NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 18 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
WALTER GUILLERMO PEREZ-ROJO, No. 05-77180
Petitioner, Agency No. A096-385-791
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 November 2, 2010
San Francisco, California
Before: KOZINSKI, Chief Judge, RYMER, Circuit Judge, and TRAGER, Senior
District Judge.**
Walter Guillermo Perez-Rojo petitions for review of a final order of the
Board of Immigration Appeals (BIA) finding him removable as charged for illegal
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable David G. Trager, Senior United States District Judge
for the Eastern District of New York, sitting by designation.
entry into the United States. We have jurisdiction under 8 U.S.C. § 1252, and
grant the petition.
Conceding that evidence of alienage should have been suppressed under
Lopez-Rodriguez v. Mukasey, 536 F.3d 1012 (9th Cir. 2008), the government asks
us to remand. We decline to do so. No reason appears why DHS could not have
developed whatever record it wanted to develop at the original hearing; the agency
could not have been surprised by Lopez-Rodriguez, as our law has been clear for
years. See, e.g., Orhorhaghe v. INS, 38 F.3d 488 (9th Cir. 1994).1
PETITION GRANTED.
1
When asked at oral argument what new evidence it would introduce on
remand, the government could not answer because, DHS, not DOJ, had that
information. See Oral Argument at 9:23, Perez-Rojo v. Holder, No. 05-77180,
available at http://www.ca9.uscourts.gov/datastore/media/2010/11/02/05-
77180.wma; id. at 12:53. We are thus left to speculate whether there is simply no
evidence that the government could introduce to defend its actions, in which case
the request for a remand was unnecessary, or whether the government did have
such evidence, but a bureaucratic snafu caused it to fumble the appeal. The
government’s decision to ask for a remand without fully assessing its case wasted
Perez-Rojo’s and the court’s resources, and, through no apparent fault of his own,
forced the government’s lawyer to argue an appeal he stood no chance of winning.