Ejelonu v. INS

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 8, 2004
• Docket: 01-3928
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Ejelonu v. INS No. 01-3928 ELECTRONIC CITATION: 2004 FED App. 0009P (6th Cir.) File Name: 04a0009p.06 DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. UNITED STATES COURT OF APPEALS CLAY, J., delivered the opinion of the court, in which MOORE, J., joined. BATCHELDER, J. (pp. 24-33), FOR THE SIXTH CIRCUIT delivered a separate dissenting opinion. _________________ _________________ IJEOMA EJELONU , X OPINION Petitioner, - _________________ - - No. 01-3928 v. 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. IMMIGRATION AND - By all accounts, Petitioner should be a citizen; but for the NATURALIZATION SERVICE, - Immigration and Naturalization Service’s (“INS’s”) extended DEPARTMENT OF HOMELAND - delay in processing Petitioner’s citizenship application, the SECURITY, - agency would have processed her application before Respondent. - Petitioner’s eighteenth birthday and she would now in all - likelihood be an American citizen. Petitioner was never N convicted of any crime, her parents are citizens, her siblings On Appeal from the Board of Immigration Appeals. are citizens, and her entire extended family resides in the No. A76 971 785. United States. The Department of Homeland Security (“DHS”) seeks to deport her to Nigeria. Submitted: January 31, 2003 For the reasons that follow, we GRANT the petition and Decided and Filed: January 8, 2004 REMAND for further proceedings consistent with this decision. Before: BATCHELDER, MOORE, and CLAY, Circuit Judges. FACTS

_________________ Born on May 24, 1979, in Otukpo, Nigeria, Petitioner legally immigrated to the United States at age six as a COUNSEL dependent under her parents’ student visa. Petitioner’s parents, Chrissie and Nath Ejelonu, became naturalized ON BRIEF: Clement O. Ohuegbe, DENNING LAW FIRM American citizens on September 11, 1996. In October of PLCC, Dearborn, Michigan, for Petitioner. Ernesto H. 1996, Chrissie filed Applications for Certificates of Molina, Jr., David V. Bernal, UNITED STATES Citizenship on behalf of Petitioner and her two younger

1 No. 01-3928 Ejelonu v. INS 3 4 Ejelonu v. INS No. 01-3928

sisters, Ogechi and Eze. Although DHS concedes Chrissie at 8 U.S.C. § 1431 (2001). Without the benefit of this submitted complete applications, DHS (technically its legislation, Chrissie filed a Petition for Relative Alien and an predecessor, the INS), did not schedule an interview with Adjustment of Status petition to avoid Petitioner’s Petitioner and her siblings until approximately ten months deportation. Chrissie did not withdraw Petitioner’s request later, on August 18, 1997. for citizenship, which remains pending before DHS. The INS subsequently made Ogechi and Eze citizens, but Meanwhile, Petitioner graduated with honors from withheld citizenship from Petitioner because she turned Northern High School in Pontiac, Michigan. Afterward, she eighteen after her mother filed her application but before the began college at Wayne State University. Petitioner was INS interview. At the time, the INS had the right under active in Central United Methodist Church in Waterford, section 322(a) of the Immigration and Naturalization Act Michigan. She also assumed a large role in helping her (“INA”) to require that a child seeking citizenship “is under parents care for Ogechi and Eze. the age of 18 and in the legal custody of the citizen parent.” See 8 U.S.C. § 1433(a) (2000) (emphasis added); see also While in school, Petitioner held jobs at Office Depot and 8 C.F.R. 322.2(a)(3) (2000) (reiterating the same rule). Since Hudson’s department store. Working at Hudson’s in the Petitioner was no longer under age eighteen when the INS summer of 1998, at age seventeen, she waited on a family that decided her application (as opposed to when her mother filed resided in her neighborhood. When it came time for the it on her behalf), the INS refused Petitioner’s request for family to pay for its purchases, a family member asked citizenship and warned her that it would begin deportation Petitioner to accept a credit card number without the credit proceedings. card. Although Petitioner knew this violated store policy, she acceded to the request. The family returned later in the week Responding to this type of inequity, Congress enacted the and Petitioner repeated the impropriety. Although Petitioner Child Citizenship Act of 2000 (“CCA”), which automatically simply placed unwarranted trust in a neighborhood family, granted citizenship to most foreign-born children of American she never received any money or share of the stolen goods for parents.1 See Pub. L. No. 106-395, 114 Stat. 1631, codified permitting these transactions.

1 As Congressman Bill Delahunt explained during the debate over the alien at the age of 25 for pro perty offenses that he had CCA: committed when he was a teenager.

[T]his bill wo uld avoid some heartbreaking injustices that have One may ask how this could happen. The Gauls had obtained an sometimes tragically occurred. Some parents have discovered to American birth certificate for John shortly after ado pting him their horror that their failure to comple te the paperwork in time and did not realize until he applied for a passport at age 17 that can result in their forced separation from their children under the he had never been naturalized. They immediately filed the summary deportation provisions Congress enacted back in 1996. papers; but du e to INS delays, his application was not processed before he turned 18. An immigration judge ruled that the agency That was the experience of the Gaul family of Florida who had taken too long to process the application, but that did not adopted their son John at the age of 4. Though he was born in make any difference. The1996 law allowed him no discretion to Thailand, he spe aks no Thai, has no Thai relatives, knows halt the depo rtation. A t least that is ho w the IN S interp reted it. nothing of Thai culture and has never been back to Thailand, until the U.S. Government deported him last year as a criminal 146 C O N G . R EC . H7774 , H7777 (Sept. 19, 2000). No. 01-3928 Ejelonu v. INS 5 6 Ejelonu v. INS No. 01-3928

