Degree or an AJien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(2)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. This is a non-precedent decision . The AAO does not announce new constructions of law nor establish agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current Jaw or policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. See also 8 C.F .R. § 103.5. Do not file a motion directly with the AAO.
Thank you,
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Ron....,..RO~nberg
Chief, Administrative Appeals Office www.uscis.gov
DISCUSSION: The preference visa petition was denied by the Director , Nebraska Service Center (the director). A subsequent appeal was dismissed by the Administrative Appeals Office (AAO). The matter is now before the AAO on a motion to reopen and reconsider. 1 The motion will be dismissed pursuant to 8 C.P.R.§§ 103.5(a)(l)(i), 103.5(a)(l)(iii)(C), 103.5(a)(3) , and 103.5(a)(4). The AAO finds that the petitioner has not filed a proper motion to reopen or reconsider. The Form I-290B was not accompanied by any new evidence or arguments based on precedent decisions. A request for motion must meet the regulatory requirements of a motion to reopen or reconsider at the time it is filed; no provision exists for U.S. Citizenship and Immigration Services (USCIS) to grant an extension in order to await future correspondence that may or may not include evidence or arguments . The regulation at 8 C.P.R.§ 103.5(a)(2) states, in pertinent part, that "[a] motion to reopen must state the new facts to be provided in the reopened proceeding and be supported by affidavits or other documentary evidence." Based on the plain meaning of "new," a new fact is found to be evidence that was not available and could not have been discovered or presented in the previous proceeding. 2 In this matter, the petitioner presented no facts or evidence on motion that may be considered "new" under 8 C.P.R.§ 103.5(a)(2) and that could be considered a proper basis for a motion to reopen. Moreover, the AAO will not consider the additional evidence submitted by the petitioner on November 7, 2013, 62 days after the AAO 's September 6, 2013 decision .3 The regulations at 8 C.P.R. § 103.5(a)(l)(i) require that motions to reopen or reconsider be filed within 30 days of the underlying decision, except that failure to timely file a motion to reopen may be excused in the discretion of users where it is demonstrated that the delay was reasonable and was beyond the affected party's control. The petitioner has not established that such an exception is warranted here. The fact that the petitioner on the Form I-290B incorrectly checked box B ("I am filing an appeaL My brief and/or additional evidence will be submitted to the AAO within 30 days") does not allow counsel to submit evidence beyond the 30 day period allowed for motions to reopen. The cover page of the AAO's September 6, 2013 decision clearly instructed the petitioner that it may file either a motion to 1 On the Form I-290B submitted on October 9, 2013, counsel checked Box B, which states "I am filing an appeal, " and the accompanying narrative states that a brief and additional evidence will be submitted in support of the "appeal." It is noted that the AAO does not exercise appellate jurisdiction over its own decisions. The AAO exercises appellate jurisdiction over only the matters described at 8 C.P .R. § 103.l(f)(3)(iii) (as in effect on February 28, 2003). See DHS Delegation Number 0150 .l(effective March 1, 2003) . An appeal of an AAO appeal is not properly within the AAO's jurisdiction. However, because the petitioner char acterized its filing as a "motion " on subsequently filed documentation it will be accepted as one despite the incorrect box being checked on the form. It is noted that the Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative , accompanying the motion was not signed by a representative of the petitioner and was signed by counsel on behalf of the beneficiary; however, a valid Form G-28 was filed with the appeal below. 2The word "new" is defined as "1. having existed or been made for only a short time ... 3. Just discovered , found , or learned <new evidence> . ... " Webster's II New Riverside University Dictionary 792 (1984)(emphasis in original).
reopen or a motion to reconsider the decision pursuant to the requirements found at 8 C.F.R. § 103.5, and that any motion must be filed with the office that originally decided the case within 30 days of the decision that the motion seeks to reconsider or reopen as required by 8 C.F.R. § 103.5(a)(1)(i). Furthermore, the motion shall be dismissed for failing to meet an applicable requirement. The regulation at 8 C.P.R. §§ 103.5(a)(1)(iii) lists the filing requirements for motions to reopen and motions to reconsider. Section 103.5(a)(1)(iii)(C) requires that motions 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." In this matter, the motion does not contain the statement required by 8 C.F.R. § 103.5(a)(1)(iii)(C). The regulation at 8 C.P.R. § 103.5(a)(4) states that a motion which does not meet applicable requirements must be dismissed. Therefore, because the instant motion did not meet the applicable filing requirements listed in 8 C.P.R. § 103.5(a)(1)(iii)(C), it must also be dismissed for this reason.
Motions for the reopening or reconsideration of immigration proceedings are disfavored for the same reasons as petitions for rehearing and motions for a new trial on the basis of newly discovered evidence. See INS v. Doherty, 502 U.S. 314, 323 (1992)(citing INS v. Abudu, 485 U.S. 94 (1988)). A party seeking to reopen a proceeding bears a "heavy burden." INS v. Abudu, 485 U.S. at 110. With the current motion, the movant has not met that burden. The motion will be dismissed.
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). The petitioner has not sustained that burden. Accordingly, the motion will be dismissed, the proceedings will not be reopened or reconsidered, and the previous decisions of the director and the AAO will not be disturbed. ORDER: The motion is dismissed.