UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT
CHICAGO, ILLINOIS
Date:
In the Matter of

)
)
)
)
)

Respondent.
CHARGES:

May 2, 2014

IN REMOVAL
PROCEEDINGS

)
Section 237(a)(l)(A) of the Immigration and Nationality Act ("INA" or
"Act") - At the time of entry or of adjustment of status, was inadmissible
as an alien who has voted i n violation of any Federal, State, or local
constitutional provision, statute, ordinance, or regulation, pursuant to
Section 212(a)(10)(D) of the Act.
Section 237(a)(3)(D) of the INA- Falsely represented oneself to be a
citizen of theUnited States for any purpose

or

benefit under the Act

(including Section 274A) or any Federal or State law.

Section 237(a)(l)(B) of the INA- Present in theUnited States in violation
of the Act.
APPLICATION:

Section 245(a) of the INA- Adjustment of Status.

ON BEHALF OF THE GOVERNMENT:

ON BEHALF OF THE RESPONDENT:

Richard Hanus, Esq.

Seth B. Fitter, Senior Attorney

Law Offices of Richard Hanus

Department of Homeland Security

161 North Clark Street, Suite 2500

Chicago, Illinois 60601

525 West Van Buren Street, Suite 701

Chicago, Illinois 60607

DECISION OF THE IMMIGRATION JUDGE

For the reasons that follow, the Court will grant the respondent's request for adjustment
of status.

I.

BACKGROUND
The respondent is a 35-year-old married female native and citizen of the Philippines. She

was admitted to theUnited States at Detroit, Michigan, on or about May 9, 2004, with a K-3 visa
as a spouse of aU .S. citizen. See Exh. 1. On April 6, 2006, she filed a Form 1-485, Application to
Register Pennanent Residence or Adjust Status, withU.S. Citizenship and Immigration Services
1

AILA InfoNet Doc. No. 14070746. (Posted 7/7/14)

..

("USCIS"). During an adjustment of status interview on December 4, 2006, she admitted having

voted in the November 2006 general election as a non-citizen. See Exh. 2. As a result, she was
found to be inadmissible under INA 212(a)(1O)(D)(i), and her application was denied on
December 14, 2006. See Exh. 3. On January 17, 2007, the respondent filed a motion to reopen
with USCIS, which was denied. See Exh. 4.

. On August 23, 2007, the Department of Homeland Security ("DHS") served a Notice to
Appear ("NTA") on the respondent by regular mail, and on August 30, 2007, filed the NTA with
the Court. The NTA alleges: (1) that the respondent is not a citizen or national of the U.S.; (2)
that she is a native and citizen of the Philippines; (3) that she was admitted to the U.S. in the

manner described above; (4) that prior to her admission or adjustment of status, she unlawfully

voted in November 2006 because she was not a citizen of the U.S. and knew that she was a

citizen of the Philippines; and (5) that in November 2006, she represented herself to be a U.S.
citizen for the purpose of voting in the 2006 general election. See Exh. 1. On the basis of these
allegations, DHS charged her as removable under INA 237(a)(1)(A), as an alien who was

inadmissible at the time of entry or of adjustment of status for having voted in violation of a
federal, state, or local constitutional provision, statute, ordinance, or regulation, pursuant to INA
212(a)(!O)(D). See id. DHS also charged her as removable under INA 237(a)(3)(D) for
having falsely represented herself to be a U.S. citizen for any purpose or benefit under the INA
or a federal or state law. See id.
At an October 16, 2007, master calendar hearing, the respondent, through counsel,
admitted the first three factual allegations in the NTA, and denied allegations four and five. She
also denied the two charges of removability. The respondent renewed her application to adjust
status before the Court.
After an individual hearing on November 17, 2008, the Court found that the respondent
was inadmissible at the time of adjustment of status pursuant to INA 212(a)(lO)(D) because
she voted in violation of a federal law, 18 U.S.C. 611, and therefore sustained the charge of

removability under INA 237(a)(l )(A). However, the Court did not sustain the second charge,

under INA 237(a)(3)(D), of making a false representation to be a U.S. citizen. Accordingly, the
Court denied the respondent's application for adjustment of status, but granted voluntary
departure.
The respondent subsequently appealed the decision to the Board of Immigration Appeals,

and on March 1, 2011, the Board affirmed the Court. She then appealed to the Seventh Circuit

