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7th Circuit cases on unlawful voting by aliens 8-22-12

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7th Circuit cases on unlawful voting by aliens 8-22-12

  1. 1. These two cases involve violations of the same statute BUT the individuals and their actions vary greatly. http://www.ca7.uscourts.gov/tmp/KV0SIP0C.pdf In the United States Court of Appeals For the Seventh Circuit Nos. 11-1497 and 11-2955 A NTHONY M. K IMANI, Petitioner, v. E RIC H. H OLDER, JR., Attorney General of the United States, Respondent. Petitions for Review of Orders of the Board of Immigration Appeals A RGUED O CTOBER 5, 2011 Œ —D ECIDED A UGUST 22, 2012 Before E ASTERBROOK, Chief Judge, and M ANION and R OVNER, Circuit Judges. E ASTERBROOK, Chief Judge. Anthony Kimani, a citizen of Kenya, entered the United States in 2000 on a visitor’s visa. When that visa expired, Kimani neither left nor Œ Only No. 11-1497 was argued. No. 11-2955, which concerns the denial of a motion to reopen, was submitted to the original panel on January 12, 2012. See Operating Procedure 6(b).
  2. 2. 2 Nos. 11-1497 and 11-2955sought permission to remain. Three years later hemarried a citizen of this nation. She applied for a visaon his behalf, and he filed a corresponding request foradjustment of status to that of lawful permanent resi-dent. An investigation revealed that in 2003 Kimanihad registered to vote. In order to do that he representedthat he is a citizen of the United States. In November2004 he voted in the general election. An alien who votesin an election violates 18 U.S.C. §611, and 8 U.S.C.§1182(a)(10)(D)(i) adds that “[a]ny alien who has votedin violation of any Federal, State, or local constitutionalprovision, statute, ordinance, or regulation is inadmissi-ble.” An inadmissible alien is ineligible for adjustmentof status on the basis of a citizen spouse’s petition.8 U.S.C. §1255(a)(2). An immigration judge thereforedenied Kimani’s petition and ordered his removal fromthe United States; the Board of Immigration Appealsaffirmed. The parties have needlessly complicated these pro-ceedings by debating whether the immigration judgeshould have waited (in other words, granted a continu-ance) while immigration officials decided whether avisa was available to Kimani. Statutory limits on thenumber of visas may delay their issuance even when analien is substantively eligible. And there are potentialjurisdictional obstacles to judicial review of an orderdenying a motion for a continuance. See 8 U.S.C.§1252(a)(2)(B)(i) and (ii), discussed in Kucana v. Holder,130 S. Ct. 827 (2010), and Calma v. Holder, 663 F.3d 868(7th Cir. 2011). When Kimani asked the immigrationjudge for a delay, he was unaware that his wife’s petition
  3. 3. Nos. 11-1497 and 11-2955 3for a visa had been approved on February 2, 2009, theprevious day. The briefs in this court, by both sides,likewise assume that Kimani is still waiting for a visa’savailability. Not until a few days before oral argument did counselfor the agency inform us that this shared belief is wrong.But it is also irrelevant. Kimani’s problem is not thatother people are ahead of him in a queue for visas; it isthat he is ineligible for adjustment of status whether ornot he has a visa. Only admissible aliens can havestatus adjusted to permanent residence on the basis ofa spouse’s application. The IJ and Board determinedthat Kimani is not “admissible” because he voted inviolation of §611. Whether Kimani’s challenge to thatdecision is sound presents a question of law, whichwe may address under 8 U.S.C. §1252(a)(2)(D), notwith-standing any language in §1252(a)(2)(B). There is nojurisdictional obstacle to review. Kimani’s assertion that he would not have withdrawnhis request for voluntary departure if he had knownabout the visa’s issuance also is irrelevant. Kimaniwants to stay, not to leave quietly. He seeks adjustmentof status to that of permanent residence. The only wayto get that adjustment, following the adverse admin-istrative decision, was to petition for judicial review.Such a petition automatically revokes an alien’s entitle-ment to depart voluntarily. 8 C.F.R. §1240.26(i). See alsoAlimi v. Ashcroft, 391 F.3d 888 (7th Cir. 2004) (observingthat voluntary departure reflects a promise to abandonlegal remedies and leave, which is incompatible with
