
USCA1 Opinion

	




          O    c    t    o    b    e    r      5    ,      1    9    9    5                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                ______________________          No. 95-1112                                ANTONIO JOSE P. MOTTA,                                 Plaintiff, Appellee,                                          v.             DISTRICT DIRECTOR OF IMMIGRATION & 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 & 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                                 ____________________                                          2                      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                                         -3-                                          3            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                                         -4-                                          4            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                                         -5-                                          5            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.                        __________                                         -6-                                          6
