Ijeoma Ejelonu v. Immigration and Naturalization Service, Department of Homeland Security

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0009P (6th Cir.)
File Name: 04a0009p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
IJEOMA EJELONU,
Petitioner,
v.
IMMIGRATION AND
NATURALIZATION SERVICE,
DEPARTMENT OF HOMELAND
SECURITY,
Respondent.
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No. 01-3928
On Appeal from the Board of Immigration Appeals.
No. A76 971 785.
Submitted: January 31, 2003
Decided and Filed: January 8, 2004
Before: BATCHELDER, MOORE, and CLAY, Circuit
Judges.
_________________
COUNSEL
ON BRIEF: Clement O. Ohuegbe, DENNING LAW FIRM
PLCC, Dearborn, Michigan, for Petitioner. Ernesto H.
Molina, Jr., David V. Bernal, UNITED STATES
2 Ejelonu v. INS No. 01-3928
DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
CLAY, J., delivered the opinion of the court, in which
MOORE, J., joined. BATCHELDER, J. (pp. 24-33),
delivered a separate dissenting opinion.
_________________
OPINION
_________________
CLAY, Circuit Judge. Petitioner is a gainfully employed
legal immigrant in her early twenties who currently studies
psychology at Wayne State University in Detroit, Michigan.
By all accounts, Petitioner should be a citizen; but for the
Immigration and Naturalization Service’s (“INS’s”) extended
delay in processing Petitioner’s citizenship application, the
agency would have processed her application before
Petitioner’s eighteenth birthday and she would now in all
likelihood be an American citizen. Petitioner was never
convicted of any crime, her parents are citizens, her siblings
are citizens, and her entire extended family resides in the
United States. The Department of Homeland Security
(“DHS”) seeks to deport her to Nigeria.
For the reasons that follow, we GRANT the petition and
REMAND for further proceedings consistent with this
decision.
FACTS
Born on May 24, 1979, in Otukpo, Nigeria, Petitioner
legally immigrated to the United States at age six as a
dependent under her parents’ student visa. Petitioner’s
parents, Chrissie and Nath Ejelonu, became naturalized
American citizens on September 11, 1996. In October of
1996, Chrissie filed Applications for Certificates of
Citizenship on behalf of Petitioner and her two younger

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No. 01-3928 Ejelonu v. INS 3
1As Congressman Bill Delahunt explained during the debate over the
CCA:
[T]his bill wo uld avoid some heartbreaking injustices that have
sometimes tragically occurred. Some parents have discovered to
their horror that their failure to complete the paperwork in time
can result in their forced separation from their children under the
summary deportation provisions Congress enacted back in 1996.
That was the experience of the Gaul family of Florida who
adopted their son John at the age of 4. Though he was born in
Thailand, he spe aks no Thai, has no Thai relatives, knows
nothing of Thai culture and has never been back to Thailand,
until the U.S. Government deported him last year as a criminal
sisters, Ogechi and Eze. Although DHS concedes Chrissie
submitted complete applications, DHS (technically its
predecessor, the INS), did not schedule an interview with
Petitioner and her siblings until approximately ten months
later, on August 18, 1997.
The INS subsequently made Ogechi and Eze citizens, but
withheld citizenship from Petitioner because she turned
eighteen after her mother filed her application but before the
INS interview. At the time, the INS had the right under
section 322(a) of the Immigration and Naturalization Act
(“INA”) to require that a child seeking citizenship “is under
the age of 18 and in the legal custody of the citizen parent.”
See 8 U.S.C. § 1433(a) (2000) (emphasis added); see also
8 C.F.R. 322.2(a)(3) (2000) (reiterating the same rule). Since
Petitioner was no longer under age eighteen when the INS
decided her application (as opposed to when her mother filed
it on her behalf), the INS refused Petitioner’s request for
citizenship and warned her that it would begin deportation
proceedings.
Responding to this type of inequity, Congress enacted the
Child Citizenship Act of 2000 (“CCA”), which automatically
granted citizenship to most foreign-born children of American
parents.1 See Pub. L. No. 106-395, 114 Stat. 1631, codified
4 Ejelonu v. INS No. 01-3928
alien at the age of 25 for pro perty offenses that he had
committed when he was a teenager.
One may ask how this could happen. The Gauls had obtained an
American birth certificate for John shortly after ado pting him
and did not realize until he applied for a passport at age 17 that
he had never been naturalized. They immediately filed the
papers; but du e to INS delays, his application was not processed
before he turned 18. An immigration judge ruled that the agency
had taken too long to process the application, but that did not
make any difference. The1996 law allowed him no discretion to
halt the depo rtation. A t least that is ho w the IN S interp reted it.
146 CO N G. REC. H7774 , H7777 (Sept. 19, 2000).
at 8 U.S.C. § 1431 (2001). Without the benefit of this
legislation, Chrissie filed a Petition for Relative Alien and an
Adjustment of Status petition to avoid Petitioner’s
deportation. Chrissie did not withdraw Petitioner’s request
for citizenship, which remains pending before DHS.
Meanwhile, Petitioner graduated with honors from
Northern High School in Pontiac, Michigan. Afterward, she
began college at Wayne State University. Petitioner was
active in Central United Methodist Church in Waterford,
Michigan. She also assumed a large role in helping her
parents care for Ogechi and Eze.
While in school, Petitioner held jobs at Office Depot and
Hudson’s department store. Working at Hudson’s in the
summer of 1998, at age seventeen, she waited on a family that
resided in her neighborhood. When it came time for the
family to pay for its purchases, a family member asked
Petitioner to accept a credit card number without the credit
card. Although Petitioner knew this violated store policy, she
acceded to the request. The family returned later in the week
and Petitioner repeated the impropriety. Although Petitioner
simply placed unwarranted trust in a neighborhood family,
she never received any money or share of the stolen goods for
permitting these transactions.

