Can a Judge “back date” an order nunc pro tunc to avoid deportation?

In People v. Borja (2002) 95 Cal. App. 4th 481, the court 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 prosecutor 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.

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