Court of Appeals. On August 22, 2012, the Seventh Circuit granted the respondent's petition for
review and remanded the case for further proceedings to evaluate her claimed defense of
"official authorization." See Keathley v. Holder, 696 F.3d 644 (7th Cir. 2012)

On February 25, 2013, DHS filed a Form I-261, Additional Charges of

Inadmissibility/Deportability, with the Court, alleging in lieu of the original allegations that the
respondent's application for adjustment of status was denied on December 14, 2006, and that her

K-3 nonimmigrant visa was automatically terminated 30 days later, pursuant to 8 C.P.R.

214.2(k)(l l )(iii). See Exh. 7. On the basis of these additional allegations, DHS now charges the

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respondent with removability under INA 237(a)(l )(B) for being present in the U.S. in violation
of the Act. See id.
At a March 12, 2013, master calendar hearing, the respondent, through counsel, admitted
the two additional factual allegations and denied the new charge of removability. At individual
hearings on May 2, 2013, and February 27, 2014, the Court heard expert testimony from
Kathleen Kucharski and additional testimony from the respondent.

ISSUES

II.

In its decision remanding this case for further proceedings, the Seventh Circuit asked the
Court to evaluate whether the respondent has a good defense under the doctrine of"official
authorization," also known as "entrapment by estoppel." To do so, the Court must determine: (I)
whether the respondent in fact received authorization from state officials, and (2) whether the
person giving authorization had authority to do so. If the respondent can establish the defense of
official authorization, then she cannot be found to have violated 18 U.S.C. 611, and she is not
inadmissible under INA 212(a)(l)(D). If the respondent is not inadmissible, then the Court
must determine whether she is otherwise eligible to adjust status to lawful permanent resident.
For the reasons that follow, the Court finds that the defense of official authorization has
been established in this case and the respondent is not inadmissible under INA 212(a)(1)(D).
The Court further finds that she is otherwise qualified to adjust status and will therefore grant her
application.

EVIDENCE PRESENTED

III.

A. Testimony
On November 17, 2008, the respondent and her husband, - testified before
this Court. On May 2, 2013, Kathleen Kucharski, an employee o cretary of State,

testified about the procedures for administration of the moter-voter legislation, and on February
27, 2014, the respondent testified again. Their testimony is summarized as follows,
supplemented where necessary for clarity with information from the record:
1.

The Respondent's Testimony

The respondent was

country. She married

the Philippines on October 28, 1978, and is a citizen of that

a U.S. citizen, on July 11, 2003. Afterwards, she and her

husband completed an

a K-3 nonimmigrant visa, and she then came to the U.S. on

May 9, 2004. The respondent testified that the visa application was in English, and that she
understood the questions without difficulty. Since arriving in the U.S., she and her husband have
teenage
had one child and are expecting a second. She has also been a step-mother to
daughter from his previous marriage.

On November 27, 2004, the respondent went to an lllinois Secretary of State facility in
Bloomington, Illinois, to obtain a state identification card and a driving permit. She had never

AILA InfoNet Doc. No. 14070746. (Posted 7/7/14)

