Saustegui-Nava v. Holder

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NOT FOR PUBLICATION JUN 09 2010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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