Hudson’s captured the incidents on its security cameras. Petitioner took advantage of this opportunity. On On December 3, 1998, police arrested Petitioner and charged January 4, 1999, the court placed her on probation and her with two counts of Embezzlement by an Agent or Trustee required her to make restitution. Pursuant to M.C.L. of Over $100, in violation of M.C.L. § 750.174. Michigan § 726.13, the court sealed the record of all proceedings has established a rehabilitation-oriented legal framework to involving Petitioner. She immediately began searching for a handle precisely this type of juvenile misconduct. Known as new job, and found one at the Crittenton Hospital in the Holmes Youthful Trainee Act (“HYTA”), M.C.L. Rochester, Michigan. She would never begin work. §§ 762.11-14, the HYTA provides that “[i]f an individual pleads guilty to a charge of a criminal offense . . . committed Someone, perhaps in the local police department, turned on or after the individual’s seventeenth birthday but before his over the judicially-sealed Youthful Trainee record to the INS. twenty-first birthday,” the court has the authority to “assign On January 16, 2003, INS agents raided Petitioner’s home, that individual to the status of youthful trainee,” and to do so seized her by force, and initiated deportation proceedings. “without entering a judgment of conviction.” M.C.L. § 762.11 (emphasis added); see also United States v. LeBlanc, PROCEDURAL HISTORY 612 F.2d 1012, 1013 (6th Cir. 1980) (“The appellant’s assignment to ‘youthful trainee’ status was made pursuant to For weeks, the INS held Petitioner in custody. She had no the Holmes Youthful Trainee Act. Such an assignment does opportunity to contact her family. On February 20, 2000, the not constitute conviction of a crime within the meaning of INS formally commenced removal proceedings against Rule 609, Federal Rules of Evidence.”) (citation omitted). Petitioner by filing a Notice to Appear with the Executive Office of Immigration Review. The Notice to Appear alleged Youthful trainees generally receive probation, make that the INS could deport Petitioner for being convicted of restitution, perform community service, or commit to other two separate crimes involving moral turpitude, in violation of measures designed to rehabilitate the Youthful Trainee. See 8 U.S.C. § 1227(a)(2)(A)(ii). INA § 237(a)(2)(A)(ii) M.C.L. § 762.13. As one court explained, “[t]he Holmes provides: Youthful Trainee Act constitutes remedial legislation designed to alleviate problems with young offenders by Any alien who at any time after admission is convicted permitting the use of rehabilitation procedures prior to of two or more crimes of moral turpitude, not arising out conviction.” People v. Perkins, 309 N.W.2d 634, 636 (Mich. of a single scheme of criminal misconduct, regardless of Ct. App. 1981) (emphasis added). “Once compliance is whether confined therefore and regardless of whether the achieved, a youthful trainee will not be deemed convicted of convictions were in a single trial, is deportable. a crime and proceedings regarding the disposition of the criminal charge will be closed to public inspection.” People 8 U.S.C. § 1227(a)(2)(A)(ii). The INA also defines v. Bobek, 553 N.W.2d 18, 21 (Mich. Ct. App. 1996) conviction: (emphasis added). Thus, the Michigan legislature intended The term “conviction” means, with respect to an alien, a the HYTA to allow youthful offenders a chance at formal judgment of guilt of the alien entered by a court rehabilitation without having to face the lifelong or, if adjudication of guilt has been withheld, where— consequences of a criminal conviction. No. 01-3928 Ejelonu v. INS 7 8 Ejelonu v. INS No. 01-3928

(I) a judge or jury has found the alien guilty or the subsequent decisions like Aguirre-Aguirre, 526 U.S. at 424. alien has entered a plea of guilty or nolo Petitioner also raises a litany of other disorganized concerns, contendere or has admitted sufficient facts to including a highly unclear equal protection claim and possibly warrant a finding of guilt, and a substantive due process issue as well. (ii) the judge has ordered some form of We can still confidently draw two conclusions: punishment, penalty or restraint on the alien’s (1) Petitioner wants us to halt her deportation; and liberty to be imposed. (2) Petitioner suggests that we use our equitable power to do so. (See Pet’r Br. at 25-26.) We can therefore properly 8 U.S.C. § 1101(a)(48)(A). Since Petitioner admitted her construe her pleading as a request for a writ of audita querela. mistake and received probation and restitution obligations (restraints on her liberty), an immigration judge found Petitioner deportable on August 15, 2000. I. Petitioner filed a Notice of Appeal to the Board of “The common-law writ of audita querela is a remedy Immigration Appeals (“BIA”) on September 7, 2000. On granted in favor of one against whom execution has issued or August 3, 2001, the BIA dismissed her appeal. Petitioner is about to issue on a judgment the enforcement of which implores us to review that decision. would be contrary to justice, either because of matters arising subsequent to its rendition, or because of prior existing DISCUSSION defenses that were not available to the judgment debtor in the original action because of the judgment creditor’s fraudulent Our review of the BIA is somewhat limited because we conduct or through circumstances over which the judgment must defer to its reasonable interpretation of the immigration debtor had no control.” 7 AM . JUR. 2d, Audita Querela § 1, statutes it administers. INS v. Aguirre-Aguirre, 526 U.S. 415, at 432 (1997). We note that writs of audita querela and 424 (1999). Petitioner’s lackluster briefing also makes our coram nobis are similar, but legally distinct. As one court review challenging. We recognize that Petitioner lacks the explained: resources of the INS or, for that matter, the resources of an average American. As an immigrant, college student, and It was said that 'We see but little distinction between the low-wage worker, Petitioner’s financial and legal resources writ of coram nobis and that of audita querela.' The are probably quite limited. technical distinction is that coram nobis attacks the judgment itself, whereas audita querela may be directed Petitioner’s counsel initially requests that we use our against the enforcement, or further enforcement, of a equitable authority to grant Petitioner’s citizenship, although judgment which when rendered was just and two Supreme Court decisions prohibit us from taking that unimpeachable. step. See INS v. Pangilinan, 486 U.S. 875, 883-84 (1988); Fedorenko v. United States, 499 U.S. 490, 517 (1981). Balsley v. Commonwealth, 428 S.W.2d 614, 616 (Ky. 1967) Petitioner would also like us to review the BIA’s decision de (quoting Robertson v. Commonwealth, 132 S.W.2d 69, 71 novo, but Chevron, USA v. Natural Resources Defense (1939), overruled on other grounds, Commonwealth v. Hale, Council, 467 U.S. 837, 842 (1984), prevents this, as do 965 S.W.3d 24 (Ky. 2003). Put differently, coram nobis No. 01-3928 Ejelonu v. INS 9 10 Ejelonu v. INS No. 01-3928