been to that facility previously, and she testified that she had no intention of registering to vote
prior to that visit and did not know the eligibility requirements for voting. At the facility, she
handed a state official her Philippines passport and her K-3 nonimmigrant visa as identification.
The official opened the passport to examine it. He asked the respondent whether she would like
to become an organ donor, and she responded that she would. He then asked her whether she
would like to vote. She said yes.
The respondent testified that the state official then rushed her through the application and
directed her to sign a signature block on a form, which turned out to be a "voter affidavit." The
respondent testified that she did not read the text accompanying the block because she was not
directed to do so and she had difficulty understanding English at the time. She stated that she
believed that she was signing the form to receive her state identification card. By this block there
were two check-boxes, stating that the applicant would be at least 18 years old on or before the
next election, and that she had lived in Illinois for the 30 days preceding the next election. The
affidavit also stated: "The information I have provided is true to the best of my knowledge under
penalty of perjury. If I have provided false information, I may be fined, imprisoned [or] if I am
not a U.S. citizen, deported from or refused entry into the United States." When asked whether
she checked the boxes on the form, the respondent answered that she did not remember checking
them off as the official rushed her through the forms. She also testified that she would never
falsely affirm that she was a U.S. citizen. At some later time, she received a voter's registration
card in the mail.
On November 7, 2006, the respondent voted in an election for U.S. Congress. The
respondent did not believe that she was a U.S. citizen at any time. She testified that she had the
impression that she was allowed to vote because she openly revealed the fact that she was a non
citizen to the state official at the Secretary of State facility by showing her foreign passport and
visa, and was still directed through the registration process. Her later receipt of a voter
registration card in the mail confirmed that the state official was correct that she could vote.
During her adjustment of status interview, the respondent revealed that she had voted and then
for the first time was informed that her impression was mistaken. She later asked the state
election authority to remove her name from the voter rolls.
2.

estimony

-- is the respondent's husband. After their July 2003 wedding, -btained

ondent to come to the U.S. She arrived in May 2004 and has remained in
the U.S. since then. The respondent and -have had one child together so far, and she has also
helped care for aughter from a previous marriage, of whom he has custody.
Regarding the respondent's English proficiency, . testified that she had difficulty
a K-3

communicating in English when the two first began corresponding by phone in 2001, but that she
has improved over time. He noted that even when she came to the U.S., it took time for her to
improve her fluency.
ccompan1ied the respondent to the Illinois Secretary of State facility i n
Bl<JOnlffijii, lilinois, on the day that she went to obtain a state identification card and driver's

AILA InfoNet Doc. No. 14070746. (Posted 7/7/14)

permit. He testified that she had never been to a Secretary of State office before and that she did
not go there with the intention of registering to vote. Once at the facility, he did not accompany
her while she spoke with the officials because he did not expect that she would have any
problems. He did not learn that she had registered to vote until shortly before the November
2006 election when she showed him the registration card that she had received in 2004. But even
after learning this, he did not suspect that she was not eligible to vote. He merely thought that the
state officials had assessed her eligibility and approved her registration. He did not believe she

had ever lied to any official about her citizenship.

estified that the respondent is "a person
of integrity and character," who has never lied to him, claimed to be aU.S. citizen, or broken the
law. He also stated that she had never spoken to him about voting in the U.S. prior to their visit
to the Secretary of State facility.
In December 2006, the couple went to the USers office for an interview related to the
r ponden 's application to adjst status to lawful permanent resident.-estified that during

;redg

tlus mterv1ew, the respondent d1sclosed that-she had voted. He acknO\

ed that the sworn
statement produced by the users officer accurately depicted the events of that interview. When
the couple discovered that the respondent was potentially subject to a bar, they contacted their
congressman and made sure to request that the respondent's name be removed from the voter

rolls.
3.

Kathleen Kucharski's Testimony

Kucharski is an administrator of the technical training division of the driver services

section of the TI!inois Secretary of State's Office. She has held this position since 1989, and prior
to that worked in other positions with the Secretary of State's Office. In her current role, she
oversees technical training for Secretary of State facilities throughout lllinois. One part of this
training concerns the procedures for implementation of th e "motor-voter" legislation.
Kucharski's testimony was limited to describing these general procedures; she had not met the
respondent previously and was not present at the Bloomington, Illinois, Secretary of State
facility when the respondent received her identification card in November 2004.
Kucharski explained the procedures for obtaining a state identification card or a driver's
license. When individuals first enter the facility, they are pre-screened by an official who asks
what docl)ment they are seeking to obtain. The official then checks the person's identifYing
documents and issues a number. When a clerk calls the person's number, the clerk will examine
the identifYing documents and ask about the reasons for his or her visit to the facility. The clerk
may also ask questions to verify that the documents in fact pertain to the person presenting them.
The clerk then asks for the applicant's full name, date of birth, gender, social security number,
height, and weight, and enters that information into the computer. After inputting this
information, the clerk asks whether the person would like to be part of the organ donor registry
and whether he or she would like to apply to register to vote. Kucharski testified that at no point
may the state employee ask 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.

