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Which Precedents Do or Do Not Apply to the USCIS Form I-924?

by Joseph Whalen

USCIS Form I-924, Application for Regional Center Under the Immigrant Investor Pilot Program was implemented Nov. 23, 2010. Prior to that the applicants submitted Proposals in accordance with 8 CFR 204.6(m)(3)(i-v) and 610 of Public Law 102-395, The Departments of Commerce, Justice and State, the Judiciary, and Related Agencies Appropriations Act of 1993, as amended (also known as the Judiciary Appropriations Act of 1993). This statute is not a part of the Immigration and Nationality Act (INA) but is found at 8 USC 1153 Note, entitled: "Pilot Immigration Program".

There are no precedent decisions directly pertaining to this requested designation either before or after the implementation of the form. There is only one known I-290B Appeal of a Denied Regional Center Proposal. There was no form or fee to request the designation prior to the implementation of form I-924, but there was and still is a form with a required fee for an Appeal to AAO. Only one person, in 2008, is known to have paid a fee and filed an Appeal rather than just submit a new Proposal, without fee. In 2009, the California Service Center (CSC) certified two Regional Center Proposal Denials to the AAO. They were modified but ultimately upheld as not approvable. These three non-precedents are posted as Administrative Decisions on

More recently, the Victorville Regional Center was Terminated and filed a lawsuit in July 2011, in the U.S. District Court in Washington, DC (the venue was based on USCIS's HQ being located there and probably some grandstanding and to aid in efforts to seek Congressional interference or "support"). No termination notices have been posted by USCIS but the Victorville decisions are floating around on the internet. They look solid to me. We shall see what happens in District Court.

Both the statute and implementing regulation leave something to be desired as far as being solid guides on how to apply for designation. The form I-924 was a step in the right direction but as more experience is gained, the clearly needed adjustments become more readily apparent. USCIS has recently stated that the program is being significantly re-worked. This is a welcome change. USCIS has already announced that the forms and associated instructions would be reassessed and changed in the near future. Regulatory changes are also likely in the works. The following observations and comments are meant to provide some "food for thought" for anyone interested in contributing to the upcoming changes.

Below is from an AAO non-precedent Denial Affirmed on Certification pertaining to an I-829, Petition by Entrepreneur to Remove Conditions Pursuant to Section 216A of the Immigration and Nationality Act, 8 U.S.C. 5 1186(b) (an I-829 has no AAO Appeal Rights but anything may be certified for review) found at: Apr142011_01B7203.pdf

"With respect to the other two alien investors who have removed conditions, the AAO is not required to approve applications or petitions where eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous. See, e.g., Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that USCIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988)." (At p.16)

Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988) is cited for the following words of wisdom and the plethora of citations to back it up.

"The Service, in the absence of any legislative history, regulations, or precedent decisions on the applicability to religious personnel of the "L-1" and Schedule A, Group IV, provisions, has been attempting to set standards and may have inadvertently rendered some inconsistent decisions. In spite of this, this Service is not required to approve applications or petitions where eligibility has not been demonstrated, merely because of prior approvals which may have been erroneous. Matter of Khan , 14 I&N Dec. 397 (BIA 1973), by extension; Matter of M- , 4 I&N Dec. 532 (BIA 1951; BIA, A.G. 1952); see also Pearson v. Williams , 202 U.S. 281 (1906); Lazarescu v. United States , 199 F.2d 898 (4th Cir. 1952); United States ex rel. Vajta v. Watkins , 179 F.2d 137 (2d Cir. 1950); Mannerfrid v. Brownell , 145 F. Supp. 55 (D.D.C.), aff'd , 238 F.2d 32 (D.C. Cir. 1956)." [Emphases added.]

