                             In the
    United States Court of Appeals
                For the Seventh Circuit
                          ____________

No. 02-2827
OCTAVIO TAPIA,
                                                        Petitioner,
                                 v.


JOHN ASHCROFT, ATTORNEY GENERAL
                      1
OF THE UNITED STATES,
                                                       Respondent.
                          ____________
                  Petition for Review of an Order of
                 the Board of Immigration Appeals.
                          ____________
    ARGUED SEPTEMBER 17, 2003—DECIDED DECEMBER 16, 2003
                          ____________

    Before RIPPLE, MANION, and WILLIAMS, Circuit Judges.
  WILLIAMS, Circuit Judge. Octavio Tapia is a Mexican
citizen who overstayed his deadline as a pleasure visitor



1
  Tapia named the Immigration and Naturalization Service (INS)
as the respondent in this case. The INS no longer exists as an
independent agency within the Department of Justice and is now
part of the Department of Homeland Security. Because this
petition for review challenges a decision of the Executive Office for
Immigration Review (Board of Immigration Appeals (BIA)), which
is a component of the United States Department of Justice,
Attorney General John Ashcroft has been listed in the caption as
the respondent. See 8 U.S.C. § 1252(b)(3)(A); Dandan v. Ashcroft,
339 F.3d 567 (7th Cir. 2003).
2                                                  No. 02-2827

and was ordered deported in absentia. After his case was
reopened and he conceded deportability, an immigration
judge (IJ) denied his request for suspension of deportation
by finding that he was ineligible for such relief because
he had not been present in the United States for seven
consecutive years. Tapia appealed to the Board of
Immigration Appeals (BIA), which affirmed without
opinion. On appeal, he challenges the service of the Order
to Show Cause (OSC) and whether he is ineligible for
suspension of deportation. Because there is substantial
evidence to support the immigration court’s conclusion, we
deny his petition.


                     I. BACKGROUND
  Octavio Tapia is a Mexican citizen who originally entered
the United States in 1987 as a pleasure visitor. In February
1990, he returned to Mexico for six and a half months to
visit his ailing mother in the hospital. In September 1990,
he again entered the United States as a visitor for pleasure,
with authorization to stay until May 1991, but he remained
in the country beyond that date.
  In December 1995, the INS filed in the immigration court
in Chicago an Order to Show Cause why Tapia should not
be deported. A copy of the order was sent to Tapia by
certified mail at his last known address, and the certifica-
tion receipt was signed by either Tapia’s sister or cousin,2
who lived at the residence with Tapia. The OSC indicated
that a hearing was set for May 8, 1996, and when Tapia did
not appear for that hearing he was ordered deported in
absentia. On June 13, 1996, Tapia filed a motion to reopen
and reconsider, arguing that he had not received notice of


2
  Tapia reviewed the certified mail receipt and testified that it
could be either his sister’s or his cousin’s signature.
No. 02-2827                                                        3

the hearing and that the evidence did not support the OSC.
On August 28, 1996, Tapia also submitted an application
for suspension of deportation.
  An IJ granted the motion to reopen in 1998,3 and Tapia
admitted the allegations in the OSC and conceded
deportability. The IJ denied Tapia’s request for suspension
of deportation, finding that Tapia was ineligible for such
relief because he had not been present in the United States
for seven consecutive years. In doing so, the IJ stated that
the record clearly reflected that the OSC was properly
served by certified mail. Tapia appealed to the BIA, which
affirmed the decision of the IJ without issuing an opinion.


                         II. ANALYSIS
  We review decisions of the immigration courts to deny
suspension of deportation using the substantial evidence
standard. Georgis v. Ashcroft, 328 F.3d 962, 967 (7th Cir.
2003). We must affirm the BIA’s decision if it is supported
by “reasonable, substantial, and probative evidence on the
record considered as a whole.” Id. (quoting Useinovic v.
I.N.S., 313 F.3d 1025, 1029 (7th Cir. 2003)). When a case
comes to this court on appeal following a “Affirm Without
Opinion” decision by the Board under its streamlining pro-




