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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
Treating the petition for rehearing en banc
REHEARING EN BANC
as a petition for panel rehearing, the petition
for panel rehearing is DENIED. No member
Opinion 310 F.3d 825
of the panel nor judge in regular active service
(5th Cir. Nov. 11, 2002)
having requested that the court be polled on
rehearing en banc (see FED. R. APP. P. 35 and
Before SMITH and BENAVIDES, Circuit
5TH CIR. R. 35), the petition for rehearing en
Judges, and FITZWATER,* 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.5 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
5 The Immigration Act of 1990 repealed the
itself." Id. Although the court fashioned its
court's power to issue JRAD's for "convictions
Order To Vacate a "Writ for Relief from Judg-
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
6 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).
2

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.").
3