Keathley v. Holder, 11–1594.

Decision Date22 August 2012
Docket NumberNo. 11–1594.,11–1594.
Citation696 F.3d 644
PartiesElizabeth Dag Um KEATHLEY, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
CourtU.S. Court of Appeals — Seventh Circuit

OPINION TEXT STARTS HERE

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

Margaret A. O'Donnell (argued), OIL, Attorneys, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before EASTERBROOK, Chief Judge, and RIPPLE and KANNE, Circuit Judges.

EASTERBROOK, Chief Judge.

Elizabeth Keathley, a citizen of the Philippines, married John Keathley, a citizen of the United States, in 2003. The marriage was performed in the Philippines. In 2004 the State Department issued a nonimmigrant K–3 visa so that Elizabeth could live in the United States while awaiting action on John's request for her permanent residence as the immediate relative of a U.S. citizen. After arriving in the United States, Elizabeth applied for and received a driver's license. The State 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 officials working on John's request that his spouse receive permanent-residence status discovered that Elizabeth had voted. She has been ordered removed from the United States—and the administrative finding that she violated 18 U.S.C. § 611 by voting in a federal election renders her inadmissible, and thus ineligible for any benefit as John's spouse. See 8 U.S.C. § 1182(a)(10)(D)(i). An immigration judge ordered her removal, and the Board of Immigration Appeals affirmed.

Several of Keathley's arguments track those considered and rejected in Kimani v. Holder, 695 F.3d 666 (7th Cir.2012), which is being released contemporaneously. But there are two potentially important differences between the two cases. First, while Kimani falsely represented himself to be a U.S. citizen when registering to drive and vote, Keathley contends that she represented herself to be a citizen of the Philippines, presenting both her Philippine passport and her K–3 visa. Neither the IJ nor the BIA determined whether Keathley is telling the truth about this. (Kimani, by contrast, was in the United States unlawfully, having overstayed a visitor's visa, and did not want public officials to learn about his status as an alien.) Second, while Kimani checked a box on the driver's-license form claiming U.S. citizenship, Keathley contends that she left that box unchecked until the state official who superintended the process—an official knowing that she is not a citizen—asked her if she would like to vote. Keathley says that she answered “yes”. The box asserting U.S. citizenship ended up checked; Keathley says that she does not remember whether she checked the box or the state employee did so. The IJ and BIA did not decide how the box came to be checked (it is possible that the state official checked it after Keathley already had signed the form) or whether the state official understood that Keathley is not a citizen of the United States.

Keathley contends that, because the state official knew that she is an alien, the question about voting and the state's decision to send her a voter registration card led her to believe that voting would be lawful. She did not know about § 611, and after she learned that aliens can't vote she asked the State of Illinois to revoke her registration (it did). Although by then she had voted, she contends that she did not violate § 611 because the state officials' advice gave her a good defense of “entrapment by estoppel”—a misleadingly named doctrine that as we observed in Kimani should be called “official authorization” instead. That name would better fit the doctrine's actual nature and scope.

The immigration judge did not decide whether Keathley showed her passport and visa to the state official; whether that official raised the subject of voting knowing that Keathley is an alien; and whether that official checked the box claiming citizenship after Keathley signed the form. Although the IJ found her generally credible, he did not make findings on these specific issues because he believed that entrapment by estoppel, as a doctrine of criminal law, is irrelevant in immigration proceedings. The BIA agreed with that conclusion. Both the IJ and the BIA erred.

It's true enough that “entrapment by estoppel” is the name of a defense to a criminal prosecution. But it does not follow that the defense is irrelevant in civil proceedings. Section 1182(a)(10)(D)(i) declares that an alien who has voted in violation of state or federal law is inadmissible. The IJ and Board therefore had to determine whether Keathley violated § 611. And the only way to determine whether a person has violated a criminal statute is to examine both the elements of that law and all defenses properly...

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6 cases
  • United States v. Louisiana
    • United States
    • U.S. District Court — Middle District of Louisiana
    • July 26, 2016
    ...Federal office unless the applicant fails to sign the voter registration application."23 52 U.S.C. § 20504(a)(1) ; Keathley v. Holder , 696 F.3d 644, 646–47 (7th Cir.2012). Second, per Section 6, "[e]ach State shall accept and use the mail voter registration application form prescribed by t......
  • Fish v. Schwab
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • April 29, 2020
    ...who registered to vote using motor-voter forms, see Kimani v. Holder , 695 F.3d 666, 668, 671 (7th Cir. 2012) ; Keathley v. Holder , 696 F.3d 644, 645 (7th Cir. 2012), and provides a citation to an internet story about another noncitizen whom Illinois officials registered to vote, see Aplt.......
  • Olaifa v. McAleenan
    • United States
    • U.S. District Court — Northern District of Illinois
    • October 15, 2019
    ...poor moral character as a matter of law, Olaifa might not have acted unlawfully. He might have a "good defense." See Keathley v. Holder, 696 F.3d 644, 646 (7th Cir. 2012). There are two criminal statutes at issue. The first prohibits falsely—and knowingly—claiming to be a citizen "in order ......
  • Kimani v. Holder
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • August 22, 2012
    ...laws they administer, it may matter that a person represents himself or herself as an alien; we discuss that subject in Keathley v. Holder, 696 F.3d 644 (7th Cir.2012), which is being released contemporaneously. But Kimani represented himself to be a citizen. Kimani's lawyer hinted that he ......
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