BIA Issues Worrisome Decision Regarding Unlawful Voting

In a precedential decision, Matter of Fitzpatrick, the Board of Immigrations Appeals (BIA) determined that unlawful voting by a lawful permanent resident could render the individual removable from the United States under section 237(a)(6)(A), even if the individual did not know she was committing an unlawful act by voting.

In this case, Ms. Fitzpatrick, a newly minted lawful permanent resident, registered to vote at a local DMV in 2005 and accidentally selected that she was a U.S. citizen. The next year, she voted in a local school board election in Illinois. When she applied to naturalize as a U.S. citizen, Ms. Fitzpatrick admitted that she had voted in the school board election in 2006. The DHS denied her naturalization and issued her a “Notice to Appear In Removal Proceedings” alleging that Ms. Fitzpatrick voted in the general election in Illinois in 2006, in violation of 18 U.S.C. § 611. The Immigration Judge found her removable, and she appealed the decision to the Board of Immigration Appeals.

The BIA found that by the mere act of voting in a general election, Ms. Fitzpatrick violated a federal statute that did not require any specific intent. This means that the government did not have to prove that Ms. Fitzpatrick intended to commit an unlawful act by voting, only that she actually voted and that she knew she was not a United States citizen.

As states contemplate laws that automatically register people to vote when they apply for driver’s licenses, this decision becomes all the more worrisome. Many new Americans, having been automatically registered to vote by the Department of Motor Vehicles and having received mail about where and when to vote, will unwittingly lose their immigration status if they vote unlawfully.

Lawful permanent residents and non-immigrants must ensure that they do not accidentally register to vote in U.S. elections, with the exception of a few localities where they are allowed to vote. If they are mistakenly registered, and receive mail about where and when to vote, they must not vote, and must report the error to the local election board.

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