JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW
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Can Keathley Be Applied More Broadly?
The Off-Broadway play The Courtroom is now a film; it recently screened as part of the Tribeca Film Festival. I think it is excellent, and would highly recommend that all those interested in immigration law see it. As you might know, the film depicts the actual immigration court case that culminated on appeal in the Seventh Circuit’s 2012 precedent decision in Keathley v. Holder.1
While there is so much artistic talent to applaud among the film’s cast (especially the excellent Kristin Villanueva as the respondent, Elizabeth Keathley), director Lee Sunday Evans, and Arian Moayed (who created the script from actual court transcripts), as a lawyer and former judge, I was particularly impressed with the legal theory employed in the case by the real-life attorney Richard Hanus.
To summarize the facts of the case, Ms. Keathley went to the Illinois Department of Motor Vehicles to obtain a state identification card while in non-immigrant status, having been admitted to the U.S. on a fiancee visa. In processing her application, the DMV official asked (as he was required to do) whether she wanted to be an organ donor, and more consequentially, whether she wanted to register to vote. Having just shown the DMV official her non-U.S. passport and non-immigrant visa, Ms. Keathley took the question to mean that she was eligible to vote. And an Illinois law designed to deter discrimination in voter registration precluded the DMV official from offering her further guidance to dispel that belief. When at her adjustment of status interview with DHS, Ms. Keathley answered honestly that she had voted in the 2006 midterm election, she soon found herself in removal proceedings before an immigration judge.
Furthermore, her situation appeared hopeless. Section 237(a)(6)(A) of the Immigration & Nationality Act requires only a finding that a noncitizen voted in violation of any Federal, State, or local statute in order to make the individual deportable; it does not require a criminal conviction for having done so. Ms. Keathley readily admitted that she had voted. And of course, a federal statute, namely, 18 U.S.C. section 611, prohibits non-citizens from doing so.
But Ms. Keathley’s attorney argued that she was not in fact deportable, because there was a legal defense for her action, called “entrapment by estoppel.” As Judge Frank Easterbrook, writing the Seventh Circuit’s decision in the case, explained, criminal defenses are relevant in removal proceedings. He provided the example of a noncitizen who kills another in self-defense, raising the question of whether that person would then be deportable for having committed the crime of murder. While Judge Easterbrook explained that the statute might define murder as the intentional killing of a human being, a person who kills in self defense is not guilty of murder, and would thus not be deportable.2 The same logic applies to voting.
Judge Easterbrook further explained that while its name is confusing, the defense of entrapment by estoppel can be better described as “official authorization.” In his oral argument, Hanus offered the analogy of a police officer waving a driver through a red light; because the officer authorized the action, the driver could not be ticketed for their action.
Judge Easterbrook provided another example: if a Secret Service agent authorizes someone to distribute counterfeit currency as part of a criminal investigation, the person doing so cannot then be criminally charged for such action.
But the judge also emphasized an important requirement for the defense: the person authorizing the action must have the authority to do so. As Judge Easterbrook pointed out, a Secret Service agent can authorize someone to pass counterfeit bills, but (choosing a seemingly random example) a high school principal, in spite of being a government employee, would have no authority over who is qualified to vote.
He continued that in Ms. Keathley’s case, while Department of Motor Vehicle officials lack the authority to specifically register non-citizens to vote, they are authorized to register people for federal elections. In the words of Judge Easterbrook, “The power to register someone supposes some authority to ascertain whether legal qualifications have been met,” meaning that such officials “thus are entitled to speak for the government” on the subject of eligibility to vote.3
The Seventh Circuit remanded the matter, advising that “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.”4
On remand, Immigration Judge Craig Zerbe determined that the charge of removability was not sustained in light of the Seventh Circuit’s decision; Ms. Keathley’s application for adjustment of status was thus granted. As those who saw the movie or play know, she has since become a U.S. citizen.
I hold Richard Hanus in the highest regard, and find his arguments in litigating this case to be brilliant. I’ve also wondered if his argument might have broader applications.
With that thought in mind, I have heard of a disturbing position being taken by DHS in response to the increasing number of states legalizing marijuana, which presently remains a controlled substance under federal law.
The issue is that a noncitizen seeking to adjust their status to that of a lawful permanent resident must demonstrate that they are not inadmissible to the U.S. (It was in this same posture that Ms. Keathley was also found inadmissible at her adjustment of status interview). But section 212(a)(2)(C)(i) of the Act makes inadmissible not only any noncitizen who “is or has been an illicit trafficker in any controlled substance,” but also one who “is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance…or endeavored to do so.”
Like the voting provision, this exclusion ground does not require a criminal conviction. But while whether or not someone voted is a clearcut question, what constitutes aiding, abetting, assisting, or colluding with marijuana-related businesses that are operating legally at the state level is far less obvious.
