The Revitalization of the Common-Law Writ of Audita Querela as a Post-Conviction Remedy in Criminal Cases: The Immigration Context and Beyond

50 Pages Posted: 26 May 2016  

Ira P. Robbins

American University - Washington College of Law

Date Written: 1992

Abstract

An alien lawfully enters the United States in 1972. He gets a job, gets married, and becomes a productive worker in the community. He is subsequently convicted of a felony, such as making false statements on a loan application. As a result, the Immigration and Naturalization Service (INS) brings deportation proceedings against him. The individual will seek any means possible to vacate the conviction, in order to stay in this country.

This Article explores whether the writ of audita querela, primarily used to provide post-judgment relief in civil cases at common law, can be used to challenge criminal convictions in these circumstances and others. At common law, audita querela provided post-judgment relief in two situations: first, it provided relief against the consequences of a judgment because of a defense or discharge that had arisen since the judgment that could not be utilized otherwise;' second, it provided relief when there were matters that had arisen before judgment that the defendant was prevented from raising in defense."

Although audita querela initially was used by judgment debtors against creditors where the debtors had paid the debt and the creditors still tried to press the claims, its availability at common law was expanded to encompass a wide variety of factual situations. Primarily a civil remedy at common law, audita querela has recently been used to provide post-conviction relief for criminal defendants where the party convicted suffered adverse immigration consequences as a result of the conviction. Despite this recent use, however, the question of its availability as a criminal remedy and its scope as such a remedy has not been clearly defined. As one commentator succinctly summarized, the writ of audita querela is "shrouded in ancient lore and mystery."

Keywords: post-conviction relief, immigration law

Suggested Citation

Robbins, Ira P., The Revitalization of the Common-Law Writ of Audita Querela as a Post-Conviction Remedy in Criminal Cases: The Immigration Context and Beyond (1992). 6 Georgetown Immigration Law Review 643 (1992).. Available at SSRN: https://ssrn.com/abstract=2784428

Ira P. Robbins (Contact Author)

American University - Washington College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States
202-274-4235 (Phone)
202-274-4130 (Fax)

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