Fitzpatrick v. Sessions, s. 15–2204 & 16–1864

Decision Date13 February 2017
Docket NumberNos. 15–2204 & 16–1864,s. 15–2204 & 16–1864
Citation847 F.3d 913
Parties Margarita Del Pilar FITZPATRICK, Petitioner, v. Jeff SESSIONS, Attorney General of the United States, Respondent.
CourtU.S. Court of Appeals — Seventh Circuit

Richard Hanus, Attorney, Law Office of Richard Hanus, Chicago, IL, for Petitioner.

Laura Halliday Hickein, Attorney, OIL, Attorney, Department of Justice, Civil Division, Immigration Litigation, Tim Ramnitz, Attorney, Department of Justice, Civil Division, Commercial Litigation Branch, Washington, DC, for Respondent.

Before Easterbrook, Williams, and Sykes, Circuit Judges.

Easterbrook, Circuit Judge.

Margarita Del Pilar Fitzpatrick, a citizen of Peru, had lived in the United States for three years when she applied for a driver's license in Illinois. She contends that when filling out the forms at the Department of Motor Vehicles she displayed her green card and her Peruvian passport—but she admits that she also checked a box claiming to be a citizen of the United States. The form sternly warns aliens not to check that box, and Fitzpatrick does not contend that she has any difficulty understanding written English. (She came to the United States in 2002 to study English in college, and after earning a certificate as a medical translator she spent some time working as an interpreter before training as a nurse.) As required by the motor-voter law, 52 U.S.C. §§ 20503 –06, the form also contained a checkbox that would lead to registration as a voter. Fitzpatrick maintains that the desk clerk asked whether she wanted to register, and when she inquired "Am I supposed to?" he replied: "It's up to you." She checked that box, was duly registered, and in 2006 twice voted in elections for federal officials.

Aliens are forbidden to vote in federal elections. 18 U.S.C. § 611. Another statute, 8 U.S.C. § 1227(a)(6), provides for the removal of aliens who vote in violation of either state or federal law. After discovering that Fitzpatrick had voted in a federal election, the Department of Homeland Security initiated removal proceedings. An Immigration Judge and then the Board of Immigration Appeals (initially and when denying reconsideration) decided that she must indeed leave the United States, even though she has led a productive and otherwise-unblemished life in this country, is married to a U.S. citizen, and has three U.S.-citizen children. Her children were born in Peru and naturalized after arrival. Her own 2007 application for citizenship is what brought her 2006 voting to light, when in response to questions asked of all applicants she honestly described her voting history.

Fitzpatrick acknowledges that she voted in apparent violation of § 611, which does not require proof that the alien knew that only citizens can vote in federal elections. See Kimani v. Holder , 695 F.3d 666 (7th Cir. 2012). Nonetheless, she contends, she did not actually violate § 611, because she had official approval to act as she did. Her lawyer calls this the "entrapment by estoppel" defense; we suggested in Keathley v. Holder , 696 F.3d 644 (7th Cir. 2012), that a better label would be "official authorization." But names don't matter.

The defense is available to someone who makes complete and accurate representations to a public official and then receives permission from that official, when acting within the scope of his or her authority. (We observed in Keathley that a high school principal can't permit aliens to vote, but that voting officials may have at least apparent authority to do so.) Fitzpatrick cannot make out either ingredient of this defense.

First, she did not make accurate...

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  • Olaifa v. McAleenan
    • United States
    • U.S. District Court — Northern District of Illinois
    • 15 Ottobre 2019
    ...proof of knowledge of the facts that constitute the offense"). Section 611 was at issue in Keathley, Kimani, and Fitzpatrick v. Sessions, 847 F.3d 913, 915 (7th Cir.), cert. denied, 138 S. Ct. 221 (2017).4 It does not mention any mental-state requirement, meaning that Olaifa could still hav......
  • Olaifa v. Mayorkas
    • United States
    • U.S. District Court — Northern District of Illinois
    • 18 Marzo 2021
    ...official and then receive[d] permission from that official, when acting within the scope of his or her authority." Fitzpatrick v. Sessions, 847 F.3d 913, 915 (7th Cir. 2017). Olaifa's complaint alleged that he told a polling officer he was only a permanent resident, and that officer gave hi......
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