Tooby's California Post-Conviction Relief for Immigrants

(C)

What error may nunc pro tunc relief be used to correct.  Despite arguments that the doctrine of nunc pro tunc may only be used to correct inadvertent errors, and not to remedy a defect in a judgment order, the court held that in the immigration context nunc pro tunc relief was available to correct such defects in the immigration context.[136]

It is important for counsel to offer the criminal court a ground of invalidity of the original conviction or sentence that is separate from the goal of obtaining an opportunity to receive a timely JRAD.[137]  

[136] Edwards v. INS, 393 F.3d, at 309 n.12.

[137] Rashtabadi v. INS, 23 F.3d 1562 (9th Cir. 1994) (all presumptions normally operating in favor of the judgment operate in favor of the validity of a Judicial Recommendation Aagainst Deportation, and the burden is on the government to prove the criminal resentencing was granted solely to enable the court to issue a timely JRAD or else the JRAD would be held effective); see United States v. Parrino, 212 F.2d 919 (2d Cir.), cert. denied, 348 U.S. 840 (1954) (dissenting opinion); United States v. Sambro, 454 F.2d 918, 924-27 (D.C. Cir. 1971) (dissenting opinion).