United States v. 2005-03-02 | 03-71986 | MCDONALD VGONZALES | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 ELLEN VALLE MCDONALD,
Petitioner, No. 03-71986
v. Agency No.
 A44-435-234ALBERTO GONZALES,* Attorney
General, OPINION
Respondent. 
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 7, 2005—Pasadena, California
Filed: March 2, 2005
Before: Warren J. Ferguson, John T. Noonan and
Michael Daly Hawkins, Circuit Judges.
Opinion by Judge Hawkins
*Alberto Gonzales is substituted for his predecessor, John Ashcroft, as
Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).
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COUNSEL
Stuart I. Folinsky (briefed and argued), Los Angeles, Califor-
nia, for the petitioner.
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Nancy Friedman (argued) and Barry J. Pettinato (briefed),
Office of Immigration Litigation, Civil Division, U.S. Depart-
ment of Justice, Washington, D.C., for the respondent.
OPINION
HAWKINS, Circuit Judge:
Ellen Valle McDonald, a native of the Philippines and legal
permanent resident of the United States, was found removable
under 8 U.S.C. § 1227(a)(6)(A) for voting in violation of
Hawaii law. Although § 1227(a)(6)(A) provides the reason for
deportation, we look to the relevant Hawaii statute, H.R.S.
§ 19-3.5(2), to decide whether that reason is substantiated,
i.e., whether a violation occurred. Because we determine that
McDonald did not have the requisite mental state to have vio-
lated H.R.S. § 19-3.5(2), we grant her petition.
FACTS AND PROCEDURAL HISTORY
McDonald lived in Hawaii with her U.S. Citizen husband
and their U.S. Citizen child. When McDonald applied for a
Hawaii driver’s license, under Hawaii’s Motor Voter proce-
dures, she also registered to vote by completing the bottom of
the license application. In doing so, she checked a box indi-
cating that she was a United States Citizen. McDonald testi-
fied that she checked the box “because at the time [she]
wasn’t sure if [she was] a citizen.”1 McDonald’s husband tes-
tified that at that time, he too was “quite uncertain” about his
wife’s citizenship status. McDonald attributed part of her con-
1McDonald accurately indicated on the registration form that she was
not eligible to vote in the Office of Hawaiian Affairs Election. The form
asked if she considered herself “Hawaiian,” defined as “any descendant of
aboriginal people inhabiting the Hawaiian islands which exercised its sov-
ereignty and subsisted in the Hawaiian Islands in 1778, and which peoples
thereafter have continued to reside in Hawaii.”
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fusion to friends having told her that, having married a U.S.
Citizen, she became one herself, automatically.
McDonald and her husband both testified that McDonald
subsequently received a voter registration or voter inquiry
postcard in the mail. Upon reviewing the form, Mr. McDon-
ald testified that he counseled his wife, “I don’t think you’re
a citizen, let’s not take any chances. Check no [regarding U.S.
citizenship] and send it back.” McDonald did so.
When McDonald next received a Notice of Voter Registra-
tion and Address Confirmation in the mail, she believed that
the government was allowing her to vote even though it had
learned she was not a citizen. Her husband drew the same
conclusion. The McDonalds were not dissuaded by a message
on that Notice that stated “Attention Voter! . . . To be eligible
to vote you must meet the following qualifications: Be a U.S.
Citizen; Be a legal resident of the State of Hawaii; and Be at
least 18 years of age.” McDonald explained, “I just ignored
[the Notice’s warning] because I — I thought I can — I can
vote because — since I put no in the [previous postcard’s citi-
zenship query]. I thought I can vote.” She also testified that
she misunderstood the three requirements, believing that
meeting any one of the three was sufficient.2
McDonald then voted in the 1996 primary and general elec-
tions. She testified that she did so because she believed that
it was her civic duty. At no point did McDonald inquire of
anyone other than her husband whether she was a citizen, or
whether she was allowed to vote. McDonald conceded she
could have asked someone when she was registering to vote,
but did not do so.
2Though the IJ did not believe this explanation, the IJ did not make an
explicit adverse credibility determination. Cf. Kalubi v. Ashcroft, 364 F.3d
1134, 1137-38 (9th Cir. 2004) (testimony must be accepted as true in the
absence of an explicit adverse credibility finding); and Aguilera-Cota v.
INS, 914 F.2d 1375, 1383 (9th Cir. 1990) (“mere statement that a peti-
tioner is ‘not entirely credible’ is not enough.”).
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In the process of applying for naturalization in 1997,
McDonald volunteered to the agent interviewing her that she
had voted in the last election. As a result of this information,
the INS agent halted McDonald’s naturalization proceedings.
