United States Court of Appeals

For the Eighth Circuit

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No. 17-1400

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Christine Chernosky

lllllllllllllllllllllPetitioner

v.

Jefferson B. Sessions, III, Attorney General of the United States

lllllllllllllllllllllRespondent

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Petition for Review of an Order of the

 Board of Immigration Appeals

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Submitted: May 17, 2018

Filed: July 26, 2018

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Before SHEPHERD, KELLY, and GRASZ, Circuit Judges.

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KELLY, Circuit Judge.

Canadian citizen Christine Chernosky petitions for review of the Board of

Immigration Appeals’s (BIA) denial of her application for adjustment of status. We

deny her petition for review.
I.

In January 2004, Chernosky entered the United States on a six-month, nonimmigrant visitor visa. She applied for a Minnesota driver’s license, using an

application form that included a section that allowed applicants to register to vote by

checking three boxes: (1) stating the applicant is a United States citizen; (2) who will

be at least 18 by the next election; and (3) requesting to be registered to vote. The

voter-registration section also required an additional signature certifying that the

applicant was a United States citizen. Chernosky did not check any of the boxes or

certify that she was a United States citizen. Nevertheless, Minnesota officials

registered her to vote, and mailed her a voter registration card, which assigned her a

voter number and provided information about her polling place. Chernosky then

voted in the 2004 election. As a Canadian citizen, she was not eligible to do so. She

also overstayed her visa.

After the government initiated removal proceedings, Chernosky admitted she

was removable because she had overstayed her visa, but denied being removable

based on her 2004 vote. She also applied for adjustment ofstatus under the Violence

1

Against Women Act (VAWA), alleging abuse by her American ex-husband, but the

government denied her application. In the government’s view, Chernosky knowingly

violated federal and state election laws when she voted, which rendered her

inadmissible to the United States and precluded her from obtaining VAWA relief.

In response, Chernosky sought to invoke “entrapment by estoppel,” a defense

that can be “available to someone who makes complete and accurate representations

to a public official and then receives permission fromthat official, when acting within

In this appeal, Chernosky challenges the immigration judge’s determination

1

thatshe isremovable based on her 2004 vote. We need not reach that issue, however,

because she does not dispute that she is removable based on her overstay.

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the scope of his or her authority.” Fitzpatrick v. Sessions, 847 F.3d 913, 915 (7th 2

Cir. 2017). In other words, “[w]hen 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.” Kimani v. Holder, 695 F.3d 666, 670

(7th Cir. 2012). According to Chernosky, she did not knowingly vote in violation of

any law because Minnesota officials had misled her into believing she could vote

when they sent her the voter registration card.

In Minnesota, voters are required to sign a roster certifying, among other

things, that they are a United States citizen before they vote in any given election. 

See Minn. Stat. § 204C.10(a) (“An individual seeking to vote shall sign a polling

place roster . . . which states that the individual is . . . a citizen of the United States

. . . .”). The 2004 roster from the polling location where Chernosky voted had been

destroyed by the time her case was ready for adjudication by the immigration judge. 

Instead, the government submitted a blank copy ofthe 2014 version of the roster form

that would have been used, and that Chernosky would have been required to sign

before she voted. As relevant, the roster includes a disclaimer stating: “I certify that

I am at least 18 years of age and a citizen of the United States,” and “I understand that

giving false information is a felony.”

The immigration judge determined that Chernosky was inadmissible because

her 2004 vote violated three election laws. More specifically, the immigration judge 3

At oral argument, the government conceded that entrapment by estoppel 2

applies in immigration proceedings. See Keathley v. Holder, 696 F.3d 644, 646 (7th

Cir. 2012) (“[T]he only way to determine whether a person has violated a criminal

statute isto examine both the elements of that law and all defenses properly raised.”). 

This court has never decided whether this defense is available in the immigration

context, and we need not resolve the issue today.

Those laws were Minn. Stat. § 201.014 (to be eligible to vote, an individual 3

must, inter alia, be a United States citizen; “Any individual who votes who knowingly

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found that, at the time she cast her ballot, Chernosky knew she was voting unlawfully

“because [the government] has established by clear and convincing evidence that

[she] was advised at her polling place that only citizens are eligible to vote.” The

BIA dismissed Chernosky’s administrative appeal, reasoning that the immigration

judge’s factual finding was not clearly erroneous.

II.

Where, as here, “the BIA adopts the [immigration judge’s] decision, but adds

reasoning of its own, we review both decisions.” Setiadi v. Gonzales, 437 F.3d 710,

713 (8th Cir. 2006). Administrative findings of fact, including credibility

determinations, are reviewed for substantial evidence; they are “conclusive unless any

reasonable adjudicator would be compelled to conclude to the contrary.” Ali v.

Holder, 686 F.3d 534, 538 (8th Cir. 2012) (quoting 8 U.S.C. § 1252(b)(4)(B)).

As an alien seeking adjustment of status, Chernosky was required to establish

her admissibility “clearly and beyond doubt.” Hashmi v. Mukasey, 533 F.3d 700, 702

(8th Cir. 2008). To qualify for adjustment of status under VAWA, an alien must

show that she meets VAWA’s requirements and that she is otherwise admissible to

the United States. See 8 U.S.C. § 1255(a). An alien is inadmissible to the United

States if, as relevant here, she “has voted in violation of any Federal, State, or local

constitutional provision, statute, ordinance, or regulation.” 8 U.S.C.

§ 1182(a)(10)(D)(i).

is not eligible to vote is guilty of a felony.”); Article 7, Section 1 of the Minnesota

Constitution (persons who have not been United States citizens for at least three

months are not entitled or permitted to vote in anyMinnesota election); and 18 U.S.C.

§ 611 (making it illegal for any “any alien to vote in any election held,” at least in

part, to elect candidates for various federal offices).

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Chernosky argues that the immigration judge did not consider her

entrapment-by-estoppel defense. We disagree. The immigration judge gave due

consideration to her entrapment-by-estoppel argument, but ultimately, made a factual

finding on that issue that was adverse to Chernosky. The immigration judge

explained that, although the government had not produced the 2004 roster from

Chernosky’s polling location, Minnesota polling places are required by statute to

maintain rosters warning potential voters that only United States citizens can vote,

and voters are required to sign those rosters. And the immigration judge reasonably

determined that this requirement established by clear and convincing evidence that

such a roster would have been in place at Chernosky’s polling location in 2004 and

that she would have been required to sign it before she voted. Therefore, substantial

evidence supports the immigration judge’s finding that Chernosky knew she was

ineligible to vote in the 2004 election and did so anyway. Chernosky has not shown

clearly and beyond doubt thatshe was entitled to an entrapment-by-estoppel defense.

III.

Accordingly, we deny Chernosky’s petition for review.

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