                            NOT FOR PUBLICATION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.
