IJEOMA EJELONU, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF HOMELAND SECURITY, Respondent.
No. 01-3928
United States Court of Appeals for the Sixth Circuit
January 8, 2004
2004 FED App. 0009P (6th Cir.)
Before: BATCHELDER, MOORE, and CLAY, Circuit Judges.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206. Submitted: January 31, 2003.
ON BRIEF: Clement O. Ohuegbe, DENNING LAW FIRM PLCC, Dearborn, Michigan, for Petitioner. Ernesto H. Molina, Jr., David V. Bernal, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
CLAY, J., delivered the opinion of the court, in which MOORE, J., joined. BATCHELDER, J. (pp. 24-33), delivered a separate dissenting opinion.
CLAY, Circuit Judge. Petitioner is a gainfully employed legal immigrant in her early twenties who currently studies psychology at Wayne State University in Detroit, Michigan. By all accounts, Petitioner should be a citizen; but for the Immigration and Naturalization Service‘s (“INS‘s“) extended delay in processing Petitioner‘s citizenship application, the agency would have processed her application before Petitioner‘s eighteenth birthday and she would now in all likelihood be an American citizen. Petitioner was never convicted of any crime, her parents are citizens, her siblings are citizens, and her entire extended family resides in the United States. The Department of Homeland Security (“DHS“) seeks to deport her to Nigeria.
For the reasons that follow, we GRANT the petition and REMAND for further proceedings consistent with this decision.
FACTS
Born on May 24, 1979, in Otukpo, Nigeria, Petitioner legally immigrated to the United States at age six as a dependent under her parents’ student visa. Petitioner‘s parents, Chrissie and Nath Ejelonu, became naturalized American citizens on September 11, 1996. In October of 1996, Chrissie filed Applications for Certificates of Citizenship on behalf of Petitioner and her two younger sisters, Ogechi and Eze. Although DHS concedes Chrissie submitted complete applications, DHS (technically its predecessor, the INS), did not schedule an interview with Petitioner and her siblings until approximately ten months later, on August 18, 1997.
The INS subsequently made Ogechi and Eze citizens, but withheld citizenship from Petitioner because she turned eighteen after her mother filed her application but before the INS interview. At the time, the INS had the right under section 322(a) of the Immigration and Naturalization Act (“INA“) to require that a child seeking citizenship “is under the age of 18 and in the legal custody of the citizen parent.” See
Responding to this type of inequity, Congress enacted the Child Citizenship Act of 2000 (“CCA“), which automatically granted citizenship to most foreign-born children of American parents.1 See
Meanwhile, Petitioner graduated with honors from Northern High School in Pontiac, Michigan. Afterward, she began college at Wayne State University. Petitioner was active in Central United Methodist Church in Waterford, Michigan. She also assumed a large role in helping her parents care for Ogechi and Eze.
While in school, Petitioner held jobs at Office Depot and Hudson‘s department store. Working at Hudson‘s in the summer of 1998, at age seventeen, shе waited on a family that resided in her neighborhood. When it came time for the family to pay for its purchases, a family member asked Petitioner to accept a credit card number without the credit card. Although Petitioner knew this violated store policy, she acceded to the request. The family returned later in the week and Petitioner repeated the impropriety. Although Petitioner simply placed unwarranted trust in a neighborhood family, she never received any money or share of the stolen goods for permitting these transactions.
Youthful trainees generally receive probation, make restitution, perform community service, or commit to other measures designed to rehabilitate the Youthful Trainee. See
Someone, perhaps in the local police department, turned over the judicially-sealed Youthful Trainee record to the INS. On January 16, 2003, INS agents raided Petitioner‘s home, seized her by force, and initiated deportation proceedings.
