The Petitioner seeks employment-based second preference (EB-2) immigrant classification, as well as a national interest waiver of the job offer requirement attached to this classification. See Immigration and Nationality Act (the Act) section 203(b )(2), 8 U.S.C. § l 153(b )(2).
The Director of the Texas Service Center denied the petition, concluding that the record did not establish the Petitioner's eligibility for the requested EB-2 immigrant classification or a national interest waiver. We dismissed a subsequent appeal as well as three successive combined motions to reopen and reconsider. The matter is now before us again on a fourth combined motion to reopen and reconsider.
The Petitioner bears the burden ofproof to demonstrate eligibility by a preponderance of the evidence. Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). Upon review, we will dismiss the combined motion.
A motion to reopen must state new facts and be supported by documentary evidence.
immigrant classification. While we noted generally that the new evidence did not support his claim that he was an alien ofexceptional ability, we dismissed his first combined motion because it did not challenge our determination that he waived the issue of his eligibility for EB-2 classification. The Petitioner based his two subsequent combined motions to reopen and reconsider on claims of ineffective assistance of his former counsel.
In our most recent decision dismissing the Petitioner's third combined motion to reopen and reconsiderthe decision that is the subject of this motion-we concluded that, contrary to his assertions, we did address his claims of ineffective assistance of counsel made in his prior motion. We also noted that neither motion included evidence satisfying the requirements for ineffective assistance of prior counsel claims under Matter ofLozada, 19 I&N Dec. 637 (BIA 1988).2 We thus concluded that he had not submitted new facts supported by affidavits or other documentary evidence overcoming our latest decision, nor did he establish that our prior decision was incorrect based on the evidence in the record at the time of the decision. Accordingly, we dismissed the Petitioner's combined motion to reopen and reconsider because it did not meet the regulatory requirements. 8 C.F.R. § 103.5(a)(4) On motion, the Petitioner now submits a brief and a copy of our prior decision. While the Petitioner does not contest our determination that he did not satisfy any of the Lozada requirements, he asserts that we are not precluded from considering his ineffective assistance of counsel claim if "other credible evidence can support his claims and establish his eligibility." Notably, however, the Petitioner does not point to "other credible evidence" in the record supporting his claims. Instead, in their brief: his counsel provides a summary of his alleged engagement with the Petitioner's former attorney and the uncertainty surrounding the attorney who represented him in regards to the underlying Form 1-140, Immigrant Petition for Alien Workers. We acknowledge counsel's statements in the brief; however, counsel's unsubstantiated assertions do not constitute evidence.Claims not backed by documents See, e.g., Matter ofS-M-, 22 I&N Dec. 49, 51 (BIA 1998) ("statements in a brief: motion, or Notice of Appeal are not evidence and thus are not entitled to any evidentiary weight").
Moreover, his counsel's statements are not consistent with the record. First, they assert that because the Petitioner's previous attorney did not "file a G-28, Notice of Entry of Appearance as Attorney ... this lack of formal attorney representation further complicated [the Petitioner's] ability to address the issues of ineffective counsel." Yet, while we acknowledge his claims regarding the filing of the underlying Form I-140, he based his claims of ineffective assistance of counsel in his prior motion, in part, on his former counsel's failure to challenge the Director's determination that he was not eligible for EB-2 immigrant classification in his appeal. That appeal was accompanied by a Form G-28 executed by both the Petitioner and his former counsel. Accordingly, even if we were to consider counsel's assertions as evidence, these claims are directly contradicted by the record.Inconsistencies in the record Similarly, we acknowledge counsel's assertions that filing a bar complaint against the Petitioner's former attorney "would have been both financially burdensome and intimidating," but the Petitioner has not explained in detail how this process would be financially burdensome or intimidating.
On motion the Petitioner also relies on several circuit court decisions finding that a petitioner's "substantial compliance" with the Lozada requirements was sufficient to support their ineffective assistance of counsel claims; however, the Petitioner has not established that he has substantially complied with any of the Lozada requirements. Nor has he shown that his case presents analogous facts to the cases cited, as the petitioners in those cases substantially complied with at least one of the Lozada requirements. Here, for example, the Petitioner has not submitted an affidavit or "other credible evidence" supporting his ineffective assistance of counsel claim. Accordingly, he has not established that our most recent decision dismissing his combined motion to reopen and reconsider was erroneous.
Based on the above, we conclude that the Petitioner's motion does not contain new facts supported by documentary evidence that overcomes the grounds underlying our previous decision, nor has he shown that our previous decision was based on an incorrect application of law or policy. Consequently, the Petitioner has not established a basis for us to reopen and reconsider that decision.
ORDER: The motion to reopen is dismissed.
FURTHER ORDER: The motion to reconsider is dismissed.