United States Court of Appeals
For the First Circuit
No. 03-1938
GLORIA AREVALO,
Petitioner, Appellee,
v.
JOHN ASHCROFT, ATTORNEY GENERAL, ET AL.,
Respondents, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Torruella, Circuit Judge,
Campbell, Senior Circuit Judge,
and Selya, Circuit Judge.
October 5, 2004
Anthony Drago on Opposition to Motion to Vacate, for
petitioner.
Papu Sandhu, Office of Immigration Litigation, on Motion to
Vacate, for respondents.
Per Curiam. Immigration and Customs Enforcement (ICE)
appeals a judgment of the district court granting petitioner Gloria
Arevalo's request for habeas relief. Arevalo v. Ashcroft, 260
F.Supp.2d 347 (D. Mass. 2003) (Arevalo I). Subsequent to the
filing of this appeal, this court issued a decision vacating
petitioner's order of removal. Arevalo v. Ashcroft, 344 F.3d 1
(1st Cir. 2003) (Arevalo II). Since the district court decision
is now moot, we must dismiss the instant appeal for lack of
jurisdiction. At the same time, at the request of ICE, we instruct
the district court to vacate its judgment granting habeas relief.
We summarize only the facts essential to this appeal.
Further background can be found in our prior opinion. In early
2003, the Immigration and Naturalization Service (INS)1 served
petitioner with notice that it intended to reinstate, pursuant to
8 U.S.C. § 1231(a)(5), a prior deportation order and to remove her
from the United States. At the same time, the INS took Arevalo
into custody. When Arevalo sought relief in the district court,
that court concluded that it lacked subject matter jurisdiction
over her request and transferred the case to this court. This
court temporarily stayed petitioner's deportation and denied her
request for habeas relief without prejudice to her seeking such
1
Effective March 1, 2003, the INS ceased to exist and its
interior enforcement functions were transferred to the Department
of Homeland Security. ICE is a sub-agency of this department.
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relief in the district court. While petitioner's appeal of the
removal order was pending in this court, the district court granted
Arevalo's request for habeas relief. The court held that the
relevant statute did not authorize ICE to detain Arevalo after the
90-day period provided by 8 U.S.C. § 1231(a) expired. Arevalo I,
260 F.Supp.2d at 349-50. ICE appealed. While its appeal was
pending, we decided that ICE could not reinstate its prior removal
order against Arevalo because of ex post facto concerns. Arevalo
II, 344 F.3d at 9-15. This effectively mooted the instant appeal.
ICE now seeks to have the district court judgment vacated because
of what it claims is the district court's erroneous interpretation
of § 1231(a).
Whether or not to vacate a decision that has become moot
on appeal rests in the equitable discretion of this court.
Kerkhoff v. MCI Worldcom, Inc., 282 F.3d 44, 53 (1st Cir. 2002).
A primary consideration is whether the appellant deliberately
mooted the appeal. See id.; see also Fed. Ins. Co. v. Maine Yankee
Atomic Power Co., 311 F.3d 79, 82 (1st Cir. 2002). Vacatur
normally is granted unless the mootness arises from settlement
between the parties or from appellant's voluntary withdrawal of the
appeal. Med. Prof'l Mut. Ins. Co. v. Breon Labs., Inc., 141 F.3d
373, 375 (1st Cir. 1998). As explained by the Supreme Court, "[a]
party who seeks review of the merits of an adverse ruling, but is
frustrated by the vagaries of circumstance, ought not in fairness
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be forced to acquiesce in the judgment." United States Bancorp
Mortgage Co. v. Bonner Mall P'ship, 513 U.S. 18, 25 (1994).
Equitable considerations favor vacatur in the instant
case. Not only did ICE vigorously pursue its appeal but, "as a
repeat player before the courts, [it] is primarily concerned with
the precedential effect of the decision below," Motta v. Dist.
Dir. of INS, 61 F.3d 117, 119 (1st Cir. 1995), and "has an
institutional interest in vacating adverse rulings of potential
precedential value," Wal-Mart Stores, Inc. v. Rodriguez, 322 F.3d
747, 750 (1st Cir. 2003). "A case that becomes moot pending
appeal, necessarily untested by appellate scrutiny, lacks the
stamp of reliability that is required to warrant preclusive
effect." Nat'l R.R. Passenger Corp. v. Int'l Ass'n of Machinists
and Aerospace Workers, 915 F.2d 43, 48 (1st Cir. 1990)
(attributions and internal quotation marks omitted). Moreover,
petitioner is no longer subject to reinstatement of the removal
order against her. Consequently, vacating the judgment harms
neither party and leaves the interpretation of 8 U.S.C. § 1231(a)
to be litigated fully in a more appropriate case.
We need go no further. The appeal is dismissed as
moot. The case is remanded to the district court with
instructions to vacate its memorandum and order, dated May 9,
2003. This disposition in no way reflects any view of the merits
of the appeal.
So ordered.
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