Olaifa v. McAleenan

• Decision Date: 15 October 2019
• Docket Number: No. 18 CV 6801,18 CV 6801
• Parties: OLUKAYODE ALABI OLAIFA, Plaintiff, v. KEVIN MCALEENAN, Acting Secretary of the Department of Homeland Security, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

OLUKAYODE ALABI OLAIFA, Plaintiff, v. KEVIN MCALEENAN,^* Acting Secretary of

the Department of Homeland Security, et al., Defendants.

No. 18 CV 6801

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

October 15, 2019

Judge Manish S. Shah

ORDER

The government's motion to dismiss, [14], is granted in part, denied in part. Plaintiff's due process claim is dismissed. The government shall answer the complaint by November 5, 2019, and a status hearing is set for November 12, 2019 at 9:30 a.m.

STATEMENT

A few weeks after plaintiff Olukayode Alabi Olaifa applied to become a United States citizen in 2016, he stopped by an Illinois Secretary of State's office to update the address on his identification. [1] ¶¶ 9-10.¹ While there, a clerk asked him if he would like to register to vote. [1] ¶ 10. When Olaifa said yes, the clerk filled out the forms for him, highlighted the areas where he needed to sign and, after Olaifa signed, handed him a receipt. Id. ¶ 10-11. Olaifa never read the form, never told the clerk that he was not a citizen (she never asked) and did not mark any of the boxes on theform himself. Id. He was unaware that one of the boxes—ticked with a checkmark—indicated he was a citizen. Id. ¶ 11.

On election day that November, Olaifa visited a polling station in Calumet City, Illinois. [1] ¶ 13.² He gave a polling officer his voter ID card, driver's license, and state ID and, this time, told the officer that he was only a permanent resident. Id. The officer told Olaifa he could vote, and Olaifa voted. Id.

Olaifa first realized his mistake when he read in his naturalization booklet that only citizens may vote. Id. ¶ 14. During his initial interview with the United States Citizen and Immigration Service (one of the defendants in this case), he owned up to registering and voting and explained that he did not see or mark any of the boxes on the registration form. [1] ¶ 15. When his application was denied, he appealed and, as part of that appeal, participated in a second interview. [1] ¶¶ 16-17. During the second interview, he told the Immigration Service that he had been forthcoming with the polling officer about his status as a lawful permanent resident and pointed out that he normally uses "X's"—not checkmarks—when filling out forms. Id. ¶ 17. See also [1] at 13-17 (Olaifa attached to his complaint an addendum to a uniform residential loan application that bears his name and uses "X's" to mark answers).

The Immigration Service denied his appeal. See [1] at 21-24. The director of the Chicago Field Office found that Olaifa lacked good moral character because he had registered to vote and voted before becoming a citizen. Id. at 22-23 (citing 8 U.S.C. § 1101(f); 18 U.S.C. § 1015(f)). Olaifa's complaint seeks review of that denial. [1] ¶¶ 20-26. It also alleges that the Immigration Service violated his Fifth Amendment right to due process. [1] ¶¶ 27-32.

The government moves to dismiss both counts in the complaint, citing Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). [14]. The government's Rule 12(b)(1) argument does not depend on facts not mentioned in the complaint; it is a facial challenge to jurisdiction. See [14] at 10-11; Silha v. ACT, Inc., 807 F.3d 169, 173 (7th Cir. 2015). As such, it is assessed using the same standard of review for Rule 12(b)(6): well-pleaded and material factual allegations must be accepted as true³ and,construing those allegations in Olaifa's favor, the complaint must "plausibly give rise to an entitlement of relief." Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). Jurisdiction is about a court's "power to hear a case and decide what the law requires," Klene v. Napolitano, 697 F.3d 666, 668 (7th Cir. 2012), and I have an independent obligation to make sure jurisdiction is secure. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999).

I have jurisdiction to review the Service's denial of Olaifa's naturalization petition. 8 U.S.C. § 1421(c). See also Klene, 697 F.3d at 667; O'Sullivan v. U.S. Citizenship & Immigration Servs., 453 F.3d 809, 812 (7th Cir. 2006); Levy v. I.N.S., 6 Fed. App'x 331, 332 (7th Cir. 2001) ("district courts have jurisdiction only in cases where the INS denies an application for naturalization"); Shweika v. Dep't of Homeland Sec., 723 F.3d 710, 714 (6th Cir. 2013) ("It is well settled that § 1421(c) provides federal district courts with jurisdiction to review administrative denials of applications for naturalization.").

