United States v. Hovsepian

OPINION O’SCANNLAIN, Circuit Judge. Among other issues, we must decide whether a federal district court may grant citizenship to resident aliens whose applications were rejected by the Immigration and Naturalization Service in part because of their past terrorist activities. I In November 1999, during the pendency of various civil and criminal proceedings arising out of challenges to earlier convictions, the district court naturalized Viken Hovsepian and Viken Yacoubian (the “applicants”) despite the fact that the Immigration and Naturalization Service (the “INS”) had previously denied their applications. To understand the context of such proceedings and the many collateral issues raised by these appeals, a detailed history is in order. We begin in 1982, when the FBI discovered through intercepted phone conversations that the applicants were planning to blow up the offices of the Honorary Turkish Consul General in Philadelphia. At the time, the applicants were associated with the Justice Commandoes of the Armenian Genocide, a terrorist organization dedicated to exacting revenge against Turkey for atrocities committed against Armenians. The FBI learned that the applicants had arranged for a coconspirator to transport the bomb on a commercial airliner from Los Angeles International Airport to Boston’s Logan Airport on October 22. The FBI failed to detain the coconspirator, and he successfully boarded the flight with the bomb stowed in his checked baggage. However, upon landing, the FBI promptly arrested him and seized the bomb. The FBI later estimated that the bomb likely would have killed between 2000 and 3000 people. The applicants, who were Lebanese citizens and lawful permanent residents of the United States, were duly convicted of various federal explosives offenses. At the time of conviction, Yacoubian was twenty926 one and Hovsepian was twenty-four, and thus both were eligible for sentencing under the Federal Youth Corrections Act (FYCA), which pertained to offenders twenty-six years old and under. 18 U.S.C. §§ 4216, 5010 (1982) (repealed 1984). Because Yacoubian was under twenty-two, the court could sentence him as an adult only if it made an explicit finding that he would not benefit from a sentence under the FYCA. § 5010; Dorszynski v. United States, 418 U.S. 424, 425-26, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974). As for Hovsepian, who was over twenty-two, the court was required to sentence him as an adult unless it concluded that he would benefit from a sentence under the Act. § 4216. The court sentenced Hovsepian and Ya-coubian as adults. While the court expressly found that Hovsepian would not benefit from a FYCA sentence, the court neglected to make such a finding as to Yacoubian. At sentencing, the court also issued a Judicial Recommendation Against Deportation (JRAD) for both applicants. See 8 U.S.C. § 1251(b)(2) (1982) (repealed 1990). Their convictions made them eligible for deportation for having committed a crime of moral turpitude. 15242 See § 1251(a)(4). The JRAD prohibited the INS from deporting them on this ground. § 1251(a)(4). Both Hovsepian and Yacoubian have served their full prison terms. Since their release, each has married and lives in California. Neither has since run afoul of the law; indeed, both have established very successful, distinguished careers. Hovse-pian earned a Ph. D. in international relations from the University of Southern California in 1994. He currently manages a hedge fund with a partner who is based in New York. Yacoubian earned a master’s degree in psychology from Loyola Marym-ount University in 1988. He later entered the Ph. D. program at the University of Southern California. He is currently the principal of the Rose and Alex Pilibos Armenian High School and an adjunct professor at Woodbury University. Both submitted numerous glowing character references, many of which detailed their commitment to the Armenian-American community. In 1988, Congress amended the immigration laws, making unlawful possession of a destructive device a deportable offense. § 1227(a)(2)(C). In 1990, Congress made this ground of deportation retroactive to all aliens regardless of the date of their convictions. Pub.L. No. 101-649, § 602(c), 104 Stat. 4978, 5081-82 (1990). The applicants’ offenses fell within this new category of deportation. In 1991, the INS placed a detainer on Yacoubian, a precursor to deportation, Yacoubian filed suit, claiming that the JRAD barred the INS’s action; the district court permanently enjoined the INS from initiating deportation proceedings. We reversed, holding that the JRAD did not apply to the new ground of deportation. See United States v. Yacoubian, 24 F.3d 1 (9th Cir.1994). In 1997, the United States filed a Rule 36 motion under the Federal Rules of Criminal Procedure to correct certain typographical errors