The above premise of not being bound by past mistakes or earlier incorrect interpretations, finds additional support long before and after that particular case. R.L. Investment Limited Partners v. INS, 273 F.3d 874 (9th Cir.2001) ("RLILP") (adopting in full the district court's decision in R.L. Investment Limited Partners v. INS, 86 F.Supp.2d 1014 (D.Haw., 2000) and Chang v. United States, 327 F.3d 911 (9th Cir. 2003)fully support the notion of not being bound by past interpretations. There is however, the proviso especially noted in Chang of not imposing unanticipated retroactive effects on a prior decision that had a solid basis for reasonable reliance. In other words, it is impermissible to change the rules midstream or after-the- fact. I-924 adjudication and appellate review are in their infancy so now is the proper time for action.

The Board of Immigration Appeals (BIA) and various federal courts have set precedents and later discarded, revised, narrowed or otherwise distinguished the holdings in certain lines of cases along a similar and often evolving topic. This is nothing new, it has happened since the common law began. It is how the common law came to be. Although we in the United States rely primarily on statutory law, certain common law principles remain in our legal system, at least the few that have survived since March 4, 1789 (the effective date of the U.S. Constitition). The judicial branch adheres quite rigidly to the principle of "stare decisis" which is Latin for "to stand by that which is decided." It is the principal that our precedent decisions [1] are to be followed until such time that they are overturned either by the authority that set it or a higher authority. The authorities involved with changes to immigration law include all three branches of government.

From a non-precedent AAO Regional Center Proposal Denial Affirmed on Certification found at: Dec222009_01K1610.pdf

"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 [2]. The effort of filing a new application or petition is a consequence of these precedent decisions for all of the petitions under the jurisdiction of the AAO. Even if binding precedents did not preclude consideration of the requested evidence submitted on certification, the proposal is not approvable for each of the reasons discussed below." [Emphasis added.]

I feel compelled to ask: Exactly how much of and which parts of the cited decisions apply within the realm of Regional Center Designation adjudications? The USCIS' May 18, 2011, Operational Proposal on this matter seems to have distinct ramifications on this question that are yet to be decided. Below are the holdings of the cited decisions interspersed with commentary.

Matter of Soriano [3] , 19 I&N Dec. 764 (BIA 1988) held:

(1) Where a visa petition has once been denied based on a finding that the marriage was entered into solely to bestow an immigration benefit, the petitioner bears a heavy burden of proof with respect to any subsequently filed visa petition involving the same beneficiary.

Soriano (1988) dealt with a spousal I-130 filed by a USC. The 1st I-130 was denied and the marriage was labeled a "sham" or immigration fraud marriage. The 2nd I-130 was denied BUT the Director made procedural errors which resulted in a remand. Due to the earlier credibility problem at issue, the petitioner was placed under extra scrutiny later. This is common sense and belongs in I-924 adjudication.

(2) A petitioner may be put on notice of evidentiary requirements by means such as a requirement in the regulations that a particular document be submitted with the visa petition; a notice of intent to deny, letter, or form noting the deficiency or requesting additional evidence; or an oral statement at an interview that additional evidence is required.

The 1st denial certainly placed the petitioner on notice. The 2nd I-130 included additional evidence to address the earlier I-130's deficiencies. The Director did not do so in regard to the 2nd I-130 nor did he address the newer evidence within the 2nd I-130 Denial.

(3) Where a visa petition is denied based on a deficiency of proof, the petitioner had not been put on notice of the deficiency and given a reasonable opportunity to address it before the denial, and on appeal the petitioner proffers additional evidence addressing the deficiency, the record will, in the ordinary course, be remanded to allow the Immigration and Naturalization Service to initially consider and address the new evidence.

The Director denied the 2nd I-130 on grounds not previously noted as deficiencies particular to the 2nd I-130. The Director also failed to address and properly consider some of the additional evidence that was submitted with the 2nd I-130 that addressed the earlier and most recently noted deficiencies. This resulted in a remand for the Director to properly consider and address the additional evidence in the record. The BIA determined that the evidence was properly before the Director but even if the evidence comes later, as it did in this case, when the petitioner was not "put on notice" the Board would not consider the evidence in the first instance.