attacks the judgment itself, whereas audita querela attacks the writs in criminal proceedings. Id. at 511. According to the consequences of the judgment. D.C. Circuit, “[t]he teaching of Morgan is that federal courts may properly fill the interstices of the federal postconviction Although the writ is rarely used, courts have issued writs of remedial framework through remedies available at common audita querela in immigration cases similar to this one. See, law.” United States v. Ayala, 894 F.2d 425, 428 (D.C. Cir. e.g., United States v. Khalaf, 116 F. Supp. 2d 210, 217 (D. 1990). For this reason, despite their seemingly anachronistic Mass. 1999); United States v. Selgado, 692 F. Supp. 1265, qualities, federal courts still have the authority to grant writs 1269 (E.D. Wash. 1988); United States v. Ghebreziabher, 701 of audita querela, generally pursuant to the All Writs Act, F. Supp. 115, 117 (E.D. La. 1988); United States v. Haro, CR 28 U.S.C. § 1651. See Doe v. INS, 120 F.3d 200, 203 (9th No. 85-00612 WJR (C.D. Cal. May 30, 1990) (unpublished Cir. 1997); United States v. Johnson, 962 F.2d 579, 583 (7th order); United States v. Louder, Cr. No. 82-1084 (WWE) (D. Cir. 1992); United States v. Reyes, 945 F.2d 862, 866 (5th Conn. May 1, 1999) (unpublished order); see also 105 ALR Cir. 1991); United States v. Holder, 936 F.2d 1, 3 (1991); Fed 880, George C. Sarno, Availability and Appropriateness Ayala, 894 F.2d at 428. of Audita Querela Relief in Connection With Immigration and Naturalization Proceedings (1991). III. II. As an infrequently used remedy, modern courts have struggled to define the scope of the writ. In fact, the Advisory From the outset, we note that the writ of audita querela Committee notes to Fed. R. Civ. P. 60(b) describe common survives in certain instances despite the 1946 amendments to law writs like audita querela as “shrouded in ancient lore and the Federal Rules of Civil Procedure, which partly abolished mystery.” The Tenth Circuit explained, several common law writs including coram nobis and audita querela.2 Despite the 1946 amendments, the Supreme Court According to its ancient precepts, the writ of audita held in United States v. Morgan, 346 U.S. 502 (1954), that querela was invented to afford relief in behalf of one courts still have authority to issue writs of coram nobis in against whom execution had been issued or was about to collateral criminal proceedings. Id. at 506-510. The Morgan be issued upon a judgment, which it would be contrary to Court initially noted that Rule 60(b) governs only civil justice to allow to be enforced, because of matters arising proceedings.3 Id. at 505 n.4. The Court also expressly subsequent to the rendition thereof. rejected the argument that the federal habeas statute, 28 U.S.C. § 2255, had the effect of abolishing common law 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 2 querela cannot provide purely equitable relief, but can issue “W rits of cora m n obis, cora m vabis, audita qu erela, and bills of review and b ills in the nature of a b ill of review, are abolished, and the only when the petitioner demonstrates a legal defect in the procedure for obtaining any relief from a judgment shall be by motion as underlying proceedings. See, e.g., Doe v. INS, 120 F.3d at prescribed in these rules or by an independent action.” F ED . R. C IV . P. 203-04; United States v. LaPlante, 57 F.3d 252, 253 (2d Cir. 60(b). 1995); Johnson, 962 F.2d at 582; Holder, 936 F.2d at 5; 3 Reyes, 945 F.2d at 866. Significantly, the Federal Rules of Civil Procedure do not govern dep ortation pro ceed ings. No. 01-3928 Ejelonu v. INS 11 12 Ejelonu v. INS No. 01-3928

None of these cases provide much independent analysis; And courts of equity usually grant a remedy by rather, these opinions invariably base their conclusions on the injunction against a judgment at law, upon the same D.C. Circuit’s decision in United States v. Ayala, 894 F.2d principles. In Truly v. Wanzer, 5 Howard, 142, this court 425. See, e.g., Holder, 936 F.2d at 3 (“We agree with the say,--'It may be stated as a general principle with regard D.C. Circuit Court of Appeals that the writ of audita querela to injunctions after a judgment at law, that any fact does not and cannot, under any stretch of the imagination, which proves it to be against conscience to execute such provide a purely equitable basis for relief independent of any judgment, and of which the party could not have availed legal defect in the underlying judgment.”). As the Ninth himself in a court of law, or of which he might have Circuit explained in the most recent opinion analyzing the availed himself at law, but was prevented by fraud or issue, “the District of Columbia Circuit was first to explain accident, unmixed with any fault or negligence in himself why [courts granting audita querela relief based on purely or his agents, will authorize a court of equity to interfere equitable grounds] were mistaken, as a historical matter, in by injunction to restrain the adverse party from availing their conclusion that audita querela furnishes a purely himself of such judgment.' (See also Story, Eq. Jur. ‘equitable’ basis for relief independent of any legal defect in § 887.) the underlying judgment.” Ayala’s rationale warrants further consideration. Humphreys, 50 U.S. (9 How.) at 313 (emphasis added). Thus, according to the Supreme Court, “[i]t may be stated as Ayala never mentions the definition of audita querela a general principle with regard to injunctions after a judgment provided in Oliver, 157 F.2d at 153. See Ayala, 894 F.2d at at law [writs of audita querela], that any fact which proves it 425. The D.C. Circuit cites Humphreys v. Leggett, 50 U.S. to be against conscience to execute such judgment, and of (9 How.) 297, 314 (1850), for its sweeping conclusion that which the party could not have availed himself in a court of “because the so-called ‘pure equity’ variant of audita querela law.” Id. (quotation omitted). finds no support in the historical definition of the writ, the authority of the federal courts to use it as a[n] [equitable] ‘gap Although the Humphreys Court granted relief because the filler’ under the All Writs Act is open to serious doubt.” petitioner was “in the same condition as if the defense had Ayala, 894 F.2d at 429 n.6. Humphreys is not particularly arisen after judgment, which would entitle him to relief by helpful to Ayala’s conclusion. According to Humphreys, a audita querela,” the Humphreys Court never held that a new writ of audita querela is: legal defense against an old judgment provided the only basis for audita querela relief. In fact, the Court made clear that a 'a writ,' it is said, 'of a most remedial nature, and invented petitioner may receive a writ of audita querela when the lest in any case there should be an oppressive defect of petitioner can show that some fact that “proves it to be against justice, where a party who has a good defence is too late conscience to execute such [a] judgment,” and which the in making it in the ordinary forms of law'; and although party could not have previously raised. Humphreys, 50 U.S. it is said to be in its nature a bill in equity, yet, in (9 How.) at 313. modern practice, courts of law usually afford the same remedy on motion in a summary way. The practice in Apparently, the only modern academic to conduct thorough Mississippi seems to prefer a bill in equity for the same historical research into audita querela’s common law origins, purpose. Professor Robins, found Ayala “flawed” because “[r]equiring that there be a legal objection to the conviction deviates from No. 01-3928 Ejelonu v. INS 13 14 Ejelonu v. INS No. 01-3928