in the applicants’ judgment and commitment orders. The motion’s purpose was to assist the INS in initiating deportation proceedings against the applicants. The court denied the motion and chided the government for seeking to deport the applicants. R.T. 8/5/1997 at 10-11 (“[T]he idea of deporting these people is nothing short of lunacy.”). While the government’s motion was pending, Hovsepian made a Rule 35 motion for a “correction” of Ms sentence. Alternatively, he sought writs of audita querela and coram nobis. He claimed that the district court committed a “mistake of fact” at the time of sentencing. Specifical — 927 — ly, he claimed that the court mistakenly thought that the JRAD would categorically bar the INS from deporting him on the basis of his convictions. As relief, he sought resentencing under the FYCA, and expungement of his conviction. Yacoubian similarly filed a Rule 35 motion, also seeking resentencing and ex-pungement under the FYCA. He stressed that the court neglected to find at sentencing that he would not benefit from a sentence under the FYCA. The court granted Hovsepian’s and Ya-coubian’s motions and resentenced both under the FYCA. The court “expunged” their convictions by ordering the FBI to remove their conviction records from its files. The court directed the FBI to place the conviction records in a “separate storage facility which is not to be opened other than in the course of a bona fide criminal investigation by law enforcement, and only where necessary for such an investigation.” With their convictions expunged, the applicants likely were no longer eligible for deportation. For good measure, Hovsepian filed a separate civil proceeding, seeking an injunction bariing the INS from commencing deportation proceedings. The court permanently enjoined the INS from deporting Hovsepian on any ground that was not in existence at the time of his original sentencing. The injunction’s practical effect is to make the JRAD a bar to any deportation attempts by the INS. During the pendency of the foregoing criminal and civil proceedings, the applicants filed naturalization applications with the INS, and in due course, an INS examiner interviewed both Hovsepian and Ya-coubian. Before the INS rendered a decision, the applicants filed suit, requesting that the court naturalize them. The INS subsequently denied the applications, but the district court naturalized the applicants nonetheless. The United States filed these timely appeals raising various criminal, civil, and naturalization issues. II The government appeals Dr. Hovsepi-an’s, but not Yacoubian’s resentencing under the FYCA.1 The court resentenced Hovsepian by granting his Rule 35 motion and alternatively by granting him a writ of audita querela. A “District courts do not have inherent authority to resentence defendants at any time.” United States v. Stump, 914 F.2d 170, 172 (9th Cir.1990). Rule 35 is generally the only vehicle available for re-sentencing, unless the case is on remand from the Court of Appeals. United States v. Minor, 846 F.2d 1184, 1187 (9th Cir.1988). Rule 35(a) provides that “A court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence.”2 The time for a reduction of sentence has long since elapsed, Fed.R.Crim.P. 35(b), and thus the question is whether Hovsepi-an received an “illegal sentence.” An “ille — 928 — gal sentence” is “one which is not authorized by the judgment of conviction, or is in excess of the permissible statutory penalty for the crime, or is in violation of the Constitution.” United States v. Johnson, 988 F.2d 941, 943 (9th Cir.1993). The district court granted Hovsepi-an’s motion because it determined it had made a “mistake of fact” at the time of sentencing. When the court sentenced Hovsepian as an adult, it issued a JRAD to bar deportation on moral turpitude grounds. Congress later added new grounds for deportation, which a JRAD does not cover. The court recited that it mistakenly thought that a JRAD would categorically bar deportation. The court stated that had it been aware of Congress’s future amendments to the immigration laws, it would have sentenced Hovsepian under the FYCA. It then would have expunged his conviction, leaving the INS with no grounds for deportation.3 Hovsepian does not suffer from an “illegal sentence” within the meaning of Rule 35. His sentence is authorized by the judgment of conviction. It is not in excess of the statutory maximum, nor is it in violation of the Constitution. The unforeseen consequences of sentencing Hovsepian as an adult do not make his sentence “illegal.” See Johnson, 988 F.2d at 943; United States v. Fowler, 794 F.2d 1446, 1449 (9th Cir.1986). Accordingly, we must conclude that the district court erred in granting Hovsepian’s 35 motion. B Alternatively, the court resen-tenced Hovsepian through the grant of a writ of audita querela. “ ‘Audita querela ’ was a