BIA Decision – Voting

Yesterday, the Board of Immigration Appeals published a decision with regards to voting. I know I have discussed how voting is a bar to applying for naturalization in a past Wiggio, but I wanted to share this update. It is also timely for me because just last week I had to let another person know that she was ineligible because of her voting history.

 

Name of Decision: Matter of Fitzpatrick, 26 I&N Dec. 559 (BIA 2015).

 

Facts:

  • 2004: A woman from Peru became an LPR.
  • 2005: She got a driver’s license and registered to vote at the same time.
    • She checked the box that said she was a U.S. citizen.
  • 2006: She voted in the Illinois general election.
  • 2007: She filed a naturalization application based on her marriage to a U.S. citizen and checked “Yes” to questions 2 and 3 in Part 11, indicating that she had registered to vote and voted in an election in the U.S.
  • 2008: DHS issued her a Notice to Appear based on her voting history.
    • Practice Tip: A Notice to Appear (NTA) is a document that alleges the person is deportable from the United States. It lists allegations against the person and the reason that the government is placing him/her in deportation proceedings.
  • 2009: The Immigration Judge (IJ) found that the woman was deportable. She appealed to the BIA.

 

What the IJ decided:

DHS claimed that the woman was deportable under two sections of the Immigration and Nationality Act (INA).

 

  1. § 237(a)(6): Any alien who has voted in violation of any Federal, State, or local constitutional provision, statute, ordinance, or regulation is deportable.
  2. § 237(a)(3)(D): Any alien who falsely represents, or has falsely represented, himself to be a citizen of the United States for any purpose or benefit under this Act or any Federal or State law is deportable.

DHS said that the law that the woman had violated was 18 U.S.C. § 611(a), which states that it is “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 Resident Commissioner.”

 

The Immigration Judge found that she was deportable under both sections of the INA because she had voted in a general election.

The woman appealed to the Board of Immigration Appeals.

Practice Tip: An appeal is a challenge to a previous legal determination. It is directed to a higher authority, or court, than the court who made the first decision.

  • The person who is making the appeal (disagrees with the decision) is called the appellant.
  • The person at whom the appeal is directed (in this case, DHS) is called the appellee.

What the appellant argued:

  • She did not deny that she had voted in 2006 and that she knew that she was not a U.S. citizen at that time.
  • She argued that DHS did not prove that it was her intention to violate the law by voting.

 

BIA Response:

  • DHS did not need to prove that the appellant knew she was violating a law when she voted. There is no requirement in the law that the person had the intention to break the law.
  • Practice Tip: The federal law that the appellant was accused of violating (18 U.S.C. § 611(a)) is called a general intent statute. That means that a person does not have to know that what he/she was doing was unlawful. It only matters that he/she did the act that violated the law.
    A law that requires a person to have knowledge that what he/she doing is unlawful is called a specific intent statute.

 

What the appellant argued:

  • The appellant claimed that she fell within the exception to the law. The exception states that a non-citizen is able to vote if all of the following conditions are met:
    • The election was held partly for some other purpose;
    • Non-citizens are authorized to vote for the other purpose under a State constitution, statute, or local ordinance; and
    • Voting for the other purpose is conducted independently of the voting for Federal offices.
  • The appellant said she was allowed to vote because the election was also held to elect members of a local school board.

 

BIA Response:

  • The appellant does not fall under the exception to the law because all of the conditions had to apply, not only one.
  • There was also no legal authority that the appellant could show saying non-citizens could vote in that particular election or any election in the state.

 

Conclusion: The BIA found that the appellant is deportable for unlawful voting and her appeal was dismissed.