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No. 01-3928 Ejelonu v. INS 5
Hudson’s captured the incidents on its security cameras.
On December 3, 1998, police arrested Petitioner and charged
her with two counts of Embezzlement by an Agent or Trustee
of Over $100, in violation of M.C.L. § 750.174. Michigan
has established a rehabilitation-oriented legal framework to
handle precisely this type of juvenile misconduct. Known as
the Holmes Youthful Trainee Act (“HYTA”), M.C.L.
§§ 762.11-14, the HYTA provides that “[i]f an individual
pleads guilty to a charge of a criminal offense . . . committed
on or after the individual’s seventeenth birthday but before his
twenty-first birthday,” the court has the authority to “assign
that individual to the status of youthful trainee,” and to do so
“without entering a judgment of conviction.” M.C.L.
§ 762.11 (emphasis added); see also United States v. LeBlanc,
612 F.2d 1012, 1013 (6th Cir. 1980) (“The appellant’s
assignment to ‘youthful trainee’ status was made pursuant to
the Holmes Youthful Trainee Act. Such an assignment does
not constitute conviction of a crime within the meaning of
Rule 609, Federal Rules of Evidence.”) (citation omitted).
Youthful trainees generally receive probation, make
restitution, perform community service, or commit to other
measures designed to rehabilitate the Youthful Trainee. See
M.C.L. § 762.13. As one court explained, “[t]he Holmes
Youthful Trainee Act constitutes remedial legislation
designed to alleviate problems with young offenders by
permitting the use of rehabilitation procedures prior to
conviction.” People v. Perkins, 309 N.W.2d 634, 636 (Mich.
Ct. App. 1981) (emphasis added). “Once compliance is
achieved, a youthful trainee will not be deemed convicted of
a crime and proceedings regarding the disposition of the
criminal charge will be closed to public inspection.” People
v. Bobek, 553 N.W.2d 18, 21 (Mich. Ct. App. 1996)
(emphasis added). Thus, the Michigan legislature intended
the HYTA to allow youthful offenders a chance at
rehabilitation without having to face the lifelong
consequences of a criminal conviction.
6 Ejelonu v. INS No. 01-3928
Petitioner took advantage of this opportunity. On
January 4, 1999, the court placed her on probation and
required her to make restitution. Pursuant to M.C.L.
§ 726.13, the court sealed the record of all proceedings
involving Petitioner. She immediately began searching for a
new job, and found one at the Crittenton Hospital in
Rochester, Michigan. She would never begin work.
Someone, perhaps in the local police department, turned
over the judicially-sealed Youthful Trainee record to the INS.
On January 16, 2003, INS agents raided Petitioner’s home,
seized her by force, and initiated deportation proceedings.
PROCEDURAL HISTORY
For weeks, the INS held Petitioner in custody. She had no
opportunity to contact her family. On February 20, 2000, the
INS formally commenced removal proceedings against
Petitioner by filing a Notice to Appear with the Executive
Office of Immigration Review. The Notice to Appear alleged
that the INS could deport Petitioner for being convicted of
two separate crimes involving moral turpitude, in violation of
8 U.S.C. § 1227(a)(2)(A)(ii). INA § 237(a)(2)(A)(ii)
provides:
Any alien who at any time after admission is convicted
of two or more crimes of moral turpitude, not arising out
of a single scheme of criminal misconduct, regardless of
whether confined therefore and regardless of whether the
convictions were in a single trial, is deportable.
8 U.S.C. § 1227(a)(2)(A)(ii). The INA also defines
conviction:
The term “conviction” means, with respect to an alien, a
formal judgment of guilt of the alien entered by a court
or, if adjudication of guilt has been withheld, where—

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

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No. 01-3928 Ejelonu v. INS 9
2“W rits of cora m nobis, 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
procedure for obtaining any relief from a judgment shall be by motion as
prescribed in these rules or by an independent action.” FED. R. CIV. P.
60(b).
3Significantly, the Federal Rules of Civil Procedure do not govern
dep ortation pro ceed ings.
attacks the judgment itself, whereas audita querela attacks the
consequences of the judgment.
Although the writ is rarely used, courts have issued writs of
audita querela in immigration cases similar to this one. See,
e.g., United States v. Khalaf, 116 F. Supp. 2d 210, 217 (D.
Mass. 1999); United States v. Selgado, 692 F. Supp. 1265,
1269 (E.D. Wash. 1988); United States v. Ghebreziabher, 701
F. Supp. 115, 117 (E.D. La. 1988); United States v. Haro, CR
No. 85-00612 WJR (C.D. Cal. May 30, 1990) (unpublished
order); United States v. Louder, Cr. No. 82-1084 (WWE) (D.
Conn. May 1, 1999) (unpublished order); see also 105 ALR
Fed 880, George C. Sarno, Availability and Appropriateness
of Audita Querela Relief in Connection With Immigration and
Naturalization Proceedings (1991).
II.
From the outset, we note that the writ of audita querela
survives in certain instances despite the 1946 amendments to
the Federal Rules of Civil Procedure, which partly abolished
several common law writs including coram nobis and audita
querela.2 Despite the 1946 amendments, the Supreme Court
held in United States v. Morgan, 346 U.S. 502 (1954), that
courts still have authority to issue writs of coram nobis in
collateral criminal proceedings. Id. at 506-510. The Morgan
Court initially noted that Rule 60(b) governs only civil
proceedings.3 Id. at 505 n.4. The Court also expressly
rejected the argument that the federal habeas statute,
28 U.S.C. § 2255, had the effect of abolishing common law
10 Ejelonu v. INS No. 01-3928
writs in criminal proceedings. Id. at 511. According to the
D.C. Circuit, “[t]he teaching of Morgan is that federal courts
may properly fill the interstices of the federal postconviction
remedial framework through remedies available at common
law.” United States v. Ayala, 894 F.2d 425, 428 (D.C. Cir.
1990). For this reason, despite their seemingly anachronistic
qualities, federal courts still have the authority to grant writs
of audita querela, generally pursuant to the All Writs Act,
28 U.S.C. § 1651. See Doe v. INS, 120 F.3d 200, 203 (9th
Cir. 1997); United States v. Johnson, 962 F.2d 579, 583 (7th
Cir. 1992); United States v. Reyes, 945 F.2d 862, 866 (5th
Cir. 1991); United States v. Holder, 936 F.2d 1, 3 (1991);
Ayala, 894 F.2d at 428.
III.
As an infrequently used remedy, modern courts have
struggled to define the scope of the writ. In fact, the Advisory
Committee notes to Fed. R. Civ. P. 60(b) describe common
law writs like audita querela as “shrouded in ancient lore and
mystery.” The Tenth Circuit explained,
According to its ancient precepts, the writ of audita
querela was invented to afford relief in behalf of one
against whom execution had been issued or was about to
be issued upon a judgment, which it would be contrary to
justice to allow to be enforced, because of matters arising
subsequent to the rendition thereof.
Oliver v. City of Shattuck ex rel. Versluis, 157 F.2d 150, 153
(10th Cir. 1946) (collecting cases). Other sister circuits to
have considered the issue have held that a writ of audita
querela cannot provide purely equitable relief, but can issue
only when the petitioner demonstrates a legal defect in the
underlying proceedings. See, e.g., Doe v. INS, 120 F.3d at
203-04; United States v. LaPlante, 57 F.3d 252, 253 (2d Cir.
1995); Johnson, 962 F.2d at 582; Holder, 936 F.2d at 5;
Reyes, 945 F.2d at 866.

