Voting While Still an LPR: What Will Happen?

[TBoneTX 45,468]

An acquaintance has asked me this:

"My wife called her [citizen of other country] friend yesterday and found out that the friend's citizenship request is in jeopardy. Apparently, during the Bush vs Gore race, she and her husband voted, of course Democrat. Her husband is a U.S. citizen so it wasn't a problem, but the personnel manning the voting booth twisted her arm to vote and she did. Anyway, one of the questions asks if she has ever voted in the U.S. and she answered yes. Now they are threatening her with the following: jail time, deportation, and a fine. In my estimation, she is not going to be jailed, because it's too costly. Second, they are not going to deport her, because she's got 2 anchor children born in the U.S. However, I'm thinking she might get fined and risk not ever being able to become a citizen. She is planning to hire a lawyer, which I think is a big waste of money. What can they do about it? Have you heard of a situation like this? What was the outcome?"

Input, please? Thanks, si man.

[Bobby+Umit 161]

I'm thinking she might get fined and risk not ever being able to become a citizen

This is probably what will happen -

However, in the current mood of immigration in this country - I would most definitely get a lawyer, well versed in this matter.

(Even though she has two USC kids - they could still deport her for violating LPR rules - everything I have read basically states "If you vote in an election that is only open to US citizens this will result in a misdemeanor charge as well as deportation from the country.").

Plan for the worse, hope for the best.

[VanessaTony 3,567]

Voting is one of those things that is a "claimed to be a USC" thing. Voting is USC only, so by voting she claimed to be a USC. It will result in deportation with a lifetime ban. There was a thread last year (I think) where the girl simply ticked "register to vote" on her licence application, she never came back to report what happened but she only found out about the licence thing in her citizenship interview and she was told she would be deported.

This is VERY not good. The children aren't "anchor babies". She will be deported and it's up to her whether she takes the kids with her or not.

[ceadsearc 516]

The other two threads are sound advice. She should consult with a skilled immigration attorney ASAP.

[Bsze 50]

Having two USC children is no guarantee that she won't be deported. I'm with the others - get a GOOD lawyer.

[JimVaPhuong 4,863]

Illegal voting is a violation of INA 212(a)(10)(D). An alien who votes illegally is inadmissible. There is no term of inadmissibility, and no waiver. They are inadmissible forever.

An exception applies of both parents were US citizens, the alien has permanently resided in the US since before they were 16, and they reasonably believed they were a US citizen at the time. Unless this exception applies then an attorney would be a waste of both time and money.

18 USC 611 makes it a crime to vote illegally in a federal election, and allows for a violator to be fined, imprisoned for up to one year, or both.

A policy memorandum was issued by INS on May 7, 2002, that described how immigration officers were to handle naturalization cases where the applicant had voted unlawfully:

http://www.uscis.gov/USCIS/Laws/Memoranda/VoterMem_Plus86.pdf

In a nutshell (page 4), the IO will determine if:

1. The alien actually voted in violation of election law, or

2. Made a false claim of US citizenship when registering to vote or in voting.

If either of these occurred then the alien is removable. After this, they determine if the exceptions apply. If so, they adjudicate the N-400. If not, they determine if the case merits the exercise of prosecutorial discretion. If so, adjudicate the N-400. If not, begin removal proceedings.

[TBoneTX 45,468]

Magnificently complete as usual, Jim -- thanks, si man. Will inform friend.

[Brother Hesekiel 2,236]

T-Bone,

as you may know, you've triggered one of my pet peeves.

Had you asked me before, I would have suggested to stay a LPR for the rest of her natural life. False claim of U.S. citizenship and specifically when documented by registering to vote, hereby marking "I am a U.S. citizen" on the voter's registration form and then actually voting in a federal election, is the kiss of death for any immigrant.

I doubt that she will be jailed, but I am rather convinced that she will be stripped of her LPR status and ordered deported, her two U.S. citizen children notwithstanding. Of course she and her husband can fight this in court for quite some time, but it will be very expensive and it's questionable if more than a delay of the inevitable can be achieved with it.

Of course she should try; I know I would, but if you declare under oath that you are a U.S. citizen it's hard to claim that you did not claim that you are a U.S. citizen.

Jim's post is excellent as usual. Still, none of the exceptions listed apply here.