the common-law use of the writ.” See Ira P. Robins, The 224.4 See, e.g., Boynton v. Boynton, 172 S.W. 1175, 1177 Revitalization of the Common-Law Civil Writ of Audita (Mo. Ct. App. 1914) (“[T]he writ of audita querela lies ‘in Querela as a Postconviction Remedy in Criminal Cases: The the nature of a bill in equity.’”) (quoting BLACKSTONE , supra, Immigration Context and Beyond, 6 GEO . IMMIGR. L.J. 643, at 406); Bryant v. Johnson, 24 Me. 304 (1844) (noting that a 681-82 (Dec. 1992). writ of audita querela “is in the nature of a bill in equity, to be relieved against the oppression of the plaintiff”) (quoting We similarly reject the dramatically narrow historical BLACKSTONE , supra, at 406); Lovejoy v. Webber, 10 Mass. analysis upon which Ayala and its progeny depend. Early 101, 103 (1813) (“The remedy is said to be in the nature of a scholarly commentary on audita querela strongly indicates bill of equity.”) (quoting BLACKSTONE , supra, at 406). In the writ’s equitable nature. Historian William Holdsworth language similar to the Tenth Circuit’s definition, the argued that audita querela is of “essentially equitable Massachusetts Supreme Court wrote that audita querela is a character.” 1 WILLIAM S. HOLDSWORTH, A HISTORY OF proceeding “where the defendant in the original suit will be ENGLISH LAW 224 (3d ed. 1922). Holdsworth cited Judge unjustly deprived of his rights, if the judgment or execution Stonor of King Edward III’s reign, who stated, “I tell you . . . is allowed to be treated as valid.” Coffin v. Ewer, 46 plainly that Audita Querela is given rather by equity than by Mass. 228, 230-31 (1842). Likewise, the Missouri Court of common law, for quite recently there was no such suit.” See Appeals explained that audita querela “is founded upon some 2 WILLIAM S. HOLDSWORTH, A HISTORY OF ENGLISH LAW matter of equity, or fraud, or release, or something of like 593 (1922). Significantly, Holdsworth also relied upon nature, which transpired since the rendition of the judgment, Blackstone’s Commentaries, which described audita querela and which would render its enforcement inequitable and as “in the nature of a bill in equity, to be relieved against the unjust.” State v. Hall, 17 S.W.2d 935, 937 (Mo. Ct. App. oppression of the plaintiff.” 1 HOLDSWORTH , supra, at 224 1928). Most recently, a federal district court in California (citing 3 WILLIAM BLACKSTONE , COMM ENTA RIES ON THE defined audita querela as a writ “used to vacate a judgment LAWS OF ENGLAND 406 (William D. Lewis ed. 1900)). According to Holdsworth, the development of audita querela 4 demonstrates that lawyers at the time ‘were not indifferent to Aya la also cites Blackstone for the proposition that one requesting the claims of abstract justice.” 2 HOLDSWORTH, supra, at a writ of audita querela must “show a postjudgment contingency 593. Thus, Holdsworth “argued that audita querela was a supp lying a ‘matter of discharge’ or ‘defense.’” Aya la, 894 F.2d at 429 method used to provide relief when the equities suggested it (quoting B L AC K ST O N E, supra, at 405-06). The law-equity distinction has produced some con fusion, p artly bec ause so me courts have found it should be granted.” Robins, supra, at 650. inequitable to let the consequences of a legally erroneous judgment rema in in force, and pa rtly because some courts have mistakenly read Early state cases support the Tenth Circuit’s position, and those decisions as requiring a legal error in the und erlying judgm ent. The what Ayala terms the “pure equity” approach to audita view Ayala articulates would make aud ita querela superfluous be cause querela better reflects the writ’s common law origins. As a we already have a remedy at law—habeas— against a legally erroneous criminal judgment. As noted, the Supreme Court has rejected the general matter, these early decisions rely on Blackstone, argument that the federal habeas statute, 28 U.S.C. § 2255, abolished whom Holdsworth used to conclude that audita querela is of common law writs in criminal proc eedings. Morgan, 346 U.S. at 511. “essentially equitable character,” 1 Holdsworth, supra, at Audita querela is distinct from habeas or other similar collate ral proceedings that require the petitioner to demonstrate legal error, which is why Holdsworth concluded that the develo pme nt of aud ita qu erela demonstrates that ancient lawyers “were not indifferent to the claims of abstract justice.” 2 H OLDSWORTH , supra, at 593. No. 01-3928 Ejelonu v. INS 15 16 Ejelonu v. INS No. 01-3928

upon a showing that events occurring after the entry of querela issued for equitable reasons, regardless of the judgment cause the continued existence of the judgment to be presence of a legal defect in the original proceeding. contrary to the interests of justice.” Haro, CR No. 85-00612 WJR, at 3. IV.

As the aforementioned authority establishes, the Ayala Consistent with this conclusion, several courts have granted court was incorrect when it concluded that the “‘pure equity’ writs of audita querela to mitigate the collateral consequences variant of audita querela finds no support in the historical of an earlier criminal conviction when failing to do so would definition of the writ.” 894 F.2d at 429. Ayala relies on have produced an unconscionable result. In Selgado, for Humphreys, but Humphreys supports the idea that courts may instance, the petitioner received a writ of audita querela to issue the writ when it “proves to be against conscience to stop his deportation based on a twenty-four-year-old guilty execute [a] judgment.” Humphreys, 50 U.S. (9 How.) at 313. plea to a marijuana offense. Id. at 1266. Selgado originally Nothing in Humphreys requires courts to find a legal error in immigrated in 1939. Following his conviction, Selgado the original judgment. Worse, Ayala contends that the “‘pure voluntarily left the country for five years, reentered in 1969, equity’ variant of audita querela finds no support in the and lived as a productive member of society for the decades historical definition of the writ,” 894 F.2d at 429, without following his conviction. Id. When he applied for Social acknowledging the Tenth Circuit’s opinion in Oliver, which Security benefits in 1984, the INS discovered it should have collected a series of relevant cases and held that “[a]ccording deported him. Id. to its ancient precepts, the writ of audita querela was invented to afford relief in behalf of one against whom Selgado argued that he received ineffective assistance of execution had been issued . . . which it would be contrary to counsel in the original 1964 proceeding because his lawyer justice to allow to be enforced, because of matters arising did not inform him of the immigration consequences of his subsequent to the rendition thereof.” Oliver, 157 F.2d at 153 guilty plea.6 Id. at 1267. The court, however, rejected this (emphasis added).5 We adopt the conclusions of the Tenth contention along with several other legal arguments, and Circuit, Blackstone, the eminent historian Holdsworth, and found no legal error had occurred. Instead, the court noted Professor Robins, and therefore find that we may mitigate a that: judgment’s collateral consequences through a writ of audita considering that no single [legal] factor of those arrayed above would warrant granting the [writ of audita 5 The dissent quotes Oliver as saying the writ of aud ita qu erela grants querela], the Court is left with the unmistakable relief to “one against whom execution had been issued or was about to be impression that under the totality of the circumstances, it issued upon a jud gment, which it would be contrary to justice to allow to would be a gross injustice to allow this man, who has by be enforc ed, because of matters arising subsequent to the rendition all accounts been a model resident for forty-five years thereof.” The instant case satisfies the req uirements of Oliver because save for a single period of unlawful conduct, to “execution” was issued against Petitioner when the court permitted her to effectively serve a life sentence, and for his family to be be diverted from the criminal justice system as a trainee under the Holmes Youthful Trainee Act (“HYTA”), M.C.L. §§ 762.11-1 4 in lieu of convicting her of a crime, and p laced her on pro bation and ordered her to pay restitution; and the removal proceeding against Petitioner under 6 8 U.S.C. § 1227(a)(2)(A)(ii) constituted a matter which aro se subsequent In the instant case, Petitioner’s counsel did not inform her of the to the disposition under the HYTA. immigration consequences of her acquiescence to Youthful Trainee status. No. 01-3928 Ejelonu v. INS 17 18 Ejelonu v. INS No. 01-3928