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No. 01-3928 Ejelonu v. INS 11
None of these cases provide much independent analysis;
rather, these opinions invariably base their conclusions on the
D.C. Circuit’s decision in United States v. Ayala, 894 F.2d
425. See, e.g., Holder, 936 F.2d at 3 (“We agree with the
D.C. Circuit Court of Appeals that the writ of audita querela
does not and cannot, under any stretch of the imagination,
provide a purely equitable basis for relief independent of any
legal defect in the underlying judgment.”). As the Ninth
Circuit explained in the most recent opinion analyzing the
issue, “the District of Columbia Circuit was first to explain
why [courts granting audita querela relief based on purely
equitable grounds] were mistaken, as a historical matter, in
their conclusion that audita querela furnishes a purely
‘equitable’ basis for relief independent of any legal defect in
the underlying judgment.” Ayala’s rationale warrants further
consideration.
Ayala never mentions the definition of audita querela
provided in Oliver, 157 F.2d at 153. See Ayala, 894 F.2d at
425. The D.C. Circuit cites Humphreys v. Leggett, 50 U.S.
(9 How.) 297, 314 (1850), for its sweeping conclusion that
“because the so-called ‘pure equity’ variant of audita querela
finds no support in the historical definition of the writ, the
authority of the federal courts to use it as a[n] [equitable] ‘gap
filler’ under the All Writs Act is open to serious doubt.”
Ayala, 894 F.2d at 429 n.6. Humphreys is not particularly
helpful to Ayala’s conclusion. According to Humphreys, a
writ of audita querela is:
'a writ,' it is said, 'of a most remedial nature, and invented
lest in any case there should be an oppressive defect of
justice, where a party who has a good defence is too late
in making it in the ordinary forms of law'; and although
it is said to be in its nature a bill in equity, yet, in
modern practice, courts of law usually afford the same
remedy on motion in a summary way. The practice in
Mississippi seems to prefer a bill in equity for the same
purpose.
12 Ejelonu v. INS No. 01-3928
And courts of equity usually grant a remedy by
injunction against a judgment at law, upon the same
principles. In Truly v. Wanzer, 5 Howard, 142, this court
say,--'It may be stated as a general principle with regard
to injunctions after a judgment at law, that any fact
which proves it to be against conscience to execute such
judgment, and of which the party could not have availed
himself in a court of law, or of which he might have
availed himself at law, but was prevented by fraud or
accident, unmixed with any fault or negligence in himself
or his agents, will authorize a court of equity to interfere
by injunction to restrain the adverse party from availing
himself of such judgment.' (See also Story, Eq. Jur.
§ 887.)
Humphreys, 50 U.S. (9 How.) at 313 (emphasis added).
Thus, according to the Supreme Court, “[i]t may be stated as
a general principle with regard to injunctions after a judgment
at law [writs of audita querela], that any fact which proves it
to be against conscience to execute such judgment, and of
which the party could not have availed himself in a court of
law.” Id. (quotation omitted).
Although the Humphreys Court granted relief because the
petitioner was “in the same condition as if the defense had
arisen after judgment, which would entitle him to relief by
audita querela,” the Humphreys Court never held that a new
legal defense against an old judgment provided the only basis
for audita querela relief. In fact, the Court made clear that a
petitioner may receive a writ of audita querela when the
petitioner can show that some fact that “proves it to be against
conscience to execute such [a] judgment,” and which the
party could not have previously raised. Humphreys, 50 U.S.
(9 How.) at 313.
Apparently, the only modern academic to conduct thorough
historical research into audita querela’s common law origins,
Professor Robins, found Ayala “flawed” because “[r]equiring
that there be a legal objection to the conviction deviates from

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No. 01-3928 Ejelonu v. INS 13
the common-law use of the writ.” See Ira P. Robins, The
Revitalization of the Common-Law Civil Writ of Audita
Querela as a Postconviction Remedy in Criminal Cases: The
Immigration Context and Beyond, 6 GEO. IMMIGR. L.J. 643,
681-82 (Dec. 1992).
We similarly reject the dramatically narrow historical
analysis upon which Ayala and its progeny depend. Early
scholarly commentary on audita querela strongly indicates
the writ’s equitable nature. Historian William Holdsworth
argued that audita querela is of “essentially equitable
character.” 1 WILLIAM S. HOLDSWORTH, A HISTORY OF
ENGLISH LAW 224 (3d ed. 1922). Holdsworth cited Judge
Stonor of King Edward III’s reign, who stated, “I tell you
plainly that Audita Querela is given rather by equity than by
common law, for quite recently there was no such suit.” See
2 WILLIAM S. HOLDSWORTH, A HISTORY OF ENGLISH LAW
593 (1922). Significantly, Holdsworth also relied upon
Blackstone’s Commentaries, which described audita querela
as “in the nature of a bill in equity, to be relieved against the
oppression of the plaintiff.” 1 HOLDSWORTH, supra, at 224
(citing 3 WILLIAM BLACKSTONE, COMMENTARIES ON THE
LAWS OF ENGLAND 406 (William D. Lewis ed. 1900)).
According to Holdsworth, the development of audita querela
demonstrates that lawyers at the time ‘were not indifferent to
the claims of abstract justice.” 2 HOLDSWORTH, supra, at
593. Thus, Holdsworth “argued that audita querela was a
method used to provide relief when the equities suggested it
should be granted.” Robins, supra, at 650.
Early state cases support the Tenth Circuit’s position, and
what Ayala terms the “pure equity” approach to audita
querela better reflects the writ’s common law origins. As a
general matter, these early decisions rely on Blackstone,
whom Holdsworth used to conclude that audita querela is of
“essentially equitable character,” 1 Holdsworth, supra, at
14 Ejelonu v. INS No. 01-3928
4Aya la also cites Blackstone for the proposition that one requesting
a writ of audita querela must “show a postjudgment contingency
supp lying a ‘matter of discharge’ or ‘defense.’” Aya la, 894 F.2d at 429
(quoting BL AC K ST O N E, supra, at 405-06). The law-equity distinction has
produced some con fusion, partly bec ause so me courts have found it
inequitable to let the consequences of a legally erroneous judgment
remain in force, and pa rtly because some courts have mistakenly read
those decisions as requiring a legal error in the und erlying judgm ent. The
view Ayala articulates would make aud ita querela superfluous be cause
we already have a remedy at law—habeas— against a legally erroneous
criminal judgment. As noted, the Supreme Court has rejected the
argument that the federal habeas statute, 28 U.S.C. § 2255, abolished
common law writs in criminal proceedings. Morgan, 346 U.S. at 511.
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 developme nt of aud ita querela
demonstrates that ancient lawyers “were not indifferent to the claims of
abstract justice.” 2 HOLDSWORTH , supra, at 593.
224.4 See, e.g., Boynton v. Boynton, 172 S.W. 1175, 1177
(Mo. Ct. App. 1914) (“[T]he writ of audita querela lies ‘in
the nature of a bill in equity.’”) (quoting BLACKSTONE, supra,
at 406); Bryant v. Johnson, 24 Me. 304 (1844) (noting that a
writ of audita querela “is in the nature of a bill in equity, to
be relieved against the oppression of the plaintiff”) (quoting
BLACKSTONE, supra, at 406); Lovejoy v. Webber, 10 Mass.
101, 103 (1813) (“The remedy is said to be in the nature of a
bill of equity.”) (quoting BLACKSTONE, supra, at 406). In
language similar to the Tenth Circuit’s definition, the
Massachusetts Supreme Court wrote that audita querela is a
proceeding “where the defendant in the original suit will be
unjustly deprived of his rights, if the judgment or execution
. . . is allowed to be treated as valid.” Coffin v. Ewer, 46
Mass. 228, 230-31 (1842). Likewise, the Missouri Court of
Appeals explained that audita querela “is founded upon some
matter of equity, or fraud, or release, or something of like
nature, which transpired since the rendition of the judgment,
and which would render its enforcement inequitable and
unjust.” State v. Hall, 17 S.W.2d 935, 937 (Mo. Ct. App.
1928). Most recently, a federal district court in California
defined audita querela as a writ “used to vacate a judgment

