       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.