deprived of benefits from a fund he has paid into States citizen children who will be deprived of his throughout his life. support if he should be deported. He has realized the American dream, owning his own home, and has reduced Id. at 1268. The court also recognized a potential objection: the mortgage on it from $58,500.00 to $33,000.00 in approximately 6 years. Except for these 3 incidents, he There may be those with a more callous view of life who has no convictions. His former employer, a subsidiary of might conclude that Mr. Selgado has nothing to complain a shipyard where he worked as a carpenter and joiner, about. It is undisputed that he committed the crime thought well of him and found him to be hard-working. charged, and he paid the reasonably foreseeable penalty The political climate of Ethiopia is another consideration. of deportation. Some might say that his continuing The State Department has designated Ethiopia as a enjoyment of life in the United States between 1969 and country of voluntary departure since 1982 due to its the present was a serendipitous happenstance which internal strife. Since the defendant had to escape from the accrued to his benefit and which created no cognizable country initially, the future for Mr. Ghebreziabher there expectation of entitlement to remain indefinitely. The appears to be foreboding. It is also likely that his family Court cannot subscribe to such a hardened approach. will suffer tremendously should he be deported and removed from the home. Id. at 1271. For these purely equitable reasons, the Selgado court issued a writ of audita querela on the petitioner’s Id. at 117. On this basis, the court found it “in the interests of behalf. Id. justice” to issue a writ of audita querela. Id. Selgado and Ghebreziabher help further establish audita querela’s In United States v. Ghebreziabher, 701 F. Supp. 115 (E.D. equitable character and its utility in immigration La. 1988) a court granted audita querela relief for similar proceedings.7 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 7 W e also note the interesting decision in United States v. Java nmard, successful business and purchasing a home. Id. He also 767 F. Sup p. 11 09 (D. K an. 19 91). Javanmard involved a situation married and had four children. Id. In 1987, however, he similar to this case (and Selgado/Ghebreziabher), in which the INS sought pleaded guilty to three misdemeanor counts of food stamp to deport someone based on a minor criminal conviction. Id. at 1110. trafficking. Id. Ghebreziabher had accepted food stamps in The court refused to grant a writ of aud ita querela under the mistaken belief that it could do so only if a legal error occurred in the initial exchange for $220 worth of merchandise without proceeding. Id. at 111 0-11 . Nevertheless, the court held that “it appears authorization. Id. Ghebreziabher received probation and had to be generally conceded, and the government at hearing also conceded, to repay the $220. that the district courts have the power to afford the relief required here on equitable grounds un der the All-W rits Act, 28 U .S.C. § 165 1(a).” Id. at Despite the government’s arguments in support of 1111. According to the court, “[g]iven all of the c ircumstances of this Ghebreziabher’s deportation, the court relied on various case, the court finds that the equitable considerations weigh in favor of Mr. Javanmard’s interest in obtaining . . . relief, as opposed to the equitable considerations to reach a different outcome: gove rnment’s interest in maintaining a criminal record.” Id. at 1112. Since “this court finds it has wide latitude under the All-Writs Act to Mr. Ghrebreziabher has been an industrious member of construct any remedy necessary to ‘achieve justice[,]’ . . . . Mr. this community for almost ten years. He has four United Javanmard’s conviction may and should be vacated.” Id. at 1111. Therefore, the Javanmard court declined to issue a writ of aud ita qu erela No. 01-3928 Ejelonu v. INS 19 20 Ejelonu v. INS No. 01-3928

V. Claims of the Committee on the Judiciary, 106th CONG ., 1ST SESS. (Feb. 17, 2000), at 2. We have no trouble concluding that the equities in this case overwhelmingly favor Petitioner—not just to the point where For whatever reason, the INS vehemently opposed the a reasonable person might sympathize with her plight, but to CCA. See Statement of Gerri Ratliff, Director, Business extent that to deport her under such circumstances would Process & Re-Engineering Services and Acting Director, shock the conscience. Office of Congressional Relations, Immigration and Naturalization Service, “Adopted Orphans Citizenship Act First, Petitioner would be a citizen if the INS had acted in and Anti-Atrocity Alien Deportation Act,” Hearing Before the a timely fashion, which would render her undeportable Subcommittee on Immigration and Claims of the Committee regardless of her Youthful Trainee status. Petitioner’s mother on the Judiciary, 106th CONG ., 1ST SESS. (Feb. 17, 2000), at filed the necessary paperwork on time, and Petitioner met the 11 (arguing against the proposed legislation). statutory criteria for citizenship. Had the INS not waited a year to interview Petitioner, Petitioner would have become a Congress ignored the INS. As Congressman Sam citizen and these deportation proceedings could not have Gejdenson explained during the debate over the CCA, occurred. The government’s conduct is sine qua non of "[t]here are tragic cases where children of U.S. parents, never Petitioner’s current predicament. naturalized because of inadvertence, are facing deportation because of a crime they have committed. While these children Second, by passing the CCA, Congress established that the must face their punishment, to deport them to countries with United States would no longer deport individuals for minor which they have no contact . . . is needlessly cruel." 146 youthful infractions when the individual should have received CONG . REC. H7774, H7778 (Sept. 19, 2000). Representative citizenship. See 8 U.S.C. § 1431. When considering the Bill Delahunt agreed: “No one condones criminal acts . . . but CCA, Representative Lamar Smith recognized the precise the terrible price these young people and their families have bureaucratic problem that deprived Petitioner of her paid is out of proportion to their misdeeds.” 146 CONG . REC. citizenship. Smith explained, “[i]n cases involving children H7774, H7777 (Sept. 19, 2000). who are approaching their 18th birthday, the delay could result in some children losing the opportunity to acquire To whatever extent DHS feels it has an obligation to carry citizenship under provisions of the law.” Statement of out Congressional policy embodied in old immigration law, Representative Lamar Smith, Chairman of the House Congress has changed the rules so that juvenile offenders in Subcommittee on Immigration and Claims, “Adopted Petitioner’s position no longer face draconian consequences Orphans Citizenship Act and Anti-Atrocity Alien Deportation because the INS unreasonably delayed processing a Act,” Hearing Before the Subcommittee on Immigration and citizenship request. DHS now (in 2003) seeks to perpetuate a problem Congress acted to eliminate in 2000.

on the misguided theory that it could not do so without finding a legal Third, this entire proceeding is founded upon illegally- error in the initial proceeding—yet the court still found it had equitable obtained evidence. As noted, the court sealed the proceedings pow er to halt the collateral consequences of the conviction. In fact, the that occurred pursuant to the Holmes Youthful Trainee Act. court not only prevented th e collateral co nsequences of Ja vanm ard’s See M.C.L. § 726.13. In violation of the court’s order, conviction, it agreed to vacate the conviction entirely pending someone revealed the records to the INS. Very few parties Javandm ard’s satisfaction o f an earlier restitution order. Id. at 1112. No. 01-3928 Ejelonu v. INS 21 22 Ejelonu v. INS No. 01-3928