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No. 01-3928 Ejelonu v. INS 15
5The dissent quotes Oliver as saying the writ of aud ita querela grants
relief to “one against whom execution had been issued or was about to be
issued upon a jud gment, which it would be contrary to justice to allow to
be enforc ed, because of matters arising subsequent to the rendition
thereof.” The instant case satisfies the requirements of Oliver because
“execution” was issued against Petitioner when the court permitted her to
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
8 U.S.C. § 1227(a)(2)(A)(ii) constituted a matter which arose subsequent
to the disposition under the HYTA.
upon a showing that events occurring after the entry of
judgment cause the continued existence of the judgment to be
contrary to the interests of justice.” Haro, CR No. 85-00612
WJR, at 3.
As the aforementioned authority establishes, the Ayala
court was incorrect when it concluded that the “‘pure equity’
variant of audita querela finds no support in the historical
definition of the writ.” 894 F.2d at 429. Ayala relies on
Humphreys, but Humphreys supports the idea that courts may
issue the writ when it “proves to be against conscience to
execute [a] judgment.” Humphreys, 50 U.S. (9 How.) at 313.
Nothing in Humphreys requires courts to find a legal error in
the original judgment. Worse, Ayala contends that the “‘pure
equity’ variant of audita querela finds no support in the
historical definition of the writ,” 894 F.2d at 429, without
acknowledging the Tenth Circuit’s opinion in Oliver, which
collected a series of relevant cases and held that “[a]ccording
to its ancient precepts, the writ of audita querela was
invented to afford relief in behalf of one against whom
execution had been issued . . . which it would be contrary to
justice to allow to be enforced, because of matters arising
subsequent to the rendition thereof.” Oliver, 157 F.2d at 153
(emphasis added).5 We adopt the conclusions of the Tenth
Circuit, Blackstone, the eminent historian Holdsworth, and
Professor Robins, and therefore find that we may mitigate a
judgment’s collateral consequences through a writ of audita
16 Ejelonu v. INS No. 01-3928
6In the instant case, Petitioner’s counsel did not inform her of the
immigration consequences of her acquiescence to Youthful Trainee status.
querela issued for equitable reasons, regardless of the
presence of a legal defect in the original proceeding.
IV.
Consistent with this conclusion, several courts have granted
writs of audita querela to mitigate the collateral consequences
of an earlier criminal conviction when failing to do so would
have produced an unconscionable result. In Selgado, for
instance, the petitioner received a writ of audita querela to
stop his deportation based on a twenty-four-year-old guilty
plea to a marijuana offense. Id. at 1266. Selgado originally
immigrated in 1939. Following his conviction, Selgado
voluntarily left the country for five years, reentered in 1969,
and lived as a productive member of society for the decades
following his conviction. Id. When he applied for Social
Security benefits in 1984, the INS discovered it should have
deported him. Id.
Selgado argued that he received ineffective assistance of
counsel in the original 1964 proceeding because his lawyer
did not inform him of the immigration consequences of his
guilty plea.6 Id. at 1267. The court, however, rejected this
contention along with several other legal arguments, and
found no legal error had occurred. Instead, the court noted
that:
considering that no single [legal] factor of those arrayed
above would warrant granting the [writ of audita
querela], the Court is left with the unmistakable
impression that under the totality of the circumstances, it
would be a gross injustice to allow this man, who has by
all accounts been a model resident for forty-five years
save for a single period of unlawful conduct, to
effectively serve a life sentence, and for his family to be

