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                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                          

No. 95-1112

                    ANTONIO JOSE P. MOTTA,

                     Plaintiff, Appellee,

                              v.

 DISTRICT DIRECTOR OF IMMIGRATION &amp; NATURALIZATION SERVICES,

                    Defendant, Appellant.

                                      

                         ERRATA SHEET                                     ERRATA SHEET

   The  opinion  of this  Court issued  on  August 8,  1995, is
amended as follows:

   Page 2, line 12:  Delete "INS's"

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 95-1112

                    ANTONIO JOSE P. MOTTA,

                     Plaintiff, Appellee,

                              v.

 DISTRICT DIRECTOR OF IMMIGRATION &amp; NATURALIZATION SERVICES,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

       [Hon. Douglas P. Woodlock, U.S. District Judge]                                                                 

                                         

                            Before

                     Selya, Circuit Judge,                                                     

               Campbell, Senior Circuit Judge,                                                         

                   and Cyr, Circuit Judge.                                                     

                                         

Charles   E.  Pazar,   Attorney,  Office   of  Immigration,  Civil                               
Division, with whom Frank W. Hunger, Assistant Attorney General, Civil                                           
Division, and  Emily Anne  Radford, Office of  Immigration Litigation,                                          
Civil Division, United States Department of Justice, were on brief for
appellant.
Joseph S. Callahan for appellee.                              

                                         

                        August 8, 1995
                                         

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          Per  Curiam.    Respondent-appellant,  the District                                 

Director  of  the  Immigration  and   Naturalization  Service

("INS"),  appeals from  the  judgment of  the district  court

regarding  appellee Antonio Jose Pacheco Motta's petition for

writ  of habeas corpus.  Motta v. District Director, INS, 869                                                                    

F. Supp. 80, 98 (D. Mass. 1994).  Facing imminent deportation

under  8  U.S.C.    1182(a)(2)(A)(I)  (Supp.  V 1994),  Motta

petitioned for  the  writ, alleging  that  his right  to  Due

Process under  the Fifth  Amendment had been  violated during

the course of his  earlier deportation proceedings.  Although

the district court did  not order his release, it  stayed his

deportation until  the Board  of Immigration Appeals  ("BIA")

could issue a  decision on Motta's  pending motion to  reopen

his deportation proceeding, and for ninety days thereafter to

permit review  of that decision,  if necessary,  by the  U.S.

Court  of  Appeals for  the  First  Circuit.   Id.   The  INS                                                              

appealed.  The BIA has not yet issued a decision.

          During  oral argument,  we raised with  counsel the

possibility that a settlement might be  in the best interests

of both parties.  Counsel for the INS  indicated that the INS

might  be  willing to  extend to  Motta  a temporary  stay of

deportation comparable to that  ordered by the district court

if the lower court decision    establishing what the INS sees

as  a  dangerous and  erroneous  precedent     were  vacated.

Counsel for Motta  indicated that this  might be a  desirable

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resolution  for his client as well, since it removes any risk

that  this Court  would agree  with the  INS and  reverse the

district  court's  stay  of  deportation.    At  the  end  of

argument,   we  directed   counsel  to  discuss   a  possible

settlement with their clients and to advise this Court within

10  days as to whether  such an agreement  would be possible.

The  INS subsequently informed this  Court that the INS would

stay Motta's deportation during the pendency of his appeal to

the BIA and for  an additional ten days thereafter  to afford

time  to file  a  petition for  review  before the  Court  of

Appeals, if necessary.  Motta's counsel has indicated that he

accepts the tendered INS stay.

          There now  being no actual controversy  between the

two parties, we hold that this  appeal is moot and vacate the

lower court's decision.   United States v. Munsingwear, Inc.,                                                                        

340 U.S. 36,  39-40 (1951).   In vacating  the lower  court's

decision, we have taken pains to consider whether this appeal

falls  within the Supreme Court's prohibition against vacatur

in U.S. Bancorp Mortgage Co. v.  Bonner Mall Partnership, 115                                                                    

S. Ct.  386  (1994).   We  conclude that  it  does not.    In

Bancorp, the  Court held that "[w]here  mootness results from                   

settlement . . . , the losing party has voluntarily forfeited

his  legal remedy  by  the ordinary  processes  of appeal  or

certiorari, thereby  surrendering his claim  to the equitable

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remedy of vacatur.   The  judgment is  not unreviewable,  but

simply unreviewed by his own choice."  Id. at 392.                                                        

          Here, given the different posture of this case, the

equities plainly  favor vacatur.  The INS  did not by its own

initiative relinquish its right to vacatur, as the petitioner

did in Bancorp.   Rather, the INS has at  all times sought to                          

pursue its appeal;  it has agreed to consider settlement only

at  the suggestion  of  this Court,  the proposed  settlement

being an  inexpensive, simple, and speedy  way to accommodate

the  interests of both parties.  As the INS has not initiated

the relinquishment  of  its right  to  the remedy,  the  same

equitable calculus  underlying Bancorp is not  present.  Nor,                                                  

given  this   Court's  involvement  and  initiative   in  the

proceedings, does vacatur in this case implicate the concerns

expressed  by the  Bancorp Court  about giving  parties undue                                      

control over judicial precedents.  We see no appreciable harm

to the orderly functioning of the federal  judicial system by

vacating judgment.

          To be sure,  it can  be argued  that depriving  the

public and the  judicial system of the precedential  value of

the district court's opinion works a kind of harm.  But we do

not believe that  such a species of harm is  entitled to take

priority  over  the parties'  best  interests.   Placing  the

former  above the  latter  would be  inequitable.   This case

contrasts with the  usual appeal, where  vacatur is only  one

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consideration among others in  a settlement.  Here,  the INS,

as  a repeat player before the courts, is primarily concerned                                                               

with  the precedential effect of the decision below.  If that

decision   stands,  all   possibility  of  a   settlement  is

eliminated.   If  it is  vacated, the  appellee acquires  the

absolute  certainty   of  not   being  deported,   while  the

government  saves the costs and  risk of litigation     a win

for  both sides.  It is true  the Bancorp Court discusses and                                                     

rejects  the  possible impact  of  its  rule in  discouraging

settlements.   Id. at  393.   But  it does  so in  aggregate,                              

saying  in the  end that  "[w]e find  it quite  impossible to

assess  the  effect of  our  holding,  either way,  upon  the

frequency or systemic value of settlement."  In this case, by

contrast,  the negative  impact on  settlement is  absolutely

clear.      We   think   this  case   presents   "exceptional

circumstances" to which the Court referred in Bancorp.                                                                   

          We accordingly vacate the district court's decision

and remand with directions to dismiss this suit as moot.   We

also deny, as  moot, the  INS's pending motion  for leave  to

file  a supplemental  brief.   Each party  will bear  its own

costs.

          So ordered.                                  

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