This rare, common law writ is described above.  See § 5.45, supra.  Even where the writ is granted in state court, however, 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.[324]  In Beltran-Leon v. INS,[325] 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.

 

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

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

Fifth Circuit

POST-CON - VEHICLES - AUDITA QUERELA
United States v. Miller, 599 F.3d 484 (5th Cir. Mar. 8, 2010) (the writ of audita querela can only be applied to rectify a judgment which, though correct when rendered, has since become infirm).