had lawful access to those records; most likely, only the relatives remaining in Nigeria. There is no evidence in the police department, Petitioner’s counsel, Michigan’s record that Petitioner can speak any of the hundreds of representative, the court, and the State probation authority dialects or languages spoken in Nigeria. Apparently, DHS could have delivered the documents to the INS. Someone in would simply put Petitioner on a plane to Abuja and a position of trust betrayed Petitioner and his responsibility congratulate itself. DHS would condemn Petitioner to a life both to the court and the State of Michigan, which requires of penury, or worse. courts to seal Youthful Trainee records. See M.C.L. § 726.13. Although deportation proceedings have no “exclusionary Audita querela is appropriate because it would be “contrary rule,” we should never encourage anyone to break state law to justice,” Oliver, 157 F.2d at 153, to allow the collateral or violate judicial orders. Nor should we encourage DHS to consequences of Petitioner’s Youthful Trainee status to ignore how it acquires evidence. Someone broke Michigan justify her deportation. law and violated a court order in a disturbingly inexcusable attempt to force Petitioner out of the country. To deport her VI. would reward the wrongdoer. Before concluding, we wish to stress a few points about our Fourth, although Petitioner did not receive legally decision or, more precisely, to emphasize what we have not ineffective assistance of counsel, her counsel never informed done. We have not granted Petitioner’s request for her that accepting Youthful Trainee status would have serious citizenship. She is not currently a citizen, and this decision immigration consequences. Counsel should always make does not make her one or otherwise affect her status in that clients aware of any possible serious collateral consequences regard. to a judgment. Had Petitioner known that acquiescing to Youthful Trainee status would make her deportable, it seems Additionally, we note that our narrow mandate raises likely she would have pleaded not guilty and fought the neither separation-of-powers problems nor federalism charges. Michigan law does not have a mandatory minimum concerns. One of the circuit decisions following Ayala penalty for violating M.C.L. § 750.174; if found guilty, claimed that “[f]or a court to vacate a final conviction solely Petitioner could have received anything from probation to a because the defendant faces deportation” would violate the five-year sentence. See M.C.L. § 750.174(4). Since DHS separation of powers. Doe v. INS, 120 F.3d at 204. This view equates Youthful Trainee status with a conviction, Petitioner is seriously mistaken because, as discussed above, audita had nothing to lose by proceeding to trial. Inadequately querela does not vacate judgments, but the collateral informed by her counsel, however, Petitioner accepted consequences of judgments. If Congress dislikes what we Youthful Trainee status rather than try her case, and thus have done, it can prohibit courts from issuing writs of audita traded the possibility of deportation for the certainty of querela with respect to the collateral consequences of deportation. criminal convictions just as Congress terminated the judiciary’s ability to issue such writs in ordinary civil Finally, equity demands a writ of audita querela to avoid proceedings by implementing Fed. R. Civ. P. 60(b). a punishment grossly disproportionate to the offense. DHS proposes that, as a consequence of two minor juvenile thefts, Likewise, any federalism concern one might raise about Petitioner should serve what amounts to a life sentence in an this decision is unwarranted. When someone seeks to attack underdeveloped, impoverished country. Petitioner has no the validity of his state conviction or the duration of his state No. 01-3928 Ejelonu v. INS 23 24 Ejelonu v. INS No. 01-3928

sentence, habeas corpus is his exclusive remedy. Wolff v. ______________ McDonnell, 418 U.S. 539, 554 (1974); Preiser v. Rodriguez, 411 U.S. 475, 489-91 (1973). Our mandate does not vacate DISSENT or even suggest the invalidity of Michigan’s “judgment” that ______________ Petitioner qualifies as a Youthful Trainee, nor do we purport to lift any of the concomitant sanctions Michigan imposed. ALICE M. BATCHELDER, Circuit Judge, dissenting. I This decision merely enjoins the federal DHS from using respectfully dissent. Although, like the majority, I am Petitioner’s Youthful Trainee status to demonstrate sympathetic to Ijeoma Ejelonu’s plight, I cannot join with the Petitioner’s statutory eligibility for deportation as long as Court’s use of an extraordinary writ that was never sought by Petitioner completes her obligations under the Holmes Ejelonu nor briefed by any of the parties in this case. It is not Youthful Trainee Act. proper for this Court to construe Ejelonu’s pleading as a request for a writ of audita querela, and had she in fact Finally, we have not created some new easy means to requested such relief, it would not be proper for this Court to object to deportation. Audita querela is an equitable remedy grant it. reserved only for the most extreme cases. Although our decision is not necessarily limited to the facts of this case, this I. holding will not support relief if deportation is either not unconscionable or where DHS can articulate any legitimate The facts of this case are indeed troubling. As the majority reason for its decision to deport. points out, had the INS acted in a timely fashion, Ejelonu would be a citizen and would not be deportable regardless of CONCLUSION her having committed these offenses. And deporting Ejelonu because she committed these offenses seems unduly For the aforementioned reasons, we GRANT Petitioner’s harsh—she has no known relatives remaining in Nigeria, and request for a writ of audita querela. The writ prohibits DHS has not lived there herself since she was a child. Unlike the from using Petitioner’s Youthful Trainee status to majority, however, I do not assume that the information upon demonstrate Petitioner’s statutory eligibility for deportation which the deportation proceedings are based necessarily was as long as Petitioner completes her obligations under the obtained in violation of a court order or by any nefarious Holmes Youthful Trainee Act. We REMAND for further means. M.C.L. § 762.14(4) provides that the records in a proceedings consistent with this opinion. proceeding under the Holmes Youthful Trainee Act (“HYTA”), M.C.L. §§ 762.11-.15, “shall be closed to public inspection, but shall be open to the courts of this state, the department of corrections, the department of social services, and law enforcement personnel for use only in the performance of their duties.” The Michigan court specifically ordered that, pursuant to M.C.L. § 769.16a, the court clerk was to send to the Michigan State Police Central Records Division, for purposes of creating a criminal history record, a copy of the order assigning Ejelonu to Youthful Trainee Status. Ejelonu admits that her application for citizenship No. 01-3928 Ejelonu v. INS 25 26 Ejelonu v. INS No. 01-3928

