Fitzpatrick v. Sessions, No. 15-2204 (7th Cir. 2017)

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Justia Opinion Summary

Fitzpatrick, a citizen of Peru, had lived in the U.S. for three years when she applied for an Illinois driver’s license; she displayed her green card and her Peruvian passport, but checked a box claiming to be a U.S. citizen. As required by the motor-voter law, 52 U.S.C. 20503–06, the form contained a checkbox for registration as a voter. Fitzpatrick maintains that the clerk asked whether she wanted to register. She inquired “Am I supposed to?”; he replied: “It’s up to you.” She checked that box, was registered, and in 2006 twice voted in federal elections, violating 18 U.S.C. 611; 8 U.S.C. 1227(a)(6), provides for the removal of aliens who vote in violation of the law. On her application for citizenship, Fitzpatrick, who is married to a U.S. citizen, and has three U.S.-citizen (naturalized) children, honestly described her voting history. The BIA affirmed an order of removal. The Seventh Circuit denied relief, rejecting an “entrapment by estoppel” defense. Fitzpatrick did not make accurate disclosures when applying. She is literate in English and has no excuse for that misrepresentation. No one told her that aliens are entitled to vote or to register to vote. Fitzpatrick had time after receiving her voter-registration card to determine whether she was entitled to vote.

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In the United States Court of Appeals For the Seventh Circuit ____________________ Nos. 15-­ 2204 & 16-­ 1864 MARGARITA DEL PILAR FITZPATRICK, Petitioner, v. JEFF SESSIONS, Attorney General of the United States, Respondent. ____________________ Petitions for Review of Orders of the Board of Immigration Appeals. No. A097 846 616 ____________________ ARGUED JANUARY 17, 2017 — DECIDED FEBRUARY 13, 2017 ____________________ Before EASTERBROOK, WILLIAMS, and SYKES, Circuit Judges. EASTERBROOK, Circuit Judge. Margarita Del Pilar Fitzpat-­ rick, a citizen of Peru, had lived in the United States for three years when she applied for a driver’s license in Illinois. She contends that when filling out the forms at the Department of Motor Vehicles she displayed her green card and her Pe-­ ruvian passport—but she admits that she also checked a box claiming to be a citizen of the United States. The form sternly warns aliens not to check that box, and Fitzpatrick does not 2 Nos. 15-­ 2204 & 16-­ 1864 contend that she has any difficulty understanding written English. (She came to the United States in 2002 to study Eng-­ lish in college, and after earning a certificate as a medical translator she spent some time working as an interpreter be-­ fore training as a nurse.) As required by the motor-­ voter law, 52 U.S.C. §§ 20503–06, the form also contained a checkbox that would lead to registration as a voter. Fitzpatrick main-­ tains that the desk clerk asked whether she wanted to regis-­ ter, and when she inquired “Am I supposed to?” he replied: “It’s up to you.” She checked that box, was duly registered, and in 2006 twice voted in elections for federal officials. Aliens are forbidden to vote in federal elections. 18 U.S.C. §611. Another statute, 8 U.S.C. §1227(a)(6), provides for the removal of aliens who vote in violation of either state or fed-­ eral law. After discovering that Fitzpatrick had voted in a federal election, the Department of Homeland Security initi-­ ated removal proceedings. An Immigration Judge and then the Board of Immigration Appeals (initially and when deny-­ ing reconsideration) decided that she must indeed leave the United States, even though she has led a productive and otherwise-­ unblemished life in this country, is married to a U.S. citizen, and has three U.S.-­ citizen children. Her children were born in Peru and naturalized after arrival. Her own 2007 application for citizenship is what brought her 2006 voting to light, when response to questions asked of all ap-­ plicants she honestly described her voting history. Fitzpatrick acknowledges that she voted in apparent vio-­ lation of §611, which does not require proof that the alien knew that only citizens can vote in federal elections. See Ki-­ mani v. Holder, 695 F.3d 666 (7th Cir. 2012). Nonetheless, she contends, she did not actually violate §611, because she had Nos. 15-­ 2204 & 16-­ 1864 3 official approval to act as she did. Her lawyer calls this the “entrapment by estoppel” defense; we suggested in Keathley v. Holder, 696 F.3d 644 (7th Cir. 2012), that a better label would be “official authorization.” But names don’t matter. The defense is available to someone who makes complete and accurate representations to a public official and then re-­ ceives permission from that official, when acting within the scope of his or her authority. (We observed in Keathley that a high school principal can’t permit aliens to vote, but that voting officials may have at least apparent authority to do so.) Fitzpatrick cannot make out either ingredient of this de-­ fense. First, she did not make accurate disclosures when apply-­ ing. She checked the box claiming U.S. citizenship. She is lit-­ erate in English and has no excuse for making that misrepre-­ sentation. As we observed in Kimani, statements such as “I didn’t read the form carefully” or “I didn’t think this through before acting” or “I didn’t understand the legal sig-­ nificance of what I was doing” may be explanations, but they are not excuses. Second, no one told her that aliens are entitled to vote. Indeed, no one told her that aliens are entitled to register to vote. A clerk asked whether she wanted to register and add-­ ed “It’s up to you.” That statement—apparently following a script that Illinois then required clerical officials to use—was a refusal to give advice, not an assurance that it was lawful to register. Federal law forbids state officials to say anything that will discourage an applicant for a driver’s license from registering to vote. 52 U.S.C. §20506(a)(5)(C). This statute leads to unhelpful responses such as the one Fitzpatrick re-­ ceived. What happened to Fitzpatrick and other aliens such 4 Nos. 15-­ 2204 & 16-­ 1864 as Keathley has led Illinois’s Secretary of State to revise the department’s Field Operations Manual to require clerks to remind applicants that citizenship is essential to voting, but the omission of that advice in 2005 still left Fitzpatrick with a noncommittal answer. What’s more, even if the clerk had assured Fitzpatrick (as he did not) that she was entitled to register, that assurance differs from authorization to vote. Because different units of government have different requirements for voting, it may be proper for aliens to register even though they must take care not to vote in elections for certain offices. Fitzpatrick had time after receiving her voter-­ registration card to deter-­ mine which elections she could participate in. Even a curso-­ ry search would have turned up the rule against an alien’s voting in a federal election—just as a cursory search would have revealed that a person registered in Illinois cannot vote for Governor of Indiana. Registration to vote simply does not imply authorization to vote in any election one chooses. Fitzpatrick is well educated and understands English; it is not too much to ask that she find out before voting whether an alien can cast a ballot in a federal election. States may deem it wise to inform all who register about the require-­ ments for voting in particular elections, but failure to pro-­ vide that advice does not amount to official authorization for aliens to vote in all elections. The panel inquired at oral argument whether Fitzpatrick is the kind of person the Attorney General and the Depart-­ ment of Homeland Security want removed from the United States. The answer was yes—that consideration had been given to exercising prosecutorial discretion in Fitzpatrick’s favor, but that the possibility had been resolved adversely to Nos. 15-­ 2204 & 16-­ 1864 5 her. That decision is entrusted to executive officials, leaving us no option other than to deny the petitions for review of the BIA’s decisions.