common law writ to afford relief to a judgment debtor against a judgment or execution because of some defense or discharge arising subsequent to the rendition of the judgment or the issue of the execution.” United States v. Fonseca-Martinez, 36 F.3d 62, 63-64 (9th Cir.1994). While Federal Rule of Civil Procedure 60(b) abolishes the writ in civil cases, the writ might exist to vacate a criminal conviction or sentence. See United States v. Valdez-Pacheco, 237 F.3d 1077, 1079 (9th Cir.2001); Doe v. INS, 120 F.3d 200, 204 (9th Cir.1997). However, the person seeking the writ must show a legal defense or discharge to the judgment. Doe, 120 F.3d at 204. Hovsepian points only to the fact that the court was unaware of the consequences of an adult sentence, as opposed to a sentence under the FYCA. This observation does not constitute a legal defense to his sentence. Id. at 203 (explaining that a “legal defense” concerns a “legal defect” in the underlying sentence or conviction). Therefore, the district court erred in granting the writ as well. In sum, we must conclude that the district court exceeded its authority in resentencing Hovsepian under the FYCA. His original, adult sentence (since served) remains of record. Ill The government next challenges the district court’s “expungement” of the applicants’ conviction records under the FYCA. Because we have already determined that Dr. Hovsepian was improperly resentenced under the FYCA, we necessarily conclude that the court erred in expunging his records. Nonetheless, we must address the expungement question because the government concedes that Ya-coubian was properly resentenced under the FYCA. The district court ordered that the FBI place Yacoubian’s conviction records in a “separate storage facility.” Under the court’s order, the government may not ae929 cess his records except “in the course of a bona fide criminal investigation ..., and only where necessary for such an investigation.” The records “may not be disseminated to, or used by, anyone, public or private, for any other purpose.” Thus, the practical effect of the district court’s order is that Yacoubian’s conviction is expunged — -without legal effect — because the records are inaccessible except in the narrow circumstance of when necessary to a criminal investigation. The district court expunged Yacoubian’s conviction pursuant to the FYCA, which provides that a court may “set aside the conviction” and “issue ... to the youth offender a certificate to that effect.” 18 U.S.C. § 5021(b) (1982) (repealed 1984). We have not spoken consistently about the meaning and breadth of “set aside.” In United States v. Campbell, 724 F.2d 812, 812-13 (9th Cir.1984), we squarely rejected the contention that a conviction set aside under the FYCA is without legal effect. The defendant challenged the district court’s consideration at sentencing of Ms prior FYCA conviction, which had been set aside under the statute. We held that the court properly considered the set aside conviction. Id. We explained that Congress did not intend that set aside convictions be removed permanently from a person’s record. Rather, we explained that the “set aside” provision serves the narrow purpose of “preventfing] public dissemination, and particularly dissemination to prospective employers, of an FYCA conviction.” Id. at 812. We stressed, “Nothing in [the Act] suggests that the [conviction] may not be retained for later use by another court.” Id. We backtracked from Campbell in United States v. Hidalgo, 932 F.2d 805, 806-07 (9th Cir.1991), where we were asked to decide whether a conviction expunged pursuant to a California statute could be used under the federal Sentencing Guidelines. In dicta, we discussed the FYCA as a “useful analogy.” Id. at 807. We explained that the Supreme Court, in dicta, “set[ ] out the purposes and legislative history of [the FYCA set aside provision] in a series of footnotes.” Id. at 807 (citing Tuten v. United States, 460 U.S. 660, 664-65 nn. 6-9, 103 S.Ct. 1412, 75 L.Ed.2d 359 (1983)). We concluded that “The Court clearly understood the term “set aside” to mean “expunged” for purposes of the Act.4 Accordingly, we stressed that set aside convictions are without legal effect and cannot be used in subsequent judicial proceedings. Curiously, the Hidalgo court did not discuss, let alone cite, Campbell. We adopted Hidalgo’s dicta in United States v. Kammerdiener, 945 F.2d 300, 301 (9th Cir.1991), in which we held that a conviction set aside under the Act cannot be considered under the federal Sentencing Guidelines. The court’s analysis was brief, simply stating that it felt “bound” by Hidalgo’s characterization of the FYCA. Kammerdiener, 945 F.2d at 301. Kammerdiener also did not discuss, or cite Campbell,5 — 930 — Hidalgo and Kammerdiener offer materially different characterizations of the set aside provision compared to Campbell. Campbell stressed that convictions set aside are not stripped of their legal effect, broadly stating that they may be “retained for later use by another court.” 