DeMelo v. Cobb
Case Date: 02/27/1997
Court: United States Court of Appeals
Docket No: 96-2143
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[NOT FOR PUBLICATION] UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 96-2143 JOSE DEMELO, Petitioner, Appellee, v. CHARLES T. COBB, ET AL.,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- |