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January 30, 1991


The opinion of the court was delivered by: Richard Mills, District Judge:


Petition for writ of audita querela.

As uncommon as it is, audita querela is a common law writ allowing a judgment defendant to obtain relief from the consequences of the judgment based on a defense or discharge arising after the rendition of judgment that cannot otherwise be raised. See Black's Law Dictionary 131 (6th ed. 1990).

Petitioner pled guilty to having transported an illegal alien on February 3, 1990, in violation of 8 U.S.C. § 1324(a)(1)(B). He was sentenced to five years probation.

Subsequently, Petitioner filed this petition seeking relief from his felony conviction so that he may be eligible for amnesty under the Immigration Reform and Control Act of 1986 (IRCA).*fn1 Petitioner represents that but for his felony conviction, he would be eligible for legalization.*fn2 He further contends that his felony conviction has produced "disproportionate and inequitable consequences."

The appropriateness of using the common law writ of audita querela to relieve the consequences of a criminal conviction was first addressed in United States v. Kimberlin, 675 F.2d 866 (7th Cir. 1982). In that case, the Seventh Circuit stated:

  The writ of audita querela is an old common law
  procedure for obtaining relief from a judgment.
  Rule 60(b) of the Federal Rules of Civil Procedure,
  in creating a procedure for relief from a final
  judgment in a federal civil case, expressly
  abolished the writ of audita querela, but we cannot
  conclude from this that the writ is unavailable in
  a federal criminal case. Morgan v. United States,
  [346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954)],
  held that the abolition by Rule 60(b) of coram
  nobis was limited to civil proceedings; and we
  assume the same result would be reached if a
  criminal defendant could show that relief from a
  judgment by means of audita querela was necessary
  to plug a gap in the system of federal post
  conviction remedies. We own to some doubt, however,
  that such a gap exists, given the availability of
  section 2255 for defendants in federal custody and
  coram nobis for defendants no longer in federal
  custody. Moreover, even if there were such a gap,
  it is very doubtful that audita querela would be
  the means to fill it. Our research has failed to
  discover any criminal case in which this writ has
  ever been asked for, let alone issued; it appears
  to be primarily a remedy of judgment debtors.

Kimberlin, 675 F.2d at 869 (citation omitted). Kimberlin is not only the first opinion to address the applicability of the writ of audita querela to criminal cases, it is the last time the issue has been addressed in a published decision in the Seventh Circuit.

Petitioner supports his petition with district court cases decided outside of the Seventh Circuit subsequent to Kimberlin. All of these cases involve the vacation of valid criminal convictions in order to allow the petitioners to qualify for naturalization under the amnesty provision of IRCA.

United States v. Salgado, 692 F. Supp. 1265 (E.D.Wash. 1988) was the first case to grant relief from a criminal judgment under audita querela. Salgado had entered the country lawfully in 1943 as a seasonal worker. In subsequent years he regularly returned to this country during harvest season. He married a United States citizen in 1947 and became a permanent resident the following year, but never applied for naturalization. In 1964, Salgado pled guilty to failing to pay the transfer tax on a small quantity of marijuana, served eighteen months, and was ordered deported. He was told by prison authorities that he could not re-enter the country for two years.

Salgado self-deported and re-entered the country in 1964 using the green card which had never been taken from him.*fn3 During the next fifteen years, he worked for a California rancher and was inspected by various INS agents, and took vacations to Mexico and re-entered this country without incident.

In 1984, Salgado applied for social security benefits. A routine investigation revealed that he had been deported and that the INS considered him to be in the country illegally. Salgado and his wife then visited Mexico. While there, Salgado contacted the United States' Embassy to seek clarification of his status and was told that his green card was valid and he was a lawful permanent resident. In the meantime, Salgado's wife filed an I-130 petition for immediate relative status on his behalf. The normal investigation performed before granting such status revealed that he was in the country illegally and led to his arrest and to deportation proceedings against him.

The court found that although no single factor in the case warranted the relief sought,

  under the totality of the circumstances, it would
  be a gross injustice to allow this man, who has .
  . . been a model resident for forty-five years
  save for a single period of unlawful conduct, to
  effectively serve a life sentence, and for his
  family to be deprived ...

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