In the

United States Court of Appeals

For the Seventh Circuit

No. 11-1594

ELIZABETH DAG UM KEATHLEY,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General

of the United States,

Respondent.

Petition for Review of Orders of the

Board of Immigration Appeals

ARGUED OCTOBER 18, 2011—DECIDED AUGUST 22, 2012

Before EASTERBROOK, Chief Judge, and RIPPLE and

KANNE, Circuit Judges.

EASTERBROOK, Chief Judge. Elizabeth Keathley, a citizen

of the Philippines, married John Keathley, a citizen of the

United States, in 2003. The marriage was performed in

the Philippines. In 2004 the State Department issued a

nonimmigrant K-3 visa so that Elizabeth could live in

the United States while awaiting action on John’s request

for her permanent residence as the immediate relative
2 No. 11-1594

of a U.S. citizen. After arriving in the United States,

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 election.

Voting has come back to haunt her. Immigration officials

working on John’s request that his spouse receive

permanent-residence status discovered that Elizabeth

had voted. She has been ordered removed from the

United States—and the administrative finding that she

violated 18 U.S.C. §611 by voting in a federal election

renders her inadmissible, and thus ineligible for any

benefit as John’s spouse. See 8 U.S.C. §1182(a)(10)(D)(i).

An immigration judge ordered her removal, and the

Board of Immigration Appeals affirmed.

Several of Keathley’s arguments track those considered

and rejected in Kimani v. Holder, No. 11-1497, which is

being released contemporaneously. But there are two

potentially important differences between the two

cases. First, while Kimani falsely represented himself to

be a U.S. citizen when registering to drive and vote,

Keathley contends that she represented herself to be a

citizen of the Philippines, presenting both her Philippine

passport and her K-3 visa. Neither the IJ nor the

BIA determined whether Keathley is telling the truth

about this. (Kimani, by contrast, was in the United States

unlawfully, having overstayed a visitor’s visa, and did

not want public officials to learn about his status as

an alien.) Second, while Kimani checked a box on the

driver’s-license form claiming U.S. citizenship, Keathley

contends that she left that box unchecked until the
No. 11-1594 3

state official who superintended the process—an official

knowing that she is not a citizen—asked her if she would

like to vote. Keathley says that she answered “yes”. The

box asserting U.S. citizenship ended up checked;

Keathley says that she does not remember whether she

checked the box or the state employee did so. The IJ and

BIA did not decide how the box came to be checked (it is

possible that the state official checked it after Keathley

already had signed the form) or whether the state

official understood that Keathley is not a citizen of the

United States.

Keathley contends that, because the state official knew

that she is an alien, the question about voting and the

state’s decision to send her a voter registration card led

her to believe that voting would be lawful. She did not

know about §611, and after she learned that aliens can’t

vote she asked the State of Illinois to revoke her registration (it did). Although by then she had voted, she contends that she did not violate §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 should be called “official authorization” instead. That name would better fit the doctrine’s

actual nature and scope.

The immigration judge did not decide whether

Keathley showed her passport and visa to the state

official; whether that official raised the subject of voting

knowing that Keathley is an alien; and whether that

official checked the box claiming citizenship after

Keathley signed the form. Although the IJ found her
4 No. 11-1594

generally credible, he did not make findings on these

specific issues because he believed that entrapment by

estoppel, as a doctrine of criminal law, is irrelevant in

immigration proceedings. The BIA agreed with that

conclusion. Both the IJ and the BIA erred.

It’s true enough that “entrapment by estoppel” is

the name of a defense to a criminal prosecution. But it

does not follow that the defense is irrelevant in civil

proceedings. Section 1182(a)(10)(D)(i) declares that an

alien who has voted in violation of state or federal law

is inadmissible. The IJ and Board therefore had to determine whether Keathley violated §611. And the only

way to determine whether a person has violated a

criminal statute is to examine both the elements of that

law and all defenses properly raised. Suppose a statute

declares that murder is a crime and defines murder as

the intentional killing of a human being. A person who

kills in self-defense, however, is not guilty of murder.

A provision in the Immigration and Nationality Act

withholding benefits from an alien who has “committed

murder” requires the agency to decide, not only

whether the alien killed someone, but also whether the

killing was justified (and thus not “murder”). Just so

with §1182(a)(10)(D)(i) and §611. If Keathley has a good

defense, she has not violated §611 and remains eligible

for adjustment of status.

Whether she has a good defense depends in part on

facts that remain to be ascertained. Whether she has

violated §611 also potentially depends on the rule that

the defense of official authorization is available only if
No. 11-1594 5

the person giving authorization had authority to do so.

See both Kimani and United States v. Howell, 37 F.3d 1197,

1205 (7th Cir. 1994). An agent of the 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.

Our opinion in Kimani observes that state motor-vehicle

registrars lack authority to put aliens on the voting rolls.

We did not mean, however, that motor-vehicle registrars

lack all authority concerning voting. The motor-voter

legislation authorizes officials in a department of motor

vehicles to register people for federal elections. 42 U.S.C.

§§ 1973gg–3(a)(1), 1973gg–6(a). The power to register

someone supposes some authority to ascertain whether

legal qualifications have been met, and officials are supposed to inform applicants about the eligibility rules for

voting. 42 U.S.C. §1973gg(a)(5). These officials thus are

entitled to speak for the government on that subject.

What they say is not conclusive, but the official-authorization defense does not depend on the public official being

right when giving approval. Our opinion in Kimani concerned someone who represented himself to be a

citizen; but we must assume that Elizabeth Keathley

represented herself to be an alien. That’s why (she says)

she thought the official’s conduct implied (though

wrongly) that aliens could vote.

The litigants have not explored the extent to

which officials administering the motor-voter registra-
6 No. 11-1594

tion procedure are authorized to interpret the terms of

that legislation and the requirements of valid registration,

and to give binding advice to applicants. It may well be

unnecessary to address that subject (which is relevant

only if, on remand, the agency credits Keathley’s statements about what occurred), and it would be imprudent

to address potentially complex issues without briefs

that explore them fully.

If the IJ does credit Keathley’s 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.

The petition for review is granted, and the matter

is remanded for proceedings consistent with this opinion.

8-22-12