(4) Where the petitioner was put on notice of the required evidence and given a reasonable opportunity to provide it for the record before the visa petition is adjudicated, evidence submitted on appeal will not be considered for any purpose, and the appeal will be adjudicated based on the record of proceedings before the Service.

In this decision, the BIA was taking the opportunity to state some basic rules that it had been following and would continue to follow. The AAO is not the BIA and never was. Certain standards, procedures, and stances that are proper for one appellate body are not 100% applicable to the substantively and qualitatively different nature of the other appellate body. This goes both ways. BIA grants or denies relief that may have certain associated benefits but AAO grants or denies benefits that may provide relief.

Examples include that:

  • BIA may grant: a family-based visas petition that USCIS denied, adjustment of status, withholding of removal, asylum, or voluntary departure.
  • AAO may grant: a waiver or employment-based visa petition that may allow for adjustment or visa issuance; or recognize U.S. citizenship.

Matter of Obaigbena [4], 19 I&N Dec. 533 (BIA 1988) held:

(1) A petitioner must be afforded a reasonable opportunity to rebut the derogatory evidence cited in a notice of intention to deny his visa petition and to present evidence in his behalf before the district director's decision is rendered.
(2) Reasonable and timely requests for an extension of time to submit a rebuttal to the notice of intention to deny a visa petition should be dealt with by the district director in a reasonable and fair manner, particularly when a petition has been pending for a prolonged period or where the notice of intention to deny contains extensive investigative findings or factual allegations.
(3) To be considered "reasonable," a request for an extension of time to submit a rebuttal must state with specificity the reasons for the request and be limited to a finite period, and it must not be for the purpose of obtaining documents which should have initially been submitted with the petition by regulation.

The first three prongs of this holding deal with rebuttal of a Notice of Intent to Deny (NOID). Prongs (2) and (3) seem to have been overruled by 8 CFR 103.2(b)(8) which states:

"(iv) Process. A request for evidence or notice of intent to deny will be in writing and will specify the type of evidence required, and whether initial evidence or additional evidence is required, or the bases for the proposed denial sufficient to give the applicant or petitioner adequate notice and sufficient information to respond. The request for evidence or notice of intent to deny will indicate the deadline for response, but in no case shall the maximum response period provided in a request for evidence exceed twelve weeks, nor shall the maximum response time provided in a notice of intent to deny exceed thirty days. Additional time to respond to a request for evidence or notice of intent to deny may not be granted." [Emphasis added.]

The regulation was originally promulgated in 1964, the Precedent was decided in 1988, BUT the regulations were updated after the Precedent. What controls now?

(4) Where a petitioner fails to timely and substantively respond to the notice of intention to deny or to make a reasonable request for an extension, the Board of Immigration Appeals will not consider any evidence first proffered on appeal as its review is limited to the record of proceeding before the district director; for further consideration, a new visa petition must be filed.

Like AAO, current BIA regulations do allow for de novo review of all USCIS decisions. AAO quite often includes the following blurb as a footnote in decisions:

"The submission of additional evidence on appeal is allowed by the instructions to Form I-290B, which are incorporated into the regulations by 8 C.F.R. 103.2(a)(l). The record in the instant case provides no reason to preclude consideration of any of the documents newly submitted on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988)." [Emphasis added.]

Again I ask: What is controlling as of now on this issue?