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No. 01-3928 Ejelonu v. INS 17
deprived of benefits from a fund he has paid into
throughout his life.
Id. at 1268. The court also recognized a potential objection:
There may be those with a more callous view of life who
might conclude that Mr. Selgado has nothing to complain
about. It is undisputed that he committed the crime
charged, and he paid the reasonably foreseeable penalty
of deportation. Some might say that his continuing
enjoyment of life in the United States between 1969 and
the present was a serendipitous happenstance which
accrued to his benefit and which created no cognizable
expectation of entitlement to remain indefinitely. The
Court cannot subscribe to such a hardened approach.
Id. at 1271. For these purely equitable reasons, the Selgado
court issued a writ of audita querela on the petitioner’s
behalf. Id.
In United States v. Ghebreziabher, 701 F. Supp. 115 (E.D.
La. 1988) a court granted audita querela relief for similar
reasons. Ghebreziabher involved an Ethiopian native who
entered the United States in 1979. Id. at 116. Ghebreziabher
initially worked in a shipyard before starting his own
successful business and purchasing a home. Id. He also
married and had four children. Id. In 1987, however, he
pleaded guilty to three misdemeanor counts of food stamp
trafficking. Id. Ghebreziabher had accepted food stamps in
exchange for $220 worth of merchandise without
authorization. Id. Ghebreziabher received probation and had
to repay the $220.
Despite the government’s arguments in support of
Ghebreziabher’s deportation, the court relied on various
equitable considerations to reach a different outcome:
Mr. Ghrebreziabher has been an industrious member of
this community for almost ten years. He has four United
18 Ejelonu v. INS No. 01-3928
7W e also note the interesting decision in United States v. Java nmard,
767 F. Sup p. 11 09 (D. K an. 19 91). Javanmard involved a situation
similar to this case (and Selgado/Ghebreziabher), in which the INS sought
to deport someone based on a minor criminal conviction. Id. at 1110.
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
proceeding. Id. at 111 0-11 . Nevertheless, the court held that “it appears
to be generally conceded, and the government at hearing also conceded,
that the district courts have the power to afford the relief required here on
equitable grounds under the All-W rits Act, 28 U.S.C. § 165 1(a).” Id. at
1111. According to the court, “[g]iven all of the circumstances of this
case, the court finds that the equitable considerations weigh in favor of
Mr. Javanmard’s interest in obtaining . . . relief, as opposed to the
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
construct any remedy necessary to ‘achieve justice[,]’ . . . . Mr.
Javanmard’s conviction may and should be vacated.” Id. at 1111.
Therefore, the Javanmard court declined to issue a writ of aud ita querela
States citizen children who will be deprived of his
support if he should be deported. He has realized the
American dream, owning his own home, and has reduced
the mortgage on it from $58,500.00 to $33,000.00 in
approximately 6 years. Except for these 3 incidents, he
has no convictions. His former employer, a subsidiary of
a shipyard where he worked as a carpenter and joiner,
thought well of him and found him to be hard-working.
The political climate of Ethiopia is another consideration.
The State Department has designated Ethiopia as a
country of voluntary departure since 1982 due to its
internal strife. Since the defendant had to escape from the
country initially, the future for Mr. Ghebreziabher there
appears to be foreboding. It is also likely that his family
will suffer tremendously should he be deported and
removed from the home.
Id. at 117. On this basis, the court found it “in the interests of
justice” to issue a writ of audita querela. Id. Selgado and
Ghebreziabher help further establish audita querela’s
equitable character and its utility in immigration
proceedings.7

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No. 01-3928 Ejelonu v. INS 19
on the misguided theory that it could not do so without finding a legal
error in the initial proceeding—yet the court still found it had equitable
pow er to halt the collateral consequences of the conviction. In fact, the
court not only prevented th e collateral co nsequences of Javanm ard’s
conviction, it agreed to vacate the conviction entirely pending
Javandm ard’s satisfaction o f an earlier restitution order. Id. at 1112.
V.
We have no trouble concluding that the equities in this case
overwhelmingly favor Petitioner—not just to the point where
a reasonable person might sympathize with her plight, but to
extent that to deport her under such circumstances would
shock the conscience.
First, Petitioner would be a citizen if the INS had acted in
a timely fashion, which would render her undeportable
regardless of her Youthful Trainee status. Petitioner’s mother
filed the necessary paperwork on time, and Petitioner met the
statutory criteria for citizenship. Had the INS not waited a
year to interview Petitioner, Petitioner would have become a
citizen and these deportation proceedings could not have
occurred. The government’s conduct is sine qua non of
Petitioner’s current predicament.
Second, by passing the CCA, Congress established that the
United States would no longer deport individuals for minor
youthful infractions when the individual should have received
citizenship. See 8 U.S.C. § 1431. When considering the
CCA, Representative Lamar Smith recognized the precise
bureaucratic problem that deprived Petitioner of her
citizenship. Smith explained, “[i]n cases involving children
who are approaching their 18th birthday, the delay could
result in some children losing the opportunity to acquire
citizenship under provisions of the law.” Statement of
Representative Lamar Smith, Chairman of the House
Subcommittee on Immigration and Claims, “Adopted
Orphans Citizenship Act and Anti-Atrocity Alien Deportation
Act,” Hearing Before the Subcommittee on Immigration and
20 Ejelonu v. INS No. 01-3928
Claims of the Committee on the Judiciary, 106th CONG., 1ST
SESS. (Feb. 17, 2000), at 2.
For whatever reason, the INS vehemently opposed the
CCA. See Statement of Gerri Ratliff, Director, Business
Process & Re-Engineering Services and Acting Director,
Office of Congressional Relations, Immigration and
Naturalization Service, “Adopted Orphans Citizenship Act
and Anti-Atrocity Alien Deportation Act,” Hearing Before the
Subcommittee on Immigration and Claims of the Committee
on the Judiciary, 106th CONG., 1ST SESS. (Feb. 17, 2000), at
11 (arguing against the proposed legislation).
Congress ignored the INS. As Congressman Sam
Gejdenson explained during the debate over the CCA,
"[t]here are tragic cases where children of U.S. parents, never
naturalized because of inadvertence, are facing deportation
because of a crime they have committed. While these children
must face their punishment, to deport them to countries with
which they have no contact . . . is needlessly cruel." 146
CONG. REC. H7774, H7778 (Sept. 19, 2000). Representative
Bill Delahunt agreed: “No one condones criminal acts . . . but
the terrible price these young people and their families have
paid is out of proportion to their misdeeds.” 146 CONG. REC.
H7774, H7777 (Sept. 19, 2000).
To whatever extent DHS feels it has an obligation to carry
out Congressional policy embodied in old immigration law,
Congress has changed the rules so that juvenile offenders in
Petitioner’s position no longer face draconian consequences
because the INS unreasonably delayed processing a
citizenship request. DHS now (in 2003) seeks to perpetuate
a problem Congress acted to eliminate in 2000.
Third, this entire proceeding is founded upon illegally-
obtained evidence. As noted, the court sealed the proceedings
that occurred pursuant to the Holmes Youthful Trainee Act.
See M.C.L. § 726.13. In violation of the court’s order,
someone revealed the records to the INS. Very few parties

