A Kenyan Green card holder who voted in a US election face deportation
A Kenyan man face deportation after violating Section 611(a) of the U.S. constitution.
In Kimani v. Holder, Nos. 11-1497 & 11-2955 (August 22, 2012), a three-judge panel for the U.S. Court of Appeals for the Seventh Circuit upheld the board’s removal order, and denied a motion to reopen the decision on the grounds of ineffective assistance of counsel.
Anthony Kimani entered the U.S. in 2000 on a visitor’s visa and did not leave when it expired, and he did not seek another visa. Kimani married a U.S. citizen three years after the visa expired, and his wife applied for U.S. permanent resident status on his behalf.
But investigating officials found that he voted in the 2004 federal election.
Kimani applied for a driver’s license. He checked the box indicating he was a U.S. citizen on the license and voter registration form. Kimani did not represent himself as an alien to any state official in the motor vehicle department.
Instead, he argued that he did not “knowingly” vote in violation of section 611, and that provision requires a violator to have specific intent. The appeals panel disagreed.
“A statute that does not mention any mental-state (mens rea) is a general-intent law,” wrote Judge Easterbrook, noting that general-intent laws only require an act, in this case voting.
At oral argument Kimani’s lawyer tried a variant of the argument that the agency failed to establish the required state of mind. He called it “entrapment by estoppel.” No such argument was made to the immigration judge or the Board, but we give Kimani the benefit of the doubt by treating it as preserved because it is at least loosely related to his argument that scienter is essential under §611(a).
The appeals panel rejected the “entrapment by estoppel” argument. “He does not contend that any official told him that it is lawful for aliens to claim to be citizens, or than any public official directed him to register to vote,” Judge Easterbrook wrote.
The panel also noted that Kimani represented himself as a US citizen. The panel also rejected Kimani’s argument that his lawyer was ineffective in making the section 611 arguments on his behalf.
“Kimani’s problem stems from his own decision to register, to claim citizenship, and to vote,” Judge Easterbrook wrote. “That can’t be blamed on his immigration lawyer.”
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