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Chernosky v. Sessions

United States Court of Appeals, Eighth Circuit

July 26, 2018

Christine Chernosky Petitioner
v.
Jefferson B. Sessions, III, Attorney General of the United States Respondent

          Submitted: May 17, 2018

          Petition for Review of an Order of the Board of Immigration Appeals

          Before SHEPHERD, KELLY, and GRASZ, Circuit Judges.

          KELLY, Circuit Judge.

         Canadian 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.

         I.

         In 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.

         After 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.[1] 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.

         In 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."[2] 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.

         In 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."

         The immigration judge determined that Chernosky was inadmissible because her 2004 vote violated three election laws.[3] 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.

         II.

         Where, 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)).

         As an 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. ยง 1255(a). An alien is inadmissible to the United States if, as relevant here, she "has voted in violation of any Federal, ...


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