Edited November 9, 2011 by Brother Hesekiel

[Noel194 53]

When I went with my wife to get her drivers license the MVA computers automatically check the box that registers you to vote. I caught it and had them uncheck it. I asked why this was so and they said this is an attempt by the state to register more people to vote. So everyone be careful when getting your DL

[Gary and Alla 3,694]

An acquaintance has asked me this:

"My wife called her [citizen of other country] friend yesterday and found out that the friend's citizenship request is in jeopardy. Apparently, during the Bush vs Gore race, she and her husband voted, of course Democrat. Her husband is a U.S. citizen so it wasn't a problem, but the personnel manning the voting booth twisted her arm to vote and she did. Anyway, one of the questions asks if she has ever voted in the U.S. and she answered yes. Now they are threatening her with the following: jail time, deportation, and a fine. In my estimation, she is not going to be jailed, because it's too costly. Second, they are not going to deport her, because she's got 2 anchor children born in the U.S. However, I'm thinking she might get fined and risk not ever being able to become a citizen. She is planning to hire a lawyer, which I think is a big waste of money. What can they do about it? Have you heard of a situation like this? What was the outcome?"

Input, please? Thanks, si man.

The N-400 specifically asks if the LPR has ever registed to vote or voted. They can be denied citizenship and the green card can be revoked if they do.

On the other hand they CAN vote in local elections, or even state elections if they allow it. In these elections you do not have to be a "registered voter" but just show ID that you are a resident of that state or town/city. School board elections, city council etc. May not sound like a big deal but these people actually have more impact on your life and the taxes you pay than the President ever will.

[ConcordUser 18]

I found on the USCIS website

http://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-26573/0-0-0-40306.html

Looks like there are some instances where AG can grant a releif.

-------------------

Appendix 74-9 Legal Consequences of Voting by an Alien Prior to Naturalization.

The following is the text of a memorandum prepared by the Office of General Counsel for the Office of Programs and issued on February 13, 1997:

ISSUE PRESENTED

What legal consequences can result from an alien's voting in an election prior to completing the naturalization process?

BRIEF ANSWER

Any alien who votes in an election prior to completing the naturalization process could be subject to both criminal penalties and removal. However, an alien who is inadmissible or deportable based on unlawfully voting or falsely claiming to be a citizen in connection therewith may be eligible for certain forms of relief from removal.

DISCUSSION

A. Criminal Provisions

Section 216 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) created a new Section 611, entitled “ Voting by Aliens ," under Title I8 of the United States Code. That new section, effective as of September 30, 1996, provides that "t shall be unlawful 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 Residential Commissioner" unless the election also has some other purpose for which aliens are author ized to vote in that jurisdiction and the voting for that other purpose is conducted independently. The wording of §611 does not include specific intent as an element of the crime. In other words, there is no requirement that the alien must have voted with the knowledge that he or she was not legally entitled to do so. Instead, unlawful voting under §611 is a general intent crime, and thus the prosecutor is only required to demonstrate that the accused alien intentionally and voluntarily voted. However, a charge under §611 may still prove difficult to sustain, for the prosecutor must establish that the alien actually voted; merely registering to vote is not punishable under the statute. An alien who violates this law may be fined, imprisoned for up to a year, or both.

An alien's voting in an election prior to completing the naturalization process may implicate a second new criminal offense created by Section 215 of the IIRIRA. New subsection of 18 U.S.C. §1015, also effective as of September 30, 1996, provides that "[w]hoever knowingly makes any false statement or claim that he is a citizen of the United States in order to register to vote or to vote in any Federal, State, or local election (including an initiative, recall, or referendum)" shall be guilty of a felon y punishable by a fine, imprisonment up to five years, or both. Unlike 18 U.S.C. §611, this statute expressly requires that the alien's action be “ knowing ” in order to sustain a conviction. Therefore, if an alien mistakenly believes that he or she is a citizen, a false claim to citizenship would not be punishable under this section.

B. Grounds of Removal

The IIRIRA also establishes new immigration consequences under the Immigration and Nationality Act (INA) for voting illegally. These new provisions were also effective as of September 30, 1996. Section 347 of the IIRIRA adds voting in violation of law to the current lists of both exclusion and deportation grounds and applies to voting occurring before, on, or after September 30, 1996. The INA now states that any alien who votes “in violation of any Federal, State, or local constitutional provision, statu te, ordinance, or regulation" is inadmissible and deportable. INA §§212(a)(10)(D); 237(a)(6). Additionally, Section 344 of the IIRIRA adds falsely claiming citizenship to the current grounds of inadmissibility and deportability. INA §§212(a)(6)©(ii); 237(a)(3)(D). Section 344 applies to false claims made on or after September 30, 1996. The statute specifically provides for the inadmissibility and deportability of any alien who falsely represents, or has falsely represented, himself or herself to be a United States citizen for any purpose under a federal or state law. These provisions would clearly apply to an alien's false claim to citizenship for the purpose of voting or registering to vote. We note that none of the above new grounds of inadmissibility and deportability explicitly requires a criminal conviction to support the charge. Nor do these new grounds require that the alien have knowledge of the illegality of his or her conduct. 1

