The basis and foundation of our democratic form of government is the right to vote. Voting is one of the most important tools Americans have to influence the policies the government implements. One of the most significant rights of American citizens age 18 years or older is the right to vote. Oftentimes, lawful permanent residents (LPRs) and/or non-resident aliens may have innocently, or through some misunderstanding, voted illegally in a United States election without realizing that they are not legally able to.
However, no one is permitted even to register to vote unless that person is a United States citizen. Under current law, lawful permanent resident and as well as non-resident aliens are not eligible to vote in any federal, state, or local election, and it is actually a federal crime to do so. See 18 U.S.C. 611, which provides for monetary penalties or imprisonment, or potentially both. Additionally, there may be severe immigration consequences to such an action including the potential denial of a naturalization application and the potential initiation of removal proceedings.
With respect to removability, The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) added inadmissibility and deportability provisions to the Immigration and Nationality Act to address unlawful voting. This ground is retroactive and applies to anyone voting before, on, or after September 30, 1996. INA 212(a)(10)(D)(i) states that “any alien who has voted in violation of any Federal, State, or local constitutional provision, statute, ordinance, or regulation is inadmissible.” INA 237(a)(6)(A) explains “any alien who has voted in violation of any Federal, State, or local constitutional provision, statute, ordinance, or regulation is deportable.” Fortunately, the Child Citizenship Act of 2000 (CCA) created a narrow exception to both grounds of inadmissibility and deportability that applies only if the non-citizen satisfies ALL of the following conditions: 1) each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization); 2) the alien permanently resided in the United States prior to attaining the age of 16, and 3) the alien reasonably believed at the time of such violation that he or she was a citizen.
Ironically, while unlawful voting may give rise to a charge of deportability, it does not automatically foreclose the prospect of US Citizenship. Within the context of an N-400 naturalization application, the applicant must demonstrate good moral character for the statutory period, generally the last five years. A charge of or conviction for unlawful voting could impact a good moral character determination. The officer will have to consider a number of factors including whether the applicant was actually convicted, whether he or she was imprisoned, or whether the applicant was not convicted. A sentence of imprisonment to 180 days or more will likely trigger an automatic finding that good moral character has not been demonstrated. On the other hand, convictions with sentences less than 180 days of imprisonment do not necessarily bar a finding of good moral character. These types of decisions will rest within the officer’s discretion who may consider the totality of circumstances. Officers may even request a written, sworn statement from the applicant regarding the circumstances behind the voting as well as any other relevant evidence including the voter registration card, applicable voter registration form, and voting record from the relevant board of elections commission.
Given the seriousness of unlawful voting-potential criminal liability as well as exposure to deportation-any non-US citizen should thoroughly review and discuss such issues with an immigration attorney, especially before any type of application (permanent residence, citizenship, or otherwise) is submitted with USCIS.
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