                                                                            FILED
                             NOT FOR PUBLICATION                             JUN 09 2010

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



NICACIO SAUSTEGUI-NAVA,                          No. 07-74285

               Petitioner,                       Agency No. A070-132-030

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                             Submitted May 25, 2010 **

Before:        CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

       Nicacio Saustegui-Nava, a native and citizen of Mexico, petitions for review

of the Board of Immigration Appeals’ order dismissing his appeal from an

immigration judge’s decision denying his application for cancellation of removal.



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We have jurisdiction under 8 U.S.C. §1252. We grant the petition for review and

remand.

      The agency incorrectly concluded that the Notice to Appear (“NTA”) ended

Saustegui-Nava’s accrual of physical presence where the NTA failed to specify the

time and date of his hearing. See Garcia-Ramirez v. Gonzales, 423 F.3d 935, 937

n.3 (9th Cir. 2005) (per curiam) (where NTA failed to specify the hearing date or

location, accrual of physical presence ended upon service of proper hearing

notice); see also Popa v. Holder, 571 F.3d 890, 896 (9th Cir. 2009).

      We remand for the agency to determine whether Saustegui-Nava meets the

other requirements for cancellation of removal.

      The parties shall bear their own costs for this petition for review.

      PETITION FOR REVIEW GRANTED; REMANDED.




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