For anyone facing deportation due to a criminal conviction, it is important to obtain a dismissal of the case, the best way is to obtain a nunc pro tunc dismissal.  This order makes the judgment final as of the date it would have become final had it been entered when it could have been entered. A criminal court judge can issue this type of order to avoid injustice, for example, that would result to a party whose rights are threatened by a delay (in entering the judgment) that is not his or her fault.

The California Appeals Court has held that a nunc pro tunc reduction of defendant’s sentence is not permitted to avoid deportation. This California Court of Appeal reversed the nunc pro tunc order reducing the sentence from 365 days to 364 days. According to the court, a nunc pro tunc order should be limited to correcting clerical errors. The fact that the federal immigration laws changed did not justify the sentence reduction. Furthermore, the court stated, while it is true that in 1996 significant changes in immigration law took place, including the preclusion of lawful permanent residents convicted of aggravated felonies from obtaining relief from deportation, that is not a problem to be addressed in state court. Federal courts are the appropriate venue for such issues. Consequently, even though an immigration judge will honor a nunc pro tunc order where the sentence is modified (reduced), if appealed by the prosecution in a state court, the order will probably be reversed.  If the District Attorney is amenable, and if the judge will go along with it, a nunc pro tunc order vacating the plea to modify it to something without immigration consequences should work because an immigration judge will honor a nunc pro tunc order.