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Attwood v. Ashcroft

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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Joseph L. Tauro, U.S. District Judge]

This is an appeal from a district court decision granting a petition for a writ of habeas corpus in the context of a removal order issued by the Board of Immigration Appeals. We affirm the district court, though on alternate grounds.

John Brian Attwood is a native and citizen of Canada who was admitted to the United States as a lawful permanent resident on January 16, 1963. On May 24, 1995, Attwood pled guilty to trafficking in cocaine, and was sentenced to a term of imprisonment of five to seven years (ultimately he served only four years and eleven months). On April 18, 1996, the Immigration and Naturalization Service issued, signed, and dated an Order to Show Cause charging Attwood with deportability under sections 241(a)(2)(A)(iii) and 241(a)(2)(B)(i) of the Immigration and Naturalization Act, 8 U.S.C. �� 1251(a)(2)(A)(iii) and 1251(a)(2)(B)(i) (1994), as an alien convicted of both an aggravated felony and a controlled substance violation. The OSC, however, was not served on Attwood until June 6, 1996, and was filed with the immigration court on July 8, 1996.

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