Despite Mr. McDonald’s entreaties (“I said, ‘Well sir, if she
voted, it was — obviously it was a mistake. Can’t you see
that? Can’t you understand that this was . . . ignorance on our
part’ ”), the agent referred McDonald to a Special Agent in
Investigations, who began removal proceedings. The Special
Agent assigned to her case testified, “I think [McDonald]
might have said that she made a mistake or she didn’t know
what she was doing, but to me [it] was an immaterial fact in
my investigation.” He determined McDonald had falsely
claimed to be a citizen, voted, and “had the intent.”3 His inter-
view with McDonald lasted about fifteen minutes.
A memo from the Office of Naturalizations Operations,
available and extant at the time of McDonald’s naturalization
interview, required the Special Agent to conduct a more thor-
ough investigation.4 It instructs that in addition to asking a
naturalization applicant whether she has ever voted in an elec-
tion, “follow-up questions should be asked to determine
whether the . . . voting was, in fact, a violation.”5 Current INS
policy is reflected in an INS memo distributed subsequent to
McDonald’s interview; it states that “if . . . the election law
penalizes the act of voting only upon an additional finding
that the individual acted ‘knowingly’ or ‘willfully,’ adjudicat-
ing officers cannot conclude that an applicant voted unlaw-
3The government offered no proof that the Special Agent was a lawyer
or had any specialized training to support this conclusion.
4Memorandum from Robert K. Bratt, Executive Director, Office of Nat-
uralization Operations re: Voter Registration and Standardized Citizenship
Testing 2 (May 13, 1997).
5Id. The INS is obligated to follow its own policy. See Morton v. Ruiz,
415 U.S. 199, 235 (1974) (“[w]here the rights of individuals are affected,
it is incumbent upon agencies to follow their own procedures”), and
Romeiro de Silva v. Smith, 773 F.2d 1021, 1025 (9th Cir. 1985) (INS can
be bound by its operations instructions).
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fully until they assess the circumstances surrounding the
voting, the applicant’s credibility, and the documentary evi-
dence.”6 The memo then lists five factors for the agent to
weigh (among them “the extent of the applicant’s knowledge
of the election laws”), and counsels that even if the agent con-
cludes that an applicant voted unlawfully, prosecutorial dis-
cretion might be warranted. Had these instructions been
followed in McDonald’s case, it is hard to imagine that
McDonald would today be facing removal.
Nonetheless, in the hearing before the IJ, the INS asserted
that McDonald had voted “in violation of any Federal, State,
or local constitutional provision, statute, ordinance or regula-
tion.” See 8 U.S.C. § 1227(a)(6)(A). Specifically, McDonald
was accused of committing voter fraud under Hawaii law,
which states that “[a]ny person who knowingly votes when
the person is not entitled to vote” is guilty of a felony. H.R.S.
§ 19-3.5(2). The IJ applied one of three definitions of “know-
ingly” available under Hawaii law — “when [a person] is
aware that it is practically certain that his conduct will cause
such a result.” H.R.S. § 702- 206(2)(c).7
The INS Special Agent, McDonald, and her husband all
6See Memorandum from William R. Yates, Deputy Executive Associate
Commissioner, Office of Field Operations, Immigrant Services Division,
re: Procedures for Handling Naturalization Applications of Aliens Who
Voted Unlawfully or Falsely Represented Themselves as U.S. Citizens by
Voting or Registering to Vote (May 7, 2002).
7The full statute (based on Model Penal Code § 2.02(b)) defining
“knowingly” has three alternative definitions. It states:
(a) A person acts knowingly with respect to his conduct when
he is aware that his conduct is of that nature.
(b) A person acts knowingly with respect to attendant circum-
stances when he is aware that such circumstances exist.
(c) A person acts knowingly with respect to a result of his con-
duct when he is aware that it is practically certain that his
conduct will cause such a result. H.R.S. § 702-206(2).
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testified. The IJ excluded an expert witness proposed by
McDonald — a former Hawaii state prosecutor who would
have testified regarding mens rea and his former office’s
methods for screening cases. At the conclusion of the hearing,
the IJ found that there was substantial evidence that McDon-
ald knowingly voted when she was not entitled to vote.8 The
IJ noted that McDonald had been able to read and understand
the complex language relating to her eligibility to vote in the
Office of Hawaiian Affairs Election, reasoning that it was dif-
ficult to see how she could have misread the voter warning on
the Notice of Voter Registration card she received. Moreover,
the IJ found that by asking no questions of election officials
about her eligibility, McDonald made it “practically certain”
that she would be able to vote despite not being a citizen.