AILA InfoNet Doc. No. 14070746. (Posted 7/7/14)

If the individual wishes register to vote, then the official uses the person's infonnation to
complete an application for voter registration. When all the information has been entered, the
official prints two applications, one for the driver's license or identification card and another for
voter registration. The individual is then directed to complete several remaining questions on the
license/identification card application, which vary according to the document sought, and to sign
the application. One of these questions asks whether the applicant would like to apply to register
to vote. Even if an individual decides not to apply, he or she must check a box indicating that the
question was posed by the official and sign the application. If the person originally expressed a
desire to register to vote but has now declined, the official must then void the voter registration
application. If the person still wishes to apply, the state employee will ask him or her first to
check the boxes "yes" or "no" to the affirmations on the voter affidavit regarding age and
citizenship and then to sign the affidavit.
Kucharski emphasized that the state official is not supposed to make any marks for the
applicant on the voter affidavit. She also stated that the employees at Secretary of State facilities
do not register the applicants to vote, but rather send the applications to the election authorities,
who then decide whether to register them. She noted that the address on the bottom of the
respondent's application is for the board of election committee in Bloomington, TI!inois, and that
the respondent's application would be sent there. According to Kucharski, the election board
relies on the applicants' affidavits regarding their age and citizenship to assess their eligibility to
vote; the Secretary of State facility does not send copies of the applicants' identifying
documents.
Kucharski stated that if a person were to read the questions on the anidavit and checked
the box stating that he or she was not a U.S. citizen, the official would explain that the person
needs to be aU .S. citizen to vote, and if the person says that he or she is not a citizen, the official
would encourage them to void the application. 1 However, she noted that the official cannot

determine an applicant's citizenship and claimed that state officials do not provide advice to
applicants about their eligibility given their immigration status: ''we just tell them to read the
questions on the application."
Kucharski did not know of any case where an official acted inappropriately in the
preparation of these applications. She noted that if there was a complaint from a member of
Congress or a constituent about misconduct among employees of the Secretary of State's Office,
she would have been notified because she would be responsible for re-training the employees to
address the problem.

B. Documentary Evidence
In addition to the testimony of record, the Court has considered all the documents in the
record relevant to the respondent's claim, including:

Kucharski was somewhat vague and evasive on this point, but seemed to indicate that the state official would

encourage the applicant to cancel his or her application to register to vote if it became clear that that person was not
eligible: "We would explain to the applicant that you, in reading this, you realize that you have to be a U.S. citizen
to make application to vote, and if they say 'I am not a citizen, then we, you know, they can decline at that time,
and we will write void on that application."

AILA InfoNet Doc. No. 14070746. (Posted 7/7/14)

Exhibit 1:

NTA for the respondent, filed August 30, 2007;

Exhibit 2:

The respondent's December 4, 2006, sworn statement before users;

Exhibit 3:

USers Decision on Application for Adjustment forPermanent Residence;

Exhibit 4:

USers Decision onMotion to Reopen;

Exhibit 5:

The respondent's pre-hearing statement and brief, with supporting documents,

tabs A-Q, filed October 20, 2008;

and friends;
Sworn statements from
Evidence of the removal of the respondent's name from the voter registry;
USCrS Record of Sworn Statement;
users Decision on Application for Adjustment forPermanent Residence;
The respondent's statement in support of her motion to reopen;
Copy of correspondence from U.S. Congressman Timothy Johnson to
users in support of the respondent's motion to reopen;
TabK:
TabL:
TabM:

