United States District Court, N.D. Illinois, Eastern Division
S. Shah U.S. District Judge.
government's motion to dismiss, , is granted in part,
denied in part. Plaintiff's due process claim is
dismissed. The government shall answer the complaint by
November 5, 2019, and a status hearing is set for November
12, 2019 at 9:30 a.m.
weeks after plaintiff Olukayode Alabi Olaifa applied to
become a United States citizen in 2016, he stopped by an
Illinois Secretary of State's office to update the
address on his identification.  ¶¶
9-10. While there, a clerk asked him if he would
like to register to vote.  ¶ 10. When Olaifa said
yes, the clerk filled out the forms for him, highlighted the
areas where he needed to sign and, after Olaifa signed,
handed him a receipt. Id. ¶ 10-11. Olaifa never
read the form, never told the clerk that he was not a citizen
(she never asked) and did not mark any of the boxes on the
form himself. Id. He was unaware that one of the
boxes-ticked with a checkmark- indicated he was a citizen.
Id. ¶ 11.
election day that November, Olaifa visited a polling station
in Calumet City, Illinois.  ¶ 13. He gave a polling
officer his voter ID card, driver's license, and state ID
and, this time, told the officer that he was only a permanent
resident. Id. The officer told Olaifa he could vote,
and Olaifa voted. Id.
first realized his mistake when he read in his naturalization
booklet that only citizens may vote. Id. ¶ 14.
During his initial interview with the United States Citizen
and Immigration Service (one of the defendants in this case),
he owned up to registering and voting and explained that he
did not see or mark any of the boxes on the registration
form.  ¶ 15. When his application was denied, he
appealed and, as part of that appeal, participated in a
second interview.  ¶¶ 16-17. During the second
interview, he told the Immigration Service that he had been
forthcoming with the polling officer about his status as a
lawful permanent resident and pointed out that he normally
uses “X's”-not checkmarks-when filling out
forms. Id. ¶ 17. See also  at 13-17
(Olaifa attached to his complaint an addendum to a uniform
residential loan application that bears his name and uses
“X's” to mark answers).
Immigration Service denied his appeal. See  at
21-24. The director of the Chicago Field Office found that
Olaifa lacked good moral character because he had registered
to vote and voted before becoming a citizen. Id. at
22-23 (citing 8 U.S.C. § 1101(f); 18 U.S.C. §
1015(f)). Olaifa's complaint seeks review of that denial.
 ¶¶ 20-26. It also alleges that the Immigration
Service violated his Fifth Amendment right to due process.
 ¶¶ 27-32.
government moves to dismiss both counts in the complaint,
citing Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6). . The government's Rule 12(b)(1) argument
does not depend on facts not mentioned in the complaint; it
is a facial challenge to jurisdiction. See  at
10-11; Silha v. ACT, Inc., 807 F.3d 169, 173 (7th
Cir. 2015). As such, it is assessed using the same standard
of review for Rule 12(b)(6): well-pleaded and material
factual allegations must be accepted as true and, construing
those allegations in Olaifa's favor, the complaint must
“plausibly give rise to an entitlement of
relief.” Id. (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009)). Jurisdiction is about
a court's “power to hear a case and decide what the
law requires, ” Klene v. Napolitano, 697 F.3d
666, 668 (7th Cir. 2012), and I have an independent
obligation to make sure jurisdiction is secure. Ruhrgas
AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999).
jurisdiction to review the Service's denial of
Olaifa's naturalization petition. 8 U.S.C. §
1421(c). See also Klene, 697 F.3d at 667;
O'Sullivan v. U.S. Citizenship & Immigration
Servs., 453 F.3d 809, 812 (7th Cir. 2006); Levy v.
