explaining that petitions to reopen are “intimately and immediately associated with the final orders they seek to challenge”
How later courts described this case
- explaining that petitions to reopen are “intimately and immediately associated with the final orders they seek to challenge”
- adopting holding in Marcello, but doing so “without the conviction that attends a holding deemed unquestionably correct”
- continuing jurisdictional dispute because although appellee obtained permanent resident alien status, government still sought deportation
- affirming habeas jurisdiction to review final order of deportation; “custody” operative
Written by the judges who cited it.
The opinion
SCHROEDER, Circuit Judge,
dissenting.
I respectfully dissent because this case should be dismissed as moot.
The government appeals from a district court order which gave the petitioner the privilege of voluntarily departing the United States, rather than being deported. The government did not seek to stay that order, although there is no reason why it could not have done so.
The consequence of failing to obtain a stay “is that the prevailing party may treat the judgment of the district court as final, notwithstanding that an appeal is pending.” 9 J. Moore, Moore’s Federal Practice H 208.03 at 8-9 (2d ed. 1985). If irreversible action is taken pending the appeal the appeal will be dismissed as moot. Id. at 8 — 10.
Acting in reliance on that order and on the absence of a stay, Mr. Williams exercised his privilege of voluntary departure and left the country. He did not leave under an order of deportation. At that time, his Labor Certification permitted him to receive an immigrant visa immediately. He was not ineligible to receive the visa under 8 U.S.C. § 1182 (a)(17) (1985), because he had not entered the United States within five years after being deported or removed at government expense; nor was he shown to be excludable under any of the additional grounds for exclusion provided in 8 U.S.C. § 1182 . He reentered the United States pursuant to a visa that had been lawfully issued to him.
The test for mootness is whether events have occurred “ ‘which prevent the appellate court from granting any effective relief even if the dispute is decided in favor of the appellant.’ ” Holloway v. United States, 789 F.2d 1372 (9th Cir.1986), quoting Matter of Combined Metals Reduction Co., 557 F.2d 179, 187 (9th Cir.1977); see also Dan Caputo Co. v. Russian River County Sanitation District, 749 F.2d 571, 574 (9th Cir.1984) (action to enjoin construction project moot where court could grant no effective relief due to completion of the work). The test is not a new one, nor did it originate with us. See Mills v. Green, 159 U.S. 651, 653 , 16 S.Ct. 132, 132 , 40 L.Ed. 293 (1895).
This court can give the government no effective relief, for the deportation order which gave rise to this action in district court is now irrelevant to the petitioner’s status. The majority opinion cannot reverse the petitioner’s actual voluntary departure and his subsequent lawful reentry.
The government acknowledges that an appealing party must obtain a stay pending appeal where action taken in reliance on the lower court’s decree cannot be reversed by the court of appeals. See American Grain Association v. LeeVac, Ltd., 630 F.2d 245, 247 (5th Cir.1980); Fink v. Continental Foundry & Machine Co., 240 F.2d 369, 374-75 (7th Cir.1957).
The government fully recognizes its predicament; it offers only two theories in support of its position that it should be allowed to maintain this appeal. The majority rejects both.
*747 The first theory is that the district court’s order was a nullity because it lacked subject matter jurisdiction. This theory the majority properly and expressly rejects.
The second theory is that the petitioner’s departure pursuant to the district court’s order should be regarded as a “self-deportation” under 8 C.F.R. § 243.5 (1985). That regulation, however, applies only to aliens who depart “while an order of deportation is outstanding.” It explicitly excludes from the definition of self-deportation those aliens who leave under grants of voluntary departure. We are not told how this alien, who left while an order for voluntary departure was outstanding, can be regarded as having “self-deported.” The majority implicitly rejects this theory as well.
As long as the district court had jurisdiction over the subject matter of the suit and the parties to it, both parties were bound to obey the order granting voluntary departure regardless of whether the order subsequently is determined to be legally incorrect. “An order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings. This is true without regard even for the constitutionality of the Act under which the order is issued.” United States v. United Mine Workers of America, 330 U.S. 258, 293 , 67 S.Ct. 677, 696 , 91 L.Ed. 884 (1947).
The majority purports to reverse the order of the district court granting voluntary departure, but it cannot reverse events that occurred while the order was outstanding. Its announcement of its decision on the merits is no more than a hollow incantation. I therefore dissent.