PROCEDURAL HISTORY
For weeks, the INS held Petitioner in custody. She had no opportunity to contact her family. On February 20, 2000, the INS formally commenced removal proceedings against Petitioner by filing a Notice to Appеar with the Executive Office of Immigration Review. The Notice to Appear alleged that the INS could deport Petitioner for being convicted of two separate crimes involving moral turpitude, in violation of
Any alien who at any time after admission is convicted of two or more crimes of moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefore and regardless of whether the convictions were in a single trial, is deportable.
The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where—
(I) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
(ii) the judge has ordered some form of punishment, penalty or restraint on the alien‘s liberty to be imposed.
Petitioner filed a Notice of Appeal to the Board of Immigration Appeals (“BIA“) on September 7, 2000. On August 3, 2001, the BIA dismissed her appeal. Petitioner implores us to review that decision.
DISCUSSION
Our review of the BIA is somewhat limited because we must defer to its reasonable interpretation of the immigration statutes it administers. INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999). Petitioner‘s lackluster briefing also makes our review challenging. We recognize that Petitioner lacks the resources of the INS or, for that matter, the resources of an average American. As an immigrant, college student, and low-wage worker, Petitioner‘s financial and legal resources are probably quite limited.
Petitioner‘s counsel initially requests that we use our equitable authority to grant Petitioner‘s citizenship, although two Supreme Court decisions prohibit us from taking that step. See INS v. Pangilinan, 486 U.S. 875, 883-84 (1988); Fedorenko v. United States, 499 U.S. 490, 517 (1981). Petitioner would also like us to review the BIA‘s decision de novo, but Chevron, USA v. Natural Resources Defense Council, 467 U.S. 837, 842 (1984), prevents this, as do
We can still confidently draw two conclusions: (1) Petitioner wants us to halt her deportation; and (2) Petitioner suggests that we use our equitable power to do so. (See Pet‘r Br. at 25-26.) We can therefore properly construe her pleading as a request for a writ of audita querela.
I.
“The common-law writ of audita querela is a remedy granted in favor of one against whom execution has issued or is about to issue on a judgment the enforcement of which would be contrary to justice, either because of matters arising subsequent to its rendition, or because of prior existing defenses that were not available to the judgment debtor in the original action because of the judgment creditor‘s fraudulent conduct or through circumstances over which the judgment debtor had no control.” 7 AM. JUR. 2d, Audita Querela § 1, at 432 (1997). We note that writs of audita querela and coram nobis are similar, but legally distinct. As one court explained:
It was said that ‘We see but little distinction between the writ of coram nobis and that of audita querela.’ The technical distinction is that coram nobis attacks the judgment itself, whereas audita querela may be directed against the enforcement, or further enforcement, of a judgment which when rendered was just and unimpeachable.
Balsley v. Commonwealth, 428 S.W.2d 614, 616 (Ky. 1967) (quoting Robertson v. Commonwealth, 132 S.W.2d 69, 71 (1939), overruled on other grounds, Commonwealth v. Hale, 965 S.W.3d 24 (Ky. 2003). Put differently, coram nobis
Although the writ is rarely used, courts have issued writs of audita querela in immigration cases similar to this one. See, e.g., United States v. Khalaf, 116 F. Supp. 2d 210, 217 (D. Mass. 1999); United States v. Selgado, 692 F. Supp. 1265, 1269 (E.D. Wash. 1988); United States v. Ghebreziabher, 701 F. Supp. 115, 117 (E.D. La. 1988); United States v. Haro, CR No. 85-00612 WJR (C.D. Cal. May 30, 1990) (unpublished ordеr); United States v. Louder, Cr. No. 82-1084 (WWE) (D. Conn. May 1, 1999) (unpublished order); see also 105 ALR Fed 880, George C. Sarno, Availability and Appropriateness of Audita Querela Relief in Connection With Immigration and Naturalization Proceedings (1991).
II.