Concluding that a “reasonable person acting in good faith
would have [so] inquired,” the IJ found that McDonald met
the requisite state of mind under Hawaii law. The IJ held that
removability was established, and expressed sympathy that no
waiver was available. The IJ then granted McDonald volun-
tary departure.
The Board of Immigration Appeals summarily affirmed the
IJ’s decision without opinion. McDonald petitions this court
for review of the IJ’s decision.
DISCUSSION
The government must establish removability by “clear,
unequivocal, and convincing evidence.” Woodby v. INS, 385
U.S. 276, 286 (1966). McDonald argues that the government
did not meet this burden. She contends that the relevant
Hawaii statute requires a knowing and willful violation,
which she did not commit. McDonald is correct.
8The IJ found that the INS had not established that McDonald violated
any other provision of that statute, which includes knowingly registering
to vote when not entitled to do so. See H.R.S. § 19-3.5(1).
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[1] Hawaii law provides that a person commits a felony by
“knowingly vot[ing] when the person is not entitled to vote.”
H.R.S. § 19-3.5(2). Here, the IJ interpreted the word “know-
ingly” as “when he is aware that it is practically certain that
his conduct will cause such a result.” See H.R.S. § 702-
206(2)(c). This definition enabled the IJ to hold that McDon-
ald violated the law: by not inquiring about her eligibility to
vote, the IJ found, McDonald had made it “practically cer-
tain” that she would be able to vote. The IJ’s analysis is criti-
cally flawed, however, because the IJ used the wrong
definition of “knowingly.”
[2] The IJ might have avoided the problem by allowing an
expert witness proposed by McDonald. The witness, a former
Hawaii state prosecutor, had handled hundreds of cases, both
felony and misdemeanor prosecutions, and would have testi-
fied regarding mens rea and his former office’s methods for
screening cases. One can surmise that this would have
included clarification of the word “knowingly” in the Hawaii
statute, as well as his opinion on why the prosecutor’s office
had not prosecuted McDonald’s case. As a general rule, an
alien must be granted a reasonable opportunity to present evi-
dence on her own behalf. 8 U.S.C. § 1229a(b)(4)(B). Specifi-
cally, the BIA has allowed similar evidence in the past. See
In Matter of Hoefflin, 15 I&N Dec. 31 (BIA 1974) (letter
opinion from state Attorney General advising INS to disre-
gard decree of trial court considered as evidence). Particularly
because the federal statute at issue (8 U.S.C. § 1227(a)(2)
(6)(A)) required the IJ to perform the unusual function of
interpreting state law, it was a mistake to exclude this witness.
[3] Under Hawaii law, the government must prove beyond
a reasonable doubt each element of an offense, as well as the
state of mind required to establish each element of the
offense. H.R.S. § 701-114(1)(a) and (b). Hawaii law further
provides that “when the definition of an offense specifies the
state of mind sufficient for the commission of that offense,
without distinguishing among the elements thereof, the speci-
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fied state of mind shall apply to all elements of the offense.”
H.R.S. § 702-207. Those elements include the conduct, atten-
dant circumstances, and results of conduct specified by the
definition of the offense. H.R.S. § 702-205. This means that
the government had to establish that both prongs of H.R.S.
§ 19-3.5(2) (“votes” and “when the person is not entitled to
vote”) were knowing. In addition, there are three different
definitions of “knowingly” to choose from, depending on
whether the word is modifying conduct, attendant circum-
stances, or a result of conduct. See H.R.S. § 702-206(2)(a)-
(c).
In State v. Keomany, 34 P.3d 1039 (Haw. 2000), a sexual
assault case, the Hawaii Supreme Court provided a checklist
to analyze the elements of the crime and, for each element,
articulated the category into which it fell: “Defendant (1)
placed his hand (conduct) (2) on Complainant’s breast (result
of conduct) (3) by strong compulsion and therefore without
her consent (attendant circumstance) and . . . (4) while not
married to her (attendant circumstances).” Id. at 1047. Apply-
ing the same analytical process to the statute at issue here,
“votes” is conduct, and “when the person is not entitled to
vote” is an attendant circumstance of that conduct.
[4] The IJ erred by applying to both prongs of the voter
fraud statute the definition of knowingly that applies to the
result of someone’s conduct, H.R.S. § 702-206(2)(c) — some-
thing not at issue here.9 Instead, the IJ should have sought to
determine whether McDonald’s act of voting was knowing,
9That definition is applicable in cases like State v. Batson, 831 P.2d 924
(Haw. 1992). There, the court found that a father acted knowingly when
he knew that it was practically certain that his conduct would result in his
son’s death, where the record reflected two months of physical abuse and
severe beatings, manifest and deteriorating condition, and a conscious
unwillingness to seek medical treatment. Id. at 933. The more expansive
“practically certain” definition of “knowingly” is fitting when trying to
demonstrate that someone knew of a result of his conduct; it is inappropri-
ate here.
