The normal statute governing "interest of justice" dismissals is Penal Code 1385, which allows a court to dismiss a case in the interests of justice. This is technically not a vacatur, just a dismissal. If it comes after conviction based on a guilty or no contest plea or a verdict, this judicial action does not expressly vacate the plea or verdict on a ground of legal invalidity, so it would not eliminate the conviction for immigration purposes under Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), which the Ninth Circuit follows. It is dangerous. It could be presented as a vacatur, however, and the judge could sign an "order vacating conviction in the IOJ" under PC 1385, and then it would be an ambiguous order, which is unclear whether it was granted on grounds of legal invalidity, or on the basis of immigration consequences or rehabilitation. Chances are increased by calling it an order "vacating" the plea and keeping the record clear of any reference to immigration consequences or rehabilitation. Since it is unclear, the respondent would win if the Woodby deportation test is applied. See Nath v. Gonzales, 467 F.3d 1185 (9th Cir. Nov. 3, 2006) (government has burden of proof by clear and convincing evidence that order vacating conviction was ineffective to eliminate conviction for immigration purposes when respondent made motion to reopen removal proceedings after conviction had been vacated; because order was ambiguous as to whether it had been based on a ground of invalidity, government could not meet its burden of proof, and BIA abused its discretion in denying motion to reopen).

If the removal order has been entered already, the question arises who has the burden of proof. If a motion to reopen is necessary, the First Circuit pointed out that the respondent has the burden of proof and so an ambiguous vacatur is insufficient to avoid deportation. But the Ninth Circuit's Nath decision was also in a motion to reopen context, and maintained the burden of proof on the government.