The Petitioner, a teacher and autism spectrum disorder education researcher. seeks second preference immigrant classification as a member of the professions holding an advanced degree. as well as a national interest waiver of the job offer requirement attached to this EB-2 classification. ,)'ee Immigration and Nationality Act (the Act) section 203(b)(2). 8 U.S.C. ~ 1153(b)(2). Atter the petitioner has established eligibility for EB-2 classification. U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion. grant a national interest waiver if the petitioner demonstrates: (1) that the foreign national's proposed endeavor has both substantial merit and national importance: (2) that the foreign national is well positioned to advance the proposed endeavor: and (3) that. on balance. it would be beneficial to the United States to waive the requirements of a job otler and thus of a labor certification. Matter o( Dhanosar. 26 I&N Dec. 884 (AAO 2016).
The Director of the Texas Service Center denied the Form I-140. Immigrant Petition for Alien Worker. finding that the Petitioner qualitied for classification as a member of the professions holding an advanced degree. but that she had not established that a waiver of a job ofTcr, and thus of a labor certification. would be in the national interest.
The Petitioner appealed the matter to us. We dismissed the Petitioner's appeal. and reaffirmed that decision in two subsequent motion adjudications.' The matter is now before us on a third motion. With the motion. the Petitioner submits a statement and other documents claiming that her first two attorneys provided ineffective assistance? She asks that we grant her motion to reopen and approve her request tor a national interest waiver. Upon review. we will deny the motion.
Law
Matter ci(C-K-D-. ID# 687588 (AAO Aug. 22, 2017) was our most recent decision in this matter. ~ The Petitioner was initially represented in these proceedings by attorney the first motion. the Petitioner was represented by attorney appearance in October 2016. The Petitioner was subsequently represented by attorney and second motions. With respect to the current motion, the Petitioner is not represented by counsel. On appeal and for part of withdrew her tC.)r the first p. 2 Maller ofC-K-D-
According to 8 C.F.R. § I03.5(a)(2). a motion to reopen must state the new facts to be provided in the reopened proceeding and be supported by atlidavits or other documentary evidence.
The Board of Immigration Appeals (the Board) established a framework for asserting and assessing claims o f ineffective assistance o f counsel. See Maller o f Lo:::.ada. 19 I&N Dec. 637 (BIA 1988). aff"d, 857 F.2d I0 (I st Cir. 1988).
First, Lozada sets forth the following threshold documentary requirements for asserting a claim of inetlective assistance:
- A written affidavit of the pettlioner attesting to the relevant facts. The affidavit should provide a detailed description of the agreement with fom1er counsel (i.e.. the specific actions that counsel agreed to take), the specific actions actually taken by former counsel. and any representations that former counsel made about his or her actions.
- Evidence that the petitioner informed former counsel of the allegation of inetlective assistance and was given an opportunity to respond. Any response by prior counsel (or report of former counsel's failure or refusal to respond) should be submitted with the claim.
If the petitioner asserts that the handling of the case violated former counsel's ethical or legal responsibilities. evidence that the petitioner filed a complaint with the appropriate disciplinary authorities (e.g.. with a state bar association) or an explanation why the petitioner did not tile a complaint.
!d. at 639. These documentary requirements are designed to ensure we possess the essential information necessary to evaluate ineffective assistance claim and to deter meritless claims. Jd. Allowing former counsel to present his or her version of events discourages baseless allegations. and the requirement of a complaint to the appropriate disciplinary authorities is intended to eliminate any incentive for counsel to collude with his or her client in disparaging the quality of the representation.
We may deny a claim of ineffective assistance if any of the Lozada threshold documentary requirements are not met. Castillo-Perez v. INS. 212 F.3d 518. 525 (9th Cir. 2000). Second. if the petitioner satisfies these threshold documentary requirements. she must also show that former Specifically. the petitioner must show that there is a reasonable probability that the outcome would have been 45 diflerent without former counsel's mistakes, and that she had at least a plausible ground for relief. Lozada at 632. In Lozada. the Board determined that Lozada was not prejudiced by counsel's failure to tile an appeal brief (resulting in the summary dismissal of the appeal) because: he received a full and fair hearing at his deportation hearing, at which he was given every opportunity to present his case: he did not allege any inadequacy in the quality of prior counsel's representation at the hearing: the immigration judge considered and properly evaluated all the evidence presented: and the immigrationjudge·s decision was supported by the record.
