. The matter is now before the AAO on a motion to reconsider. The motion will be dismissed. The petitioner invested in a designated regional center through the Winter Dairy Limited Partnership, a dairy. The petitioner was granted conditional lawful permanent resident status as an alien entrepreneur_ pursuant to section 203(b)(5) ofthe Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(5). The petitioner subsequently filed a petition to remove conditions on residence pursuant to section 21-6A of the Act. The director denied the petition and certified the matter to the AAO pursuant to 8 C.P.R. § 103.4(a)(5). The AAO reaffirmed the directors decision and issued a formal finding of material misrepresentation. The petitioner has now filed the instant motion to reconsider. The filing, however, does not meet the requirements of a motion to reconsider. I. LAW The regulation at 8 C.P.R. § 103.5(a)(l)(iii) requires that a motion must be "[a]ccompanied by a statement about whether or not the validity of the unfavorable decision has been or is the subject of any judicial proceeding and, if so, the court, nature, date, and status or result of the proceeding." According to 8 C.P.R. § 103.5(a)(3), 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 oflaw or Service policy. A motion to reconsider contests the correctness of the original decision based on the previous factual record, as opposed to a motion to reopen which seeks a new hearing based on new or previously unavailable evidence. See Matter~ ofCerna; 20 I&N Dec.~399, 402-403 (BIA 1991). Amotion to reconsider cannot be used to raise a legal argument that could have been raised earlier in the proceedings. See Matter ofMedrano, 20 I&N Dec. 216, 220 (BIA 1990, 1991). Rather, the "additional legal arguments" that may be raised in a motion to reconsider should flow from new law or a de novo legal determination reached in its decision that could not have been addressed by the party. Further, a rnn.t;...,.,.. tn. recon<;;!,.. ;., nnt <> PfO""" hy rb1ch <> n<>rhl n1al cuhnu"t ln .<>CCPfilP, th.<> ...,__....._..,_ hnPf t"".a........_,....,;..,_.&.., _ _ ~~.LV..l.VJ.J. 1.-J .1. J.~.I.UVl. ~ """""uu .L,LV" 4 y.., .1. llJ .a..a.J u.1..1. ~ ....,...,u....,.a. - - f-~"J .t.,L.L .__.. ......., C!lrrlP ._,.._..._...., ..... nrPCPfltpfl ._,.I.. ... , .1....1..1.. on appeal and seek reconsideration by generally alleging error in the prior decision. Matter of 0-S-G-, 24 I&N Dec. 56, 58 (BIA 2006). Instead, the moving party must specify the factual and legal issues raised on appeal that were decided in error or overlooked in the initial decision or must show how a change in law materially affects the prior decision. !d. at 60. The regulation at 8 C.P.R. § 103.5(a)(4) requires that a motion that does not meet applicable requirements shall be dismissed. II. PROCEDURAL AND FACTUAL BACKGROUND U.S. Citizenship and Immigration Services (USCIS) designated South Dakota International Business Institute (SDIBI), Dairy Economic Development Region (DEDR), asa regional center on AprilS, 2004.