From the outset, we note that the writ of audita querela survives in certain instances despite the 1946 amendments to the Federal Rules of Civil Procedure, which partly abolished several common law writs including coram nobis and audita querela.2 Despite the 1946 amendments, the Supreme Court held in United States v. Morgan, 346 U.S. 502 (1954), that courts still have authority to issue writs of coram nobis in collateral criminal proceedings. Id. at 506-510. The Morgan Court initially noted that Rule 60(b) governs only civil proceedings.3 Id. at 505 n.4. The Court also expressly rejected the argument that the federal habeas statute,
III.
As an infrequently used remedy, modern courts have struggled to define the scope of the writ. In fact, the Advisory Committee notes to
According to its ancient precepts, the writ of audita querela was invented to afford relief in behalf of one against whom execution had been issuеd or was about to be issued upon a judgment, which it would be contrary to justice to allow to be enforced, because of matters arising subsequent to the rendition thereof.
Oliver v. City of Shattuck ex rel. Versluis, 157 F.2d 150, 153 (10th Cir. 1946) (collecting cases). Other sister circuits to have considered the issue have held that a writ of audita querela cannot provide purely equitable relief, but can issue only when the petitioner demonstrates a legal defect in the underlying proceedings. See, e.g., Doe v. INS, 120 F.3d at 203-04; United States v. LaPlante, 57 F.3d 252, 253 (2d Cir. 1995); Johnson, 962 F.2d at 582; Holder, 936 F.2d at 5; Reyes, 945 F.2d at 866.
Ayala never mentions the definition of audita querela provided in Oliver, 157 F.2d at 153. See Ayala, 894 F.2d at 425. The D.C. Circuit cites Humphreys v. Leggett, 50 U.S. (9 How.) 297, 314 (1850), for its sweeping conclusion that “because the so-called ‘pure equity’ variant of audita querela finds no support in the historical definition of the writ, the authority of the federal courts to use it as a[n] [equitable] ‘gap filler’ under the All Writs Act is open to serious doubt.” Ayala, 894 F.2d at 429 n.6. Humphreys is not particularly helpful to Ayala‘s conclusion. According to Humphreys, a writ of audita querela is:
‘a writ,’ it is said, ‘of a most remedial nature, and invented lest in any case there should be an oppressive defect of justice, where a party who has a good defence is too late in making it in the ordinary forms of law‘; and although it is said to be in its nature a bill in equity, yet, in modern practice, courts of law usually afford the same remedy on motion in a summary way. The practice in Mississippi seems to prefer a bill in equity for the same purpose.
And courts of equity usually grant a remedy by injunction against a judgment at law, upon the same principles. In Truly v. Wanzer, 5 Howard, 142, this court say,--‘It may be stated as a general principle with regard to injunctions after a judgment at law, that any fact which proves it to be against consciеnce to execute such judgment, and of which the party could not have availed himself in a court of law, or of which he might have availed himself at law, but was prevented by fraud or accident, unmixed with any fault or negligence in himself or his agents, will authorize a court of equity to interfere by injunction to restrain the adverse party from availing himself of such judgment.’ (See also Story, Eq. Jur. § 887.)
Humphreys, 50 U.S. (9 How.) at 313 (emphasis added). Thus, according to the Supreme Court, “[i]t may be stated as a general principle with regard to injunctions after a judgment at law [writs of audita querela], that any fact which proves it to be against conscience to execute such judgment, and of which the party could not have availed himself in a court of law.” Id. (quotation omitted).
Although the Humphreys Court granted relief because the petitioner was “in the same condition as if the defense had arisen after judgment, which would entitle him to relief by audita querela,” the Humphreys Court never held that a new legal defense against an old judgment provided the only basis for audita querela relief. In fact, the Court made clear that a petitioner may receive a writ of audita querela when the petitioner can show that some fact that “proves it to be against conscience to execute such [a] judgment,” and which the party could not have previously raised. Humphreys, 50 U.S. (9 How.) at 313.