724 F.2d at 812. Hidalgo and Kammerdiener, on the other hand, suggested that set aside convictions carry no legal significance, and may not be used in any subsequent proceeding. Fortunately, we are not asked to decide what, if any, legal effect set aside convictions retain. Indeed, Hidalgo and Kam-merdiener are likely irreconcilable with Campbell on this point. Rather, we are faced only with the narrow question of whether a court may order conviction records inaccessible for any purpose other than when necessary to a “bona fide criminal investigation.”6 Campbell, of course, dictates that such portion of the district court’s order is inappropriate and ineffective. Hidalgo and Kammerdiener are not to the contrary. While those cases speak to the legal effect of a set aside conviction, neither suggests that conviction records may be quarantined except for the limited purpose of an ongoing criminal investigation. In other words, while such a conviction may not be used under the Sentencing Guidelines or otherwise, it does not follow that the conviction record may be purged in the manner directed by the district court. Thus, bound by Campbell, we are compelled to conclude that the district court erred to that extent.7 We pause to note that our holding today is consistent with the view of almost all of our sister circuits that have interpreted the FYCA’s set aside provision. See United States v. Wacher, 72 F.3d 1453, 1479-80 (10th Cir.1995) (holding that set aside convictions may be considered at sentencing); United States v. Ashburn, 20 F.3d 1336, 1342-43 (5th Cir.1994) (same); United States v. Gardner, 860 F.2d 1391, 1399 (7th Cir.1988) (same); United States v. Doe, 747 F.2d 1358, 1359 (11th Cir.1984) (holding that the FYCA does not authorize destruction or segregation of set aside conviction records); United States v. Doe, 732 F.2d 229, 230-32 (1st Cir.1984) (same); United States v. Doe, 556 F.2d 391, 392-93 (6th Cir.1977) (same); United States v. McMains, 540 F.2d 387, 389 (8th Cir.1976) (same). But see United States v. Doe, 980 F.2d 876, 881-82 (3d Cir.1992); Doe v. Webster, 606 F.2d 1226, 1232-1237 (D.C.Cir.1979). The district court’s ex-pungement order must be reversed. IV We turn now to the district court’s injunction that requires the INS to treat Dr. Hovsepian under the immigration law as it existed in 1985. The government argues that the injunction violates 8 U.S.C. § 1252(g). Section 1252(g) gives the Attorney General exclusive jurisdiction to decide whether to commence deportation proceedings. Reno v. Arab-American Anti-Discrimination Comm., 525 U.S. 471, 482, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999); Barahona-Gomez v. Reno, 236 F.3d 1115, 1120-21 (9th Cir.2001). It states, “[N]o court shall have jurisdiction to hear any ... claim ... by any alien arising from the decision or — 931 — action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders ....” § 1252(g).8 The statute’s purpose is “to limit any judicial influence on the Attorney General’s decisions regarding the commencement of removal proceedings.” Chapinski v. Ziglar, 278 F.3d 718, 720 (7th Cir.2002); see also AADC, 525 U.S. at 485, 119 S.Ct. 936 (discussing congressional intent in passing § 1252(g)). Hovsepian requested, and received, an injunction that required the INS to treat him under the immigration laws as they existed in 1985. The 1988 and 1990 amendments to the immigration laws made Hovsepian deportable. Hovsepian sought the injunction for a sole purpose: if the INS could not rely upon the 1988 and 1990 amendments to the immigration laws, it could not commence deportation proceedings. In other words, Hovsepian’s objective was to bar the INS from commencing deportation proceedings. As such, his claim falls squarely within § 1252(g)’s jurisdictional bar. See, e.g., AADC, 525 U.S. at 589-91, 119 S.Ct. 936 (concluding that court lacked jurisdiction over aliens’ selective prosecution claim); Chapinski, 278 F.3d at 720 (explaining that court lacked jurisdiction to compel INS to process aliens’ applications for adjustment of status because relief would require commencement of proceedings); Cardoso v. Reno, 216 F.3d 512, 516 (5th Cir.2000) (holding that court lacked jurisdiction to compel the INS to adjust an alien’s status in an attempt to avoid a removal order). Accordingly, we must vacate the district court’s preliminary injunction for lack of jurisdiction.9 V We turn next to the district court’s order naturalizing the applicants. The government argues that the court erred in granting naturalization because the applicants failed to exhaust their remedies with the INS. A Under the statutory scheme, the naturalization process commences with the applicant filing a completed naturalization application with the INS. 8 U.S.C. § 1445(a); 8 C.F.R. §§ 334.2, 316.4, 316.10. The INS then conducts a background investigation of the applicant. 