  4. 4. 4 Nos. 11-1497 and 11-2955a demand that the judiciary nullify a removal order).Kimani has never suggested that he wanted to foregojudicial review. Anyway, it isn’t as if the agency hidthe visa decision from him; it was no secret. An alien’slack of attention to the administrative process is not areason to permit him to avoid the consequences of thechoices he has made, such as the choice to abandon arequest for voluntary departure and seek a judicialorder that will entitle him to remain in this nation. Thus we arrive at the merits. Kimani concedes that hevoted in the 2004 general election. But he denies thatdoing so disqualifies him from adjustment of status.That’s because §1182(a)(10)(D)(i) applies only to analien who has voted “in violation of” a statute, andKimani insists that he did not violate 18 U.S.C. §611—orat least that the agency did not prove that he violated§611. Section 611(a) declares that “[i]t shall be unlawfulfor any alien to vote in any election held solely or inpart for the purpose of electing a candidate for the officeof President, Vice President, Presidential elector, Mem-ber of the Senate, Member of the House of Representatives,Delegate from the District of Columbia, or ResidentCommissioner”. (An irrelevant exception to this ruleis omitted.) The general election in fall 2004 was held, inpart, to choose a President. Kimani concedes that heknew this (he voted for one of the candidate’s electors).The IJ and BIA concluded that by conceding that (a) heis an alien, who (b) voted in a Presidential election,Kimani conceded violating §611(a) and established hisineligibility for the immigration benefit he needs.
  5. 5. Nos. 11-1497 and 11-2955 5 As Kimani sees things, however, his concessions fellshort of establishing a violation of §611(a). He contendsthat §611(a) requires proof that the alien knew that itwas unlawful for him to vote. In other words, Kimanicontends that §611 is a specific-intent statute, outsidethe maxim that ignorance of the law is no excuse, ratherthan a general-intent statute, which requires only proofthat the defendant performed the acts that the lawforbids, understanding what he was doing. Yet §611(a)does not contain the word “intentionally” or the slip-pery word “willfully,” which sometimes requires proofof knowledge about the law’s commands. CompareBates v. United States, 522 U.S. 23 (1997), with Cheek v.United States, 498 U.S. 192 (1991). Nor does it requirethat any act be done “knowingly.” A statute that doesnot mention any mental-state (mens rea) requirement isa general-intent law. See Carter v. United States, 530 U.S.255, 269 (2000). No surprise, then, that the only appel-late decision on the subject holds that a convictionunder §611(a) does not depend on proof that the alienknew that voting is forbidden. United States v. Knight, 490F.3d 1268 (11th Cir. 2007). Kimani relies on McDonald v. Gonzales, 400 F.3d 684(9th Cir. 2005), but that decision did not concern §611(a).It addressed the requirements of a state law. (Unlawfullyvoting in a state election makes an alien inadmissible,just as unlawfully voting in a federal election does.) Thestatute in McDonald is worded differently from §611(a).Whether McDonald is right or wrong—a subject onwhich we reserve decision—it does Kimani no good.McDonald understood the word “knowingly” in the
  6. 6. 6 Nos. 11-1497 and 11-2955phrase “knowingly votes”—coupled with Hawaii’s un-usual rule that the appearance of that word anywhere ina statute applies to all elements, see HRS §702–207—to require proof of an alien’s knowledge that voting isforbidden. We’re skeptical; “knowingly” usually meanswith knowledge of the facts, not knowledge of the law.See Holder v. Humanitarian Law Project, 130 S. Ct. 2705,2717–18 (2010); Dixon v. United States, 548 U.S. 1, 5 (2006).But we need not pursue this subject; §611(a) lacks theword “knowingly” or any analog to §702–207. At oral argument Kimani’s lawyer tried a variantof the argument that the agency failed to establish therequired state of mind. He called it “entrapment byestoppel.” No such argument was made to the immigra-tion judge or the Board, but we give Kimani the benefitof the doubt by treating it as preserved because it is atleast loosely related to his argument that scienter is essen-tial under §611(a). (Kimani made the argument to theBoard expressly in his motion to reopen, which weaddress in the opinion’s final paragraph.) “Entrapment by estoppel” has little to do with theaffirmative defense of entrapment, under which aperson induced by public officials to commit a crime canbe convicted only if he was predisposed to commit thatoffense independent of the inducement. See Jacobson v.United States, 503 U.S. 540 (1992); United States v. Pillado,656 F.3d 754, 762–68 (7th Cir. 2011). Kimani does notcontend that he is “an otherwise law-abiding citizenwho, if left to his own devices, likely would have neverrun afoul of the law”. Jacobson, 503 U.S. at 553–54. Nor
