EOIR Cites Filipina’s Voting Case As Precedent

by Joseph G. Lariosa

CHICAGO (FAXX/jGLi) – A Filipina’s success story in wiggling out of a messy immigration case is now taking roots!

Executive Office for Immigration Review (EOIR) Chief Clerk Donna Carr informed Chicago, Illinois-based immigration lawyer Richard Hanus that a Nigerian immigration applicant is admissible as a United States permanent resident in keeping with the ruling on Hanus’ previous case of his Filipino client Beth Keathley, who succeeded in appealing her removal after being misled by an Illinois official to register and vote even if she were not an American citizen.

The Falls Church, Virginia-based EOIR, an arm of the United States Attorney General or U.S. Department of Justice, whose mission is to “adjudicate immigration cases by fairly, expeditiously, uniformly interpreting and administering the Nation’s immigration laws,” set aside the appeal of the Department of Homeland Security to an Immigration Judge’s ruling on April 4, 2012, granting the Nigerian immigration applicant due course to adjust the Nigerian’s immigration status “under section 245(a) of the Immigration and Nationality Act, 8 U.S.C. 1255(a).”

The respondent, a native and citizen of Nigeria, has “filed an opposition to the appeal, as well as New Legal Authority, to Department of Homeland Security.”

The EOIR Board said, “We will affirm the Immigration Judge’s decision. We review Immigration Judge’s findings of fact for clear error, but questions of law, discretion, and judgment, and all other issues in appeals, de novo (again).”

EIOR AGREES WITH KEATHLEY V. HOLDER CASE

The EOIR, in a one-page decision on removal proceedings addressed to Nigerian’s counsel, Hanus, and DHS’ Assistant Chief Counsel Minnie D. Yuen, cited an adverse  decision by an Immigration Judge in the case of Keathley v. Holder that was appealed before the Chicago-based U.S. Seventh Circuit court, which later “held that the ‘official authorization’ defense is applicable in cases where an alien would otherwise be inadmissible under section 212(a)(10)(D) of the Act.

“Upon review, we conclude that the holding in Keathley v. Holder is binding precedent in this case. The Immigration Judge made a finding of fact equivalent to a finding that the respondent, who was not criminally charged for illegal voting, would have a valid “official authorization” defense to the charge of illegal voting.

“There are no disputed questions of act on appeal. Consequently, the Keathley v. Holder compels a conclusion that the respondent is not inadmissible under section 212(a)(10)(D) of the Act, and the DHS arguments to the contrary are precluded.

“Therefore, the grant of adjustment of status was valid.

“The Immigration Judge’s decision is affirmed. The record is remanded to the Immigration Judge for the purpose of allowing the Department of Homeland Security the opportunity to complete or update identity, law enforcement, or security investigations or examinations, and further proceedings, if necessary, and for the entry of an order as provided by 8 C.F.R. Sec. 1003.47(h).”

KEATHLEY WAS MARRIED IN THE PHILIPPINES

Keathley, 34, a native of Pigtauranan, Pangantucan, Bukidnon in the Philippines, won the landmark ruling last year from a three-judge panel of the U.S. Seventh Circuit, which held, “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.”

Keathley married John Keathley, a U.S. citizen, in a ceremony performed in the Philippines in 2003. In 2004, Keathley was issued a non immigrant K-3 visa so that she could live in the U.S. while she waits the decision of John’s request for her permanent residence as immediate relative of a U.S. citizen. 

After arriving in the U.S., 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 congressional elections.

When she was interviewed by the U.S. Citizenship and Immigration Services (CIS) for her permanent residence application, she disclosed that she voted in the elections. Immediately, her application for green card was denied for violating 18 U.S.C. Sec. 611 “by voting in a federal election (that) renders her inadmissible, and thus ineligible for any benefit as John’s spouse. An immigration judge ordered her removal and the Board of Immigration Appeals affirmed.”

Although by then she had voted,  Keathley “contends that she did not violate Sec. 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 (v. Holder) should be called ‘official authorization’ instead. That name would better fit the doctrine’s actual nature and scope.”

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