Last month, the New York Times reported the conviction of Rosa Maria Ortega, a lawful permanent resident who was sentenced to a shocking eight years in prison for voting illegally in 2012 and 2014. From the article, it appears that Ms. Ortega was brought to the country as an infant and only possessed a sixth-grade level education. Her defense attorney maintains that she did not reasonably know that she was not authorized to vote. Regardless, one thing is certain: she will likely be placed into immigration removal proceedings upon conclusion of her sentence and possibly be deported from the US. Cases such as these underscore not only the criminal but also collateral immigration consequences of unlawful voting, which is taken extremely seriously by the government. Regardless of when the act occurred, the immigration ramifications of such conduct are far reaching. In many instances, an individual who may illegally voted may not appreciate the gravity of the situation because nothing may have come out of it, that is, the person was never prosecuted or punished for it. However, for immigration purposes, time or lack of prosecution does not necessarily vitiate the impact of such an unlawful act. In the arena of naturalization, for example, unlawful voting can lead to a denial on the basis of failure to demonstrate good moral character.
Under our federal laws, an individual’s conduct may constitute unlawful voting and/or a false claim to US Citizenship. Although the two offenses are very much similar, they are nevertheless distinct and separate offenses: the unlawful voting is potentially punishable by a fine and/or imprisonment up to one year, or both, and exposure to removal; on the other hand, a noncitizen who is convicted of making a false claim to US Citizenship to vote may be fined, imprisoned up to five years, or both, as well as be subject to removal.
If the offense occurs during the statutory period considered for naturalization (in most cases, five years prior to the application), its impact may depend on whether the applicant was convicted, and in some situations, whether the applicant was imprisoned (which we discussed in an earlier blog entry). Moreover, the government draws a distinction between Unlawful Voting and making a False Claim to US Citizenship In Order To Register To Vote Or To Vote.
Unlawful Voting
If the applicant has been convicted of unlawful voting in violation of 18 USC 611 during the statutory period, he or she is not necessarily precluded from showing good moral character, as the conviction in and of itself is not necessarily a Crime Involving Moral Turpitude (CIMT). If the applicant has not been convicted, the officer must conduct a fact sensitive analysis, considering the totality of the circumstances and weighing all favorable and unfavorable factors.
Making a False Claim to US Citizenship To Vote
If the applicant has been convicted of making a false claim in violation of 18 USC 1015(f) during the statutory period, the applicant will normally be deemed not to have good moral character unless he/she can qualify under an exception. If the applicant has not been convicted, one’s prospects may be better, as the officer will conduct the same totality of circumstances test referenced above.
Good Moral Character Exception
Fortunately, the federal laws have carved out certain exceptions for good moral character determinations in connection with unlawful voting and false claims to US Citizenship. The exceptions apply to convictions that became final on or after October 30, 2000 and provide that a conviction may be excused if the following conditions are met:
•· The applicant’s natural or adoptive parents are or were US Citizens at the time of the violation;
•· The applicant permanently resided in the United States prior to reaching the age of 16 years old; and
•· The applicant “reasonably believed” at the time of violation that he or she was a US Citizen.
Of course, what constitutes “reasonable belief” is subject to interpretation. Some relevant factors that may be considered in assessing whether someone’s belief was reasonable include how long the applicant resided in the US and the age when the applicant became a lawful permanent resident.
To learn more about the impact of illegal voting on naturalization, please contact our office. Depending on the facts and circumstances, it may still be possible to salvage a bad situation and become a naturalized citizen of the United States. The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship nor should it be relied upon as advice in lieu of consultation with an attorney.