Renteria-Gonzalez v. INS

In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 01-60364
_______________
RICARDO RENTERIA-GONZALEZ,
Petitioner,
VERSUS
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
_________________________
Petition for Review of an Order of
the Board of Immigration Appeals
_________________________
February 27, 2003
ON PETITION FOR
REHEARING EN BANC
Opinion 310 F.3d 825
(5th Cir. Nov. 11, 2002)
Before SMITH and BENAVIDES, Circuit
Judges, and FITZWATER,* District Judge.
PER CURIAM:
Treating the petition for rehearing en banc
as a petition for panel rehearing, the petition
for panel rehearing is DENIED. No member
of the panel nor judge in regular active service
having requested that the court be polled on
rehearing en banc (see FED. R. APP. P. 35 and
5TH CIR. R. 35), the petition for rehearing en
banc is DENIED.
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.

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2
Part II.b.1.a of the panel opinion, 310 F.3d
at 832-33, is hereby deleted, and the following
is substituted:
a.
The district court probably lacked subject
matter jurisdiction when it vacated the con-
viction. The magistrate judge’s report does
not address the statutory source of the court’s
jurisdiction to vacate. The court presumably
relied on the general federal question statute,
28 U.S.C. § 1331, and fashioned the Order To
Vacate under the All Writs Act, which allows
the federal courts to “issue all writs necessary
or appropriate in aid of their respective jur-
isdictions,” 28 U.S.C. § 1651.
The court apparently thought that the Order
To Vacate was necessary to enforce its earlier
JRAD.5 This rationale could not supply a
jurisdictional hook, however, because the INS
sought to deport Renteria-Gonzalez on
grounds other than those specified in the
JRAD. Moreover, the All Writs Act does not
confer an independent basis for subject matter
jurisdiction. United States v. N.Y. Tel. Co.,
434 U.S. 159, 172 (1977); Newby v. Enron
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
Even if it had jurisdiction, the district court
lacked equitable authority to vacate the con-
viction. “[N]o adequate statutory or historical
warrant” authorizes the federal courts to add
new equitable remedies to the federal post-
conviction remedial scheme. United States v.
Reyes, 945 F.2d 862, 866 (5th Cir. 1991).
This principle applies with special force to the
immigration laws. When a court vacates an
otherwise final and valid conviction on equit-
able grounds merely to avoid the immigration-
law consequences of the conviction, it usurps
Congress’s plenary power to set the terms and
conditions of American citizenship and the ex-
ecutive’s discretion to administer the immi-
gration laws. Plyler v. Doe, 457 U.S. 202,
225 (1992); Reyes, 945 F.2d at 866.
A purely equitable order to vacate a con-
viction also encroaches on the President’s
power and discretion to pardon. Id. “Absent
a clearer statutory or historical basis, an article
III court should not arrogate such power unto
itself.” Id. Although the court fashioned its
Order To Vacate a “Writ for Relief from Judg-
ment” under the All Writs Act, 28 U.S.C.
§ 1651, and Reyes involved a petition for a
writ of audita querela, we have extended Rey-
es to a petition for relief from judgment under
5 The Immigration Act of 1990 repealed the
court’s power to issue JRAD’s for “convictions
entered before, on, or after” its enactment date,
November 29, 1990. Pub. L. No. 101-649,
§ 505(b), 104 Stat. 4978, 5050 (1990). The INS
argues that this section rescinds all JRAD’s. The
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
conviction, see, e.g., United States v. Bodre, 948
F.2d 28 (1st Cir. 1991), pre-enactment JRAD’s
remain effective. Thus, the INS could not have
deported Renteria-Gonzalez for the offenses
specified in the JRAD even after enactment of the
Act.
6 The Second Circuit has held that under the
Immigration Act of 1990, a district court does not
retain jurisdiction to enforce a void JRAD. United
States v. Tablie, 166 F.3d 505, 506-07 (2d Cir.
1999). But see United States v. Yacoubian, 24
F.3d 1, 5-6 (9th Cir. 1994) (holding that district
court retained jurisdiction).

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3
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
1992SSan appeal in which it likely would have
been successful.7 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.
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.”).

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