USers Decision onMotion to Reopen;

National Voter Registration Act of 1993;
State of Illinois Election Board Guidelines for Deputy Registrars;

TabN:

lllinois Criminal Code: 720 ILCS 5/4-4, 4-5, 4-8;

TabO:

Illinois Election Code: 10 ILCS 5/4-8;

U.S. Dep't of JusticeMemorandum by William R. Yates, datedMay 7,
2002;

TabP:
TabQ:

Comments by Sen. AlanK. Simpson on April 24, 1996, 142 Cong. Rec.
S4017-21 (1996);

Exhibit 6:
Tab A:

DHS's document submission;

illinois Voter Registration Application, signed and datedNovember 27,
2004, and Application to Vote (Certificate of Registered Voter), signed
and datedNovember 7, 2006;

Exhibit 7:

Form r-261, Additional Charges oflnadmissibility/Deportability, filed

February 25, 2013;

Exhibit 8:

The respondent's pre-hearing statement and documentation in support of her

Form I-485, Application to RegisterPermanent Residence or Adjust Status,
tabs A-H, filed April!&, 2013;

AILA InfoNet Doc. No. 14070746. (Posted 7/7/14)

Tab A:

The respondent's Form 1-485 and USCIS notice of case transfer;

Tab B:

Evidence of the respondent's lawful entry;

Tab C:

TabF:

TabG:

Evidence of appearance for biometrics on February 14, 2013;

The respondent's affidavit, dated October 17, 2008;

TabD:

Copy of the approved Form I-129F, Petition for Alien Fiance(e);

TabE:

he r

t'sForm G-325A, Biographic Information;

Form I-864, Affidavit of Support with supporting

at o ,
TabH:

Copy of transcript excerpt regarding the Court's credibility finding for the
respondent;

Exhibit 9:

DRS's document submission, filed April 22, 2013;

Tab A:
Exhibit 10:

IV.

Illinois Secretary of State application for state identification card;

The respondent's U.S. Dep't of State Nonimmigrant Visa Application.

FINDINGS AND ANALYSIS

Having considered the respondent's testimony and the record in its entirety, the Court

concludes that the respondent is statutorily eligible for adjustment of status, and will grant the
respondent's application in the exercise of its discretion.

A. Credibility
This Court must weigh the evidence and determine the credibility of witnesses who
testify in support of an application for relief in removal proceedings. INA 240(c)(4)(B), (C).
"In evaluating the testimony of the applicant or other witness in support of the application, the
immigration judge will determine whether or not the testimony is credible, is persuasive, and
refers to specific facts sufficient to demonstrate that the applicant has satisfied the applicant's
burden of proof." INA 240(c)(4)(B). The Court must consider "the totality of the
circumstances, and all relevant factors," and it "may base a credibility determination on the
demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the
applicant's or witness's account, the consistency between the applicant's or witness's written and
oral statements ... the internal consistency of each such statement, the consistency of such
statements with other evidence of record ...and any inaccuracies or falsehoods in such
statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the
heart of the applicant's claim." INA 240(c)(4)(C).
While this Court found the respondent's testimony generally credible when it previously
considered the case, it declined to make specific findings about the factual underpinnings of her
claim to official authorization. On appeal, because the Seventh Circuit found that an official
authorization defense could potentially apply in this case, it instructed the Court to make findings
on the factual assertions relevant to that determination, specifc
i ally: ''whether

howed

her passport and visa to the state official; whether that official raised the subject of voting

