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U.S. Citizenship and Immigration Services Oflice Ofadminisfrative Appeols

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U.S. Citizenship and Immigration Services Oflice Ofadminisfrative Appeols US. Department of Homeland Security U.S. Citizenship and Immigration Services Oflice ofAdminisfrative Appeols. MS 2090 Washington, DC 20529-2090 U.S. Citizenship and Immigration FILE: W09000060 Office: CALIFORNIA SERVICE CENTER Date: 2 2 2009 IN RE: Applicant: PETITION: Proposal for Designation as a Regional Center Pursuant to Section 610(c) of the Departments of Commerce, Justice and State, the Judiciary, and Related Agencies Appropriations Act of 1993 as amended by Section 402 of the Visa Waiver Permanent Program Act of 2000. ON BEHALF OF APPLICANT: INSTRUCTIONS : This is the decision of the Administrative Appeals Office in your case. All documents have been returned to the office that originally decided your case. Any further inquiry must be made to that office. If you believe the law was inappropriately applied or you have additional information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for the specific requirements. All motions must be submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). Peny Rhew Chief, Administrative Appeals Office W09000060 Page 2 DISCUSSION: The Director, California Service Center, denied the proposal hr designation as a regional center. The matter is now before the Administrative Appeals Office (AAO) on certification. The director's decision will be aflinned. The applicant seeks designation as a regional center pursuant to section 610(c) of the Departments of Commerce, Justice and State, the Judiciary, and Related Agencies Appropriations Act of 1993, Pub. L. 102-395, 106 Stat. 1874 (Oct. 6, 1992), as amended by section 402 of the Visa Waiver Permanent Program Act of 2000, Pub. L. 106-396, 114 Stat. 1637 (Oct. 30,2000). The director determined that the potential projects were too all encompassing, that the economic analysis using was not accompanied by a business plan and that the proposal did not establish that the projects were economically feasible and would create at least 10 direct or indirect jobs within two and a half years. The director also questioned how the economic analysis fbr Baltimore could be applied to the 14 other counties included in the regional center plan. Finally, the director concluded that the applicant had not provided a detailed statement regarding the amount and source of capital which has been committed to the regional center. The director then certified the decision to the AAO pursuant to 8 C.F.R 8 103.4. The applicant was afforded 30 days to supplement the record pursuant to 8 C.F.R. 8 103.4(a)(2). On certification counsel asserts that only a general proposal is required at the regional center application stage and that U.S. Citizenship and Immigration Services (USCIS) has approved other regional centers with several proposed areas of investment. Regardless counsel states that the applicant has agreed to narrow its initial focus to two projects with the understanding that future projects could be the subject of applications for amendments to the regional center approval. Counsel also questions why the original economic analysis for two sample projects was fbund lacking. The applicant submits a business plan fbr the regional center, an updated economic analysis, materials about the proposed development projects and additional evidence regarding the source ofthe funds used to start up the regional center. For the reasons discussed below, while we withdraw the director's concern that the original regional center area was not contiguous, the materials submitted on certification should have been submitted in response to the director's request for additional evidence and need not be considered on certification. s an economic modeling tool that allows a user to create a detailed social accounting picture and a predictive multi lier model of a used to conduct impact analyses. histwo parts, the software and data file(s). relating to the Study Area may consist of a state, county, sub-cou~tyarea such-as ZIP codeareas, or group of any of these areas. See http://imvlan.comlv3/index.vhv?ovtion=com virtuemart&uage=shov.browse&cate~ow id=2&Itemid= 43&vmcchk=1 &Itemid= 143 (accessed December 17,2009). W09000060 Page 3 That said, the matter was certified to the AAO pursuant to 8 C.F.R. 5 103.4 fbr guidance on the issues befbre the director. Thus, in the interest of providing such guidance, we will address the evidence submitted on certification. Even considering this evidence, however, there are numerous deficiencies that would preclude approval of the application We note these deficiencies below as they would need to be resolved should the applicant use this evidence to support a new application. Finally, we note that the state's designation of a targeted employment area (TEA) submitted initially does not meet the requirements of 8 C.F.R 5 204.6(i). The AAO maintains plenary power to review each matter on a de novo basis. 5 U.S.C. 5 557(b) ("'On appeal itom or review of the initial decision, the agency has all the powers which it would have in making the initial decision except as it may limit the issues on notice or by rule."); see also Janka v. US.Dept. of Tramp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority has been long recognized by the federal courts. See, e.g., Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). I. Procedural Issues The applicant initially submitted counsel's cover letter; the credentials of the applicant's manager; the applicant's organizational documents; a geographical description of the proposed regional center area; an economic impact analysis using proposed limited partnership, escrow and subscription agreements; a proposed offering memorandum; a one-page budget plan and a one-page plan of operation. The initial filing did not include a business plan, general or otherwise. On March 6, 2009, the director requested additional evidence. Specifically, the director requested evidence that the regional center would be a contiguous area, a detailed statement explaining the amount and source of the capital committed to the regional center, an operational plan including promotional efforts and an economic plan of the overall impact of the regional center. Significantly, the director also requested a business plan that includes "milestones, dates, costs for each project, number of investors for each project and plans for creating the jobs within two years after the investor obtained conditional resident status." Finally, the director requested contracts, letters of intent or advisory agreements between the regional center and any other party to engage in the activities on behalf of the regional center. In remonse. counsel asserted that the regional center need not be a contiguous area but. if USCIS asserted that the director's request for a more detailed statement regarding the regional center's operational funds is not mandated under the regulations. In addition, counsel asserted the analysis submitted is a sufficient economic analysis of the regional center's potential impact. Finally, counsel asserted that the director had requested too detailed a business plan and- that no agreements had been entered as of yet. The applicant submitted a chart of expenses incurred by the applicant as of that date, a letter describing nda list of escrow agents. The applicant did not submit a marketing plan or a business plan, specific or general. Rather, the applicant submits a business plan and new economic analysis on certification. W09000060 Page 4 The regulation at 8 C.F.R. 5 103.2(b)(8)(iii) states that the applicant shall submit additional evidence as the director, in his or her discretion, may deem necessary. The regulation at 8 C.F.R. 5 103.2@)(11) states that submission of only some of the requested evidence will be considered a request for a decision on the record. The purpose of the request for evidence is to elicit fbrther information that clarifies whether eligibility for the benefit sought has been established, as of the time the petition is filed. See 8 C.F.R. $8 103.2@)(8) and (12). The failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 5 103.2@)(14). Where, as here, an applicant has been put on notice of a deficiency in the evidence and has been given an opportunity to respond to that deficiency, the AAO will not accept evidence offered for the first time on appeal or, by extension, certification.* See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). If the applicant had wanted the submitted evidence to be considered, it should have submitted the documents in response to the director's request for evidence. Id. For the reasons discussed in detail below, the director's request for additional evidence was not in error. Under the circumstances, the AAO need not consider the sufficiency of the evidence submitted on appeal. Consequently, the appeal will be dismissed. Counsel does not assert that Matter of Soriano, 19 I&N Dec. at 764 and Matter of Obaigbena, 19 I&N Dec. at 533 are not applicable to applications for regional center designation and we find that they are. When an applicant fails to respond to a request for evidence, USCIS then can only consider the requested evidence within the context of a new application or petition.
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