3
  Tapia claims that he was harmed by the two-year delay in re-
opening his deportation proceedings, but he failed to raise this
before the IJ or in his brief to the BIA, so it is waived. See, e.g.,
Rhoa-Zamora v. I.N.S., 971 F.2d 26, 36 (7th Cir. 1992). Further-
more, this court has previously rejected Tapia’s arguments in a
substantially similar case. See Angel-Ramos v. Reno, 227 F.3d
942, 948 (7th Cir. 2000).
4                                                    No. 02-2827

cedures, see 8 C.F.R. § 1003.1(a)(7), we review directly the
decision of the IJ. Georgis, 328 F.3d at 966.4


A. The Order to Show Cause Was Properly Served
   The INS may serve an OSC on a respondent by certi-
fied mail sent to the respondent’s last known address
(with return receipt requested), if “the certified mail receipt
[is] signed by the respondent or a responsible person at the
respondent’s address and returned to effect personal
service.” Matter of Grijalva, 21 I & N. Dec. 27, 32 (BIA
1995) (citing Immigration and Nationality Act (INA)
§ 242B(a)(1), 8 U.S.C. § 1252b(a)(1) (1994)); see also
Fuentes-Argueta v. I.N.S., 101 F.3d 867, 871 n.2 (2d Cir.
1996).5 Here, the government introduced a certified mail


4
  Tapia argues that it was inappropriate for the BIA to “Affirm
Without Opinion,” because he raised new issues on appeal (the
ones we address in this opinion) that he had not briefed before the
IJ. His failure to raise these issues before the IJ entitled the BIA
to reject them on appeal. See Matter of Edwards, 20 I & N 191,
199 n.4 (BIA 1990) (citing Matter of Samai, 17 I & N Dec. 242
(BIA 1980)) (“We note in passing, however, that because the
respondent did not object to the entry of this document into evi-
dence at the hearing below, it is not appropriate for him to object
on appeal.”). Moreover, since we review the IJ’s decision when the
BIA streamlines its review, “our ability to conduct a full and fair
appraisal of the petitioner’s case is not compromised, and the
petitioner’s due process rights are not violated.” Id.; see also
Ciorba v. Aschroft, 323 F.3d 539, 546 (7th Cir. 2003); Albathani v.
I.N.S., 318 F.3d 365, 377 (1st Cir. 2003).
5
  Contrary to the government’s assertion, Matter of Grijalva
did not broadly hold that there was “no requirement that the
certified mail receipt be signed so long as there was proof of at-
tempted delivery.” Rather, in Matter of Grijalva, the BIA held that
for “notices of deportation proceedings,” there is “no requirement
                                                      (continued...)
No. 02-2827                                                       5

receipt for the OSC that it had sent to Tapia’s last known
address, where he lived with his adult sister and cousin,
and which contained evidence that it was signed by Tapia’s
sister. Tapia contends that the government failed to estab-
lish that it was his sister who signed the receipt because it
did not call her to testify or offer a handwriting expert to
verify her signature. He also argues that the government
has not shown that the person who signed the receipt was
“responsible.” However, Tapia conceded before the IJ, and
acknowledges in his brief, that the signature could be either
his sister’s or his cousin’s, and while the government offered
no further proof that it was his sister’s signature, Tapia did
not call her to testify that it was not. Similarly, he makes
no argument (much less provides any evidence) that either
his sister or his cousin were not “responsible persons” who
could sign the certified mail receipt. Under these circum-
stances, we find there is substantial evidence to support the
IJ’s conclusion that the OSC was properly served.


B. Suspension of Deportation
  Under the statutes in effect at the time Tapia applied
for suspension of deportation, the Attorney General had the
discretion to grant suspension of deportation to a deportable
alien if the alien: (1) had been physically present for a
continuous period of seven years; (2) was of good moral
character during that time; and (3) had established that


5
  (...continued)
that the certified mail return receipt be signed by the alien or a
responsible person at his address to effect service.” 21 I & N. Dec.
at 34 (citing INA § 242B(c)(1), (2), 8 U.S.C. § 1252b(c)(1), (2)
(1994)). However, the BIA, also explicitly held that this “only
pertains to [notices of deportation] and not to Orders to Show
Cause.” Id. at 33.
6                                                    No. 02-2827