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an alien; and whether that official checked the box claiming citizenship
form." Keathley, 696 F.3d at 646.
The Court fmds that the testimony of the respondent and her husband was credible,
persuasive, and referred to specific facts. Their accounts of what occurred at the Illinois
Secret

e facility in November 2004 were consistent, both internally and with each

other. testimony that she showed her Philippines passport and K-3 visa to the official
is credible. Because she was a relatively new arrival in the U.S. at the time, it is not likely that
she would have had other identification documents. to present. Furthermore, her assertion is
corroborated by the copy of her identification card application submitted by DHS, in which the
state official noted that the respondent presented a passport as identification. See Exh. 9. The
respondent testified that her K-3 visa was attached to the passport, so the official likely would
have seen it upon examining that document.
The respondent's assertion that the state official knew that she was a non-citizen when
the official raised the subject of voting is also credible. Kucharski testified that the state officials
helping to complete applications for driver's licenses and identification cards would typically
examine each applicant's documents and even ask questions about the information contained
therein to verify the applicant's identity. This practice strongly suggests that the official knew
that the respondent was not a U.S. citizen. While Kucharski stated that the officials at the
Secretary of State facilities generally do not receive training regarding different visa classes, U.S.
citizens do not
untrained official that

with visas at all, and it would have been clear to even an

not a U.S. citizen. Therefore, the Court finds that the state
despite knowing that

official did raise the

as not a U.S. citizen.

The last question, whether the state official checked the box claiming citizenship on the

voter affidavit for - is the most difficult to determine. Kucharski explained that
applicants are suppll out the voter affidavit themselves, but her testimony is of limited

utility because she co

eak to the standard procedures that employees are taught; she
was not present when-visited the Bloomington facility. Ideally such procedures would

be followed, but not necessarily. -does not remember checking the boxes and stated that
she would never knowingly misr
erself as a U.S. citizen. It is likely that she does not

checking the boxes because she simply did not check them. The Court accepts
testimony and finds that the state.official did in fact check the boxes in the voter
i1.Ln.ua\rH on

-s behalf after pushing her to sign the form.

B. Adjustment of Status
1.

The respondent is statutorily eligible for adjustment of status under INA 245(a).
The respondent seeks to avoid removal by adjusting her status to lawful permanent

resident based upon an approved relative petition filed on her behalf by her U.S. citizen spouse.
The status of an alien who has been inspected and admitted or paroled into the U.S. may be
adjusted to lawful permanent resident at the Court's discretion "if (I) the alien makes an
application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is
admissible to the United States for permanent residence, and (3) an immigrant visa is

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immediately available to him at the time his application is tiled." INA 245(a). The alien bears
the burden of establishing that she is eligible for the requested benefit and that it should be
granted in the exercise of discretion. 8 C.F.R. 1240.8(d). "If the evidence indicates that one or
more of the grounds for mandatory denial may apply, the alien shall have the burden of proving
by a preponderance of the evidence that such grounds do not apply." !d.
Here, the only issue is whether the respondent is inadmissible for permanent residence.
She arrived on a K-3 nonimmigrant visa as a spouse of a U.S. citizen. To obtain this visa, her

husband, - filed a Form I-129F, Petition for Alien Fiance(e), which was approved
ee Exh. 8, Tab D. After the respondent's arrival, she filed a Form I-485,
on Dece

Application to Register Permanent Residence or Adjust Status, on the basis of an approved

immigrant petition giving her an immediately available immigrant visa. See Exh. 8, Tab A.
However, USCIS denied her adjustment application after finding her inadmissible for having
voted in violation of federal law. See Exh. 5, Tab H. Therefore, this Court must determine
whether the respondent is admissible to the United States, and if so, whether she warrants a
favorable exercise of discretion.
The Government contends that the respondent is statutorily barred from seeking
adjustment of status because she is inadmissible to the United States for having voted in
violation of a federal, state, or local constitutional provision, statute, ordinance, or regulation
under INA 212(a)(lO)(D). Specifically, DHS argues that she violated 18 U.S.C. 611, which
proscribes voting by aliens in federal elections. This statute only requires general intent and does
not carve out any exceptions for individuals who were not aware that they were prohibited from
voting.
The respondent counters that she has a good defense of "official authorization" because

she was misled by government officials to believe she was eligble to vote. In the original

decision in this case, the Court concluded that the official-authorization defense could not be
brought as a defense to a charge of inadmissibility in an immigration case, and found that the
respondent had violated 611. The Seventh Circuit disagreed regarding the respondent's ability
to bring such a defense and remanded the case for the Court to determine whether the respondent
has satisfied the requirements for a good official-authorization defense. See Keathley, 696 F.3d at
646.
As described by the Seventh Circuit, official authorization or "entrapment by estoppel"

"applies when, acting with actual or apparent authority, a government official affirmatively
assures the defendant that certain conduct is legal and the defendant reasonably believes that
official." U.S.

v.