Case 8:12-cv-01351-AG-MLG Document 1-7 Filed 08/21/12 Page 21 of 25 Page ID #:198 A58 708 046 Page3 The petitioner invested in the regional center through the Winter Dairy Limited Partnership, a dairy. The petitioner claimed eligibility status as a conditional lawful permanent resident based on an investment in the regional center pursuant to section 610 of the Judiciary Appropriations Act, 1993, Pub. L. 102-395 (1993) as amended by section 116 ofPub. L. No. 105-119, 111 Stat. 2440 (1997); · section 402 ofPub. L. No. 106-396, 114 Stat. 1637 (2000) and section 11037 ofPub. L. No. 107-273, 116 Stat. 1758 (2002). USCIS granted the petitioner status as a conditional lawful permanent resident on July 14, 2006. The petitioner now seeks to remove conditions on lawful permanent resident status pursuant to section216A ofthe Act, 8 U.S.C. § 1186(b). The director denied the petition and certified the matter to the AAO pursuant to 8 C.P.R. § 103.4(a)(5). There is no appeal available for a denied Form I-829. The regulation at 8 C.P.R. § 103.4(a)(5), however, allows the director to certify any decision to this office whether or not the case is appealable. The petitioner submitted a brief on certification. On February 17, 2011, the AAO issued a notice of derogatory information and stated its intent to issue a finding of material misrepresentation. Specifically, the AAO found that the petitioner had submitted Forms W-2 that were not authentic and had misrepresented certain Forms I-9 as relating to Winter Dairy Limited Partnership. The petitioner, through counsel, responded. Notably, counsels March 3, 2011 brief states: There was neither fraud nor misrepresentation when the Petitioner provided the Forms I-9." (Emphasis added.) On April 14, 2011, the AAO issued a decision affirming in part and withdrawing in part the directors decision and making a finding of material misrepresentation. On May 16, 2011, the petitioner, through counse~ filed the instant motion to reconsider. III. ISSUES ON MOTION In this case, the petitioner failed to submit a statement regarding whether the validity of the AAOs decision has been, or is, the subject of any~judicial proceeding.- ThisshOrtooming alone requires US CIS to dismiss the motion. See 8 C.P.R. §§ 103.5( a)(l ), (4). Counsels brief on motion primarily reiterates assertions that the AAO addressed in detail in its April 14, 2011 appellate decision. For ~xample, counsel asserted that by verifying the evidence submitted, USCIS Vas applying a clear a.11d convincing standard of proof rather than a preponderance of the evidence standard. The AAO responded to this assertion, relying on the following legal authorities: (1) section 204(b) ofthe Act; (2) section 216A(c)(3)(A) ofthe Act; (3) Matter ofChawathe, 25 I&N Dec. 369, 376 (AAO 2010); (4) Anetekhai v. INS, 876 F.2d 218, 1220 (5th Cir. 1989); (5) Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C. 1988); (6) Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001); and (7) Matter ofHo, 19 I&N Dec. 582, 591 (BIA 1988). Despite the AAOs discussion on this issue, counsel reiterates the same assertion on motion and states: There are no pertinent precedent decision[s] addressing this matter because USCIS did not correctly apply the facts of this case supported by the evidence provided by the Petitioner with his I-829 Petition." Counsel makes no attempt to address the legal authority on which the AAO relied.
Case 8:12-cv-01351-AG-MLG Document 1-7 Filed 08/21/12 Page 22 of 25 Page ID #:199 A58 708 046 Page4 The only potentially new assertion raised on motion is the following statement: Petitioner had no knowledge of the Form I-9s and Payroll Summary received from Pleasant Dutch Dairy LLC. An associate from this office had acquainted [sic] with one of the principals at Pleasant Dutch Dairy LLC and had requested the documents and submitted [them] as part of the response to [the directors August 11, 2010 notice of intent to deny the petition] only to show USCIS that the same dairy, now owned by Pleasant Dutch Dairy LLC, maintained the employment. The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter of Ramirez- Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Counsel does not submit a statement from the petitioner or the Unidentified associate to support this claim Further, this new explanation contradicts counsels assertion on appeal that the petitioner submitted those documents. Counsel appears to be asserting ineffective assistance of counsel by an unidentified associate at counsels firm. When an alien makes a claim of ineffective assistance of counsel, the alien must comply with the requirements set forth by the Board of Immigration Appeals in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988). Specifically, Matter ofLozada requires the alien to submit: (1) an affidavit setting furth in detail the agreement with former counsel concerning what action would be taken and what counsel did or did not represent in that regard; (2) proofthat the alien notified furmer counsel of the allegations in the ineffective assistance of counsel claim and allowed counsel an opportunity to respond; and (3) if a violation of ethical or legal responsibilities is claimed, a statement as to whether the alien has filed a complaint with the disciplinary authority regarding counsels conduct or, if a complaint was not filed, an explanation for not doing so. !d. at 639. The petitioner has not submitted ~y of the a~ve evidence and has not demonstrated ineffective assistance of counsel.-- ~--~ ·····- ----······ - ·--_- . ----------·- -~--~------:------· ------- .:-.--- ------ --- ------- --~-~- The petitioner has failed to establish that the AAOs prior decision was based on an incorrect application oflaw or USCIS policy. For this additional reason, the motion will be dismissed. 8 C.F.R. § 103.5(a)(4). !II. CONCLUSION The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, the petitioner has not sustained that burden. The motion to reconsider will be dismissed. ORDER: The motion to reconsider is dismissed, the AAOs decision dated April 14, 2011, Is affirmed, and the petition remains denied.