Argued and Submitted November 2, 2010.
Filed November 18, 2010.
Brian P. Brosnahan, Esquire, Jacob Nathaniel Foster, Esquire, Kasowitz, Benson, Torres Friedman, LLP, San Francisco, CA, for Petitioner.
Walter Guillermo Perez-Rojo, Patterson, CA, pro se.
Chief Counsel Ice, Office of the Chief Counsel, Department of Homeland Security, San Francisco, CA, OIL, Andrew Jacob Oliveira, Esquire, Trial, DOJ-U.S. Department of Justice, Washington, DC, for Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A096-385-791.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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 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).
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.