                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 09 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



ENRIQUE ALCALA PEREZ,                            No. 08-73256

              Petitioner,                        Agency Nos. A079-587-556

  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.                        MEMORANDUM *



                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                            Submitted November 7, 2012 **
                                Pasadena, California

Before: D.W. NELSON and O’SCANNLAIN, Circuit Judges, and SINGLETON,
Senior District Judge.***

       Petitioner Enrique Alcala-Perez, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal


        *
             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).
        ***
             The Honorable James K. Singleton, Senior District Judge for the U.S.
District Court for Alaska, sitting by designation.
from an immigration judge’s (“IJ”) decision denying his application for registry

pursuant to 8 U.S.C. § 1259. We deny the petition for review.

1.    Alcala-Perez’s admission of the charge in the Notice to Appear that he

entered the United States on September 12, 1971 does not establish his date of

entry for the purpose of his eligibility for registry. At the removal proceeding, both

the government and the IJ explained to Alcala-Perez that the date of his entry was

subject to dispute and that he needed to produce documents affirmatively

establishing that date to qualify for registry. Cf. Hakopian v. Mukasey, 551 F.3d

843, 847 (9th Cir. 2008) (“[A]t no point—either before or during Hakopian’s

hearing—did the government move to amend its Notice to Appear with respect to,

or otherwise contest, Hakopian’s stated date of entry.”).

2.    The IJ’s refusal to order the government to produce files related to Alcala-

Perez’s earlier amnesty application did not deprive Alcala-Perez of “a reasonable

opportunity to present evidence on his behalf.” Ibarra-Flores v. Gonzales, 439

F.3d 614, 620 (9th Cir. 2006) (quoting Colmenar v. INS, 210 F.3d 967, 971 (9th

Cir. 2000)). Despite the government’s assurances that the files could be obtained

via a Freedom of Information Act (“FOIA”) request, Alcala-Perez’s counsel never

established that he made such a request. In light of Alcala-Perez’s failure to use the

established FOIA procedure to obtain the documents, it was reasonable for the IJ to

refuse to order the government to produce them.
3.      Substantial evidence supports the decisions of the IJ and the BIA that

Alcala-Perez did not establish that he entered the United States before January 1,

1972. See Manzo-Fontes v. INS, 53 F.3d 280, 282 (9th Cir. 1995). Alcala-Perez’s

own testimony about his date of entry and his early activities in the United States

was internally contradictory. Further, Alcala-Perez testified that he rented an

apartment from Marina Gentil when he first moved to the United States in 1971,

but Gentil’s affidavit asserted that Alcala-Perez rented from her between 1972 and

1973.

        PETITION DENIED.