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No. 01-3928 Ejelonu v. INS 21
had lawful access to those records; most likely, only the
police department, Petitioner’s counsel, Michigan’s
representative, the court, and the State probation authority
could have delivered the documents to the INS. Someone in
a position of trust betrayed Petitioner and his responsibility
both to the court and the State of Michigan, which requires
courts to seal Youthful Trainee records. See M.C.L. § 726.13.
Although deportation proceedings have no “exclusionary
rule,” we should never encourage anyone to break state law
or violate judicial orders. Nor should we encourage DHS to
ignore how it acquires evidence. Someone broke Michigan
law and violated a court order in a disturbingly inexcusable
attempt to force Petitioner out of the country. To deport her
would reward the wrongdoer.
Fourth, although Petitioner did not receive legally
ineffective assistance of counsel, her counsel never informed
her that accepting Youthful Trainee status would have serious
immigration consequences. Counsel should always make
clients aware of any possible serious collateral consequences
to a judgment. Had Petitioner known that acquiescing to
Youthful Trainee status would make her deportable, it seems
likely she would have pleaded not guilty and fought the
charges. Michigan law does not have a mandatory minimum
penalty for violating M.C.L. § 750.174; if found guilty,
Petitioner could have received anything from probation to a
five-year sentence. See M.C.L. § 750.174(4). Since DHS
equates Youthful Trainee status with a conviction, Petitioner
had nothing to lose by proceeding to trial. Inadequately
informed by her counsel, however, Petitioner accepted
Youthful Trainee status rather than try her case, and thus
traded the possibility of deportation for the certainty of
deportation.
Finally, equity demands a writ of audita querela to avoid
a punishment grossly disproportionate to the offense. DHS
proposes that, as a consequence of two minor juvenile thefts,
Petitioner should serve what amounts to a life sentence in an
underdeveloped, impoverished country. Petitioner has no
22 Ejelonu v. INS No. 01-3928
relatives remaining in Nigeria. There is no evidence in the
record that Petitioner can speak any of the hundreds of
dialects or languages spoken in Nigeria. Apparently, DHS
would simply put Petitioner on a plane to Abuja and
congratulate itself. DHS would condemn Petitioner to a life
of penury, or worse.
Audita querela is appropriate because it would be “contrary
to justice,” Oliver, 157 F.2d at 153, to allow the collateral
consequences of Petitioner’s Youthful Trainee status to
justify her deportation.
VI.
Before concluding, we wish to stress a few points about our
decision or, more precisely, to emphasize what we have not
done. We have not granted Petitioner’s request for
citizenship. She is not currently a citizen, and this decision
does not make her one or otherwise affect her status in that
regard.
Additionally, we note that our narrow mandate raises
neither separation-of-powers problems nor federalism
concerns. One of the circuit decisions following Ayala
claimed that “[f]or a court to vacate a final conviction solely
because the defendant faces deportation” would violate the
separation of powers. Doe v. INS, 120 F.3d at 204. This view
is seriously mistaken because, as discussed above, audita
querela does not vacate judgments, but the collateral
consequences of judgments. If Congress dislikes what we
have done, it can prohibit courts from issuing writs of audita
querela with respect to the collateral consequences of
criminal convictions just as Congress terminated the
judiciary’s ability to issue such writs in ordinary civil
proceedings by implementing Fed. R. Civ. P. 60(b).
Likewise, any federalism concern one might raise about
this decision is unwarranted. When someone seeks to attack
the validity of his state conviction or the duration of his state

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No. 01-3928 Ejelonu v. INS 23
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
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.
This decision merely enjoins the federal DHS from using
Petitioner’s Youthful Trainee status to demonstrate
Petitioner’s statutory eligibility for deportation as long as
Petitioner completes her obligations under the Holmes
Youthful Trainee Act.
Finally, we have not created some new easy means to
object to deportation. Audita querela is an equitable remedy
reserved only for the most extreme cases. Although our
decision is not necessarily limited to the facts of this case, this
holding will not support relief if deportation is either not
unconscionable or where DHS can articulate any legitimate
reason for its decision to deport.
CONCLUSION
For the aforementioned reasons, we GRANT Petitioner’s
request for a writ of audita querela. The writ prohibits DHS
from using Petitioner’s Youthful Trainee status to
demonstrate Petitioner’s statutory eligibility for deportation
as long as Petitioner completes her obligations under the
Holmes Youthful Trainee Act. We REMAND for further
proceedings consistent with this opinion.
24 Ejelonu v. INS No. 01-3928
______________
DISSENT
______________
ALICE M. BATCHELDER, Circuit Judge, dissenting. I
respectfully dissent. Although, like the majority, I am
sympathetic to Ijeoma Ejelonu’s plight, I cannot join with the
Court’s use of an extraordinary writ that was never sought by
Ejelonu nor briefed by any of the parties in this case. It is not
proper for this Court to construe Ejelonu’s pleading as a
request for a writ of audita querela, and had she in fact
requested such relief, it would not be proper for this Court to
grant it.
I.
The facts of this case are indeed troubling. As the majority
points out, had the INS acted in a timely fashion, Ejelonu
would be a citizen and would not be deportable regardless of
her having committed these offenses. And deporting Ejelonu
because she committed these offenses seems unduly
harsh—she has no known relatives remaining in Nigeria, and
has not lived there herself since she was a child. Unlike the
majority, however, I do not assume that the information upon
which the deportation proceedings are based necessarily was
obtained in violation of a court order or by any nefarious
means. M.C.L. § 762.14(4) provides that the records in a
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

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No. 01-3928 Ejelonu v. INS 25
remained pending before the INS, and 8 U.S.C. § 1446
requires that before a person may be naturalized, the Service
or the Attorney General “shall conduct a personal
investigation of the person.” Hence, it is certainly not
unlikely that the INS acquired the information entirely within
the bounds of the court’s order and the Michigan law. And
unlike the majority, I believe that we must act in accordance
not with our personal weighing of the equities, but with the
law.
Ejelonu is before this Court on appeal from an order of the
Board of Immigration Appeals (“BIA”) dismissing her appeal
of an Immigration Judge’s (“IJ”) order of removal. The INS
began removal proceedings in February 2000 after Ejelonu
pleaded guilty to two counts of embezzlement. After Ejelonu
moved to terminate the removal proceedings, the IJ concluded
that Ejelonu was not a citizen of the United States and that
she had been convicted of two separate crimes of moral
turpitude. Ejelonu appealed this decision to the BIA, which
dismissed the appeal and found Ejelonu removable under the
Immigration and Naturalization Act.
Ejelonu has raised only two issues before this Court. First,
she contends that the BIA erred in holding that her guilty plea
entered under the M.C.L. § 762.11 constitutes a “conviction”
for immigration purposes. Second, she argues that the BIA
erred in upholding the IJ’s determination that she was not a
citizen because she failed to obtain a certificate of citizenship
before her eighteenth birthday. Ejelonu does not succeed in
proving either of these claims.
Ejelonu did not meet the statutory requirement for
citizenship because she was not under the age of eighteen
when the INS adjudicated her mother’s application on her
behalf. See 8 U.S.C. § 1433(a). It is unfortunately irrelevant
that the INS caused this problem by delaying for more than
seven months the processing of Ejelonu’s citizenship
application. The Supreme Court clearly held in INS v.
Pangilinan, 486 U.S. 875, 883-84 (1988), that equitable
26 Ejelonu v. INS No. 01-3928
powers cannot be invoked to confer citizenship in the absence
of a statutory requirement. “A court [] cannot, by avowing
that there is a right but no remedy known to the law, create a
remedy in violation of law.” Id. at 883.
Congress has defined the term “conviction,” with respect to
an alien, as “a formal judgment of guilt of the alien entered by
a court or [] where - (i) a judge or jury has found the alien
guilty or the alien has entered a plea of guilty or nolo
contendere [] , and (ii) the judge has ordered some form of
punishment, penalty, or restraint on the alien’s liberty to be
imposed.” 8 U.S.C. § 1101(a)(48)(A). As the majority
opinion concedes, in order to be assigned to youthful trainee
status under Michigan’s HYTA, an individual charged with
an offense must plead guilty; Ejelonu “took advantage of this
opportunity;” and the court placed her on probation and
ordered her to make restitution. Although M.C.L. § 762.11
does not define Ejelonu’s guilty plea as a conviction per se,
it was certainly not unreasonable for the IJ or BIA to
determine that it was a conviction within the meaning of
§ 1101(a)(48)(A). A court may not substitute its own
construction of a statutory provision for a reasonable
interpretation made by an agency. Chevron U.S.A., Inc, v.
Natural Resources Defense Council, 467 U.S. 837, 844
(1984).
II.
Dissatisfied with the result dictated by Ejelonu’s inability
to succeed on the claims that she did raise, the majority now
sua sponte decides that Ejelonu in fact petitioned this Court
for a writ of audita querela. There is no support for this
conclusion in Ejelonu’s Petition for Review or in any of the
parties’ briefs. Ejelonu did not request a writ of audita
querela, or any other writ, for that matter. The government,
understandably failing to divine the possibility that the
majority of this panel would conjure up an extraordinary, out-
of-use writ to reach the end it seeks, had no opportunity
whatsoever to brief or otherwise address the issuance of such

