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.
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
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
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
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 ...