I.N.S., 6 Fed. App'x 331, 332 (7th Cir. 2001)
(“district courts have jurisdiction only in cases where
the INS denies an application for naturalization”);
Shweika v. Dep't of Homeland Sec., 723 F.3d 710,
714 (6th Cir. 2013) (“It is well settled that §
1421(c) provides federal district courts with jurisdiction to
review administrative denials of applications for
Service may only grant an application if the applicant is a
“person of good moral character, attached to the
principles of the Constitution of the United States, and well
disposed to the good order and happiness of the United
States.” 8 U.S.C. § 1427(a); 8 C.F.R. §
316.14(b); Fedorenko v. United States, 449 U.S. 490,
506 (1981) (all statutory requirements must be strictly
complied with). Applicants that commit unlawful acts that
“adversely reflect upon ... [their] moral
character” must be found to lack good moral character
unless they can show extenuating circumstances. 8 C.F.R.
§ 316.10(b)(3)(iii). See also United States v.
Suarez, 664 F.3d 655, 661 (7th Cir. 2011) (“A
finding contrary to this mandatory language would be a per se
abuse of discretion”).
voting in an election does not adversely reflect upon
one's moral character as a matter of law. Certain
categories of applicant (including gamblers and
“habitual drunkards, ” 8 U.S.C. §
1101(f)(1), (4)) cannot be found to have good moral
character. See 8 U.S.C. § 1101(f)(1)-(9). But
“people who vote illegally” and “people who
falsely represent themselves to be citizens” are not
among them. See Id. Congress even went so far as to
identify limited situations where the fact that someone
falsely represented themselves to be a citizen or voted
illegally could never be the basis for determining that they
do not have good moral character. 8 U.S.C. § 1101(f).
government reads these provisions as a sign that-in all
situations other than the limited situations identified,
which are not present here-the act of unlawful voting
precludes a finding that an applicant had good moral
character. See  at 5. If Congress had wanted
that result, it would have categorically excluded people that
voted illegally (or represented themselves to be citizens)
along with gamblers and “habitual drunkards.” 8
U.S.C. § 1101(f)(1), (8); Muratoski v. Holder,
622 F.3d 824, 831 (7th Cir. 2010) (the Board of Immigration
Appeals correctly found that the immigration judge
“could find, but was not compelled to find,
that [plaintiff] lacked good moral character on the basis of
his false claim of U.S. citizenship”) (emphasis added).
See also Ray v. U.S. Citizenship & Immigration Servs.
Dallas Dist., No. 5:13CV88, 2014 WL 4404535, at *2 (E.D.
Tex. Sept. 5, 2014) (declining to dismiss a complaint because
it was possible for the plaintiff to show that they had good
moral character-or that there were extenuating circumstances-
despite voting illegally).
even if illegally voting is a reflection of poor moral
character as a matter of law, Olaifa might not have acted
unlawfully. He might have a “good defense.”
See Keathley v. Holder, 696 F.3d 644, 646 (7th Cir.
2012). There are two criminal statutes at issue. The first
prohibits falsely-and knowingly-claiming to be a citizen
“in order to register to vote or to vote.” 18
U.S.C. § 1015(f). The second prohibits lawful permanent
residents like Olaifa from voting in presidential elections.
18 U.S.C. § 611; 8 U.S.C. § 1101(a)(3).
§ 1015(f) requires the culpable person to act
“knowingly, ” Olaifa did not commit the crime if
his actions were the result of “ignorance, mistake or
accident.” United States v. Graham, 431 F.3d
585, 590 (7th Cir. 2005). Olaifa says that he did not know
that the form he signed at the Secretary of State's
office contained a checked box affirming that he was a
citizen. See  ¶¶ 10-11, 13-14;  at
6-7. “‘[K]nowingly' usually means with
knowledge of the facts, ” Kimani v. Holder,
695 F.3d 666, 670 (7th Cir. 2012), and here, drawing all
inferences in Olaifa's favor, the complaint alleges that
he was not aware of one of the key underlying facts that
would render his conduct at the Secretary of State's in
violation of § 1015(f)-i.e., that a box on the form he
was signing indicated he was a ...