Published: August 27, 2012

No doubt by now you have heard the one about the foreign national who walks into the local Secretary of State’s office to get a driver’s license, and walks out a licensed driver, an organ donor AND a registered voter. As a voter registrant, that’s where the story begins to go downhill for many foreign nationals. Whether or not the foreign national goes on to vote, he ends up facing harsh consequences within the green card or citizenship application setting as a result of voter registration or voting. In many circumstances the application is denied, and in some cases, the applicant is placed in removal proceedings. In a decision handed down by the U.S. Court of Appeals, Seventh Circuit this past week, however, the court gives new life to individuals who are facing a denied application, or fighting deportation, as a result of being misled by a government official into registering to vote, or voting in a U.S. election.

In the interest of disclosure, I am the attorney who has been representing the foreign national at issue throughout removal proceedings, from the initial removal hearing stage, to the Board of Immigration Appeals, and now most recently, the U.S. Court of Appeals for the Seventh Circuit. (Importantly, as a federal court case, the matter is of public record, and that includes the identities of the parties and all of the surroundings facts) The case involves a Filipina who was petitioned to live in the U.S. by her U.S. citizen spouse. She eventually joined her spouse in the U.S. on a K-3 visa, and was to undergo the final processing of her green card while in the U.S. But between the time she arrived on her visa, and the time she appeared at her green card interview at the local Homeland Security/Citizenship and Immigration Services office in Chicago, she had an encounter with a government official that would turn her life upside down for the next 6 years.

The encounter was with an official at the Illinois Secretary of State’s office in Bloomington, Illinois, where she applied for her driver’s license. In support of her application, our Filipina presented documentation establishing her identity and legal status in the U.S., including her Philippines passport, and K-3 nonimmigrant visa. In response to her submission, the government official asked her 2 questions: 1) do you want to be an organ donor? and 2) would you like to register to vote? Not supposing her own ineligibility for either – since it was a government official offering up these choices AND after he reviewed her identity and immigration documents – she said yes to both. At no point during this process, did she claim to be a U.S. citizen. From there, she signed where told, was issued her driver’s license, and went home on her merry way. Weeks later, she gets a voter registration card in the mail, thus further, and reasonably, establishing in her mind her eligibility to vote in the U.S. Eventually, she carries out what she sees as her civic duty, and votes in a U.S. congressional election.

At her green card interview several months later, she honestly discloses all of these events in response to the immigration official’s questions about registering to vote or voting in the U.S. And that’s where things get really bad. Not only is her green card application denied, but her work permit is cancelled, and she is eventually placed in removal proceedings.

So how is it that two well-intended, honest folks who go through the trouble of adhering to every rule and instruction in legally bringing a spouse to the U.S., end up having to fight off the recently arrived spouse’s deportation? Answer: the law can be a tangled web, and these folks got caught in it.

No doubt, each of the laws at play were enacted with the best of intentions. Most notably, we have an immigration law that says foreign nationals are to be denied U.S. residence and removed from the U.S., when they vote in violation of state or federal law. And the federal voting law at issue here is such that a non-citizen who votes is considered to be unlawfully voting – no matter what – and even if the voter is acting innocently and does not know it’s wrong to be voting. i.e. no mens rea is required.

However, after many years of litigation, and appeals, the U.S. Court of Appeals has declared that in the context of immigration proceedings, such as in this case, the defense of “entrapment by estoppel” – or official authorization – is relevant in determining whether the specified unlawful conduct took place. That is, when a person reasonably relies on the guidance of a government official in committing some act, that person should not be deemed a criminal or legally penalized if that act turns out to be unlawful.

Put simply, just as we would never ticket a motorist who is waved through a stop sign by a police officer, a foreign national should not be denied their green card and deported after being waved through the voter registration and voting process by government officials. In remanding the case for further proceedings, the Seventh Circuit stated: “if the Immigration Judge does credit (her) 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.”

Last week was a good week for this foreign national, and hopefully the process will play out as urged by the Seventh Circuit. For more details on this case, see KEATHLEY v. Eric H. HOLDER, Jr., Attorney General of the United States – No. 11–1594 (Seventh Circuit, August 22, 2012).

Copyright © 2012, By Law Offices of Richard Hanus, Chicago, Illinois