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No. 01-3928 Ejelonu v. INS 27
a writ. The only questions raised by Ejelonu, and therefore,
the only questions before this Court, are (1) whether the BIA
erred in holding that her guilty plea constitutes a “conviction”
for immigration purposes, and (2) whether the BIA erred in
upholding the IJ’s determination that she was not a citizen.
Our analysis should have been limited to those questions.
If Ejelonu had in fact requested a writ of audita querela, it
would be improper for this Court to grant one. Congress
prohibited the federal courts from using the writ in civil cases
in the 1940s. See Fed. R. Civ. Pro. 60(b). “Writs of coram
nobis, coram vobis, audita querela, and bills of review and
bills in the nature of a bill of review, are abolished, and the
procedure for obtaining any relief from a judgment shall be
by motion as prescribed in the rules or by an independent
action.” Id. This was quite in line with no less an authority
than William Blackstone, who, in 1768, said of the writ,
[It] is a writ of a most remedial nature, and seems to have
been invented, lest in any case there should be an
oppressive defect of justice, where a party has a good
defence, but by the ordinary forms of law had no
opportunity to make it. But the indulgence now shown
by the courts in granting a summary relief upon motion,
in cases of such evident oppression, has almost rendered
useless the writ of audita querela, and driven it quite out
of practice.
3 WILLIAM BLACKSTONE , COMMENTARIES ON THE LAWS OF
ENGLAND 405 (William D. Lewis ed. 1900).
Rule 60(b) clearly applies to this appeal from an order of
the BIA, which is a civil matter, and not, as the majority
seems to imply, “a criminal proceeding.” As the Supreme
Court itself has noted, “[a] deportation proceeding is a purely
civil action to determine eligibility to remain in this country.”
INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984).
28 Ejelonu v. INS No. 01-3928
Struggling to explain its conjuration, the majority says, “As
an infrequently used remedy, modern courts have struggled to
define the scope of the writ.” This assertion is simply not
accurate. Courts have not, in cases like the one before us
now, “struggled” at all. Every circuit that has addressed this
issue has refused to issue a writ of audita querela absent
proof of some legal defect in the underlying proceedings, or
a legal objection that arose subsequent to the underlying
proceeding. And in each of these cases—unlike the instant
case—the petitioner sought to vacate a conviction. See
United States v. Alaya, 894 F.2d 425, 430 (D.C. Cir. 1990)
(denying petitioner’s request for the writ and holding that “a
federal court can vacate a criminal conviction pursuant to the
common law writ of audita querela only if the writ permits a
defendant to raise a legal objection not cognizable under
existing federal postconviction remedies”); Doe v. INS, 120
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
has a legal defense or discharge to the underlying judgment”)
(emphasis added); United States v. LaPlante, 57 F.3d 252,
253 (2d Cir. 1995) (“Audita querela is probably available
where there is a legal, as contrasted with an equitable,
objection to a conviction that has arisen subsequent to the
conviction and that is not redressable pursuant to another
post-conviction remedy.”) (emphasis added); United States
v. Johnson, 962 F.2d 579, 582-83 (7th Cir. 1992) (“The
defense or discharge must be a legal defect in the conviction
. . . . 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
(5th Cir. 1991) (stating that allowing the writ “to vacate a
conviction on purely equitable grounds . . . ‘purports to add
a new remedy’” for which there is “no adequate statutory or
historical warrant to authorize federal courts to grant such
relief”); United States v. Holder , 936 F.2d 1, 5 (1st Cir.
1991) (holding that the writ, “if available at all . . . can only
be available where there is a legal objection to a conviction,
which has arisen subsequent to that conviction, and which is