The Service may only grant an application if the applicant is a "person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States." 8 U.S.C. § 1427(a); 8 C.F.R. § 316.14(b); Fedorenko v. United States, 449 U.S. 490, 506 (1981) (all statutory requirements must be strictly complied with). Applicants that commit unlawful acts that "adversely reflect upon ... [their] moral character" must be found to lack good moral character unless they can show extenuating circumstances. 8 C.F.R. § 316.10(b)(3)(iii). See also United States v. Suarez, 664 F.3d 655, 661 (7th Cir. 2011) ("A finding contrary to this mandatory language would be a per se abuse of discretion").

Illegally voting in an election does not adversely reflect upon one's moral character as a matter of law. Certain categories of applicant (including gamblers and "habitual drunkards," 8 U.S.C. § 1101(f)(1), (4)) cannot be found to have good moral character. See 8 U.S.C. § 1101(f)(1)-(9). But "people who vote illegally" and "people who falsely represent themselves to be citizens" are not among them. See id. Congress even went so far as to identify limited situations where the fact that someone falsely represented themselves to be a citizen or voted illegally could never be the basis for determining that they do not have good moral character. 8 U.S.C. § 1101(f).

The government reads these provisions as a sign that—in all situations other than the limited situations identified, which are not present here—the act of unlawful voting precludes a finding that an applicant had good moral character. See [14] at 5. If Congress had wanted that result, it would have categorically excluded people thatvoted illegally (or represented themselves to be citizens) along with gamblers and "habitual drunkards." 8 U.S.C. § 1101(f)(1), (8); Muratoski v. Holder, 622 F.3d 824, 831 (7th Cir. 2010) (the Board of Immigration Appeals correctly found that the immigration judge "could find, but was not compelled to find, that [plaintiff] lacked good moral character on the basis of his false claim of U.S. citizenship") (emphasis added). See also Ray v. US Citizenship & Immigration Servs. Dallas Dist., No. 5:13CV88, 2014 WL 4404535, at *2 (E.D. Tex. Sept. 5, 2014) (declining to dismiss a complaint because it was possible for the plaintiff to show that they had good moral character—or that there were extenuating circumstances— despite voting illegally).

But even if illegally voting is a reflection of 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 to register to vote or to vote." 18 U.S.C. § 1015(f). The second prohibits lawful permanent residents like Olaifa from voting in presidential elections. 18 U.S.C. § 611; 8 U.S.C. § 1101(a)(3).

Because § 1015(f) requires the culpable person to act "knowingly," Olaifa did not commit the crime if his actions were the result of "ignorance, mistake or accident." United States v. Graham, 431 F.3d 585, 590 (7th Cir. 2005). Olaifa says that he did not know that the form he signed at the Secretary of State's office contained a checked box affirming that he was a citizen. See [1] ¶¶ 10-11, 13-14; [23] at 6-7. "'[K]nowingly' usually means with knowledge of the facts," Kimani v. Holder, 695 F.3d 666, 670 (7th Cir. 2012), and here, drawing all inferences in Olaifa's favor, the complaint alleges that he was not aware of one of the key underlying facts that would render his conduct at the Secretary of State's in violation of § 1015(f)—i.e., that a box on the form he was signing indicated he was a citizen. Dixon v. United States, 548 U.S. 1, 5 (2006) ("unless the text of the statute dictates a different result, the term 'knowingly' merely requires 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 have violated it even if he did not know that it was illegal for him to vote. Olaifa says that he relied on advice from a "polling officer" when he cast his vote. [1] ¶ 13. The entrapment-by-estoppel(or "official authorization") 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." Fitzpatrick, 847 F.3d at 915; Keathley, 696 F.3d at 646; Kimani, 695 F.3d at 670 ("When a public official directs a person to perform an act, with assurance that the act is lawful under the circumstances, the person does not act with the intent required for conviction.") Olaifa made a complete and accurate disclosure by telling the polling officer that he was "only a permanent resident." [1] ¶ 13. He received permission to vote from the polling officer. Id. And even if Illinois law does not empower state officials to direct or excuse violations of federal voting laws at polling places in Illinois, see [14] n.3 (citing 10 Ill. Comp. Stat. Ann. 5/13 and 10 Ill. Comp. Stat. Ann. 5/14), it was federal law that authorized state officials to interpret voting...