Apparently, the only modern academic to conduct thorough historical research into audita querela‘s common law origins, Professor Robins, found Ayala “flawed” because “[r]equiring that there be a legal objection to the conviction deviates from
We similarly reject the dramatically narrow historical analysis upon which Ayala and its progeny depend. Early scholarly commentary on audita querela strongly indicates the writ‘s equitable nature. Historian William Holdsworth argued that audita querela is of “essentially equitable character.” 1 WILLIAM S. HOLDSWORTH, A HISTORY OF ENGLISH LAW 224 (3d ed. 1922). Holdsworth cited Judge Stonor of King Edward III‘s reign, who stated, “I tell you plainly that Audita Querela is given rather by equity than by common law, for quite recently there was no such suit.” See 2 WILLIAM S. HOLDSWORTH, A HISTORY OF ENGLISH LAW 593 (1922). Significantly, Holdsworth also relied upon Blackstone‘s Commentaries, which described audita querela as “in the nature of a bill in equity, to be relieved against the oppression of the plaintiff.” 1 HOLDSWORTH, supra, at 224 (citing 3 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 406 (William D. Lewis ed. 1900)). According to Holdsworth, the development of audita querela demonstrates that lawyers at the time “were not indifferent to the claims of abstract justice.” 2 HOLDSWORTH, supra, at 593. Thus, Holdsworth “argued that audita querela was a method used to provide relief when the equities suggested it should be granted.” Robins, supra, at 650.
Early state cases support the Tenth Circuit‘s position, and what Ayala terms the “pure equity” approach to audita querela better reflects the writ‘s common law origins. As a general matter, these early decisions rely on Blackstone, whom Holdsworth used to conclude that audita querela is of “essentially equitable character,” 1 Holdsworth, supra, at
As the aforementioned authority establishes, the Ayala court was incorrect when it concluded that the “‘pure equity’ variant of audita querela finds no support in the historical definition of the writ.” Ayala, 894 F.2d at 429. Ayala relies on Humphreys, but Humphreys supports the idea that courts may issue the writ when it “proves to be against conscience to execute [a] judgment.” Humphreys, 50 U.S. (9 How.) at 313. Nothing in Humphreys requires courts to find a legal error in the original judgment. Worse, Ayala contends that the “‘pure equity’ variant of audita querela finds no support in the historical definition of the writ,” Ayala, 894 F.2d at 429, without acknowledging the Tenth Circuit‘s opinion in Oliver, which collected a series of relevant cases and held that “[a]ccording to its ancient precepts, the writ of audita querela was invented to afford relief in behalf of one against whom execution had been issued . . . which it would be contrary to justice to allow to be enforced, because of matters arising subsequent to the rendition thereof.” Oliver, 157 F.2d at 153 (emphasis added).5 We adopt the conclusions of the Tenth Circuit, Blackstone, the eminent historian Holdsworth, and Professor Robins, and therefore find that we may mitigate a judgment‘s collateral consequences through a writ of audita
IV.
Consistent with this conclusion, several courts have granted writs of audita querela to mitigate the collateral consequences of an earlier criminal conviction when failing to do so would have produced an unconscionable result. In Selgado, for instance, the petitioner received a writ of audita querela to stop his deportation based on a twenty-four-year-old guilty plea to a marijuana offense. Id. at 1266. Selgado originally immigrated in 1939. Following his conviction, Selgado voluntarily left the country for five years, reentered in 1969, and lived as a productive member of society for the decades following his conviction. Id. When he applied for Social Security benefits in 1984, the INS discovered it should have deported him. Id.
Selgado argued that he received ineffective assistance of counsel in the original 1964 proceeding because his lawyer did not inform him of the immigration consequences of his guilty plea.6 Id. at 1267. The court, however, rejected this contention along with several other legal аrguments, and found no legal error had occurred. Instead, the court noted that:
considering that no single [legal] factor of those arrayed above would warrant granting the [writ of audita querela], the Court is left with the unmistakable impression that under the totality of the circumstances, it would be a gross injustice to allow this man, who has by all accounts been a model resident for forty-five years save for a single period of unlawful conduct, to effectively serve a life sentence, and for his family to be
deprived of benefits from a fund he has paid into throughout his life.
