A very rare common-law writ, called “audita querela,”[184] was successfully used twice in 1988 to vacate federal convictions where unintended immigration consequences appeared unfairly harsh.[185]  Where the prosecution objected, however, and an appeal was taken, a number of the circuit courts of appeal held this remedy unavailable for compassionate immigration relief, and no federal circuit court has approved the use of this procedure for the purpose of vacating the conviction itself.[186]

 

            The Sixth Circuit, however, pointed out that while the writ cannot vacate a conviction on equitable grounds, it can appropriately be used to prohibit enforcement of the collateral effects of the criminal judgment, and used it to bar deportation on account of minor youthful convictions where the noncitizen would have been a United States citizen if she had not aged out while the INS unduly delayed processing her parents’ naturalization application, finding that deportation in these circumstances would shock the conscience.[187]  Thus, while technically beyond the subject of this work, this writ may be used in an effort to prohibit deportation which would shock the conscience — quite a large category of cases given the retroactive use of expanded aggravated felony convictions and the like.

 

            As with the writ of coram nobis, the writ of audita querela is not available in federal court to challenge a state conviction.[188]

 

Coram nobis allows a defendant to obtain relief from the consequences of a judgment of conviction based on some defense or discharge arising after the rendition of the judgment that cannot otherwise be raised.[189]  Federal Rule of Civil Procedure 60(b) expressly eliminated the writ of audita querela.  Under the Supreme Court’s decision in United States v. Morgan, however, Rule 60(b) applies only in civil cases,[190] so a few courts have held that the writ of audita querela continues to be available in criminal cases under some circumstances.[191]  In contrast to the common law writ of coram nobis, which is used to challenge the legality of the judgment, audita querela provides a means to obtain relief from the consequences of a judgment that may have been unknowable at the time of the court’s original decision and does not challenge the legal validity of the original judgment as of the date of its issuance.[192] 

 

Even where the writ is granted, the immigration courts and federal courts will not honor a vacatur of a conviction issued under the writ of audita querela if relief is provided on purely equitable grounds, as was the basis of the relief in the 1988 district court cases.  The BIA would construe such relief as rehabilitative and ineffective to eliminate the conviction for immigration purposes.[193]  In Beltran-Leon v. INS,[194] the Ninth Circuit held that a drug conviction vacated pursuant to a state-court writ of audita querela, solely to prevent deportation and where no question was raised concerning the validity of the conviction itself, did not remove the conviction for immigration purposes.

The court of appeals will review de novo the question whether a federal prisoner challenging a conviction and sentence may properly file a petition for a writ of audita querela.[195]  The effectiveness of such a writ for purposes of immigration is also a pure legal issue reviewed de novo.[196]

[184] See generally Annot., Availability and Appropriateness of Audita Querela Relief in Connection with Immigration and Naturalization Proceedings,105 A.L.R. Fed. 880 (2004).

[185] United States v. Gherbreziabher, 701 F.Supp. 115 (E.D. La. 1988); United States v. Salgado, 692 F.Supp. 1265 (E.D. Wash. 1988), discussed in Interpreter Releases, May 22, 1989, pp. 570-571.  See generally Lapin v. Shulton, Inc., 333 F.2d. 169 (9th Cir. 1964), cert. denied, 85 S.Ct. 193 (1964).

[186] E.g., United States v. Johnson, 962 F.2d 579 (7th Cir. 1992); United States v. Reyes, 945 F.2d 862 (5th Cir. 1991); United States v. Holder, 936 F.2d 1 (1st Cir. 1991); see also United States v. Ayala, 894 F.2d 425 (D.C. Cir. 1990) (strongly indicating that writ not available on solely equitable grounds but ultimately finding it unnecessary to rule on the issue); United States v. Fonseca-Martinez, 36 F.3d 62 (9th Cir. 1994) (ten-year residency in United States, marriage to U.S. citizen with three U.S. citizen children, rehabilitation, and full support of his family insufficient equities to grant relief, even assuming relief by this writ was available); Doe v. INS, 120 F.3d 200, 204-205 (9th Cir. 1997) (audita querela not available to vacate valid conviction on equitable grounds alone).

[187] Ejelonu v. INS, 355 F.3d 539 (6th Cir. Jan. 8, 2004) (since 8 U.S.C. § 1431 prevents deporting noncitizen for Michigan youthful offender convictions of two counts of Embezzlement by an Agent or Trustee of Over $100, in violation of MCL § 750.174, audita querela is granted since her deportation would shock the conscience). See generally Sarno, Availability And Appropriateness Of Audita Querela Relief In Connection With Immigration And Naturalization Proceedings, 105 ALR Fed. 880 (2004).

[188] Quintana v. Nickolopoulos, 768 F.Supp. 118 (D.N.J. 1991).  Where a petitioner seeks to challenge the validity of a state conviction, or the duration of a state sentence, his or her only remedy in federal court is habeas corpus.  See Wolff v. McDonnell, 418 U.S. 539, 554 (1974); Preiser v. Rodriguez, 411 U.S. 475, 489-491 (1973).

[189] See Black’s Law Dictionary 131 (6th ed. 1990).

[190] United States v. Morgan, 346 U.S. at 502.

[191] See United States v. Holder, 936 F.2d 1, 5 (1st Cir. 1991); United States v. Ayala, 894 F.2d 425, 428 n.4 (D.C. Cir. 1990); United States v. Kimberlin, 675 F.2d 866, 869 (7th Cir. 1982).  However, the writ may not be employed in federal court to challenge a conviction when claims could be raised pursuant to 28 U.S.C. § 2255. United States v. Valdez-Pacheco, 237 F.3d 1077 (9th Cir. 2001).

[192] Salgado v. United States, 692 F. Supp. 1265 (E.D. Wa. 1988).

[193] Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003).

[194] Leon v. INS, 134 F.3d 1379 (9th Cir. 1998).

[195] United States v. Valdez-Pacheco, 237 F.3d 1077, 1079 (9th Cir. 2001); United States v. Fonseca‑Martinez, 36 F.3d 62, 63 (9th Cir. 1994).

[196] Beltran‑Leon v. INS, 134 F.3d 1379, 1380 (9th Cir. 1998).

Ninth Circuit

POST CON RELIEF - VEHICLES - AUDITA QUERELA
United States v. Gamboa, 608 F.3d 492 (9th Cir. Jun. 11, 2010) (district court lacked authority to consider writ of audita querela because the writ presented a claim regarding the legality of his sentence that was cognizable under 28 U.S.C. section 2255).