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acknowledging the Ejelonu decision, but expressing doubt that the writ of audita querela could be based upon purely equitable circumstances
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Civil Action No. 05-1469.
May 16, 2005
MEMORANDUM OPINION
Petitioner Saul Deleon ("petitioner") seeks relief in the form of a writ of audita querela to enjoin the Bureau of Immigration and Customs Enforcement ("BICE"), Department of Homeland Security ("DHS"), Alberto Gonzalez, and the District Director (collectively "respondents") from using petitioner's June 3, 2002 conviction to remove petitioner from the United States pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). For the following reasons, this Court denies the instant petition.
I. Factual and Procedural History
The facts are undisputed. Petitioner, a native and citizen of El Salvador, entered the United States illegally in October 1996, at the age of twenty-three. (See Gov. Br., at 1; Pet. Br., at 5). Petitioner's mother is a citizen of the United States and his father is a permanent resident. In 2001, petitioner was granted political asylum. (See Record of Deportable Alien ("Record"), attached as Ex. A to Def. Mot.). However, petitioner has not been admitted as a lawful permanent resident and has never petitioned to adjust his status. (See Pl. Pet., at 5).
On June 3, 2002, petitioner was convicted in the United States District Court for the Southern District of New York of conspiracy and possession with intent to distribute heroin in violation of 21 U.S.C. § 846. (See Record, attached as Ex. A to Def. Mot.). Petitioner was sentenced to and served a term of imprisonment of forty-one months. (Id.).
As a result of petitioner's conviction, DHS initiated an administrative removal proceeding pursuant to § 238(b) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1228(b), charging that petitioner was an "aggravated felony" and therefore removable. See 8 U.S.C. § 1227(a)(2)(A)(iii) (conviction for "aggravated felony" constitutes ground for removal); 8 U.S.C. § 1101(a)(43)(B)-(U) (definition of "aggravated felony" includes drug trafficking and conspiracy to commit drug trafficking). A "Final Administrative Removal Order" was issued on February 16, 2005. (See Final Administrative Removal Order, attached as Ex. 3 to Def. Mot). Following an interview by an asylum officer on March 9, 2005, petitioner waived his right to rebut the grounds for terminating his asylum status. (See March 16, 2005 Letter from DHS to Petitioner, attached as Ex. 4 to Def. Mot.); (Pl. Br., at 6).
Petitioner's asylum status was terminated on March 16, 2005. (Id.). Through a letter dated the same day, petitioner was notified of his eligibility to apply for withholding of removal under § 241(b)(3) of the INA and under the Convention Against Torture. (Id.). Petitioner to date has not exercised these rights. Instead, petitioner filed a petition for a writ of audita querela on March 29, 2005. (Doc. No. 1). Through his petition for a writ of audita querela, plaintiff seeks to enjoin respondents from using his criminal conviction in the Southern District of New York to remove him from the United States.
II. Discussion
The writ of audita querela is a common-law remedy. See Gregory Sarno, Availability and Appropriateness of Audita Querela Relief in Connection With Immigration and Naturalization Proceedings, 105 A.L.R. Fed. 880 (2004). Historically, the writ was used to relieve a judgment debtor from execution of the judgment where a legal defense or discharge arose subsequent to the judgment. See Doe v. INS, 120 F.3d 200, 204 (9th Cir. 1997). As expanded, the writ permits a defendant to obtain relief against the enforcement of a criminal conviction because of some defense or discharge arising subsequent to the rendition of the judgment. See, e.g., United States v. Johnson, 962 F.2d 579, 582 (7th Cir. 1992); United States v. Holder, 936 F.2d 1, 1 (1st Cir. 1991); 11 Wright Miller, Federal Practice and Procedure § 2867, at 393-394 (2d ed. 1995). In other words, a writ of aduita querela attacks the consequences of the judgment based upon subsequent events, as compared to a writ of coram nobis, which attacks the judgment itself based upon the existence of infirmities at the time of the judgment. Ejenlonu v. INS, 355 F.3d 539, 544 (6th Cir. 2004) (" coram nobis attacks the judgment itself, whereas audita querela attacks the consequences of the judgment"); see also 7A C.J.S. Audita Querela § 4 (2004).
The government does not dispute the availability of a writ of audita querela to certain criminal defendants in certain contexts. See, e.g., United States v. Morgan, 346 U.S. 502 (1954) (federal courts may fill in the gaps of the federal postconviction remedial framework through the issuance of common-law writs). However, the government argues that a writ of audita querela is inapplicable to this particular petitioner for two reasons. First, the government argues that a writ of audita querela may not be used on a purely equitable basis, independent of any legal defect in the underlying criminal conviction. (See Gov. Br., at 3-5). Second, even if the writ can provide relief based upon equitable circumstances divorced from the circumstances of the underlying judgment, the equities in this case fail to warrant the issuance of the writ. (Id., at 4-6).
