Anthony Kimani v. Eric Holder, Jr.

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 Nos. 11-1497 and 11-2955
sought permission to remain. Three years later he
married a citizen of this nation. She applied for a visa
on his behalf, and he filed a corresponding request for
adjustment of status to that of lawful permanent resi-
dent. An investigation revealed that in 2003 Kimani
had registered to vote. In order to do that he represented
that he is a citizen of the United States. In November
2004 he voted in the general election. An alien who votes
in 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 voted
in violation of any Federal, State, or local constitutional
provision, statute, ordinance, or regulation is inadmissi-
ble.” An inadmissible alien is ineligible for adjustment
of status on the basis of a citizen spouse’s petition.
8 U.S.C. §1255(a)(2). An immigration judge therefore
denied Kimani’s petition and ordered his removal from
the United States; the Board of Immigration Appeals
affirmed.
The parties have needlessly complicated these pro-
ceedings by debating whether the immigration judge
should have waited (in other words, granted a continu-
ance) while immigration officials decided whether a
visa was available to Kimani. Statutory limits on the
number of visas may delay their issuance even when an
alien is substantively eligible. And there are potential
jurisdictional obstacles to judicial review of an order
denying 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 immigration
judge for a delay, he was unaware that his wife’s petition
Nos. 11-1497 and 11-2955 3
for a visa had been approved on February 2, 2009, the
previous day. The briefs in this court, by both sides,
likewise assume that Kimani is still waiting for a visa’s
availability.
Not until a few days before oral argument did counsel
for the agency inform us that this shared belief is wrong.
But it is also irrelevant. Kimani’s problem is not that
other people are ahead of him in a queue for visas; it is
that he is ineligible for adjustment of status whether or
not he has a visa. Only admissible aliens can have
status adjusted to permanent residence on the basis of
a spouse’s application. The IJ and Board determined
that Kimani is not “admissible” because he voted in
violation of §611. Whether Kimani’s challenge to that
decision is sound presents a question of law, which
we may address under 8 U.S.C. §1252(a)(2)(D), notwith-
standing any language in §1252(a)(2)(B). There is no
jurisdictional obstacle to review.
Kimani’s assertion that he would not have withdrawn
his request for voluntary departure if he had known
about the visa’s issuance also is irrelevant. Kimani
wants to stay, not to leave quietly. He seeks adjustment
of status to that of permanent residence. The only way
to 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 also
Alimi v. Ashcroft, 391 F.3d 888 (7th Cir. 2004) (observing
that voluntary departure reflects a promise to abandon
legal remedies and leave, which is incompatible with
4 Nos. 11-1497 and 11-2955
a demand that the judiciary nullify a removal order).
Kimani has never suggested that he wanted to forego
judicial review. Anyway, it isn’t as if the agency hid
the visa decision from him; it was no secret. An alien’s
lack of attention to the administrative process is not a
reason to permit him to avoid the consequences of the
choices he has made, such as the choice to abandon a
request for voluntary departure and seek a judicial
order that will entitle him to remain in this nation.
Thus we arrive at the merits. Kimani concedes that he
voted in the 2004 general election. But he denies that
doing so disqualifies him from adjustment of status.
That’s because §1182(a)(10)(D)(i) applies only to an
alien who has voted “in violation of” a statute, and
Kimani insists that he did not violate 18 U.S.C. §611—or
at least that the agency did not prove that he violated
§611. Section 611(a) declares that “[i]t shall be unlawful
for any alien to vote in any election held solely or in
part for the purpose of electing a candidate for the office
of President, Vice President, Presidential elector, Mem-
ber of the Senate, Member of the House of Representatives,
Delegate from the District of Columbia, or Resident
Commissioner”. (An irrelevant exception to this rule
is omitted.) The general election in fall 2004 was held, in
part, to choose a President. Kimani concedes that he
knew this (he voted for one of the candidate’s electors).
The IJ and BIA concluded that by conceding that (a) he
is an alien, who (b) voted in a Presidential election,
Kimani conceded violating §611(a) and established his
ineligibility for the immigration benefit he needs.
Nos. 11-1497 and 11-2955 5
As Kimani sees things, however, his concessions fell
short of establishing a violation of §611(a). He contends
that §611(a) requires proof that the alien knew that it
was unlawful for him to vote. In other words, Kimani
contends that §611 is a specific-intent statute, outside
the maxim that ignorance of the law is no excuse, rather
than a general-intent statute, which requires only proof
that the defendant performed the acts that the law
forbids, understanding what he was doing. Yet §611(a)
does not contain the word “intentionally” or the slip-
pery word “willfully,” which sometimes requires proof
of knowledge about the law’s commands. Compare
Bates v. United States, 522 U.S. 23 (1997), with Cheek v.
United States, 498 U.S. 192 (1991). Nor does it require
that any act be done “knowingly.” A statute that does
not mention any mental-state (mens rea) requirement is
a 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 conviction
under §611(a) does not depend on proof that the alien
knew that voting is forbidden. United States v. Knight, 490
F.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. (Unlawfully
voting in a state election makes an alien inadmissible,
just as unlawfully voting in a federal election does.) The
statute in McDonald is worded differently from §611(a).
Whether McDonald is right or wrong—a subject on
which we reserve decision—it does Kimani no good.
McDonald understood the word “knowingly” in the
6 Nos. 11-1497 and 11-2955
phrase “knowingly votes”—coupled with Hawaii’s un-
usual rule that the appearance of that word anywhere in
a statute applies to all elements, see HRS §702–207—
to require proof of an alien’s knowledge that voting is
forbidden. We’re skeptical; “knowingly” usually means
with 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 the
word “knowingly” or any analog to §702–207.
