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Foreign Nationals Should Remember That Registering to Vote And Voting In U.S. Elections Is Generally Against The Law

Posted on Monday, December 13, 2010

Have you ever been approached, for example during the 2008 presidential election season or at the DMV while applying for a driver’s license, if you wished to register to vote? If so, and if you are a lawful permanent resident or a nonimmigrant temporarily in the United States, then hopefully you declined. First, voting by a noncitizen in a federal election is a criminal act under the U.S. Code (except in a narrow set of circumstances).  Any noncitizen who violates this provision is subject to a fine or imprisonment for not more than one year or both.  Moreover, knowingly making a false claim to citizenship for the purpose of voting in any election is also criminal act under the U.S. Code (except in a narrow set of circumstances).  Any noncitizen who violates this provision is subject to a fine or imprisonment for not more than five years or both.

Second, as a general rule, registering to vote and voting in U.S. elections as a noncitizen constitute immigration violations that can have harsh consequences, even when done innocently. As discussed recently in a New York Times article, a lawful permanent resident originally from St. Kitts was facing deportation, because he had voted in several presidential elections thinking that that was expected of him as a member of our democratic society. See a recent NY Times Article. When he applied for naturalization, he volunteered the fact that he had previously voted in federal elections. He did not realize until he was placed in removal proceedings that in registering to vote and voting in federal elections he had made a false claim to citizenship and thus committed a removable offense.  

Under the Immigration and Nationality Act (“INA”), any noncitizen “who falsely represents, or has falsely represented, himself to be a citizen of the United States for any purpose or benefit” under the INA, federal or state law is deportable. U.S. Department of Homeland Security has acknowledged, however, that there are instances when innocently registering to vote or unlawfully voting in an election merits prosecutorial discretion. In a policy memorandum dated May 7, 2002 regarding the procedures for handling naturalization applications of aliens who voted unlawfully or who falsely represented themselves as U.S. citizens by registering to vote or voting, legacy INS stated that officers should determine whether to initiate or decline to initiate removal proceedings on a case-by-case basis, following the procedures outlined in a 2000 memorandum regarding exercising prosecutorial discretion. This 2000 memorandum lists many factors that officers should take into account in deciding whether to exercise prosecutorial discretion, such as immigration status, length of residence in the United States, criminal history, humanitarian concerns etc.  Despite DHS’ authority to exercise prosecutorial discretion in voting cases, however, it is clearly best to avoid getting caught in a situation like this altogether.

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