remained pending before the INS, and 8 U.S.C. § 1446 powers cannot be invoked to confer citizenship in the absence requires that before a person may be naturalized, the Service of a statutory requirement. “A court [] cannot, by avowing or the Attorney General “shall conduct a personal that there is a right but no remedy known to the law, create a investigation of the person.” Hence, it is certainly not remedy in violation of law.” Id. at 883. unlikely that the INS acquired the information entirely within the bounds of the court’s order and the Michigan law. And Congress has defined the term “conviction,” with respect to unlike the majority, I believe that we must act in accordance an alien, as “a formal judgment of guilt of the alien entered by not with our personal weighing of the equities, but with the a court or [] where - (i) a judge or jury has found the alien law. guilty or the alien has entered a plea of guilty or nolo contendere [] , and (ii) the judge has ordered some form of Ejelonu is before this Court on appeal from an order of the punishment, penalty, or restraint on the alien’s liberty to be Board of Immigration Appeals (“BIA”) dismissing her appeal imposed.” 8 U.S.C. § 1101(a)(48)(A). As the majority of an Immigration Judge’s (“IJ”) order of removal. The INS opinion concedes, in order to be assigned to youthful trainee began removal proceedings in February 2000 after Ejelonu status under Michigan’s HYTA, an individual charged with pleaded guilty to two counts of embezzlement. After Ejelonu an offense must plead guilty; Ejelonu “took advantage of this moved to terminate the removal proceedings, the IJ concluded opportunity;” and the court placed her on probation and that Ejelonu was not a citizen of the United States and that ordered her to make restitution. Although M.C.L. § 762.11 she had been convicted of two separate crimes of moral does not define Ejelonu’s guilty plea as a conviction per se, turpitude. Ejelonu appealed this decision to the BIA, which it was certainly not unreasonable for the IJ or BIA to dismissed the appeal and found Ejelonu removable under the determine that it was a conviction within the meaning of Immigration and Naturalization Act. § 1101(a)(48)(A). A court may not substitute its own construction of a statutory provision for a reasonable Ejelonu has raised only two issues before this Court. First, interpretation made by an agency. Chevron U.S.A., Inc, v. she contends that the BIA erred in holding that her guilty plea Natural Resources Defense Council, 467 U.S. 837, 844 entered under the M.C.L. § 762.11 constitutes a “conviction” (1984). for immigration purposes. Second, she argues that the BIA erred in upholding the IJ’s determination that she was not a II. citizen because she failed to obtain a certificate of citizenship before her eighteenth birthday. Ejelonu does not succeed in Dissatisfied with the result dictated by Ejelonu’s inability proving either of these claims. to succeed on the claims that she did raise, the majority now sua sponte decides that Ejelonu in fact petitioned this Court Ejelonu did not meet the statutory requirement for for a writ of audita querela. There is no support for this citizenship because she was not under the age of eighteen conclusion in Ejelonu’s Petition for Review or in any of the when the INS adjudicated her mother’s application on her parties’ briefs. Ejelonu did not request a writ of audita behalf. See 8 U.S.C. § 1433(a). It is unfortunately irrelevant querela, or any other writ, for that matter. The government, that the INS caused this problem by delaying for more than understandably failing to divine the possibility that the seven months the processing of Ejelonu’s citizenship majority of this panel would conjure up an extraordinary, out- application. The Supreme Court clearly held in INS v. of-use writ to reach the end it seeks, had no opportunity Pangilinan, 486 U.S. 875, 883-84 (1988), that equitable whatsoever to brief or otherwise address the issuance of such No. 01-3928 Ejelonu v. INS 27 28 Ejelonu v. INS No. 01-3928

a writ. The only questions raised by Ejelonu, and therefore, Struggling to explain its conjuration, the majority says, “As the only questions before this Court, are (1) whether the BIA an infrequently used remedy, modern courts have struggled to erred in holding that her guilty plea constitutes a “conviction” define the scope of the writ.” This assertion is simply not for immigration purposes, and (2) whether the BIA erred in accurate. Courts have not, in cases like the one before us upholding the IJ’s determination that she was not a citizen. now, “struggled” at all. Every circuit that has addressed this Our analysis should have been limited to those questions. issue has refused to issue a writ of audita querela absent proof of some legal defect in the underlying proceedings, or If Ejelonu had in fact requested a writ of audita querela, it a legal objection that arose subsequent to the underlying would be improper for this Court to grant one. Congress proceeding. And in each of these cases—unlike the instant prohibited the federal courts from using the writ in civil cases case—the petitioner sought to vacate a conviction. See in the 1940s. See Fed. R. Civ. Pro. 60(b). “Writs of coram United States v. Alaya, 894 F.2d 425, 430 (D.C. Cir. 1990) nobis, coram vobis, audita querela, and bills of review and (denying petitioner’s request for the writ and holding that “a bills in the nature of a bill of review, are abolished, and the federal court can vacate a criminal conviction pursuant to the procedure for obtaining any relief from a judgment shall be common law writ of audita querela only if the writ permits a by motion as prescribed in the rules or by an independent defendant to raise a legal objection not cognizable under action.” Id. This was quite in line with no less an authority existing federal postconviction remedies”); Doe v. INS, 120 than William Blackstone, who, in 1768, said of the writ, F.3d 200, 204 (9th Cir. 1997) (holding that “a writ of audita querela, if it survives at all, is available only if a defendant [It] is a writ of a most remedial nature, and seems to have has a legal defense or discharge to the underlying judgment”) been invented, lest in any case there should be an (emphasis added); United States v. LaPlante, 57 F.3d 252, oppressive defect of justice, where a party has a good 253 (2d Cir. 1995) (“Audita querela is probably available defence, but by the ordinary forms of law had no where there is a legal, as contrasted with an equitable, opportunity to make it. But the indulgence now shown objection to a conviction that has arisen subsequent to the by the courts in granting a summary relief upon motion, conviction and that is not redressable pursuant to another in cases of such evident oppression, has almost rendered post-conviction remedy.”) (emphasis added); United States useless the writ of audita querela, and driven it quite out v. Johnson, 962 F.2d 579, 582-83 (7th Cir. 1992) (“The of practice. defense or discharge must be a legal defect in the conviction . . . . Equities or gross injustice, in themselves, will not 3 WILLIAM BLACKSTONE , COMMENTARIES ON THE LAWS OF satisfy the legal objection requirement and will not provide a ENGLAND 405 (William D. Lewis ed. 1900). basis for relief.”); United States v. Reyes, 945 F.2d 862, 866 (5th Cir. 1991) (stating that allowing the writ “to vacate a Rule 60(b) clearly applies to this appeal from an order of conviction on purely equitable grounds . . . ‘purports to add the BIA, which is a civil matter, and not, as the majority a new remedy’” for which there is “no adequate statutory or seems to imply, “a criminal proceeding.” As the Supreme historical warrant to authorize federal courts to grant such Court itself has noted, “[a] deportation proceeding is a purely relief”); United States v. Holder , 936 F.2d 1, 5 (1st Cir. civil action to determine eligibility to remain in this country.” 1991) (holding that the writ, “if available at all . . . can only INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984). be available where there is a legal objection to a conviction, which has arisen subsequent to that conviction, and which is No. 01-3928 Ejelonu v. INS 29 30 Ejelonu v. INS No. 01-3928