At oral argument Kimani’s lawyer tried a variant
of the argument that the agency failed to establish the
required state of mind. He called it “entrapment by
estoppel.” No such argument was made to the immigra-
tion judge or the Board, but we give Kimani the benefit
of the doubt by treating it as preserved because it is at
least loosely related to his argument that scienter is essen-
tial under §611(a). (Kimani made the argument to the
Board expressly in his motion to reopen, which we
address in the opinion’s final paragraph.)
“Entrapment by estoppel” has little to do with the
affirmative defense of entrapment, under which a
person induced by public officials to commit a crime can
be convicted only if he was predisposed to commit that
offense 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 not
contend that he is “an otherwise law-abiding citizen
who, if left to his own devices, likely would have never
run afoul of the law”. Jacobson, 503 U.S. at 553–54. Nor
Nos. 11-1497 and 11-2955 7
does he contend that he was induced to do something
he preferred to avoid.
“Entrapment by estoppel” is poorly named; it is
among the justification defenses, rather than, as with
simple entrapment, a means to curtail official miscon-
duct. 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. So if a Secret Service agent asks
an informant to sell some counterfeit bills to a person
suspected of running a counterfeit-passing ring, the in-
formant’s acts are justified, even though they otherwise
could be described as the distribution of counterfeit
currency. We have called this justification “entrapment
by estoppel,” see United States v. Howell, 37 F.3d 1197,
1204 (7th Cir. 1994), but the proposition is related to
the rule that a person who asks the advice of counsel
after providing complete disclosure, and then acts
strictly in accord with the advice received, lacks the
state of mind needed to support a conviction under
many (though not all) criminal statutes, see United States
v. Caputo, 517 F.3d 935, 942 (7th Cir. 2008); United States v.
Van Allen, 524 F.3d 814, 823 (7th Cir. 2008), rather than
to classic “entrapment” doctrine. Perhaps entrapment
by estoppel should be renamed the official authoriza-
tion defense. For current purposes, however, the name
does not matter.
Kimani relies on three decisions that, he contends, give
“entrapment by estoppel” constitutional status: Raley
v. Ohio, 360 U.S. 423 (1959); Cox v. Louisiana, 379 U.S. 559
8 Nos. 11-1497 and 11-2955
(1965); and United States v. Pennsylvania Industrial Chemical
Corp., 411 U.S. 655 (1973). Yet none of these cases has
anything to do with that doctrine. They deal instead
with the principle that criminal statutes and their im-
plementing regulations may be enforced only if they
give fair warning about what is forbidden. Kimani does
not contend that §611 is vague, or that either judicial
decisions or regulations (of which there are none) have
obfuscated it. Compared with the honest-services
version 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 needed
to show that he received official assurance that voting
in 2004 was lawful. Yet he does not contend that any
public official told him to vote in that election, let
alone that it would be lawful for him to do so. His argu-
ment, rather, rests on the fact that, when he applied
for a driver’s license in 2003, the same form enabled him
to register to vote. To do that, Kimani had to check two
boxes: 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 contend
that any official told him that it is lawful for aliens to
claim to be citizens, or that any public official directed
him to register to vote.
What’s more, the officials who handled the motor-voter
process worked for the State of Illinois. State officials
cannot direct or excuse a violation of federal law. Howell,
Nos. 11-1497 and 11-2955 9
37 F.3d at 1205; United States v. Baker, 438 F.3d 749, 755–56
(7th Cir. 2006). The Supremacy Clause makes federal law
binding on all state actors; no employee of Illinois can
give anyone a justification for disobeying a federal stat-
ute. It takes actual authority for a public official to create
a defense to a criminal prosecution. (The janitor of
a public school can’t authorize anyone to sell co-
caine, for example.) Kimani does not argue that the state
officials who registered him to vote had actual authority
to permit him to vote. Nor does he contend that issuing
a voter-registration card implies a grant of authority
to vote independent of one’s citizenship (as opposed to
reflecting the representation, by Kimani to the officials,
that he is a citizen). Thus even if registration to vote
were the same as voting—it isn’t, and §611(a) deals only
with voting—nothing in the process by which Kimani
became registered in 2003 excuses or justifies his
unlawful vote in 2004. Because registering officials have
some authority to interpret the laws they administer, it
may matter that a person represents himself or herself
as 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 read
the voter-registration form before checking the boxes
and signing. Yet, as we explained in Bayo v. Napolitano,
593 F.3d 495, 502–05 (7th Cir. 2010) (en banc), people
are bound by what they sign whether or not they read
it. One exception, which was important in Bayo, con-
cerns formal waivers written in a language the signatory
does not understand. The representations on the registra-
10 Nos. 11-1497 and 11-2955
tion form did not waive any rights—and Kimani has not
argued that he is unable to read and write in English.
Kimani’s failure to read the registration form (if that is
what happened) therefore is compatible with the Board’s
conclusion that he violated §611 by voting in the 2004
election.
No more is necessary to show that the petition for
review of the removal order must be denied. Kimani
asked the Board to reopen its decision. His ground was
ineffective assistance of counsel; according to Kimani,
his lawyer did not make a competent argument about
the meaning of §611 and entrapment by estoppel. As
we have just demonstrated, however, Kimani’s problem
stems 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 therefore
could not show prejudice stemming from the way in
which his lawyer handled the proceedings before the IJ
and the BIA. We hold that the Board did not abuse its
discretion in reaching this conclusion and denying
the motion to reopen.
The petitions for review are denied.
8-22-12