  7. 7. Nos. 11-1497 and 11-2955 7does he contend that he was induced to do somethinghe preferred to avoid. “Entrapment by estoppel” is poorly named; it isamong the justification defenses, rather than, as withsimple entrapment, a means to curtail official miscon-duct. When a public official directs a person to performan act, with assurance that the act is lawful under thecircumstances, the person does not act with the intentrequired for conviction. So if a Secret Service agent asksan informant to sell some counterfeit bills to a personsuspected of running a counterfeit-passing ring, the in-formant’s acts are justified, even though they otherwisecould be described as the distribution of counterfeitcurrency. We have called this justification “entrapmentby estoppel,” see United States v. Howell, 37 F.3d 1197,1204 (7th Cir. 1994), but the proposition is related tothe rule that a person who asks the advice of counselafter providing complete disclosure, and then actsstrictly in accord with the advice received, lacks thestate of mind needed to support a conviction undermany (though not all) criminal statutes, see United Statesv. Caputo, 517 F.3d 935, 942 (7th Cir. 2008); United States v.Van Allen, 524 F.3d 814, 823 (7th Cir. 2008), rather thanto classic “entrapment” doctrine. Perhaps entrapmentby estoppel should be renamed the official authoriza-tion defense. For current purposes, however, the namedoes not matter. Kimani relies on three decisions that, he contends, give“entrapment by estoppel” constitutional status: Raleyv. Ohio, 360 U.S. 423 (1959); Cox v. Louisiana, 379 U.S. 559
  8. 8. 8 Nos. 11-1497 and 11-2955(1965); and United States v. Pennsylvania Industrial ChemicalCorp., 411 U.S. 655 (1973). Yet none of these cases hasanything to do with that doctrine. They deal insteadwith the principle that criminal statutes and their im-plementing regulations may be enforced only if theygive fair warning about what is forbidden. Kimani doesnot contend that §611 is vague, or that either judicialdecisions or regulations (of which there are none) haveobfuscated it. Compared with the honest-servicesversion of mail fraud under 18 U.S.C. §1341 and §1346,which was sustained in Skilling v. United States, 130 S. Ct.2896 (2010), §611 is a beacon of clarity. To make out entrapment by estoppel, Kimani neededto show that he received official assurance that votingin 2004 was lawful. Yet he does not contend that anypublic official told him to vote in that election, letalone that it would be lawful for him to do so. His argu-ment, rather, rests on the fact that, when he appliedfor a driver’s license in 2003, the same form enabled himto register to vote. To do that, Kimani had to check twoboxes: one representing that he is a citizen, another re-questing voter registration. He checked both boxes.The form also required a signature verifying the truth-fulness of all statements he made. He does not contendthat any official told him that it is lawful for aliens toclaim to be citizens, or that any public official directedhim to register to vote. What’s more, the officials who handled the motor-voterprocess worked for the State of Illinois. State officialscannot direct or excuse a violation of federal law. Howell,
  9. 9. Nos. 11-1497 and 11-2955 937 F.3d at 1205; United States v. Baker, 438 F.3d 749, 755–56(7th Cir. 2006). The Supremacy Clause makes federal lawbinding on all state actors; no employee of Illinois cangive anyone a justification for disobeying a federal stat-ute. It takes actual authority for a public official to createa defense to a criminal prosecution. (The janitor ofa public school can’t authorize anyone to sell co-caine, for example.) Kimani does not argue that the stateofficials who registered him to vote had actual authorityto permit him to vote. Nor does he contend that issuinga voter-registration card implies a grant of authorityto vote independent of one’s citizenship (as opposed toreflecting the representation, by Kimani to the officials,that he is a citizen). Thus even if registration to votewere the same as voting—it isn’t, and §611(a) deals onlywith voting—nothing in the process by which Kimanibecame registered in 2003 excuses or justifies hisunlawful vote in 2004. Because registering officials havesome authority to interpret the laws they administer, itmay matter that a person represents himself or herselfas an alien; we discuss that subject in Keathley v. Holder,No. 11-1594, which is being released contemporaneously.But Kimani represented himself to be a citizen. Kimani’s lawyer hinted that he may not have readthe voter-registration form before checking the boxesand signing. Yet, as we explained in Bayo v. Napolitano,593 F.3d 495, 502–05 (7th Cir. 2010) (en banc), peopleare bound by what they sign whether or not they readit. One exception, which was important in Bayo, con-cerns formal waivers written in a language the signatorydoes not understand. The representations on the registra-
