Tooby's California Post-Conviction Relief for Immigrants

(B)When nunc pro tunc relief should be afforded. The court stated generally that "where an agency error would otherwise be irremediable, and where the plaintiff has been deprived of a significant benefit - "fairness to the parties," Weil v. Markowitz , 829 F.2d 166, 175 (D.C. Cir. 1987), dictates that the error be remedied nunc pro tunc. See e.g., Ethyl Corp., 67 F.3d at 945; see also Batanic, 12 F.3d at 667-68."[135] Applying this to the immigration context, the court found that nunc pro tunc relief should be available were the noncitizen has demonstrated that s/he was erroneously denied the opportunity to apply the relief due to an error on the part of the agency, and that, but for nunc pro tunc relief, the denial of relief would be irremediable. The court stated that the noncitizen, outside an illegal reentry context, did not need to show that a denial of the relief would result in a denial of due process.      

[135] Edwards v. INS, 393 F.3d, at 310.