322 F.3d 804
5th Cir.
2003

*1 Before S MITH and B ENAVIDES , Circuit TH C IR . R. 35), the petition for rehearing en

Judges, and F ITZWATER , [*] District Judge. banc is DENIED. PER CURIAM: Judge Benavides specially concurs for the

reasons set forth in his original special concurrence.

[*] District Judge of the Northern District of Texas, sitting by designation.

Part II.b.1.a of the panel opinion, 310 F.3d jurisdiction. United States v. N.Y. Tel. Co. at 832-33, is hereby deleted, and the following 434 U.S. 159, 172 (1977); Newby v. Enron is substituted: Corp. , 302 F.3d 295, 300 (5th Cir. 2002),

petition for cert. filed , 71 U.S.L.W. 3429 (Dec. 9, 2002) (No. 02-904). [6] a. Even if it had jurisdiction, the district court The district court probably lacked subject lacked equitable authority to vacate the con- matter jurisdiction when it vacated the con- viction. “[N]o adequate statutory or historical viction. The magistrate judge’s report does warrant” authorizes the federal courts to add not address the statutory source of the court’s new equitable remedies to the federal post- jurisdiction to vacate. The court presumably conviction remedial scheme. United States v. relied on the general federal question statute, Reyes , 945 F.2d 862, 866 (5th Cir. 1991). 28 U.S.C. § 1331, and fashioned the Order To This principle applies with special force to the Vacate under the All Writs Act, which allows immigration laws. When a court vacates an the federal courts to “issue all writs necessary otherwise final and valid conviction on equit- or appropriate in aid of their respective jur- able grounds merely to avoid the immigration- isdictions,” 28 U.S.C. § 1651. law consequences of the conviction, it usurps

Congress’s plenary power to set the terms and The court apparently thought that the Order conditions of American citizenship and the ex- To Vacate was necessary to enforce its earlier ecutive’s discretion to administer the immi- JRAD. This rationale could not supply a gration laws. Plyler v. Doe , 457 U.S. 202, jurisdictional hook, however, because the INS 225 (1992); Reyes , 945 F.2d at 866. sought to deport Renteria-Gonzalez on

grounds other than those specified in the A purely equitable order to vacate a con- JRAD. Moreover, the All Writs Act does not viction also encroaches on the President’s confer an independent basis for subject matter power and discretion to pardon. Id. “Absent

a clearer statutory or historical basis, an article III court should not arrogate such power unto The Immigration Act of 1990 repealed the Id. itself.” Although the court fashioned its Order To Vacate a “Writ for Relief from Judg- court’s power to issue JRAD’s for “convictions entered before, on, or after” its enactment date, ment” under the All Writs Act, 28 U.S.C. November 29, 1990. Pub. L. No. 101-649, § 1651, and Reyes involved a petition for a § 505(b), 104 Stat. 4978, 5050 (1990). The INS writ of audita querela , we have extended Rey- argues that this section rescinds all JRAD’s. The es to a petition for relief from judgment under text, however, extends only to “convictions,” not to an actual JRAD entered before the enactment date.

Although the Act repealed a court’s power to enter a post-enactment JRAD for a pre-enactment The Second Circuit has held that under the conviction, see, e.g., United States v. Bodre , 948 Immigration Act of 1990, a district court does not F.2d 28 (1st Cir. 1991), pre-enactment JRAD’s retain jurisdiction to enforce a void JRAD. United remain effective. Thus, the INS could not have States v. Tablie , 166 F.3d 505, 506-07 (2d Cir. deported Renteria-Gonzalez for the offenses 1999). But see United States v. Yacoubian , 24 specified in the JRAD even after enactment of the F.3d 1, 5-6 (9th Cir. 1994) (holding that district Act. court retained jurisdiction).

the All Writs Act. United States v. Banda

1 F.3d 354, 356 (5th Cir. 1993).

Notwithstanding these errors, however, the INS cannot collaterally attack the Order To

Vacate, even for want of jurisdiction, because

it did not directly appeal that order in SS an appeal in which it likely would have

been successful. We therefore must treat the

Order To Vacate as proper in every respect, so

we turn to INS’s alternative argument, i.e.,

that a vacated federal conviction remains valid

for purposes of the immigration laws.

Notes

[7] See Chicot County Drainage Dist. v. Baxter State Bank , 308 U.S. 371, 377 (1940) (holding that a “decree sustaining [subject matter] jurisdiction against attack, while open to direct review, is res judicata in a collateral action”); Royal Ins. Co. of Am. v. Quinn-L Capital Corp. , 960 F.2d 1286, 1293 (5th Cir. 1992) (“If the parties against whom judgment was rendered did not appeal, the judgment becomes final and the court’s subject matter jurisdiction is insulated from collateral attack.”).