                                                                          FILED
                           NOT FOR PUBLICATION                             JAN 04 2010

                                                                      MOLLY C. DWYER, CLERK
                   UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT

 IDRISA SESAY,                                 No. 08-56812

             Petitioner - Appellant,           D.C. No. 3:07-cv-02354-JM-LSP

 v.

 JANET NAPOLITANO,* Secretary of the           ORDER
 Department of Homeland Security; ERIC
 H. HOLDER JR., Attorney General of the
 United States; ROBIN BAKER, Director
 of San Diego Field Office, U.S.
 Immigrations and Customs Enforcement;
 JOHN A. GARZON, Officer-in-Charge,

             Respondents - Appellees.

                   Appeal from the United States District Court
                      for the Southern District of California
                    Jeffrey T. Miller, District Judge, Presiding

                      Argued and Submitted August 5, 2009
                              Pasadena, California

Before: CANBY, WARDLAW and CALLAHAN, Circuit Judges.

      The government’s motion to dismiss this appeal on the ground of mootness

is GRANTED. See Clark v. Martinez, 543 U.S. 371, 376 n.3 (2005) Rodriguez v.

      *
        Janet Napolitano is substituted for her predecessor Michael Chertoff,
Secretary of the Department of Homeland Security, pursuant to Fed. R. App. P.
43(c)(2).
Hayes, 578 F.3d 1032, 1044 (9th Cir. 2009); Picrin-Peron v. Rison, 930 F.2d 773,

776 (9th Cir. 1991). This appeal is dismissed as moot.

      Because this mootness was caused by the unilateral act of the government,

we vacate the decision of the district court and remand with instructions to dismiss

the petition as moot. See U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership,

513 U.S. 18, 25 (1994) (stating that equitable considerations favor vacatur “when

mootness results from unilateral action of the party who prevailed below”); see

also Alvarez v. Smith, ___ U.S. ___, 2009 WL 4573274, at *5-7 (U.S. Dec. 8,

2009).

      APPEAL DISMISSED; REMANDED with instructions.




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