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).

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-2827

OCTAVIO TAPIA,

Petitioner,

v.

JOHN ASHCROFT, ATTORNEY GENERAL

OF THE UNITED STATES,

1

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
2 No. 02-2827

2 Tapia reviewed the certified mail receipt and testified that it

could be either his sister’s or his cousin’s signature.

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 certification 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
No. 02-2827 3

3 Tapia claims that he was harmed by the two-year delay in reopening 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). Furthermore, 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).

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-
4 No. 02-2827

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 evidence 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 attempted delivery.” Rather, in Matter of Grijalva, the BIA held that

for “notices of deportation proceedings,” there is “no requirement

(continued...)

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 certified 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
No. 02-2827 5

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.

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 establish 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 circumstances, 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
6 No. 02-2827

6 In Fleuti, the Court interpreted § 101(a)(13) of the Immigration

and Nationality Act of 1952. Section 101(a)(13) stated that a permanent 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 innocent, 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...)

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 passage 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 “innocent, 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-
No. 02-2827 7

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). 

quirements under the IIRIRA does not include the “innocent, 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 ColladoMunoz, 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 proceedings 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
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 supported 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