However, depending on the circumstances in a given case (e.g., an alien's mistaken belief as to citizenship founded on misinformation), the Immigration and Naturalization Service (INS) may elect not to lodge a deportation charge under the new grounds. In the absence of a lodged charge, the fact that the alien may be susceptible to such a charge would not render him or her ineligible for naturalization. The INS does not possess the same discretion with regard to determining admissibility. Therefore, if an alien who has voted unlawfully or has falsely claimed citizenship proceeds abroad, he or she will be inadmissible upon return. 2 Current law provides an exception for the returning lawful permanent resident whose departure was innocent, casual, and brief. Rosenberg v. Fleuti , 374 U.S. 449 (1963). IIRIRA has also revised the INA to provide that, after April 1, 1997, a lawful permanent resident will not be regarded as seeking admission to the United States unless one of six enumerated circumstances applies. INA §l01(a)(13)©. 3 A lawful permanent resident who has voted unlawfully or falsely claimed citizenship, but who has not been convicted criminally, 4 would not necessarily fall under any of these six categories. Thus he or she may not be deemed to be seeking admission and may not be rendered inadmissible.

In addition to the above newly created grounds of inadmissibility and deportability, an alien with criminal convictions for unlawfully voting may be inadmissible or deportable under the already existing criminal grounds. A conviction under 18 U.S.C. §611 or 18 U.S.C. §1015 for unlawfully voting or for a false claim to citizenship in connection with voting could render an alien inadmissible under §212(a)(2)(A)(i) of the INA, 5 if the offense is deemed to be a crime involving moral turpitude, 6 or §212(a)(2)(B) if the alien has more than one conviction and the aggregate sentences imposed were at least five years. Similarly, if convicted under 18 U.S.C. §611 or 18 U.S.C. §1015 for unlawful voting 7 or a false claim to citizenship, an alien may be deportable pursuant to §237(a)(2)(A)(i) or §237(a)(2)(A)(ii) for multiple convictions, if the offense or offenses are deemed to be crimes involving moral turpitude. 8 Neither of these criminal offenses is an aggravated felony under §101(a)(43) of the INA, and so neither would serve as a ground of deportation pursuant to §237(a)(2)(A)(iii).

C. Relief from Removal

In the event an alien is charged with any of the foregoing grounds of inadmissibility or deportability, he or she may be eligible to seek a "cancellation of removal." Although the IIRIRA deleted the waiver formerly found at INA §212©, effective April 1, l997, 9 the new statute emplaced a new §240A, entitled "Cancellation of Removal; Adjustment of Status," which provides comparable relief under similar, but not identical, circumstances. Under §240A, the Attorney General may cancel the removal of a lawful permanent resident who is inadmissible or deportable by virtue of having voted unlawfully or having made a false claim to citizenship in connection with voting. The alien must have been lawfully admitted for permanent residence for at least five years and must h ave resided continuously in the United States for seven years "after having been admitted in any status." §240A(a). 10

If an alien is granted a waiver under INA §212© in proceedings instituted prior to April 1, 1997, or cancellation of removal under the new §240A thereafter, that person would retain his or her lawful permanent resident status. Although such an alien would remain eligible for naturalization, the facts surrounding his or her unlawful voting or false claim to citizenship would be factors in determining the alien's claim to good moral character in connection with the naturalization application. If, however, the alien is actually the subject of a criminal conviction for either unlawfully voting or falsely claiming United States citizenship in connection therewith and the offense is deemed to be a crime involving moral turpitude, he or she cannot demonstrate good moral character for that time period. That individual would therefore be ineligible for naturalization. 11

We hope that this information is helpful.

[Brother Hesekiel 2,236]

This is good news for people who "believed" they were U.S. citizens and thus voted in good consciousness. This could be adopted children where the adoptive parents never bothered to file the necessary paperwork, just to name one example.

This does not apply to the person T-Bone referred to. She stated she is a U.S. citizen knowing she isn't one (as she had a Green Card which only foreigner can have). She then actually voted in a Presidential Election, again, knowing that she's not a U.S. citizen.

I stand to my previous post. I'm quite sure that she will be stripped of her LPR status and ordered deported. Also, as stated before, she should fight it. Whether she will be successful is anybody's guess, but it will cost her and her husband silly money in retainer fees alone.

[TBoneTX 45,468]

I wonder whether that "INS" stuff from early 1997 is still applicable.

From what I gather, the illegal voter is married to a complete, evil loser, and (her children notwithstanding) it would in fact be to her long-term benefit to be deported, simply to be rid of the guy.

I'll tip my acquaintance off to the extra input here -- many thanks to all, si man.

Edited November 10, 2011 by TBoneTX

[ConcordUser 18]

How can they tell that some one voted in the election? Do they keep the record at some place after the elections?

[TBoneTX 45,468]

How can they tell that some one voted in the election? Do they keep the record at some place after the elections?

It's probably a matter of record. In this instance, the LPR apparently admitted on her citizenship application that she had voted.