not redressable pursuant to another post-conviction remedy”) LAWS OF ENGLAND 404 (William D. Lewis ed. 1900). (emphasis in original). Indeed, the majority’s use of equity in this case entirely overlooks one of the fundamentals of the nature of equity: According to Black’s Law Dictionary, a writ of audita “Equity suffers not a Right to be without a Remedy.” Richard querela is “a common law writ constituting the initial process Francis, MAXIMS OF EQUITY 24 (London, Bernard Lintot in an action brought by a judgment defendant to obtain relief 1728) (emphasis added). Equity, in other words, does not against the consequences of the judgment on account of some exist “upstairs over a vacant lot;” rather, equity is founded on matter of defense or discharge arising since its rendition and rights, and exists to provide a remedy unavailable at law when which could not have been taken advantage of otherwise.” those rights are violated. Nowhere does the majority opinion BLACK’S LAW DICTIONARY 120 (spec. 5th ed. 1979) identify the “right” of this petitioner that the majority would (emphasis added); see also, Reyes, 945 F.2d at 863 n.1 remedy through the use of this writ. (same). The other circuits that have considered the writ could not have been more clear in their findings. “[T]he writ of Nor is the case law employed by the majority persuasive. audita querela does not and cannot, under any stretch of the The majority gives particular weight to the Tenth Circuit’s imagination, provide a purely equitable basis for relief decision in Oliver v. City of Shattuck ex rel. Versluis, 157 independent of any legal defect in the underlying judgment.” F.2d 150 (10th Cir. 1946), a case that pre-dated and helped to Holder, 936 F.2d at 3. prompt the 1946 amendments to Rule 60(b) that abolished audita querela and similar writs. See Ira P. Robbins, The Nonetheless, in the present case, the majority relies solely Revitalization of the Common-Law Civil Writ of Audita on its appeal to equity to grant the “requested” relief. The Querela as a Postconviction Remedy in Criminal Cases: The majority acknowledges there was no legal defect in the Immigration Context and Beyond, 6 GEO . IMMIGR. L.J. 643, underlying proceedings, and fails to cite to any subsequent 660 (1992) (“As a result of Oliver and other Rule 60(b) cases, fact or defense, arising after judgment, that Ejelonu could not audita querela and corum nobis clearly still existed as civil have previously raised. The majority instead relies upon the remedies . . . . The advisory committee reacted to this writings of one law professor, as well as selected quotes from development by amending Rule 60 in 1946.”) (citations William Blackstone and historian William Holdsworth for the omitted). Even Oliver, moreover, stated that the writ was proposition that the writ is of “essentially equitable invented to afford relief to “one against whom execution had character.” From there the majority concludes that granting been issued or was about to be issued upon a judgment, which a writ of audita querela is appropriate in the present case it would be contrary to justice to allow to be enforced, because it would be “contrary to justice” to do otherwise. because of matters arising subsequent to the rendition thereof.” Oliver, 157 F.2d at 153 (emphasis added). The majority’s reasoning is specious. The proposition that the writ has a basis in equity does not support the conclusion This defect in reasoning is not cured by the curious that it can or should be granted to prevent a perceived argument in the majority’s footnote 5 that “the removal injustice. Although the majority frequently quotes proceeding against Petitioner under 8 U.S.C. Blackstone, it fails to note that Blackstone himself § 1227(a)(2)(A)(ii) constituted a matter which arose emphasized that one seeking the writ must show a post- subsequent to the disposition under the HYTA.” This judgment contingency supplying a “matter of discharge” or completely misses the point. The order before us in this “defense.” 3 WILLIAM BLACKSTONE , COMMENTARIES ON THE appeal—and the order to which the majority opinion purports No. 01-3928 Ejelonu v. INS 31 32 Ejelonu v. INS No. 01-3928

to direct this extraordinary writ—is the order of the BIA the underlying judgment”); Reyes, 945 F.2d at 866 (stating dismissing Ejelonu’s appeal of the IJ’s order of removal. The that “the Salgado and Ghebreziabher courts had strayed from order before us is not, as the majority seems to believe in the original bounds of the writ” and that such use of the writ footnote 5, Ejelonu’s state conviction—an order over which “usurp[ed] the power of Congress to set naturalization and this court has no jurisdiction. In its final paragraphs, the deportation standards and the power of the INS to administer majority opinion seems to recognize this, stating that “[o]ur those standards”). Unable to find anything to support its mandate does not vacate or even suggest the invalidity of holding, the majority also cites to United States v. Javanmard, Michigan’s ‘judgment’ . . . nor do we purport to lift any of the 767 F. Supp. 1109 (D. Kan. 1991), a case in which, as the concomitant sanctions Michigan imposed.” As a matter of majority itself admits, “the court refused to grant a writ of logic, the argument in footnote 5 and this statement from the audita querela” under the belief that it could only do so if a majority cannot both be true. See ARISTOTLE , METAPHYSICS, legal error occurred in the initial proceeding. See id. at 1110- § 1005b12-20 (“[T]he most certain principle of all is that 11. about which it is impossible to be mistaken . . . . It is clear, then, that such a principle is the most certain of all and we can Having sua sponte granted the writ, the majority opinion state it thus: ‘It is impossible for the same thing at the same anticipatorily repudiates the well-deserved charge that the time to belong and not belong to the same thing at the same granting of this writ raises separation of powers concerns, time and in the same respect.’”). And as a matter of law, the protesting that “[i]f Congress dislikes what we have done, it only order to which this court has jurisdiction to direct an can prohibit courts from issuing writs of audita querela with extraordinary writ is the order of the BIA. Even if Congress, respect to the collateral consequences of criminal convictions arguendo, had not expressly eliminated the writ of audita just as Congress terminated the judiciary’s ability to issue querela in civil proceedings, the only events material to this such writs in ordinary civil proceedings by implementing Fed. court’s review would be events occurring subsequent to the R. Civ. P. 60(b).” This statement necessitates one of two BIA’s order. conclusions, both of which are untenable. The first is that the Court is vacating the collateral consequence of the underlying The majority relies upon two district court cases, United state action. This Court has no authority to take such action, States v. Salgado, 692 F. Supp. 1265 (E.D. Wash. 1988), and and such an interpretation clearly contradicts the majority’s United States v. Ghebreziabher, 701 F. Supp. 115 (E.D. La. statement that its mandate “does not vacate or even suggest 1988), as examples of courts’ granting writs of audita querela the invalidity of Michigan’s ‘judgment.’” The only other for purely equitable reasons, “to mitigate the collateral possible interpretation is that Ejelonu’s appeal to the BIA, and consequences of an earlier criminal conviction when failing the underlying judgment of the IJ, are “criminal proceedings” to do so would have produced an unconscionable result.” The and the order of removal is a “criminal conviction.” The majority’s reliance on these cases is severely misplaced. Supreme Court, I suspect, would be surprised by this view. Salgado and Ghebreziabher have been widely and, until See INS v. Lopez-Mendoza, 468 U.S. at 1038 (“A deportation today, uniformly criticized by each circuit that has considered proceeding is a purely civil action to determine eligibility to this issue. Neither case represents the law of the land in its remain in this country.”). The majority protests further that own circuit. See Doe, 120 F.3d at 203 (finding that “Salgado its holding portends no threat to the ability of DHS to carry and Ghebreziabher were mistaken, as a historical matter, in out its statutory duties, because this opinion “will not support their conclusion that audita querela furnishes a purely relief if deportation is either not unconscionable or where ‘equitable’ basis for relief independent of any legal defect in DHS can articulate any legitimate reason for its decision to No. 01-3928 Ejelonu v. INS 33

deport.” (emphasis in original). But the DHS did articulate a legitimate reason for its decision to deport: Ejelonu was deportable under 8 U.S.C. § 1227(a)(2)(A)(ii), and the majority opinion concedes that it can point to no legal defect in that conclusion. 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.