8 U.S.C. § 1446(a); 8 C.F.R. § 335.1. An INS officer will then interview the applicant. 8 U.S.C. § 1446(a); 8 C.F.R. 335.1. Following the interview, the INS will either grant or deny the application. 8 U.S.C. § 1446(d); 8 C.F.R. § 335.3. If the INS issues a denial, the applicant must typically proceed through the INS administrative process before seeking judicial review. 8 U.S.C. §§ 1447(a), 1421(c), (d). The applicant must file a request for an administrative hearing within thirty days of receiving notice of the denial. 8 C.F.R. § 336.2(a); see also 8 U.S.C. § 1447(a). The INS must schedule a hearing promptly, no later than 180 days from the date upon which the notice of appeal is filed. . 8 C.F.R. 336.2(b). The hearing officer conducts a de novo review, and may hear additional testimony and receive new evidence. Id. If the hearing officer upholds the denial, the applicant may seek judicial review with — 932 — the district court for the district in which the applicant resides. 8 U.S.C. § 1421(c). The district court conducts a de novo review, and must conduct a hearing at the applicant’s request. Id.; see also Nagahi v. INS, 219 F.3d 1166, 1169 (10th Cir.2000). B While an applicant must generally exhaust the INS’s administrative remedies before seeking judicial review, a narrow exception to this rule exists. 8 U.S.C. § 1447(b). As stated above, the INS interviews the applicant after conducting a background check. 8 U.S.C. § 1446(a); 8 C.F.R. 335.1. If the INS fails to render a decision within 120 days of the interview, the applicant may seek immediate judicial review. 8 U.S.C. § 1447(b); 8 C.F.R. § 335.3; see also Sze v. INS, 153 F.3d 1005, 1008 (9th Cir.1998). If the INS conducts multiple interviews, the 120 days runs from the date of the initial interview. 8 C.F.R. § 335.3. When an applicant seeks immediate judicial review, the court “has jurisdiction over the [naturalization] matter and may either determine the matter or remand the matter, with appropriate instructions, to the [INS] to determine the matter.” § 1447(b). By the terms of the statute, the district court is not required to entertain the naturalization issue. Rather, the statute affords discretion to the district court whether to decide or to remand. But, the district court’s discretion is not unfettered. Congress has expressed a strong preference for naturalization applicants to exhaust the INS’s administrative remedies before seeking judicial review. See 8 U.S.C. §§ 1447(a), 1421(c), (d). Congress created an exception for immediate review to allow the naturalization process to proceed without undue delay. Therefore, applicants may seek immediate judicial review when the INS fails to act upon an application within 120 days of the applicant’s interview. § 1447(b). However, the need for immediate judicial review evaporates when the INS renders a decision before the district court acts upon an application. An applicant is entitled to a prompt administrative hearing, and may seek judicial review of a denial once a final administrative decision has been rendered. 8 U.S.C. §§ 1421(c), 1447(a); 8 C.F.R. 336.2(b). A district court should exercise immediate judicial review only in compelling, exceptional circumstances if the INS has already denied the applications. Cf. Chavez v. INS, 844 F.Supp. 1224, 1225 (N.D.Ill.1993). Instead, the district court should ordinarily remand the matter, which, of course, would permit judicial review once the applicant has exhausted his administrative remedies. The dissent, without citation to a single immigration case (let alone one interpreting § 1447(b)), contends that the district court retains unfettered discretion whether to exercise jurisdiction or to remand the matter to the INS. The dissent’s contention is belied by the plain language of the statute; § 1447 provides that the district court “may,” not “shall,” exercise jurisdiction. Again, the need for immediate judicial review ordinarily evaporates when the INS renders a decision before the district court elects to exercise jurisdiction over the matter. Alternatively, the dissent contends, again without citation to an immigration case, that the INS is without jurisdiction to act upon a naturalization application when the applicant’s request for immediate judicial review is pending with the district court. However, nothing in the statute strips the INS of jurisdiction when the 120-day period has expired. Jurisdiction over the application does not automatically vest in the district court, but rather the — 933 — court may, as a matter of discretion, affirmatively assert jurisdiction if it wishes. It would be entirely contrary to § 1447(b)’s purpose of ensuring prompt determinations to suspend INS authority