Id. at 1268. The court also recognized a potential objection:
There may be those with a more callous view of life who might conclude that Mr. Selgado has nothing to complain about. It is undisputed that he committed the crime charged, and he paid the reasonably foreseeable penalty of deportation. Some might say that his continuing enjoyment of life in the United States between 1969 and the present was a serendipitous happenstance which accrued to his benefit and which created no cognizable expectation of entitlement to remain indefinitely. The Court cannot subscribe to such a hardened approach.
Id. at 1271. For these purely equitable reasons, the Selgado court issued a writ of audita querela on the petitioner‘s behalf. Id.
In United States v. Ghebreziabher, 701 F. Supp. 115 (E.D. La. 1988) a court granted audita querela relief for similar reasons. Ghebreziabher involved an Ethiopian native who entered the United States in 1979. Id. at 116. Ghebreziabher initially worked in a shipyard before starting his own successful business and purchasing a home. Id. He also married and had four children. Id. In 1987, however, he pleaded guilty to three misdemeanor counts of food stamp trafficking. Id. Ghebreziabher had accepted food stamps in exchange for $220 worth of merchandise without authorization. Id. Ghebreziabher received probation and had to repay the $220.
Despite the government‘s arguments in support of Ghebreziabher‘s deportation, the court relied on various equitable considerations to reach a different outcome:
Mr. Ghrebreziabher has been an industrious member of this community for almost ten years. He has four United
States citizen children who will be deprived of his support if he should be deported. He has realized the American dream, owning his own home, and has reduced the mortgage on it from $58,500.00 to $33,000.00 in approximately 6 years. Except for these 3 incidents, he has no convictions. His former employer, а subsidiary of a shipyard where he worked as a carpenter and joiner, thought well of him and found him to be hard-working. The political climate of Ethiopia is another consideration. The State Department has designated Ethiopia as a country of voluntary departure since 1982 due to its internal strife. Since the defendant had to escape from the country initially, the future for Mr. Ghebreziabher there appears to be foreboding. It is also likely that his family will suffer tremendously should he be deported and removed from the home.
Id. at 117. On this basis, the court found it “in the interests of justice” to issue a writ of audita querela. Id. Selgado and Ghebreziabher help further establish audita querela‘s equitable character and its utility in immigration proceedings.7
V.
We have no trouble concluding that the equities in this case overwhelmingly favor Petitioner—not just to the point where a reasonable person might sympathize with her plight, but to extent that to deport her under such circumstances would shock the conscience.
First, Petitioner would be a citizen if the INS had acted in a timely fashion, which would render her undeportable regardless of her Youthful Trainee status. Petitioner‘s mother filed the necessary paperwork on time, and Petitioner met the statutory criteria for citizenship. Had the INS not waited a year to interview Petitioner, Petitioner would have become a citizen and these deportation proceedings could not have occurred. The government‘s conduct is sine qua non of Petitioner‘s current predicament.
Second, by passing the CCA, Congress established that the United States would no longer deport individuals for minor youthful infractions when the individual should have received citizenship. See
For whatever reason, the INS vehemently opposed the CCA. See Statement of Gerri Ratliff, Director, Business Process & Re-Engineering Services and Acting Director, Office of Congressional Relations, Immigration and Naturalization Service, “Adopted Orphans Citizenship Act and Anti-Atrocity Alien Deportation Act,” Hearing Before the Subcommittee on Immigration and Claims of the Committee on the Judiciary, 106th CONG., 1ST SESS. (Feb. 17, 2000), at 11 (arguing against the proposed legislation).