Howell, 37 F.3d 1197, 1204 (7th Cir. 1994). To illustrate how this defense

applies, Judge Easterbrook explained that "[a]n 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." Keathley, 696 F.3d at 646.
To evaluate the applicability of this defense to the instant case, the Court must determine
three questions: (1) What is the nature of Illinois Secretary of State officials' authority to give
advice to applicants regarding voter registration? (2) Did an official affirmatively assure

10

AILA InfoNet Doc. No. 14070746. (Posted 7/7/14)

at voting would be lawful? And (3) did - reasonably oe11.eve

The

Court finds that each prong of the defense is satisfie case, and thereore
rendered inadmissible for having voted in 2006 and remains eligible to adjust

On the first question, the Illinois Secretary of State's Office in 2004 did not merely
accept applications for voter registration, but also had authority to assist the state election board
in registering individuals to vote. Contrary to DHS's assertion that Secretary of State employees
merely transfer registration applications from their facilities to the relevant authorities, the
illinois Vehicle Code in effect in 2004 provided that voters had to be informed that they could
actually re g\ster at the Secretary of State facilities:

Each person applying at a driver services facility for a driver's license or permit, a
corrected driver's license or permit, an Illinois identification card or a corrected
Illinois identification card shall be notified that the person may register at such
station to vote in the election jurisdiction in which the station is located .... Such
notification may be made in writing or verbally issued by an employee or the
Secretary of State.
625 ILCS 5/2-105. Furthermore, the lllinois Election Code in effect in 2004 mandated that in
counties with a population smaller than 500,000 people (such as McLean County, where
Bloomington is located), "[t]he election authority shall appoint as deputy registrars a reasonable
number of employees of the Secretary of State located at driver's license examination stations
and designated to the election authority by the Secretary of State who may accept the registration
of any qualified residents of the county at any such driver's license examination stations." 10
ILCS 5/4-6.2(a). These deputy registrars, having actual authority to register voters, necessarily
also possessed the authority to interpret the eligibility requirements and apply them to applicants'
particular situations. As the Seventh Circuit has noted, "[t]he power to register someone
supposes some authority to ascertain whether legal qualifications have been met." Keathley, 696
F.3d at 646-47.
These statutes providing for the designation of Secretary of State employees as deputy
registrars and for the use of driver services facilities to register applicants demonstrate that the
functions and duties of the state election authority and the Illinois Secretary of State's Office
t to voter registration cannot be easily disentangled. Eve n if the employee with whom

nteracted was not a deputy registrar or the ultimate decision-maker

regarding her
.
registration application, by helping -to complete her application and interpreting and
applying the voter eligibility requirements to her circumstances, the official still acted within the

-==

broader authority delegated to the Secretary of State's Office to assist in the registration of
individuals to vote. The fact that the official was mistaken in infonning
vote lawfully does not change the fact that he or she acted with actual
Therefore, the Court finds that the Secretary of State official who assisted

she could
authority.
applying

to register to vote had actual or apparent authority to interpret the voter

that such officials were charged with implementing and to amose
With respect to the second question, the Court finds that the Secretary of State official did
in fact affirmatively assure
hat voting was lawful. The employee asked the respondent

