CHICAGO (JGL) – “An agent of the (United States) 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.”
With this analogy, U.S. Department of Justice Immigration Judge Craig M. Zerbe of Executive Office for Immigration Review (EOIR) in Chicago, Illinois adopted the U.S. 7th Circuit ruling called “official authorization” in granting Filipina non-immigrant Elizabeth Dag Um Keathley of Bloomington, Illinois a Green Card (legal permanent residence) even after she voted in a U.S. federal election.Keathley’s jubilant Chicago-based immigration lawyer, Richard Hanus, said in an email to this reporter, “It is a final order now – beyond any appeal period.”
The complaint against Keathley was instituted by the U.S. Citizenship Immigration Services (CIS) under the Department of Homeland Security (DHS) while Judge Zerbe is under the U.S. Department of Justice (DOJ). The U.S. CIS denied Keathley’s application for adjustment of status as a Green Card holder in 2006 in the course of her interview for adjustment of status when she disclosed that she voted in a federal election although she was not yet a U.S. citizen.
Hanus added, “I am so happy for Elizabeth and John, and their family. From the beginning, I felt Elizabeth and her family suffered a massive injustice.
“Thankfully, after seven years of appeals and advocacy, the courts eventually agreed with our interpretation of the laws at issue and finally reached a legally correct and morally just result. Further, other innocent folks who were misled into registering to vote, or voting, now have a legal remedy to address concerns or allegations that may arise.”
‘WE ARE ELATED AND RELIEVED”
Quoting Elizabeth and her husband, John, Mr. Hanus, said, “We are elated and relieved. We can move on with our lives. It’s been a long 10 years, but we never lost faith in the system, and with the help of our attorney, Richard Hanus, we found justice. We hope this ruling will be of help to others facing a similar predicament.”
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, “she 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, No. 11-1497) should be called ‘official authorization’ instead. That name would better fit the doctrine’s actual nature and scope,” according to the Circuit’s opinion.
Attorney Hanus initially introduced the legal defense of “entrapment by estoppel” that absolves an individual of legal responsibility in criminal proceedings but this was rejected by the Immigration Court.
In the ruling, Judge Zerbe likened the employee of the Illinois Secretary of State’s Office to a high school principal, who “asks what document” he is seeking from an applicant for a “state identification card or a driver’s license.” But it is the elections official, who finally makes the determination if an applicant can vote or not.
ILLINOIS STATE EMPLOYEE DOES NOT ASK “CITIZENSHIP”
The Illinois Secretary of State’s official, then, checks the person’s identifying documents and issues a number but according to the Illinois Secretary if State’s official (Kucharski) “at no point may the state employee asks about the person’s age or citizenship, and that the officials must ask all applicants whether they wish to register to vote regardless of the documents presented to them. She added that officials are not trained to ascertain someone’s citizenship from the documents they present.”
Ms. Kucharski clarified her subordinates “do not register applicants to vote, but rather send the applications to the election authorities,” who rely on the applicants’ affidavits, minus applicants’ identifying documents, to determine voters’ eligibilities.
Kucharski said “it would have been clear to even untrained official that Keathley was not a U.S. citizen after presenting her Philippine passport and her attached K-3 (fiancée) visa.” But the Court “accepts Keathley’s testimony and finds that the state official did in fact check the boxes in the voter affidavit on Keathley’s behalf after pushing her to sign the form.” The boxes stated, “she would never knowingly misrepresent herself as a U.S. citizen.”
Using the Matter of Marin, 16 I&N Dec. 581 (BIA 1978) precedent in weighing the merits of adjusting Keathley’s immigration status, Zerbe exercised favorable discretion for her based on the following factors:
Keathley, 35, a native of Pigtauranan, Pangantucan, Bukidnon in the Philippines “has lived in the U.S. nearly 10 years now and has a husband and two children (young daughter from this marriage and a step-daughter from her husband’s prior marriage). At the time of her Feb. 27, 2014, individual hearing, she was expecting another child as well.
“The hardship that her removal would pose to her family is clear. Support letters from the respondent’s friends and family members show her good character and ties to the community and her church. The respondent has no criminal record. Based on those factors, the respondent has established that she merits adjustment of status in the exercise of discretion.”
“Accordingly, the Court concludes both that the respondent is statutorily eligible for adjustment of status and that she merits relief as a matter of discretion, and her application (for adjustment of status) will be granted.”
Photo by Elizabeth Dag Um Keathley (JGL Photo Used with Permission Courtesy of Atty. Richard Hanus)