Congress ignored the INS. As Congressman Sam Gejdenson explained during the debate over the CCA, “[t]here are tragic cases where children of U.S. parents, never naturalized because of inadvertence, are facing deportation because of a crime they have committed. While these children must face their punishment, to deport them to countries with which they have no contact . . . is needlessly cruel.” 146 CONG. REC. H7774, H7778 (Sept. 19, 2000). Representative Bill Delahunt agreed: “No one condonеs criminal acts . . . but the terrible price these young people and their families have paid is out of proportion to their misdeeds.” 146 CONG. REC. H7774, H7777 (Sept. 19, 2000).
To whatever extent DHS feels it has an obligation to carry out Congressional policy embodied in old immigration law, Congress has changed the rules so that juvenile offenders in Petitioner‘s position no longer face draconian consequences because the INS unreasonably delayed processing a citizenship request. DHS now (in 2003) seeks to perpetuate a problem Congress acted to eliminate in 2000.
Third, this entire proceeding is founded upon illegally obtained evidence. As noted, the court sealed the proceedings that occurred pursuant to the Holmes Youthful Trainee Act. See
Fourth, although Petitioner did not receive legally ineffective assistance of counsel, her counsel never informed her that accepting Youthful Trainee status would have serious immigration consequences. Counsel should always make clients aware of any possible serious collateral consequences to a judgment. Had Petitioner knоwn that acquiescing to Youthful Trainee status would make her deportable, it seems likely she would have pleaded not guilty and fought the charges. Michigan law does not have a mandatory minimum penalty for violating
Finally, equity demands a writ of audita querela to avoid a punishment grossly disproportionate to the offense. DHS proposes that, as a consequence of two minor juvenile thefts, Petitioner should serve what amounts to a life sentence in an underdeveloped, impoverished country. Petitioner has no
Audita querela is appropriate because it would be “contrary to justice,” Oliver, 157 F.2d at 153, to allow the collateral consequences of Petitioner‘s Youthful Trainee status to justify her deportation.
VI.
Before concluding, we wish to stress a few points about our decision or, more precisely, to emphasize what we have not done. We have not granted Petitioner‘s request for citizenship. She is not currently a citizen, and this decision does not make her one or otherwise affect her status in that regard.
Additionally, we note that our narrow mandate raises neither separation-of-powers problems nor federalism concerns. One of the circuit decisions following Ayala claimed that “[f]or a court to vacate a final conviction solely because the defendant faces deportation” would violate the separation of powers. Doe v. INS, 120 F.3d at 204. This view is seriously mistaken because, as discussed above, audita querela does not vacate judgments, but the collateral consequences of judgments. If Congress dislikes what we have done, it can prohibit courts from issuing writs of audita querela with respect to the collateral consequences of criminal convictions just as Congress terminated the judiciary‘s ability to issue such writs in ordinary civil proceedings by implementing
Likewise, any federalism concern one might raise about this decision is unwarranted. When someone seeks to attack the validity of his state conviction or the duration of his state
Finally, we have not created some new easy means to object to deportation. Audita querela is an equitable remedy reserved only for the most extreme cases. Although our decision is not necessarily limited to the facts of this case, this holding will not support relief if deportation is either not unconscionable or where DHS can articulate any legitimate reason for its decision to deport.
CONCLUSION
For the aforementioned reasons, we GRANT Petitioner‘s request for a writ of audita querela. The writ prohibits DHS from using Petitioner‘s Youthful Trainee status to demonstrate Petitioner‘s statutory eligibility for deportation as long as Petitioner completes her obligations under the Holmes Youthful Trainee Act. We REMAND for further proceedings consistent with this opinion.
ALICE M. BATCHELDER, Circuit Judge, dissenting. I respectfully dissent. Although, like the majority, I am sympathetic to Ijeoma Ejelonu‘s plight, I cannot join with the Court‘s use of an extraordinary writ that was never sought by Ejelonu nor briefed by any of the parties in this case. It is not proper for this Court to construe Ejelonu‘s pleading as a request for a writ of audita querela, and had she in fact requested such relief, it would not be proper for this Court to grant it.