The United States Court of Appeals for the Third Circuit has yet to speak on when a writ of audita querela may issue. However, most circuits that have addressed this issue have concluded that a court may not issue a writ of audita querela on a purely equitable basis without a demonstration of a legal defect either in the underlying conviction or in the sentence that taints the conviction. See, e.g., Doe, 120 F.3d at 204 (writ of audita querela not available on purely equitable grounds, but "only if a defendant has a legal defense or discharge to the underlying judgment"; refusing to grant writ to avoid deportation even when petitioner "will be killed or physically harmed" if removed from United States); Johnson, 962 F.2d at 582-83 (" Audita querela is not a wand which may be waved over an otherwise valid criminal conviction, causing its disappearance . . . Equities or gross injustice, in themselves, will not satisfy the legal objection requirement and will not provide a basis for relief."); United States v. Reyes, 945 F.2d 862, 866-867 (5th Cir. 1991) ( audita querela not available to vacate criminal conviction on purely equitable grounds in an effort to avoid deportation consequences that flow from conviction); United States v. Holder, 936 F.2d 1, 3-4 (1st Cir. 1991) (same); United States v. Ayala, 894 F.2d 425, 429 (D.D.C. 1990) (same). These courts reason that the definitional requirement of a "defense or discharge arising subsequent to the rendition of a judgment" requires, for the issuance of the writ, the post-judgment discovery of a "legal defect" in the underlying proceedings, not a showing of inequitable consequences unattached to some problem with the underlying criminal conviction. See, e.g., Holder, 936 F.2d at 3-4. These courts also reason that granting a "pure equity" variant of the writ to avoid deportation proceedings belies the separation-of-power framework embedded in the United States' Constitution, as it permits a judicial body to usurp the power of Congress to set naturalization and deportation requirements, the power of the executive to prosecute criminal offenses and to pardon criminals, and the power of administrative agencies to administer Congressional deportation standards. See Reyes, 945 F.2d at 866.
On the other hand, the Sixth Circuit recently concluded that a writ of audita querela is available "to mitigate the collateral consequences of an earlier criminal conviction when failing to do so would have produced an unconscionable result," regardless of the legal or equitable validity of the conviction itself.Ejelonu, 355 F.3d at 548. The Court reasoned that the history of the use and application of the writ supports its equitable nature, including its issuance based upon factors independent of the presence of a legal defect in the original proceeding. Id. at 545-550. The Court also concluded that this characterization of the writ did not violate separation-of-power principles, as Congress may prohibit courts from issuing writs of audita querela with respect to the collateral consequences of criminal convictions, just like it did with respect to ordinary civil proceedings through Federal Rule of Civil Procedure 60(b).Id. at 552. Nonetheless, the Court emphasized that it was not fashioning an easy mechanism for convicted aliens to avoid deportation, as the writ remains unavailable if "deportation is either not unconscionable or where DHS can articulate any legitimate reason for its decision to deport."
The government correctly notes it is not clear thatEjelonu remains good law in the Sixth Circuit, as rehearing was granted on July 28, 2004, and the appeal was subsequently dismissed on October 18, 2004. Nonetheless, for the reasons expressed below, the Court need not resolve the issue of whether to adopt Ejelonu's historical conceptualization of the writ and its application on the basis of purely equitable grounds unrelated to the underlying criminal conviction.
Id.; see also United States v. Ghebreziabher, 701 F.Supp. 115, 117 (E.D. La. 1988) (writ available when avoidance of consequences of criminal conviction serves interests of justice); United States v. Salgado, 692 F. Supp. 1265, 1269 (E.D. Wash. 1988) (permitting writ to be used to obtain relief from consequences of criminal conviction where refusal to grant relief would strip petitioner of access to newly created rights); but see United States v. Osofisan, 1992 WL 350223, at *2 (E.D. Pa. Nov. 19, 1992) (writ of audita querela cannot provide relief from criminal judgment on purely equitable grounds).
This Court finds it difficult to believe that a writ of audit querela may issue on the basis of equitable circumstances unconnected in any substantive manner to the petitioner's underlying criminal conviction. Nonetheless, the Court need not resolve this question of whether a writ of audita querela is available in "pure equity" form, as a means to avoid the inequitable consequences that may arise from an otherwise equitable conviction. Instead, assuming arguendo that such relief is available, the Court finds that the circumstances in this matter fail to justify the issuance of the writ.