Yu Tian Li v. United States. 648 F.3d 524, 527 (7th Cir. 20 II): De/hare v. Holder. 338 Fed. Appx. 568. 570 (9th Cir. 2009). counsel's assistance was so deficient that the she was prejudiced by the performance.
Mal!er (?fC-K-D-
There is no prejudice if the adverse decision would have been issued even without former counsel"s errors. See. e.g. Minhas v. Gonzales, 236 Fed. Appx. 981 (5th Cir. 2007).
Analysis
In denying the previous motion, we determined that the Petitioner had not demonstrated that she meets the second and third prongs set forth in the Dhanasar analytical framework. The present motion offers no new facts or evidence addressing her eligibility or overcoming our findings.
Rather, the motion includes a statement from the Petitioner asserting that her initial attorney. hastily filed the Form I-140 without waiting for her tirst research article to be published. In addition, she contends that her subsequent attorney. sent in her supporting evidence six months later and indicated to her that this documentation submitted ··atter the initial tiling date would be admissible.·· The Petitioner further states that her attorneys "continued to take money." did not provide proper representation. and took advantage of her. She also submits a "Service Obligation Exit Certification" between her and the and Florida Bar Inquiry/Complaint Forms detailing her interactions with counsel. Furthermore, the Petitioner oftcrs email communications with her former attorneys relating to the preparation of her Form 1-140 and her child's Form 1-485. Application to Register Permanent Residence or Adjust Status. Lastly. she presents a June 2017 letter she sent to and stating that they caused her ··personal and financial hardships" and requesting a refund of her attorney fees and USCIS tiling 0 fees.
The Petitioner has not provided documents meeting the evidentiary requirements set forth in Lozada. While the Petitioner's motion includes a signed statement and Florida Bar Inquiry/Complaint Forms listing the dates her documents were submitted to USCIS and discussing her issues with counsel's representation. she did not provide a detailed description of their agreement outlining the specific actions counsel would take. Furthermore. the June 2017 refund request letter is not sutlicient evidence indicating that she informed former counsel of the allegation of ineffective assistance and 7 that they were given an opportunity to respond to that allegation.
Moreover, the Petitioner has not shown that former counsels' actions prejudiced the outcome of the proceedings. Even if her prior attorneys had delayed filing the Form 1-140 until after publication of the Petitioner's tirst article and had submitted all supporting documentation at the time of tiling, the record docs not show that the outcome of this matter would have been different. Finally, the present motion does not offer new facts or evidence demonstrating that the Petitioner satisfies the second and 8 thirdprongsoftheDhanasaranaly1icalframework. Themotiontoreopenwillthereforehedenied.
See Martine::.-Hernande:: r. Holder. 778 F.3d I086. I088 (9th Cir. 2015). 6 This letter does not inform and Florida Bar. that the Petitioner was tiling a comrlaint with the
Nor does the record contain a response by
R We note that represented the Petitioner for both the first and second motions. The Petitioner's current or
Maller (?lC-K-D-
Conclusion
The Petitioner has not met the relevant evidentiary requirements identified in Lozada. nor has she satisfied the three prongs set forth in the Dhanasar analytical framework. Accordingly, we find that she has not established eligibility for or otherwise merits a national interest waiver as a matter of discretion.
ORDER: The motion to reopen is denied.
Cite as Mauer olC-K-D-, 10# 943846 (AAO Feb. 12. 2018) motion does not allege that provided ineffective assistance. Thus. the Petition\.'r has had opportunities to remedy or address any deficiencies in the information and evidence that initial counsel provided to USCIS.