I.
The facts of this case are indeed troubling. As the majority points out, had the INS acted in a timely fashion, Ejelonu would be a citizen and would not be deportable regardless of her having committed these offenses. And deporting Ejelonu because she committed these offenses seems unduly harsh—she has no known relatives remaining in Nigeria, and has not lived there herself since she was a child. Unlike the majority, however, I do not assume that the information upon which the deportation proceedings are based necessarily was obtained in violation of a court order or by any nefarious means.
Ejelonu is before this Court on appeal from an order of the Board of Immigration Appeals (“BIA“) dismissing her appeal of an Immigration Judge‘s (“IJ“) order of removal. The INS began removal proceedings in February 2000 after Ejelonu pleaded guilty to two counts of embezzlement. After Ejelonu moved to terminate the removal proceedings, the IJ concluded that Ejelonu was not a citizen of the United States and that she had been convicted of two separate crimes of moral turpitude. Ejelonu appealed this decision to the BIA, which dismissed the appeal and found Ejelonu removable under the Immigration and Naturalization Act.
Ejelonu has raised only two issues before this Court. First, she contends that the BIA erred in holding that her guilty plea entered under the
Ejelonu did not meet the statutory requirement for citizenship because she was not under the age of eighteen when the INS adjudicated her mother‘s application on her behalf. See
Congress has defined the term “conviction,” with respect to an alien, as “a formal judgment of guilt of the alien entered by a court or [] where - (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere [] , and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien‘s liberty to be imposed.”
II.
Dissatisfied with the result dictated by Ejelonu‘s inability to succeed on the claims that she did raise, the majority now sua sponte decides that Ejelonu in fact petitioned this Court for a writ of audita querela. There is no support for this conclusion in Ejelonu‘s Petition for Review or in any of the parties’ briefs. Ejelonu did not request a writ of audita querela, or any other writ, for that matter. The government, understandably failing to divine the possibility that the majority of this panel would conjure up an extraordinary, out-of-use writ to reach the end it seeks, had no opportunity whatsoever to brief or otherwise address the issuance of such
If Ejelonu had in fact requested a writ of audita querela, it would be improper for this Court to grant one. Congress prohibited the federal courts from using the writ in civil cases in the 1940s. See
[It] is a writ of a most remedial nature, and seems to have been invented, lest in any case there should be an oppressive defect of justice, where a party has a good defence, but by the ordinary forms of law had no opportunity to make it. But the indulgence now shown by the courts in granting a summary relief upon motion, in cases of such evident oppression, has almost rendered useless the writ of audita querela, and driven it quite out of practice.
3 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 405 (William D. Lewis ed. 1900).
Rule 60(b) clearly applies to this appeal from an order of the BIA, which is a civil matter, and not, as the majority seems to imply, “a criminal proceeding.” As the Supreme Court itself has noted, “[a] deportation proceeding is a purely civil action to determine eligibility to remain in this country.” INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984).
According to Black‘s Law Dictionary, a writ of audita querela is “a common law writ constituting the initial process in an action brought by a judgment defendant to obtain relief against the consequences of the judgment on account of some matter of defense or discharge arising since its rendition and which сould not have been taken advantage of otherwise.” BLACK‘S LAW DICTIONARY 120 (spec. 5th ed. 1979) (emphasis added); see also, Reyes, 945 F.2d at 863 n.1 (same). The other circuits that have considered the writ could not have been more clear in their findings. “[T]he writ of audita querela does not and cannot, under any stretch of the imagination, provide a purely equitable basis for relief independent of any legal defect in the underlying judgment.” Holder, 936 F.2d at 3.