From the non-precedent AAO Appeal Dismissal of a Regional Center Proposal found at: Nov182008_01K1610.pdf

"The regulation at 8 C.F.R. 204.6(j) notes that additional evidence other than that specified in the regulations may be required. Clearly, only an entity that exists can be designated as a regional center. Thus, it is reasonable to require evidence of the proposed regional center's existence. We concur with the appellant, however, that the absence of organizational documentation is the type of issue that can, under certain circumstances, be easily resolved with a request for additional evidence. The evidence submitted on appeal, however, reveals that the appellant is not capable of resolving this issue as of the date the proposal was filed. As the nonexistence of the regional center at the time the proposal was filed is not a flaw that can be remedied for the reasons discussed below, remanding this matter to the director for further action would be repetitive and unreasonably delay final action in this matter. See generally Deering Milliken, Inc. v. Johnston, 295 F.2d 856, 867 (4th Cir. 1961) (finding that a second remand by the National Labor Relations Board would cause unreasonable delays).
A nonexistent entity cannot be designated as a regional center. In this matter, the entity originally identified as the proposed regional center still does not exist as a public or private economic unit. The regulations define a regional center as "any economic unit, public or private, which is involved with the promotion of economic growth, including increased export sales, improved regional productivity, job creation, and increased domestic capital investment." 8 C.F.R. 204.6(e). Specifically, CWIIC, LLC is organized as a limited liability company and not as a corporation as implied on the original business plan. The address for CWIIC, Inc. listed on the business plan and Form I-290B Notice of Appeal does not match the address listed for CWIIC, LLC on the certificate of formation.
The fact that CWIIC, LLC now exists is not persuasive. The regulation at 8 C.F.R. 103.2(b)(l) provides that an applicant or petitioner must establish eligibility "at the time of filing the application or petition." The regulation at 8 C.F.R. 103.2(b)(12) provides that an application or petition "shall be denied where evidence submitted in response to a request for evidence does not establish filing eligibility at the time the application or petition was filed." See also Matter of Katigbak, 14 I&N Dec. 45, 49 (Regl. Commr. 1971); Matter of Wing's Tea House, 16 I&N Dec. 158, 160 (Regl. Commr. 1977); Matter of Great Wall, 16 I&N Dec. 142, 144-145 (Act. Regl. Commr. 1977); Matter of lzummi, 22 I&N Dec. 169, 175-76 (Commr. 1998) (citing Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981), for the proposition that we cannot "consider facts that come into being only subsequent to the filing of a petition.") While the above cases involved immigrant petitions with priority dates, we note that this reasoning has been extended to nonimmigrant visa petitions, which do not have priority dates. Matter of Michelin Tire Corp., 17 I&N Dec. 248,249 (Regl. Commr. 1978).
As CWIIC, Inc. did not exist as an economic unit on December 26, 2006 and CWIIC, LLC came into being after the date of filing and, in fact, after the proposal was denied, we uphold this basis of the Service Center Operations decision."

Although the above is NOT a precedent, the key concept of "existence" of an entity in order to apply has been adopted and incorporated into the form instructions which are then incorporated into the controlling regulations.

>8 CFR 103.2 states:

(a) Filing -(1) General. Every application, petition, appeal, motion, request, or other document submitted on any form prescribed by this chapter I, notwithstanding any other regulations to the contrary, must be filed with the location and executed in accordance with the instructions on the form, such instructions being hereby incorporated into the particular section of the regulations in this chapter I requiring its submission. The form must be filed with the appropriate filing fee required by 103.7. Except as exempted by paragraph (e) of this section, forms which require an applicant, petitioner, sponsor, beneficiary, or other individual to complete Form FD-258, Applicant Card, must also be filed with the service fee for fingerprinting, as required by 103.7(b)(1), for each individual who requires fingerprinting. Filing fees and fingerprinting service fees are non-refundable and, except as otherwise provided in this chapter, must be paid when the application is filed. [Emphasis added.]

I again feel compelled to ask: Exactly how much of and which parts of the cited decisions apply within the realm of Regional Center Designation adjudications? The main cited cases are discussed below.

Matter of Katigbak, 14 I&N Dec. 45 (Reg, Comm., 1971) held:

>"To be eligible for preference classification under 203(a) (3) of the Immigration and Nationality Act, as amended, the beneficiary must be a qualified member of the professions at the time of the filing of the visa petition. Education or experience acquired subsequent to the filing date of such visa petition may not be considered in support thereof since to do so would result in according the beneficiary a priority date for visa issuance at a time when not qualified for the preference status sought". [Emphases added.]

