
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-2143                                     JOSE DEMELO,                                Petitioner, Appellee,                                          v.                               CHARLES T. COBB, ET AL.,                               Respondents, Appellants.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                              Cyr, Senior Circuit Judge,                                   ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Frank  W.  Hunger, Assistant  Attorney  General,  Civil  Division,            _________________        David  M. McConnell,  Assistant  Director, and  Kristen A.  Giuffreda,        ___________________                             _____________________        Attorney, Office of Immigration Litigation, Civil Division, Department        of Justice, on Motion to Vacate for appellants.                                 ____________________                                  February 27, 1997                                 ____________________                 Per  Curiam.   Section 440(c)  of the  Antiterrorism and                 ___________            Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110            Stat. 1214,  1277 (Apr. 24,  1996) (AEDPA), provides  for the            mandatory  detention of certain categories of criminal aliens            pending  deportation proceedings.   The  district  court here            determined  that   440(c) did not apply to those aliens, such            as  petitioner,  who had  been  convicted  and released  from            incarceration prior to AEDPA's effective date.  See DeMelo v.                                                            ___ ______            Cobb, 936 F. Supp.  30 (D. Mass. 1996).   Respondents, having            ____            appealed from this ruling, now suggest  that their appeal has            become  moot in  light of  the  intervening enactment  of the            Illegal Immigration  Reform and Immigrant  Responsibility Act            of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996)            (IIRIRA).   As a result, they request that the district court            order be  vacated "to the extent it  relies on a finding that            section  440(c) of the AEDPA  is inapplicable," and also that            the case be remanded for further proceedings.  Petitioner has            filed no opposition.                 We agree that the advent of IIRIRA has rendered moot the            question  of  whether  AEDPA's mandatory-detention  provision            applies  here--the sole  issue raised  on appeal.   With  the            implementation of the "transition period  custody rules," see                                                                      ___            IIRIRA   303(b)(3), section  440(c) of AEDPA has specifically            been  rendered inoperative  during  the interim  period,  see                                                                      ___            IIRIRA   303(b)(2); the  question of AEDPA's applicability is                                         -2-            thus no longer in  contention.  In so concluding,  we express            no opinion  as  to whether  IIRIRA's  transitional  rules--as            opposed to the rules  governing detention under the pre-AEDPA            regime, to the extent they might differ--apply to petitioner.                 We  likewise  agree that  it  is  appropriate under  the            circumstances  to vacate  the district  court's order  to the            extent  it relies  on a  finding  that    440(c) of  AEDPA is            inapplicable.   See, e.g., United States  v. Munsingwear, 340                            ___  ____  _____________     ___________            U.S. 36, 39  (1950); Knight  v. Mills, 836  F.2d 659,  671-72                                 ______     _____            (1st  Cir.  1987)  (ordering  partial  vacatur);  Bethell  v.                                                              _______            Florida,  741 F.2d 1341,  1342 (11th Cir.  1984) (per curiam)            _______            (similar).                 The motion  to vacate  is allowed; the  district court's                 ________________________________________________________            order of  June 19, 1996 is  vacated as moot to  the extent it            _____________________________________________________________            relies on a finding  that   440(c) of AEDPA  is inapplicable.            _____________________________________________________________            The case  is  remanded  to the  district  court  for  further            _____________________________________________________________            proceedings as appropriate.            ___________________________                                         -3-