For example, DHS has taken the position that those providing accounting and payroll services to marijuana-related businesses constitute aiding or assisting with drug trafficking within the meaning of the Act. It’s not clear how far that theory can be extended. What about those providing banking services? Or the landlords renting to such businesses? Or those providing them with phones, electricity, or internet service? And in at least one case, USCIS has applied the trafficking bar to an individual who maintained video surveillance equipment in a marijuana collective.5
My question is whether the “entrapment by estoppel” defense successfully raised in Keathley could also apply to someone such as an accountant who performed services typical of their profession for a client who happened to be in the marijuana business, and who is then charged by DHS of aiding or assisting in marijuana trafficking. I’m posing this and all that follows as thoughts for discussion; they certainly are not an authoritative opinion. I am curious to hear what readers think.
First, in terms of “official authorization,” legalizing states have set up agencies to closely regulate the marijuana industry. In Colorado, even non-employees providing support services that require them to be unescorted in what the state has termed “limited access areas” within marijuana-related businesses must be issued a license by the state’s Marijuana Enforcement Division.6 Would the application process and issuance of such authorization by the relevant state agency be sufficient to trigger an entrapment by estoppel defense?
There is a question of whether a state agency can provide authorization that would carry any weight at federal level. As noted above, the DMV official in Keathley, although working for the state, had the authority to register individuals to vote in federal as well as state elections; in the view of the Seventh Circuit, that authority carried with it an entitlement to speak to issues of eligibility.
I would here point to an August 29, 2013 memo to all U.S. Attorneys from then Deputy Attorney General James M. Cole, titled “Guidance Regarding Marijuana Enforcement.” Importantly, this memo refers to a “traditional joint federal-state approach to narcotics enforcement,” adding that this approach has been affected by “[t]he enactment of state laws that endeavor to authorize marijuana production, distribution, and possession by establishing a regulatory scheme for these purposes…”
The Cole Memo listed the federal government’s specific enforcement priorities as follows:
- Preventing the distribution of marijuana to minors;
- Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels;
- Preventing the diversion of marijuana from states where it is legal under state law in some form to other states;
- Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;
- Preventing violence and the use of firearms in the cultivation and distribution of marijuana;
- Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
- Preventing the growth of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and
- Preventing marijuana possession or use on federal property.
The memo continues by stating that outside of the above-listed priorities, “the federal government has traditionally relied on states and local law enforcement agencies to address marijuana activity through enforcement of their own narcotics laws.”
So if the federal government views state governments as partners in a “traditional” joint approach, in which the federal government limits its own enforcement to the above-listed priorities, and leaves the rest to its enforcement partners at the state level, then could someone authorized by the state to engage in activity of the type that the federal government has announced it was ceding to the state to enforce have a valid argument that state permission covered them at the federal level as well?
It also bears noting that subsequent to the Cole Memo, a division of the U.S. Department of Treasury called the Financial Crimes Enforcement Network (or “FinCEN” for short) issued guidance “ to clarify Bank Secrecy Act (“BSA”) expectations for financial institutions seeking to provide services to marijuana-related businesses.”7
It is noteworthy that this federal government guidance does not warn that providing banking or other financial services to MRBs constitutes aiding, assisting, or abetting in the commission of a federal crime. The guidance does require such institutions to exercise due diligence, and to file suspicious activity reports with FinCEN if it believes activity it observes might violate the federal government’s enforcement priorities. In doing so, those institutions are actually aiding and assisting the federal government in its enforcement.
So in providing such guidance, is FinCEN “waving through” businesses who provide supporting services to marijuana-related businesses, providing that they adhere to the guidance? Could the FinCEN guidance be interpreted by non-financial institutions for the premise that it’s OK to provide services to marijuana-related businesses as long as one keeps their eyes open for suspicious activity, and reports all suspect activity to the authorities?
Copyright 2022 Jeffrey S. Chase. All rights reserved.
Notes:
- 696 F.3d 644 (7th Cir. 2012).
- Id. at 646.
- Id. at 646-47.
- Id. at 647.
- Voronin v. Garland, No. 2:20-cv-07019-ODW (AGRx) (C.D. Cal. Apr. 20, 2021). Thanks to Marie Mark at the Immigrant Defense Project for flagging.
- 1 Code of Colorado Regulations 212-3 at Section 1-115.
- Financial Crimes Enforcement Network, “BSA Expectations Regarding Marijuana-Related Businesses,” FIN- 2014-G001, Feb. 14, 2014.
AUGUST 16, 2022
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Jeffrey S. Chase is an immigration lawyer in New York City. Jeffrey is a former Immigration Judge and Senior Legal Advisor at the Board of Immigration Appeals. He is the founder of the Round Table of Former Immigration Judges, which was awarded AILA’s 2019 Advocacy Award. Jeffrey is also a past recipient of AILA’s Pro Bono Award. He sits on the Board of Directors of the Association of Deportation Defense Attorneys, and Central American Legal Assistance.
The DHS position described by Jeffrey appears to fall on a scale somewhere between “bizarre and incredibly stupid!” But, that doesn’t mean immigrants and their lawyers shouldn’t be concerned and prepared to respond!
