By JOSEPH G. LARIOSA

(© Journal Group Link International)

C HICAGO (jGLi) – When an Illinois state official “albeit not maliciously but with full knowledge” allowed Elizabeth Dag Um Keathley to vote although he knows that she was a citizen of the Philippines, Ms. Keathley was not “in violation of law” that calls for her deportation to the Philippines.

Albert W. Alschuler, a legal scholar, tells the Seventh Circuit Court of Appeals in Chicago, Illinois, that Immigration Judge Craig Zerbe in Chicago failed to establish “removability” of Ms. Keathley, a 32-year-old native of Pigtauranan, Pangantucan, Bukidnon in the Philippines, when he “improperly refused to consider a relevant legal defense – entrapment by estoppel – that absolves an individual of legal responsibility” for relying on acts of a government official.

Ms. Keathley’s Chicago-based immigration lawyer, Richard Hanus, sought the help of Alschuler, a Northwestern University law professor and noted legal scholar for more than 40 years, after the Board of Immigration Appeals of the United States’ Department of Justice affirmed Judge Zerbe’s oral decision.

Alschuler compared Ms. Keathley’s act of voting as “no more a violation … than the action of a non-citizen, who, with a terrorist’s gun on her back, is coerced to enter the voter’s booth and vote.”

Hanus said the Immigration Judge “committed reversible error in disregarding available defense and in deeming Ms. Keathley removal for unlawful voting” and “in deeming Ms. Keathley inadmissible … and ineligible for Adjustment of Status.”

SECOND CHARGE DISMISSED

H anus, columnist of Chicago-based Philippine Weekly, noted that while the IJ dismissed the second charge of removability, ruling that Ms. Keathley of Bloomington, Illinois is not removable or inadmissible as someone who “falsely represented” herself as a U.S. citizen, it concluded that Ms. Keathley is deemed  “removable and inadmissible” for voting in a federal election (a violation of a criminal statute).

Alschuler said, “Voting by non-citizens is not inherently or always unlawful,” citing “nearly half the states giving voting rights to aliens in the nineteenth centuries and many localities allow aliens to vote today.”

He also cited a case (Paterson v. New York, 432 U.S. 197 (1977), which lets a “state shift the burden of persuasion on the defendant on something appropriately called an 'affirmative defense.' If a state had defined murder as killing with malice aforethought, the state could shift to the defendant the burden of proving by a preponderance of evidence that he killed in self-defense."

Hanus said he expects oral arguments of the case taking place before the year’s end.

Ms. Keathley arrived in the U.S. on May 9, 2004, after marrying her U.S. citizen husband, John W. Keathley, on July 11, 2003 in the Philippines.

They are parents of three-year-old U.S.-born daughter Sheina Keathley, and have custody of John’s 14-year-old daughter, Victoria Keathley, from John’s previous marriage after a court determination that Victoria’s mother was not fit to be awarded any form of custody.

On Nov. 27, 2004, Ms. Keathley applied for a driver’s permit and a state I.D., presenting her Philippine passport and K-3 visa at the Illinois’ State Secretary of State’s office and clearly identified herself as a Philippine citizen.

NEVER ASKED IF SHE WAS A U.S. CITIZEN

W hen she was first asked if she wanted to be an organ donor, Ms. Keathley said, “yes.” When she was asked if she would like to register and vote, “notwithstanding Ms. Keatley’s clear disclosure that she was a citizen of the Philippines,” Ms. Keathley told the acting deputy registrar of the Secretary of State, “yes,” believing that the government official would never have offered the option if in fact the exercise of the option would be improper or prohibited by law.

Ms. Keathley recalls that the deputy registrar never asked her if she was a U.S. citizen and never verbally relayed voter-eligibility requirements.

After voting in the 2006 congressional elections, her co-worker, who saw her lapel pin “I voted,” informed her that she was not yet eligible to vote.

When Ms. Keathley and her husband were interviewed by the U.S. Citizenship Immigration Services, she revealed that she voted, causing the denial of her application for permanent residency and she was processed for deportation.

She filed a motion to reopen with a letter from U.S. Congressman Timothy Johnson of the 15th Illinois Congressional District, in which the Congressman pointed out that Ms. Keathley’s case is not an isolated one. “After much research by my staff, I have come across a big problem in our voter registration system in the State of Illinois,” he wrote. “I believe that Elizabeth only registered and voted because of a problem caused by the State of Illinois.”

On Nov. 17, 2008, IJ conducted calendar hearing and heard Ms. Keathley and her husband’s testimony and in essence found both of them credible and accepted the entirety of their testimony. # # #

Editor’s Note: To contact the author, please e-mail him at:  (lariosa_jos@sbcglobal.net)