Immigration and firm news

BIA Holds Unlawful Voting is a Deportable Offense Despite Intent

In a disturbing new case from the Board of Immigration Appeals (BIA) this week, Matter of Fitzpatrick, 26 I&N Dec. 559 (BIA 2015), the BIA held that a foreign national was removable (deportable) for having voted in a federal election regardless of the foreign national’s lack of knowledge that she was committing an unlawful act by voting when not a US citizen.  In this case, Ms. Fitzpatrick is a native and citizen of Peru who became a permanent resident in 2004.  In 2005, she applied for an Illinois drivers license and registered to vote at the same time. She checked the “US Citizen” box on the voter registration form. Many states have “motor voter” rules that allow same day applications for drivers licenses and voter registration.  In 2007, Ms. Fitzpatrick applied for naturalization. The N-400 form asks if a person has ever registered to vote and it also asks if the applicant has ever actually voted in a local, state or federal election.  Ms. Fitzpatrick was also asked these questions at her naturalization interview.  She indicated that she had indeed registered to vote and that she had in fact voted in an election in 2008 that included both state and federal candidates on the ballot.  She was placed in removal proceedings. The Immigration Judge found her to be removable because she had voted unlawfully in violation of Immigration and Nationality Act (INA) Section 237(a)(6)(A) which states:

“Any alien who has voted in violation of any Federal, State, or local constitutional provision, statute, ordinance, or regulation is deportable.”

This charge also noted that Ms. Fitzpatrick also violated 18 U.S.C. 611(a) that makes it a crime

“for any alien to vote in any election held solely or in part for the purpose of electing a candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner.”

Ms. Fitzpatrick was also charged with removeability for having falsely claimed to be a U.S. citizen under INA Section 237(a)(3)(D). The Immigration judge found her to be removable under both the unlawful voting and false claim charges.

On appeal, the BIA held that the criminal statute did not have an intent element, making it a “general intent” statute.  Therefore, it did not matter for the removal statute purposes whether Ms. Fitzpatrick knew she was voting unlawfully or not.  Although the government had the burden of proving that Ms. Fitzpatrick was deportable, it was not required to prove she knowingly voted unlawfully.

Ms. Fitzpatrick argued, however, that she qualified for an exception to 18 U.S.C. 611(a) found in 18 U.S.C. (a)(1) in that she voted in an election “for some other purpose” involving school board members.  However, the BIA held that she was required to prove all three of the following elements at 18 U.S.C. (a)(1)-(3) and had failed to prove she was even authorized to vote in the local election. The BIA said she had to show show all three of the elements below in order to benefit from the exception:

  1. the election is held partly for some other purpose;
  2. aliens are authorized to vote for such other purpose under a State constitution or statute or a local ordinance; and
  3. voting for such other purpose is conducted independently of voting for a candidate for such Federal offices, in such a manner that an alien has the opportunity to vote for such other purpose, but not an opportunity to vote for a candidate for any one or more of such Federal offices.

The BIA also found that Ms. Fitzpatrick failed to produce evidence to show that the school board election was run independently of the federal election. Indeed, both the state and federal candidates appeared on the same ballot. The BIA dismissed Ms. Fitzpatrick’s appeal on the unlawful voting issue without discussing the false claim to citizenship issue.

It’s not clear whether Ms. Fitzpatrick had legal counsel when she filed for citizenship or during her immigration court hearing although she had counsel on appeal.  Nonetheless, this is a really good example of a situation where getting quality legal advice before applying for any application is very, very important.  There is nothing worse than to believe one is eligible to become a US citizen only to appear at an interview and end up landing in immigration court removal proceedings.  We meet with many people who forget certain facts or fail to disclose because they feel the facts are “minor” transgressions. Without the attorney knowing the true facts, it is hard to provide proper advice about eligibility for different immigration and citizenship benefits.  In this case, the law is very unforgiving when it comes to false claims to US citizenship and unlawful voting.  Discretion, family ties, long term stay in the U.S., hardships to family members, and in this case, intent, is irrelevant.  There are no waivers available.  The citizenship application is now 21 pages with lots of nitpicky questions. Furthermore, the immigration officer will review the applicant’s entire immigration history, from that very first visitor’s visa or unlawful entry, to how the green card was obtained, and activities in between. Therefore, it is really important for prospective non-citizen applicants to try to remember very hard whether they ever registered to vote or serve on a jury, or applied for a license, a scholarship, a permit, a government loan, a government benefit, or an I-9 form at work by falsely claiming to be a US citizen.  Especially for young people, it is really important to pay attention to high school and college voter registration recruiters, rallies, demonstrations and other events where one could be easily distracted while being convinced or coerced to complete a form inadvertently for a benefit for which one is not eligible.