Matter of Izummi, 22 I&N Dec. 169 (BIA 1998[5] ) held, in pertinent part:

(3) A petitioner may not make material changes to his petition in an effort to make a deficient petition conform to Service requirements.

That same decision goes on to further explain the underlying requirement, thus:

"A petitioner must establish eligibility at the time of filing; a petition cannot be approved at a future date after the petitioner becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971), Therefore, a petitioner may not make material changes to a petition that has already been filed in an effort to make an apparently deficient petition conform to Service requirements." [emphasis added]

Katigbak is often cited with regard to the general principle as restated in Izummi that one "must establish eligibility at the time of filing [6]" and as expanded upon in the 3rd prong of the 13 prong holding in Izummi, prohibiting the making of material changes subsequent to filing to remedy deficiencies. This is not to be confused with a mere matter of supplying further evidence in response to a request for evidence. The prohibition is against creating new circumstances for which no evidence previously existed in the absence of a material change made subsequent to filing.

It should be remembered that both of these Precedent Decisions involve visa petitions that are tied inextricably to the filing date as the priority date for purposes of obtaining a place in a potentially very long line for an immigrant visa. Such immigrant visa being among the visa preference categories for which there are numerical limitations and country of origin quotas.

8 CFR 103.2(b)(1) is a codification and bastardization of the principle espoused in Katigbak and related decisions. The regulation takes the basic and generally applicable principle and expands it too broadly and thereby introducing it into inappropriate contexts. Time of adjudication is more appropriate to an I-924.

In short there are two guiding principles involved:

1. That one must establish eligibility "at the time of filing", per Katigbak and
2. That one "may not make material changes to his petition in an effort to make a deficient petition conform to [USCIS] requirements." Per Izummi.

These principles have invaded the psyche of many USCIS Adjudicators and, obviously, the AAO. They are being misunderstood and misapplied to inapplicable benefit applications. That decision in Katigbak relates to the filing of and qualifications for an employment-based immigrant visa petition because the filing date sets a "priority date for visa issuance purposes" as stated in Title II of the INA (see generally, INA 203). Izummi relates to an investor visa petition which also has the same numerical and country specific limitations and a "priority date" at issue even though it has not yet ever been a real consideration in this perennially under-subscribed category. This general principle has clear applicability to certain other petitions and applications but does not apply to everything. However, sometimes, as with the I-924, I-485, or N-400 the time of adjudication is the critical moment rather than the time of filing. An I-924 may be perfected during the process and material change is not a bad thing to be prohibited in this context. USCIS may cause or require such changes to be made to an I-924.

Matter of Michelin Tire Corp.[7] , 17 I&N Dec. 248,249 (Regl. Commr. 1978) held:

(1) In order to be eligible for nonimmigrant classification under section 101(a)(15)(L) of the Immigration and Nationality Act, 8 U.S.C. 1101(a) (15)(L), the beneficiary must have been employed continuously for 1 year by the petitioner at the time the petition is filed with the Service. Having worked for the company for only 9 months, beneficiary failed to meet this time requirement. [Emphasis added.]
(2) Where a beneficiary seeks to qualify for "L" classification on the basis of specialized knowledge, that knowledge must be relevant to the business itself and directly concerned with the expansion of commerce or it must allow an American business to become competitive in overseas markets. In this case beneficiary's specialized knowledge was of the French Educational System. The petition sought to allow her to enter this country to teach the children of the French employees who would be coming here to start the plant, so their children's educational development would not suffer. This was not the specialized knowledge contemplated by the statute but was related to the provision of a fringe benefit for the company's employees. For that reason it does not qualify the beneficiary for admission under section 101(a)(15)(L) of the Act. [Emphasis added.]

