Elizabeth Keathley v. Eric Holder , 696 F.3d 644 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1594
E LIZABETH D AG U M K EATHLEY,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of 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 and
K ANNE, Circuit Judges.
E ASTERBROOK, 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
2 No. 11-1594
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, No. 11-1497, 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
No. 11-1594 3
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 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 by
estoppel”—a misleadingly named doctrine that as we
observed in Kimani should be called “official authoriza-
tion” 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
4 No. 11-1594
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 de-
termine 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 raised. Suppose a statute
declares that murder is a crime and defines murder as
the intentional killing of a human being. A person who
kills in self-defense, however, is not guilty of murder.
A provision in the Immigration and Nationality Act
withholding benefits from an alien who has “committed
murder” requires the agency to decide, not only
whether the alien killed someone, but also whether the
killing was justified (and thus not “murder”). Just so
with §1182(a)(10)(D)(i) and §611. If Keathley has a good
defense, she has not violated §611 and remains eligible
for adjustment of status.
Whether she has a good defense depends in part on
facts that remain to be ascertained. Whether she has
violated §611 also potentially depends on the rule that
the defense of official authorization is available only if
No. 11-1594 5
the 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 Service
can authorize someone to pass counterfeit currency as
part of an official investigation, but the principal of a
high school can’t authorize an alien to vote, no
matter how emphatically the principal states his view
that citizenship is irrelevant to voting.
Our opinion in Kimani observes that state motor-vehicle
registrars lack authority to put aliens on the voting rolls.
We did not mean, however, that motor-vehicle registrars
lack all authority concerning voting. The motor-voter
legislation authorizes officials in a department of motor
vehicles to register people for federal elections. 42 U.S.C.
§§ 1973gg–3(a)(1), 1973gg–6(a). The power to register
someone supposes some authority to ascertain whether
legal qualifications have been met, and officials are sup-
posed to inform applicants about the eligibility rules for
voting. 42 U.S.C. §1973gg(a)(5). These officials thus are
entitled 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 being
right when giving approval. Our opinion in Kimani con-
cerned someone who represented himself to be a
citizen; but we must assume that Elizabeth Keathley
represented herself to be an alien. That’s why (she says)
she thought the official’s conduct implied (though
wrongly) that aliens could vote.
The litigants have not explored the extent to
which officials administering the motor-voter registra-
6 No. 11-1594
tion procedure are authorized to interpret the terms of
that legislation and the requirements of valid registration,
and to give binding advice to applicants. It may well be
unnecessary to address that subject (which is relevant
only if, on remand, the agency credits Keathley’s state-
ments about what occurred), and it would be imprudent
to address potentially complex issues without briefs
that explore them fully.
If the IJ does credit Keathley’s statements about what
occurred, the Department of Homeland Security should
give serious consideration to withdrawing its proposal
that she be declared inadmissible and be removed
from the United States. A person who behaves with
scrupulous honesty only to be misled by a state official
should be as welcome in this country in 2012 as she
was when she entered in 2004.
The petition for review is granted, and the matter
is remanded for proceedings consistent with this opinion.
8-22-12