# United Stat es Court of Appeals For the First C ircuit

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
AnthonyDrago on Opposition to Motion to Vacate, for petitioner. Papu Sandhu , Office of Imm igration Litigation, on Motion to Vacate, for respondents.1 Ef fective March 1, 2003, the INS ceased to exist and it s

interior enforcement functions were transferred to the Department of Homeland Security. ICE is a sub-agency of this department. -2- Per Curiam . Immigration and Customs Enfor ceme nt (ICE) appeals a judgment of the district court granting petitioner Gloria Arevalo's request for habeas relief. Arevalo v. Ashcroft , 260 F.Supp.2d347 (D. Mass. 2003) ( Arevalo I ). Subsequent to the filing of this appeal, this court issued a decisio n v acating 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 mus t dismis s 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 fou nd in our prior opinion. In early 2003, the Immigration and Naturalization Servi c e (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 fromthe 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 transfe rredthe case to this court. This court temp orarily stayed petitioner's deportation and denied her request for habeas relief without prejudice to her seek ing such-3-

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 ap pealed. While its appeal was pending, we decided that ICE could not reinstate its prior removal order against Arevalo beca use 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 appea l rests in the equitable discretion of this court. Kerkhoff v. MCI Worldcom, Inc ., 282 F.3d 44, 53 (1st Cir. 2002). Aprimary consideration is whether th e appellant deliberately mootedthe appeal. See id. ; see also Fed. Ins. Co. v. Maine Yankee Atomic Power Co. , 311 F.3d 79 , 82 (1st Cir. 2002). Vacatur normallyis granted unless the mootness arises f rom 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-4-

be forced to acquiesce in the judgment." United States Bancorp Mortgage Co. v. Bonner Mall P'ship , 513 U.S. 18, 25 (1994).

Equitable consider at ions favor vacatur in the instant
case. Not only did ICE vigorouslypursue its appeal but, "as a repeat player before the courts, [it] is primarily concerned with the precedential effect of the decision belo w," M otta v. Dist. Dir. of INS, 61 F.3d 117, 119 (1st Cir. 1995), and "has an institutional interest in vacating adverse rulings of p o tential 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, lac ks the stamp of reliability that is required to warrant preclusive effect." Nat'l R.R. Passenger Corp . v. Int'l Ass'n of Machinists andAerospace Wo rkers , 9 15 F.2d 43, 48 (1st Cir. 1990) (attributions and internal quotation mark s omitted). Moreover, petitioner is no longer subject to reinstatement of the removal order against her. Consequently, vacating the judgment harms neither party andleaves the interpretation of 8 U.S.C. § 1231(a) to be litigated fully in a more appropriate case.

We need go no fu rther. The appeal is dismissed as
mo ot . The case is remandedto the district court with instructions to vacate its mem or andum and order, dated May 9, 2003. This disposition in no way reflects anyview of the merits of the appeal.

So ordered .