Submitted: May 17, 2018
Petition for Review of an Order of the Board of Immigration
SHEPHERD, KELLY, and GRASZ, Circuit Judges.
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.
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.
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 of status
under the Violence 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.
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 from that
official, when acting within the scope of his or her
authority." Fitzpatrick v. Sessions, 847 F.3d
913, 915 (7th 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.
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 of the 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."
immigration judge determined that Chernosky was inadmissible
because her 2004 vote violated three election
laws. More specifically, the immigration judge
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.
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)).
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, ...