while the district court decides whether to exercise jurisdiction. C On January 15, 1999, the INS interviewed the applicants in connection with their naturalization applications. As a result, the INS had until May 17 to make a decision.10 During their interviews, the applicants refused to answer certain questions about their background, claiming that the questions ran afoul of the court’s ex-pungement order. In light of their refusal to cooperate fully, the INS scheduled a second interview for May 6. The applicants requested a different date, and the INS rescheduled the interview for May 13. The applicants again requested a different date and the INS rescheduled for May 18 for Yacoubian, and May 25 for Dr. Hovse-pian. Both dates were outside of the 120-day deadline. On May 18, an INS examiner presented Yacoubian at his interview with a list of questions regarding his background. Ya-coubian refused to answer most of the questions, again on the ground that the court’s expungement order barred the questions. After his interview, Yacoubian shared the questions with Hovsepian. On May 25, Hovsepian declined to attend his interview. Instead, he notified the INS by messenger that he would not answer the questions that Yacoubian had refused to answer. On June 10, the applicants requested that the district court act on their naturalization applications, asserting that it had jurisdiction over the matter because more than 120 days had elapsed since their initial interview. On June 24, the INS denied both applications. The applicants sought timely administrative review, requesting a hearing. See 8 U.S.C. § 1447(a); 8 C.F.R. § 336.2(a). Notwithstanding the INS’s denial and the applicants’ pursuit of administrative review within the INS, the district court determined that it would assert and retain jurisdiction over the naturalization applications. On November 9, without further action by the INS, the court granted the applicants relief and administered the oath of citizenship to both Hovsepian and Ya-coubian. D On the record before us, we must conclude that the district court abused its discretion in retaining jurisdiction over the applicants’ naturalization applications and failing to remand the matter to the INS. The INS rendered a decision months before the court even held a hearing on the matter. The INS missed the 120-deadline by only thirty-eight days. Indeed, the INS likely might well have met the deadline if the applicants had not repeatedly rescheduled their interviews. Furthermore, the applicants hardly presented routine naturalization applications. Not only were the applicants convicted terrorists, but the INS had to contend with the concurrent civil and criminal proceedings, which of course impacted the processing of the applications. In sum, the record reveals no compelling or exceptional circumstances for the district court to decide the applications in the first instance. Accordingly, the district court erred in failing to remand the matter to the INS for further proceedings. The applicants’ pursuit of judicial review of — 934 — the denial on the merits must wait until they have exhausted their administrative remedies. VI Lastly, the government appeals the denial of its Rule 36 motion to correct typographical errors in the applicants’ judgments and commitment orders. The government sought to change incorrect references to the statutory bases of conviction. The court denied the motion as untimely in that thirteen years had elapsed since the entry of judgment. The court erred. As Rule 36 states, “Clerical mistakes in judgments [or] orders ... arising from oversight or omission may be corrected by the court at any time ...(emphasis added). “There is no time limit on when the district court may invoke Rule 36 to correct clerical errors.” United States v. Jones, 608 F.2d 386, 389 n. 1 (9th Cir.1979). The court alternatively denied the motion because the government’s proposed corrections contained new typographical errors. We ordinarily review Rule 36 motions for clear error because we usually must decide whether a “clerical error has in fact occurred.” United States v. Dickie, 752 F.2d 1398, 1400 (9th Cir.1985). However, in this case it is undisputed that clerical errors exist in the underlying judgment and commitment orders. The district court denied the motion because it concluded that the government failed to present its proposed corrections in a proper manner. As such, the district court denied the motion as a purported exercise of its discretion. Accordingly, our review here is for an abuse of discretion, not clear error. Cf. Davoll v. Webb, 194 F.3d 1116, 1137 (10th Cir.1999) (reviewing for abuse of discretion district court’s refusal to allow withdrawal of stipulation because it contained a typographical error); Kyle v. Campbell Soup Co., 28 F.3d 928, 930 (9th Cir.1994) (reviewing court’s refusal to accept