  10. 10. 10 Nos. 11-1497 and 11-2955tion form did not waive any rights—and Kimani has notargued that he is unable to read and write in English.Kimani’s failure to read the registration form (if that iswhat happened) therefore is compatible with the Board’sconclusion that he violated §611 by voting in the 2004election. No more is necessary to show that the petition forreview of the removal order must be denied. Kimaniasked the Board to reopen its decision. His ground wasineffective assistance of counsel; according to Kimani,his lawyer did not make a competent argument aboutthe meaning of §611 and entrapment by estoppel. Aswe have just demonstrated, however, Kimani’s problemstems from his own decision to register, to claim citizen-ship, and to vote. That can’t be blamed on his immigra-tion lawyer. The Board found that Kimani thereforecould not show prejudice stemming from the way inwhich his lawyer handled the proceedings before the IJand the BIA. We hold that the Board did not abuse itsdiscretion in reaching this conclusion and denyingthe motion to reopen. The petitions for review are denied. 8-22-12
  11. 11. http://www.ca7.uscourts.gov/tmp/KV0S5BKB.pdf In theUnited States Court of Appeals For the Seventh CircuitNo. 11-1594E LIZABETH D AG U M K EATHLEY, Petitioner, v.E RIC H. H OLDER, JR., Attorney Generalof the United States, Respondent. Petition for Review of Orders of the Board of Immigration Appeals A RGUED O CTOBER 18, 2011—D ECIDED A UGUST 22, 2012 Before E ASTERBROOK, Chief Judge, and R IPPLE andK ANNE, Circuit Judges. E ASTERBROOK, Chief Judge. Elizabeth Keathley, a citizenof the Philippines, married John Keathley, a citizen of theUnited States, in 2003. The marriage was performed inthe Philippines. In 2004 the State Department issued anonimmigrant K-3 visa so that Elizabeth could live inthe United States while awaiting action on John’s requestfor her permanent residence as the immediate relative
  12. 12. 2 No. 11-1594of a U.S. citizen. After arriving in the United States,Elizabeth applied for and received a driver’s license. TheState of Illinois also sent her a voter registration card,and she voted in the November 2006 election. Voting has come back to haunt her. Immigration officialsworking on John’s request that his spouse receivepermanent-residence status discovered that Elizabethhad voted. She has been ordered removed from theUnited States—and the administrative finding that sheviolated 18 U.S.C. §611 by voting in a federal electionrenders her inadmissible, and thus ineligible for anybenefit as John’s spouse. See 8 U.S.C. §1182(a)(10)(D)(i).An immigration judge ordered her removal, and theBoard of Immigration Appeals affirmed. Several of Keathley’s arguments track those consideredand rejected in Kimani v. Holder, No. 11-1497, which isbeing released contemporaneously. But there are twopotentially important differences between the twocases. First, while Kimani falsely represented himself tobe a U.S. citizen when registering to drive and vote,Keathley contends that she represented herself to be acitizen of the Philippines, presenting both her Philippinepassport and her K-3 visa. Neither the IJ nor theBIA determined whether Keathley is telling the truthabout this. (Kimani, by contrast, was in the United Statesunlawfully, having overstayed a visitor’s visa, and didnot want public officials to learn about his status asan alien.) Second, while Kimani checked a box on thedriver’s-license form claiming U.S. citizenship, Keathleycontends that she left that box unchecked until the
  13. 13. No. 11-1594 3state official who superintended the process—an officialknowing that she is not a citizen—asked her if she wouldlike to vote. Keathley says that she answered “yes”. Thebox asserting U.S. citizenship ended up checked;Keathley says that she does not remember whether shechecked the box or the state employee did so. The IJ andBIA did not decide how the box came to be checked (it ispossible that the state official checked it after Keathleyalready had signed the form) or whether the stateofficial understood that Keathley is not a citizen of theUnited States. Keathley contends that, because the state official knewthat she is an alien, the question about voting and thestate’s decision to send her a voter registration card ledher to believe that voting would be lawful. She did notknow about §611, and after she learned that aliens can’tvote she asked the State of Illinois to revoke her registra-tion (it did). Although by then she had voted, she con-tends that she did not violate §611 because the state offi-cials’ advice gave her a good defense of “entrapment byestoppel”—a misleadingly named doctrine that as weobserved in Kimani should be called “official authoriza-tion” instead. That name would better fit the doctrine’sactual nature and scope. The immigration judge did not decide whetherKeathley showed her passport and visa to the stateofficial; whether that official raised the subject of votingknowing that Keathley is an alien; and whether thatofficial checked the box claiming citizenship afterKeathley signed the form. Although the IJ found her
