                                                                              FILED
                           NOT FOR PUBLICATION                                   JUL 19 2010

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


ASCENCION ORTEGA-GAMBOA,                         No. 05-75813

             Petitioner,                         Agency No. A072-671-674

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

             Respondent.


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

                      Argued and Submitted March 12, 2010
                        Submission vacated April 5, 2010
                           Resubmitted July 19, 2010
                           San Francisco, California

Before: B. FLETCHER, CLIFTON and BEA, Circuit Judges.

       Ascencion Ortega-Gamboa, a native and citizen of Mexico, petitions for

review of a decision by the Board of Immigration Appeals (“BIA”), affirming an

order by the Immigration Judge (“IJ”) that denied Petitioner’s application for

suspension of deportation, asylum, withholding of removal, relief under the


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Convention Against Torture (“CAT”), and voluntary departure. We have

jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). We deny the petition in part as to

Petitioner’s application for suspension of deportation, and grant the petition in part.

      The IJ denied Petitioner’s application for suspension of deportation in 1999

because he failed to prove he was in the United States for seven continuous years

before being served with the order to show cause. Petitioner contends the order to

show cause was legally invalid and therefore could not have stopped his accrual of

time. The order to show cause was legally valid even though it did not contain the

date, time, and place of the hearing to be held because this information was sent

separately to the same address. Sending the hearing information in a later, separate

notice does not invalidate the original order to show cause. See Popa v. Holder,

571 F.3d 890, 892–93 (9th Cir. 2009) (notice to appear); Chaidez v. Gonzales, 486

F.3d 1079, 1083 (9th Cir. 2007) (order to show cause).

      The order to show cause was also valid even though it was served by

certified mail and signed for by Petitioner’s wife, rather than Petitioner himself.

Service of an order to show cause is effective if sent by certified mail and the

return receipt is signed by a responsible person at the alien’s address. Chaidez,

486 F.3d at 1083–86. Petitioner does not claim his wife is not a responsible

person. Once the order to show cause was sent by certified mail to Petitioner’s last


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known address and signed for by his wife, such service stopped Petitioner’s accrual

of time to fulfill the requirement that he have been physically present in the United

States for seven years to qualify for suspension of deportation. Ram v. INS, 243

F.3d 510, 518 (9th Cir. 2001). Thus, the IJ correctly denied Petitioner’s

application for suspension of deportation because he did not have the requisite

period of physical presence in the United States. That a previous IJ, who heard

Petitioner’s case before Petitioner was granted a change in venue, personally

served Petitioner with the order to show cause as a precautionary measure, does not

mean that the original order to show cause sent by certified mail was invalid.

Taking an extra precaution by having Petitioner personally served in court, after

hearing from Petitioner that he did not personally receive the order sent through

certified mail, is not the same as finding that service of the original order to show

cause was invalid. That some wear a belt and suspenders does not prove the

inadequacy of either to hold up the pants, but only the cautious nature of the person

wearing the pants.

      The BIA denied Petitioner’s applications for asylum, withholding, and CAT

relief based on Petitioner’s failure to provide timely fingerprints. The BIA,

however, did not have the benefit of our intervening decision in Cui v. Mukasey,

538 F.3d 1289 (9th Cir. 2008), which held that refusing to continue proceedings


                                           3
for fingerprint processing may be an abuse of discretion. We therefore remand for

the BIA to reconsider its denial Petitioner’s applications for asylum, withholding,

and CAT relief in light of Cui.

      We also remand for the BIA to reconsider the merits of Petitioner’s claims

for asylum, withholding and CAT relief because the BIA’s analysis of the merits of

Petitioner’s claims was insufficient under Silaya v. Mukasey, 524 F.3d 1066, 1073

(9th Cir. 2008) (remanding due to the BIA’s failure determine which party bears

the burden of proving whether the petitioner could safely relocate within his

country of origin to avoid persecution).

      The BIA also failed to address Petitioner’s request for voluntary departure,

and the IJ’s denial of voluntary departure was unexplained. If it becomes relevant,

the BIA should determine whether to grant voluntary departure.

Each party shall bear its own costs.

      PETITION DENIED IN PART AND GRANTED IN PART.




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