Although the L nonimmigrant visa does not have a "priority date" at issue, it does have specific eligibility prerequisites. The L visa is for an "intra-company transferee" who was already an employee for at least one year in the prior three years and who will be employed in a capacity that is managerial, or executive or involves relevant specialized knowledge therefore they are reliant on a specific pre-existing employer-employee relationship that must have been in existence for a minimum prescribed period of time and in a certain role. The nonimmigrant petitions like the immigrant petitions do get adjudicated in a first-in, first-out processing queue. While there is no "priority date" at issue, there are still the general qualifications as to the pre-existing relationship as defined by statute, and further clarified through implementing regulations.

A Regional Center applicant does not have a pre-existing relationship, only its own existence as a legally recognized entity need be shown. The I-924 does not involve any visa. There are no numerical limits in the INA as to the number of Regional Centers that may be designated. Indeed, they can overlap or even exist right on top of each other.

That which is most important in this particular adjudication is to assure that the Regional Center will be able to fulfill its purpose as contemplated by the statute that created the designation. The current framework in place as to the placement of the "burden of proof" is well supported. The "standard of proof" is not fully specified as to the level of proof required for a Regional Center. The statute and regulations do have certain terminology that is yet to be fully defined, clarified and refined. The actual evidence that meets the burden of proof is fluid and ever evolving as are the possibilities in which to invest.

Lastly, from a non-precedent AAO Decision involving an I-905, Application for Authorization to Issue Certification for Health Care Workers found at: Nov092006_01M4212.pdf

"In the space on the Form I-905 application labeled "Occupations for which you are seeking authorization" the applicant entered, '[Name Redacted] is one of the partner and member [sic] of evaluation team. We need approval of all medical profession." The applicant did not otherwise state the medical positions it is seeking licensure to certify and did not demonstrate that its evaluators are competent to certify the educational credentials of those medical professionals seeking such certifications."

The I-924 and the I-905 share something in common in my mind. They BOTH are applications by an organization seeking licensure from USCIS that will enable the designated entity to provide services to aliens seeking visas for a fee. It is therefore imperative that USCIS approach the adjudication of Regional Center Designation Applications within the appropriate frame of mind. How do other agencies issue such licenses? What rights do the licensed organizations have? What obligations do licensed organizations have? What actions are allowed and which are prohibited? What circumstances will lead to a suspension or revocation of a license (i.e. "termination")? What will it take to be reinstated?

The Administrative Procedures Act (APA) [portions of 5 USC [8] ] is something that the AAO is quite familiar with as they borrow from it liberally already. Clarification as to the proper adjudication of a request for Regional Center Designation via form I-924 can be improved by looking to the APA for guidance on adjudications generally and on the concept of licenses and licensing in particular.

Does Designation as a Regional Center constitute licensing? I believe it does. These are just some thoughts to get others thinking about these issues and possibilities.

1 8 CFR 103.3(c).
2 At $6,230.00 for each I-924, that is a very costly mistake!
3 see here
4 see here
5 see here
6 On April 17, 2007, 72 FR at 19105 added 8 CFR 103.2 Applications, petitions, and other documents. (b)(1) Demonstrating eligibility at time of filing. An applicant or petitioner must establish that he or she is eligible for the requested benefit at the time of filing the application or petition. All required application or petition forms must be properly completed and filed with any initial evidence required by applicable regulations and/or the form's instructions. Any evidence submitted in connection with the application or petition is incorporated into and considered part of the relating application or petition. [Has since been updated.] See FR Notice at: see here
7 see here
8 See 5 USC 551. Definitions
For the purpose of this subchapter- *****
(6) ``order'' means the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing; *****
(8) ``license'' includes the whole or a part of an agency permit, certificate, approval, registration, charter, membership, statutory exemption or other form of permission;
(9) ``licensing'' includes agency process respecting the grant, renewal, denial, revocation, suspension, annulment, withdrawal, limitation, amendment, modification, or conditioning of a license;

About The Author

Joseph P. Whalen is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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