party’s late filing for an abuse of discretion). The government’s proposed corrections were factually inaccurate. The motions contained incorrect title and section numbers, and the district court so found. Under the circumstances, we cannot say that the district court abused its discretion.11 VII Finally, we stress that, unlike the dissent, we do not pass judgment on the wisdom of the INS’s decision to initiate deportation proceedings based upon events that occurred twenty years ago. The applicants arranged for a bomb to be transported on a commercial airliner, and planned to detonate it in Philadelphia, with the potential of murdering between 2000 and 3000 people. On the other hand, the applicants by all accounts have lived exemplary lives and have become pillars of their communities since their release from prison. Whether the actions of their youth justify deportation under our immigration laws is a question for the political branches of government. Judicial sympathy only functions within prescribed parameters of the law. To summarize, we reverse the district court’s grant of Hovsepian’s Rule 35 mo — 935 — tion and award of writ of audita querela. We reverse the district court’s entry of an order “expunging” the applicants’ convictions. We vacate the district court’s injunction requiring the INS to treat Hovse-pian under the immigration laws as they existed in 1985. We reverse the district court’s order naturalizing the applicants and remand with instructions to remand to the INS for further proceedings. Finally, we affirm the district court’s denial of the government’s Rule 36 motion. Each party shall bear its own costs. AFFIRMED in part, REVERSED in part, VACATED in part, and REMANDED with instructions. Footnotes [1] The government concedes that Yacoubian was properly resentenced under Rule 35. The government notes that the court erred during the original sentencing by failing to find that Yacoubian would not benefit from a sentence under the FYCA. See § 5010(d); Dorszynski, 418 U.S. at 425-26, 94 S.Ct. 3042. We express no view as to whether these circumstances justify resentencing under Rule 35. [2] Rule 35 contains two different versions, depending upon whether the Sentencing Guidelines were in effect at the time of the sentencing. Hovsepian is subject to the pre-Guidelines version. [3] We address shortly whether the FYCA authorizes expungement of a conviction. [4] In Tuten, the Court decided under what circumstances a conviction may be set aside under the FYCA. 460 U.S. at 660, 103 S.Ct. 1412. The Court did not decide any issues regarding the effect of a conviction properly set aside under the Act. Accordingly, the Court's brief discussion of the effect of the set aside provision is dicta. [5] We note that Kammerdiener stands in opposition to the view of all the other circuits. United States v. Fosher, 124 F.3d 52, 58 (1st Cir.1997); Gass v. United States, 109 F.3d 677, 679 (11th Cir.1997); United States v. Nicolace, 90 F.3d 255, 258 (8th Cir.1996); United States v. Wacker, 72 F.3d 1453, 1479-80 (10th Cir.1995); United States v. Ashburn, 20 F.3d 1336, 1342-43 (5th Cir.), reinstated in relevant part by, 38 F.3d 803 (5th Cir.1994) (en banc); United States v. Gardner, 860 F.2d 1391, 1399 (7th Cir.1988). [6] Thus, we do not reach the question of whether a set aside conviction may be used as a basis for deportation. See Matter of Zingis, 14 I. & N. Dec. 621, 623-24 (BIA 1974); see also Mestre Morera v. INS, 462 F.2d 1030, 1032 (1st Cir.1972). [7] Alternatively, Yacoubian argues that apart from the FYCA, the district court acted properly as part of its “inherent authority.” However, we squarely rejected such contention in United States v. Sumner, 226 F.3d 1005, 1010 (9th Cir.2000). [8] The statute does not categorically bar all claims concerning deportation. Rather, the jurisdictional bar is limited to claims relating to the three types of actions listed in the statute, i.e., the decision to commence proceedings, to adjudicate cases, or to execute removal orders. AADC, 525 U.S. at 482, 119 S.Ct. 936. [9] In light of our holding, it is unnecessary to address whether 8 U.S.C. § 1252(b)(9) also deprived the district court of jurisdiction. [10] One hundred twenty days from January 15 is May 15. However, because May 15, 1999 fell on a Saturday, the deadline extends to Monday, May 17. See 8 C.F.R. § 1.1(h). [11] The government also moved to correct the same errors for Karnig Sarkissian, the applicants’ coconspirator. Sarkissian failed to make an appearance at the district court. In its notice of appeal, the government included Sarkissian as a party. However, the clerk did not include Sarkissian as a party in the docket for this appeal. Indeed, the government and the applicants did not serve their briefs on Sarkissian or his attorney. In these circumstances, wc decline to treat Sarkissian as a party to this appeal.