Nonetheless, in the present case, the majority relies solely on its appeal to equity to grant the “requested” relief. The majority acknowledges there was no legal defect in the underlying proceedings, and fails to cite to any subsequent fact or defense, arising after judgment, that Ejelonu could not have previously raised. The majority instead relies upon the writings of one law professor, as well as selected quotes from William Blackstone and historian William Holdsworth for the proposition that the writ is of “essentially equitable character.” From there the majority concludes that granting a writ of audita querela is appropriate in the present case because it would be “contrary to justice” to do otherwise.
The majority‘s reasoning is specious. The proposition that the writ has a basis in equity does not support the conclusion that it can or should be granted to prevent a perceived injustice. Although the majority frequently quotes Blackstone, it fails to note that Blackstone himself emphasized that one seeking the writ must show a postjudgment contingency supplying a “matter of discharge” or “defense.” 3 WILLIAM BLACKSTONE, COMMENTARIES ON THE
Nor is the case law employed by the majority persuasive. The majоrity gives particular weight to the Tenth Circuit‘s decision in Oliver v. City of Shattuck ex rel. Versluis, 157 F.2d 150 (10th Cir. 1946), a case that pre-dated and helped to prompt the 1946 amendments to Rule 60(b) that abolished audita querela and similar writs. See Ira P. Robins, The Revitalization of the Common-Law Civil Writ of Audita Querela as a Postconviction Remedy in Criminal Cases: The Immigration Context and Beyond, 6 GEO. IMMIGR. L.J. 643, 660 (1992) (“As a result of Oliver and other Rule 60(b) cases, audita querela and corum nobis clearly still existed as civil remedies . . . . The advisory committee reacted to this development by amending Rule 60 in 1946.“) (citations omitted). Even Oliver, moreover, stated that the writ was invented to afford relief to “one against whom execution had been issued or was about to be issued upon a judgment, which it would be contrary to justice to allow to be enforced, because of matters arising subsequent to the rendition thereof.” Oliver, 157 F.2d at 153 (emphasis added).
This defect in reasoning is not cured by the curious argument in the majority‘s footnote 5 that “the removal proceeding against Petitioner under
The majority relies upon two district court cases, United States v. Salgado, 692 F. Supp. 1265 (E.D. Wash. 1988), and United States v. Ghebreziabher, 701 F. Supp. 115 (E.D. La. 1988), as examples of courts’ granting writs of audita querela for purely equitable reasons, “to mitigate the collateral consequences of an earlier criminal conviction when failing to do so would have produced an unconscionable result.” The majority‘s reliance on these cases is severely misplaced. Salgado and Ghebreziabher have been widely and, until today, uniformly criticized by each circuit that has considered this issue. Neither case represents the law of the land in its own circuit. See Doe, 120 F.3d at 203 (finding that ”Salgado and Ghebreziabher were mistaken, as a historical matter, in their conclusion that audita querela furnishes a purely ‘equitable’ basis for relief independent of any legal defect in
Having sua sponte granted the writ, the majority opinion anticipatorily repudiates the well-deserved charge that the granting of this writ raises separation of powers concerns, protesting that “[i]f Congress dislikes what we have done, it can prohibit courts from issuing writs of audita querela with respect to the collateral consequences of criminal convictions just as Congress terminated the judiciary‘s ability to issue such writs in ordinary civil proceedings by implementing
III.
I do not want to see Ejelonu deported. If the majority opinion represented a legitimate means by which to overturn the BIA‘s deportation order, I could—and would—join it without hesitation. It doesn‘t, and I can‘t. The writ of audita querela, which Congress has explicitly abolished in civil proceedings, cannot provide any legal basis for relief in this case. Today‘s majority, by sua sponte granting this writ, intrudes upon the power of Congress to set naturalization and deportation standards and the power of the Department of Homeland Security to administer those standards in each individual case. “Absent a clearer statutory or historical basis, an Article III court should not arrogate such power unto itself.” Reyes, 945 F.2d at 866.
For the foregoing reasons, I respectfully dissent.