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.
1Effective 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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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
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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.