removal would result in extreme hardship to the alien, his
spouse, child, or parent who was a United States citizen or
lawful resident. See INA § 244(a), 8 U.S.C. § 1254 (1994);
Angel-Ramos v. Reno, 227 F.3d 942, 945 n.1 (7th Cir. 2000).
Under INA § 240(d)(2), “an alien shall be considered to have
failed to maintain continuous physical presence . . . if the
alien has departed from the United States for any period in
excess of 90 days, or for any periods in the aggregate
exceeding 180 days.” 8 U.S.C. § 1229b(d)(2). Five years
before the OSC was served, Tapia departed from the United
States for six and a half months to return to Mexico.
Because this trip was for more than 90 days, Tapia failed to
maintain continuous presence in the United States for the
seven years preceding service of the OSC, and the IJ
correctly concluded that he was ineligible for suspension of
deportation. See Angel-Ramos, 227 F.3d at 946-48.
  Tapia acknowledges these rules but argues that his
case is governed by rules in effect prior to Congress’s pas-
sage of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208,
110 Stat. 3009, 3009-627 (1996), in that his trip was “inno-
cent, casual, and brief” under Rosenberg v. Fleuti, 374
U.S. 449 (1963). The “Fleuti Doctrine”—that an “innocent,
casual, and brief” departure from this country does not
constitute a break in an alien’s physical presence—has been
superseded by the IIRIRA.6 The physical presence re-


6
  In Fleuti, the Court interpreted § 101(a)(13) of the Immigration
and Nationality Act of 1952. Section 101(a)(13) stated that a per-
manent resident alien was not considered to be reentering the
country (for purposes of the statute) if his or her departure from
the United States “was not intended.” The Court held that “an in-
nocent, casual, and brief excursion by a resident alien outside this
country’s borders may not have been ‘intended’ as departure
disruptive of his resident alien status.” Fleuti, 374 U.S. at 463.
                                                      (continued...)
No. 02-2827                                                     7

quirements under the IIRIRA does not include the “inno-
cent, casual, and brief” standard, and instead opts for a
quantitative standard—any absence outside the country for
more than 90 days at a time, or 180 days in total, breaks
the physical presence requirement. 8 U.S.C. § 1229b(d)(2).
In Rivera-Jimenez v. I.N.S., 214 F.3d 1213 (10th Cir. 2000),
the Tenth Circuit reached this same conclusion. See id. at
1218 (holding that whether an alien’s departure from the
country was brief, casual, and innocent “is irrelevant . . . in
light of the IIRIRA’s special rules relating to continuous
physical presence”); see also Tineo v. Ashcroft, No. 02-3636,
2003 WL 22863043, *1 (3d Cir. Dec. 4, 2003); In re Collado-
Munoz, 21 I & N Dec. 1061, 1064 (BIA 1998) (as amended).
Because there is no longer an exception for innocent, casual,
and brief departures from the country, and because Tapia
left the country for more than 90 days with his six-month
trip to Mexico, he failed to maintain continuous physical
presence in this country for seven years and is statutorily
ineligible for suspension of deportation.
   Tapia also argues that his time spent in deportation pro-
ceedings after (a) his receipt of the OSC in 1995 (assuming
it was properly served), (b) the filing of his motion to reopen
with the IJ in 1996, or (c) the actual reopening of his case
in 1998, should count toward his seven years, and therefore
asserts that he has been in the United States in excess of
seven years since his last entry in September 1990. This
court resolved this question in Angel-Ramos, when we held
that the stop-time provisions in the IIRIRA, as amended by
the Nicaraguan Adjustment and Central American Relief
Act (NACARA), Pub. L. No. 105-100, § 203(a), 111 Stat.
2160, 2196-98 (1998), stops the time that counts toward


6
  (...continued)
The “brief, casual, and innocent” language was incorporated into
the predecessor to the IIRIRA. See 8 U.S.C. § 1254(b)(2) (repealed
1997).
8                                             No. 02-2827

continuous presence once the OSC is served. 227 F.3d at
947. We also held that these provisions apply to aliens in
immigration proceedings even if those proceedings began
before the IIRIRA’s effective date. Id. Therefore, once the
OSC was served, Tapia’s time toward continuous presence
was stopped by statute, and any time incurred thereafter
did not accrue toward the seven-year requirement.


                   III. CONCLUSION
  Because the immigration court’s conclusions are sup-
ported by substantial evidence, the petition for review is
DENIED.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                  USCA-02-C-0072—12-16-03