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whether she would like to vote despite knowing that the respondent was a non-citizen. Then the
official rushed her through the voter registration application process and told her to sign,
implying that all was in order. The voter affidavit, which asked whether the respondent would be
over 18 years old at the time of the next election and whether she was a U.S. citizen, was
apparently skipped over by the official. The respondent was not asked any of the questions on
the voter affidavit, and does not remember being asked to check the boxes for her answers.
Because the respondent does not remember checking the boxes and credibly asserted that she
would not have answered untruthfully that she was a citizen, it is likely that the official checked
the boxes on the voter affidavit on the respondent's behalf, despite knowing that the respondent
was not a U.S. citizen. The official also must have known that the respondent's registration
application would be granted on the basis of the affirmations in the affidavit.
The respondent subsequently received a voter registration card in the mail, finally
cementing the impression that she could vote lawfully despite being a non-citizen. Because the
decision to place the respondent on the voter rolls and send her a registration card was driven by
an error made by the state official (rather than by the respondent, which was the case in Kimani
v. Holder, 695 F.3d 666 (7th Cir. 2012)) the impression created by the receipt of the card is most
properly attributed to the Secretary of State official who filled out the affidavit. These
representations by the official, both direct and indirect, constituted an affirmative assurance that
the respondent met the eligibility requirements to vote and could do so lawfully.

-easonably believed the official's assurances when she voted in

Third,

November 2006. Though the official was in fact wrong in authorizing the respondent to vote,
"the official-authorization defense does not depend on the public official being right when giving
approval." Keathley, 696 F.3d at 647. Her reliance was reasonable because the official was
connected with the voter registration process, and despite the respondent's doubts, the arrival of
her voter registration card seemed to prove that the official had been right in guiding her through
the registration process. This case is more comparable to the Secret Service agent authorizing a
counterfeiting operation than the high school principal authorizing alien voting in Judge
Easterbrook's illustration because a Secretary of State official was clearly invoived in some
capacity in overseeing the activity being authorized.

On the basis of these conclusions,

s official-authorization defense is sound and
she cannot be found to have violated 18 U.S.C. 611. Therefore, she is not inadmissible under
INA 212(a)(l O)(D). Because she has made an application for adjustment of statns, is eligible to
and an
receive an immigrant visa and is admissible to the U.S. for permanent
immigrant visa is immediately available to her on the basis of her marriage

she

is statutorily eligible for adjustment of statns under INA 245(a).

2.

The respondent merits adjustment of status as a matter of discretion.

The Court next must consider whether the respondent merits adjustment in the exercise
of discretion. The BIA discussed the factors which must be considered to determine whether a
favorable exercise of discretion is warranted in Matter ofMarin, 16 I&N Dec. 581 (BIA 1978).
Overall, the Court must balance the adverse factors against the "social and humane
considerations presented in [the respondent's] behalf" !d. at 584. TI1e respondent bears the

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burden of establishing that her application warrants a favorable exercise of discretion. See id. at
583.
According to Marin, favorable considerations include:
family ties within the United States, residence of long duration in this country
(particularly when the inception of residence occurred while the respondent was
of young age), evidence of hardship to the respondent and family if deportation
occurs, service in this country's Armed Forces, a history of employment, the
existence of property or business ties, evidence of value and service to the
community, proof of a genuine rehabilitation if a criminal record exists, and other
evidence attesting to a respondent's good character (e.g., affidavits from family,
friends, and responsible community representatives).
Id. at 584-85.
Conversely, adverse factors discussed in Marin are "the nature and underlying
circumstances of the exclusion ground at issue, the presence of additional significant violations
of this country's immigration laws, the existence of a criminal record and, if so, its nature,
recency, and seriousness," and other evidence of bad character or undesirability. !d.
Many factors in the respondent's case weigh toward a favorable exercise of discretion.
The respondent has lived in the U.S. nearly 10 years now and has a husband and two children (a
young daughter from this marriage and a step-daughter from her husband's prior marriage). At
the time of her February 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. See Exh. 5, Tabs D & E. The respondent has no criminal record. Based on these
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 will
be granted.

ORDER OF THE IMMIGRATION JUDGE

IT IS HEREBY ORDERED that the respondent's application for adjustment of
status under section 245(a) of the Act be GRANTED.

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