In the

United States Court of Appeals

for the Fifth Circuit

_______________

m 01-60364

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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.
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 conviction. 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 jurisdictions,” 28 U.S.C. § 1651. 

The court apparentlythought that theOrder

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 conviction. “[N]o adequate statutory or historical

warrant” authorizes the federal courts to add

new equitable remedies to the federal postconviction 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 equitable grounds merely to avoid the immigrationlaw consequences of the conviction, it usurps

Congress’s plenary power to set the terms and

conditions of American citizenship and the executive’s discretion to administer the immigration laws. Plyler v. Doe, 457 U.S. 202,

225 (1992); Reyes, 945 F.2d at 866. 

A purely equitable order to vacate a conviction also encroaches on the President’s

power and discretion to pardon. Id. “Absent

a clearerstatutory 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 RelieffromJudgment” under the All Writs Act, 28 U.S.C.

§ 1651, and Reyes involved a petition for a

writ of audita querela, we have extended Reyes 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 actualJRAD 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).
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.”).