This issue of a writ of audita querela is an "equitable remedy reserved for the most extreme cases." Ejelonu, 355 F.3d at 552. With respect to those courts that authorize the issuance of a writ of audita querela on a purely equitable basis, these courts have evaluated the following non-exhaustive list of factors to determine whether to grant the writ: government's interest in maintaining the petitioner's conviction; government's position on whether relief should be granted; petitioner's actions before and subsequent to the conviction; time that has elapsed since the petitioner's conviction; hardship to the petitioner's family that will result from his or her deportation; nature of crime for which petitioner was convicted; other alternatives for obtaining relief; and the existence of a newly created right to which petitioner would be entitled absent the conviction. See Ira Robbins, The Revitalization of the Common-Law Civil Writ of Aduita Querela As A Post-Conviction Remedy in Criminal Cases: The Immigration Context and Beyond, 6 Geo. Immigr. L.J. 643, 685-686 (1992) (listing factors and discussing importance).
This Court finds that the equitable factors in this case fall dramatically short of demonstrating the appropriateness of issuing a writ of audita querela. First, the government has contested petitioner's petition for a writ in a timely manner.See United States v. Acholonu, 717 F.Supp. 709, 711 (D. Nev. 1989) (noting that government has timely filed opposition to writ); Salgado, 692 F.2d at 1270 (granting writ in part because government chose not to object). Second, petitioner was convicted of two serious crimes (conspiracy to distribute heroin and possession with intent to distribute heroin), often linked to violence, and has suggested no basis for contesting the legitimacy or equity of that conviction. See Ejelonu, 355 F.3d at (granting writ when INS seeks to deport petitioner on basis of juvenile arrest for two counts of embezzlement as retail clerk); Ghebreziabher, 701 F.Supp. at 117 (granting writ when INS seeks to deport petitioner for pleading guilty to three misdemeanor counts of food stamp trafficking, in which he accepted food stamps in exchange for $220 worth of merchandise without authorization). Third, less than a year has passed between the conclusion of petitioner's sentence and his filing of a petition for a writ of audita querela, thereby undermining any argument that petitioner's postconviction conduct rises to the level of model citizenship necessary to constitute a "subsequent" equitable event under the applicable standard. See Salgado, 692 F.Supp. at 1271 (granting writ to vacate 25 year old conviction in favor of petitioner who led "peaceful, productive, and uneventful life" in United States ever since);United States v. Elenes, 1990 WL 10023717, at *2 (D.Ariz Sept. 19, 1990) (granting writ to vacate 15 year-old criminal conviction in part because petitioner had a "steady job" and became a "productive member of society"); Acholonu, 717 F. Supp. at 711 (refusing to grant writ to vacate 9 year-old conviction and render petitioner eligible for amnesty provisions of ICRA, although petitioner demonstrated model behavior during that time). Fourth, petitioner has not provided any argument, let alone affidavit evidence, to suggest that petitioner has family members who are dependent upon him for financial, mental, and/or physical support. See Ghebreziabher, 701 F.Supp. at 117 (granting writ in part because petitioner's deportation would deprive his four children, living in the United States, of his support). Nor has petitioner argued that he is dependent upon his parents, who are United States citizens, by virtue of his alleged mental illness (schizophrenia). (See Pet. Br., at 9). Finally, although the Court sympathizes with petitioner's current predicament, particularly because it appears to be partially due to petitioner's failure to seek adjustment of his derivative asylum status prior to his conviction, the Court notes that many of the factors listed by petitioner to justify issuance of the writ, including petitioner's lack of outstanding warrants and his sobriety, are not "equitable" factors that would militate in favor of shielding petitioner from the consequences of his previous conviction.
This Court concludes that even if the writ of audita querela is available based upon purely equitable circumstances unrelated to the underlying criminal conviction, a matter this Court does not resolve, the equitable circumstances presented by petitioner fail to establish that petitioner's deportation would be unconscionable. See Ejelonu, 355 F.3d at 552. Accordingly, plaintiff is not entitled to a writ of audita querela to enjoin respondents from using petitioner's June 3, 2002 conviction as a basis for removal proceedings pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii).
ORDER
AND NOW, this 16th day of May 2005, upon consideration of Petitioner's petition for a writ of audita querela (Doc. No. 1), and Respondents' response thereto (Doc. No. 4), it is hereby ORDERED that Petitioner's petition (Doc. No. 1) is DENIED. It is hereby further ORDERED that the Clerk of Court is directed to close this matter for statistical purposes.