  14. 14. 4 No. 11-1594generally credible, he did not make findings on thesespecific issues because he believed that entrapment byestoppel, as a doctrine of criminal law, is irrelevant inimmigration proceedings. The BIA agreed with thatconclusion. Both the IJ and the BIA erred. It’s true enough that “entrapment by estoppel” isthe name of a defense to a criminal prosecution. But itdoes not follow that the defense is irrelevant in civilproceedings. Section 1182(a)(10)(D)(i) declares that analien who has voted in violation of state or federal lawis inadmissible. The IJ and Board therefore had to de-termine whether Keathley violated §611. And the onlyway to determine whether a person has violated acriminal statute is to examine both the elements of thatlaw and all defenses properly raised. Suppose a statutedeclares that murder is a crime and defines murder asthe intentional killing of a human being. A person whokills in self-defense, however, is not guilty of murder.A provision in the Immigration and Nationality Actwithholding benefits from an alien who has “committedmurder” requires the agency to decide, not onlywhether the alien killed someone, but also whether thekilling was justified (and thus not “murder”). Just sowith §1182(a)(10)(D)(i) and §611. If Keathley has a gooddefense, she has not violated §611 and remains eligiblefor adjustment of status. Whether she has a good defense depends in part onfacts that remain to be ascertained. Whether she hasviolated §611 also potentially depends on the rule thatthe defense of official authorization is available only if
  15. 15. No. 11-1594 5the person giving authorization had authority to do so.See both Kimani and United States v. Howell, 37 F.3d 1197,1205 (7th Cir. 1994). An agent of the Secret Servicecan authorize someone to pass counterfeit currency aspart of an official investigation, but the principal of ahigh school can’t authorize an alien to vote, nomatter how emphatically the principal states his viewthat citizenship is irrelevant to voting. Our opinion in Kimani observes that state motor-vehicleregistrars lack authority to put aliens on the voting rolls.We did not mean, however, that motor-vehicle registrarslack all authority concerning voting. The motor-voterlegislation authorizes officials in a department of motorvehicles to register people for federal elections. 42 U.S.C.§§ 1973gg–3(a)(1), 1973gg–6(a). The power to registersomeone supposes some authority to ascertain whetherlegal qualifications have been met, and officials are sup-posed to inform applicants about the eligibility rules forvoting. 42 U.S.C. §1973gg(a)(5). These officials thus areentitled to speak for the government on that subject.What they say is not conclusive, but the official-authoriza-tion defense does not depend on the public official beingright when giving approval. Our opinion in Kimani con-cerned someone who represented himself to be acitizen; but we must assume that Elizabeth Keathleyrepresented herself to be an alien. That’s why (she says)she thought the official’s conduct implied (thoughwrongly) that aliens could vote. The litigants have not explored the extent towhich officials administering the motor-voter registra-
  16. 16. 6 No. 11-1594tion procedure are authorized to interpret the terms ofthat legislation and the requirements of valid registration,and to give binding advice to applicants. It may well beunnecessary to address that subject (which is relevantonly if, on remand, the agency credits Keathley’s state-ments about what occurred), and it would be imprudentto address potentially complex issues without briefsthat explore them fully. If the IJ does credit Keathley’s statements about whatoccurred, the Department of Homeland Security shouldgive serious consideration to withdrawing its proposalthat she be declared inadmissible and be removedfrom the United States. A person who behaves withscrupulous honesty only to be misled by a state officialshould be as welcome in this country in 2012 as shewas when she entered in 2004. The petition for review is granted, and the matteris remanded for proceedings consistent with this opinion. 8-22-12

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