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defined as “aware that [her] conduct is of that nature,” per
§ 702-206(2)(a), and also whether McDonald knew that she
was not entitled to vote, defined as “aware that such circum-
stances exist,” per § 702-206(2)(b). While McDonald does not
dispute having knowingly voted, she argues forcefully that
she was not aware that the attendant circumstances — her
ineligibility — existed. By applying the wrong definition of
“knowingly,” the IJ concluded that McDonald need not have
been “aware” that she was ineligible to vote, but could simply
have been “practically certain that she would be able to vote
even though she was not a citizen.” The IJ thus transformed
a requirement of knowing conduct in a criminal statute into a
civil standard akin to “knew or should have known.”
Nor would McDonald’s state of mind qualify as “reckless.”
Under Hawaii law, a person acts recklessly with regard to
attendant circumstances when he or she “consciously disre-
gards a substantial and unjustifiable risk that such circum-
stances exist.” H.R.S. § 702-206(3)(b). One need not be
“aware” of conduct and circumstances in order to be reckless,
as is required to show knowledge. See State v. Jenkins, 997
P.2d 13, 36 n.21 (Haw. 2000). Thus, when a statute requires
recklessness as an element of an offense, that element is also
established if a person acts knowingly. However, the reverse
is not true— recklessness cannot be transformed into know-
ingness. See State v. Holbron, 904 P.2d 912, 925 (Haw.
1995). The IJ here did not find that McDonald was aware of
her ineligibility, nor that McDonald had consciously disre-
garded a substantial and unjustifiable risk that she was ineligi-
ble to vote.
The IJ found it significant that McDonald was able to read
and respond appropriately to the question regarding her eligi-
bility to vote in the Office of Hawaiian Affairs Election.
However, it seems reasonable that a person can know that she
is not an aboriginal Hawaiian and still have a mistaken
impression about her citizenship status and the right to vote.
The IJ found it difficult to see how McDonald could have
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misread the voter warning on the Notice of Voter Registra-
tion, but it seems reasonable that McDonald concluded that
she was allowed to vote because she received confirmation of
her eligibility after having (she thought) informed the govern-
ment that she was not a citizen. Mostly, the IJ seemed con-
vinced of McDonald’s violation because McDonald had the
opportunity to ask poll workers if she was qualified to vote,
and indeed that a “reasonable person acting in good faith”
would have done so.
[5] Even taking as true all of the IJ’s conclusions regarding
McDonald’s conduct, the mental state the IJ found might
qualify as “should have known,” or possibly as negligence,10
but it is not knowingness. The IJ did not find that McDonald
was aware that she was ineligible to vote, only that she should
have made herself aware. This does not a violation make.
[6] Because McDonald did not have the requisite mens rea
under H.R.S. § 19-3.5, she did not violate that law. Accord-
ingly, the government did not establish by “clear, unequivo-
cal, and convincing evidence” that she voted in violation of
Hawaii state law under 8 U.S.C. § 1227(a)(6)(A). See
Woodby, 385 U.S. at 286; see also Lennon v. INS, 527 F.2d
187, 193 (2d Cir. 1975) (“Deportation is not, of course, a
penal sanction. But in severity it surpasses all but the most
Draconian criminal penalties. We therefore cannot deem
wholly irrelevant the long unbroken tradition of the criminal
law that harsh sanctions should not be imposed where moral
10Under Hawaii law, a person acts negligently with respect to attendant
circumstances when he should be aware of a substantial and unjustifiable
risk that such circumstances exist. H.R.S. § 702-206(4)(b). Interestingly,
the statute defines a risk as substantial and unjustifiable “if the person’s
failure to perceive it, considering the nature and purpose of his conduct
and the circumstances known to him, involves a gross deviation from the
standard of care that a law abiding person would observe in the same situ-
ation.” H.R.S. § 702-206(4)(d). This sounds a great deal like the IJ’s state-
ment that a “reasonable person acting in good faith” would have asked
poll workers about her eligibility to vote.
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culpability is lacking.”). The IJ’s finding of removability,
summarily affirmed by the BIA, was wrong.
PETITION FOR REVIEW GRANTED.11
11We expect this holding will terminate removal proceedings against
McDonald based on her 1996 voting activity. Shorn of the erroneous
determination under 8 U.S.C. § 1227(a)(6)(A), McDonald’s naturalization
proceeding may now resume.
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