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No. 01-3928 Ejelonu v. INS 29
not redressable pursuant to another post-conviction remedy”)
(emphasis in original).
According to Black’s Law Dictionary, a writ of audita
querela is “a common law writ constituting the initial process
in an action brought by a judgment defendant to obtain relief
against the consequences of the judgment on account of some
matter of defense or discharge arising since its rendition and
which could not have been taken advantage of otherwise.”
BLACK’S LAW DICTIONARY 120 (spec. 5th ed. 1979)
(emphasis added); see also, Reyes, 945 F.2d at 863 n.1
(same). The other circuits that have considered the writ could
not have been more clear in their findings. “[T]he writ of
audita querela does not and cannot, under any stretch of the
imagination, provide a purely equitable basis for relief
independent of any legal defect in the underlying judgment.”
Holder, 936 F.2d at 3.
Nonetheless, in the present case, the majority relies solely
on its appeal to equity to grant the “requested” relief. The
majority acknowledges there was no legal defect in the
underlying proceedings, and fails to cite to any subsequent
fact or defense, arising after judgment, that Ejelonu could not
have previously raised. The majority instead relies upon the
writings of one law professor, as well as selected quotes from
William Blackstone and historian William Holdsworth for the
proposition that the writ is of “essentially equitable
character.” From there the majority concludes that granting
a writ of audita querela is appropriate in the present case
because it would be “contrary to justice” to do otherwise.
The majority’s reasoning is specious. The proposition that
the writ has a basis in equity does not support the conclusion
that it can or should be granted to prevent a perceived
injustice. Although the majority frequently quotes
Blackstone, it fails to note that Blackstone himself
emphasized that one seeking the writ must show a post-
judgment contingency supplying a “matter of discharge” or
“defense.” 3 WILLIAM BLACKSTONE, COMMENTARIES ON THE
30 Ejelonu v. INS No. 01-3928
LAWS OF ENGLAND 404 (William D. Lewis ed. 1900).
Indeed, the majority’s use of equity in this case entirely
overlooks one of the fundamentals of the nature of equity:
“Equity suffers not a Right to be without a Remedy.” Richard
Francis, MAXIMS OF EQUITY 24 (London, Bernard Lintot
1728) (emphasis added). Equity, in other words, does not
exist “upstairs over a vacant lot;” rather, equity is founded on
rights, and exists to provide a remedy unavailable at law when
those rights are violated. Nowhere does the majority opinion
identify the “right” of this petitioner that the majority would
remedy through the use of this writ.
Nor is the case law employed by the majority persuasive.
The majority gives particular weight to the Tenth Circuit’s
decision in Oliver v. City of Shattuck ex rel. Versluis, 157
F.2d 150 (10th Cir. 1946), a case that pre-dated and helped to
prompt the 1946 amendments to Rule 60(b) that abolished
audita querela and similar writs. See Ira P. Robbins, The
Revitalization of the Common-Law Civil Writ of Audita
Querela as a Postconviction Remedy in Criminal Cases: The
Immigration Context and Beyond, 6 GEO. IMMIGR. L.J. 643,
660 (1992) (“As a result of Oliver and other Rule 60(b) cases,
audita querela and corum nobis clearly still existed as civil
remedies . . . . The advisory committee reacted to this
development by amending Rule 60 in 1946.”) (citations
omitted). Even Oliver, moreover, stated that the writ was
invented to afford relief to “one against whom execution had
been issued or was about to be issued upon a judgment, which
it would be contrary to justice to allow to be enforced,
because of matters arising subsequent to the rendition
thereof.” Oliver, 157 F.2d at 153 (emphasis added).
This defect in reasoning is not cured by the curious
argument in the majority’s footnote 5 that “the removal
proceeding against Petitioner under 8 U.S.C.
§ 1227(a)(2)(A)(ii) constituted a matter which arose
subsequent to the disposition under the HYTA.” This
completely misses the point. The order before us in this
appeal—and the order to which the majority opinion purports

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No. 01-3928 Ejelonu v. INS 31
to direct this extraordinary writ—is the order of the BIA
dismissing Ejelonu’s appeal of the IJ’s order of removal. The
order before us is not, as the majority seems to believe in
footnote 5, Ejelonu’s state conviction—an order over which
this court has no jurisdiction. In its final paragraphs, the
majority opinion seems to recognize this, stating that “[o]ur
mandate does not vacate or even suggest the invalidity of
Michigan’s ‘judgment’ . . . nor do we purport to lift any of the
concomitant sanctions Michigan imposed.” As a matter of
logic, the argument in footnote 5 and this statement from the
majority cannot both be true. See ARISTOTLE, METAPHYSICS,
§ 1005b12-20 (“[T]he most certain principle of all is that
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
state it thus: ‘It is impossible for the same thing at the same
time to belong and not belong to the same thing at the same
time and in the same respect.’”). And as a matter of law, the
only order to which this court has jurisdiction to direct an
extraordinary writ is the order of the BIA. Even if Congress,
arguendo, had not expressly eliminated the writ of audita
querela in civil proceedings, the only events material to this
court’s review would be events occurring subsequent to the
BIA’s order.
The majority relies upon two district court cases, United
States v. Salgado, 692 F. Supp. 1265 (E.D. Wash. 1988), and
United States v. Ghebreziabher, 701 F. Supp. 115 (E.D. La.
1988), as examples of courts’ granting writs of audita querela
for purely equitable reasons, “to mitigate the collateral
consequences of an earlier criminal conviction when failing
to do so would have produced an unconscionable result.” The
majority’s reliance on these cases is severely misplaced.
Salgado and Ghebreziabher have been widely and, until
today, uniformly criticized by each circuit that has considered
this issue. Neither case represents the law of the land in its
own circuit. See Doe, 120 F.3d at 203 (finding that “Salgado
and Ghebreziabher were mistaken, as a historical matter, in
their conclusion that audita querela furnishes a purely
‘equitable’ basis for relief independent of any legal defect in
32 Ejelonu v. INS No. 01-3928
the underlying judgment”); Reyes, 945 F.2d at 866 (stating
that “the Salgado and Ghebreziabher courts had strayed from
the original bounds of the writ” and that such use of the writ
“usurp[ed] the power of Congress to set naturalization and
deportation standards and the power of the INS to administer
those standards”). Unable to find anything to support its
holding, the majority also cites to United States v. Javanmard,
767 F. Supp. 1109 (D. Kan. 1991), a case in which, as the
majority itself admits, “the court refused to grant a writ of
audita querela” under the belief that it could only do so if a
legal error occurred in the initial proceeding. See id. at 1110-
11.
Having sua sponte granted the writ, the majority opinion
anticipatorily repudiates the well-deserved charge that the
granting of this writ raises separation of powers concerns,
protesting that “[i]f Congress dislikes what we have done, it
can prohibit courts from issuing writs of audita querela with
respect to the collateral consequences of criminal convictions
just as Congress terminated the judiciary’s ability to issue
such writs in ordinary civil proceedings by implementing Fed.
R. Civ. P. 60(b).” This statement necessitates one of two
conclusions, both of which are untenable. The first is that the
Court is vacating the collateral consequence of the underlying
state action. This Court has no authority to take such action,
and such an interpretation clearly contradicts the majority’s
statement that its mandate “does not vacate or even suggest
the invalidity of Michigan’s ‘judgment.’” The only other
possible interpretation is that Ejelonu’s appeal to the BIA, and
the underlying judgment of the IJ, are “criminal proceedings”
and the order of removal is a “criminal conviction.” The
Supreme Court, I suspect, would be surprised by this view.
See INS v. Lopez-Mendoza, 468 U.S. at 1038 (“A deportation
proceeding is a purely civil action to determine eligibility to
remain in this country.”). The majority protests further that
its holding portends no threat to the ability of DHS to carry
out its statutory duties, because this opinion “will not support
relief if deportation is either not unconscionable or where
DHS can articulate any legitimate reason for its decision to

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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.

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