On May 27, 2021, U.S. Citizenship and Immigration Services, or USCIS, updated policy guidance in the USCIS Policy Manual regarding Naturalization Eligibility and Voter Registration Through a State’s Benefit Application Process. In many states, the voter registration application has been incorporated into the motor vehicle authority application for a driver’s license. The merging of these applications has been a source of confusion for noncitizens who may be eligible for driver’s licenses but not for voter registration. Some noncitizens may not understand that registering to vote or voting can adversely impact an application for naturalization by preventing them from showing “good moral character,” a requirement for naturalization.

Applicants for naturalization must generally show good moral character during the relevant statutory period when applying for naturalization. The statutory period for showing good moral character is five years if the applicant is applying for naturalization pursuant to the general provision at INA § 316(a). An applicant who commits an “unlawful act” during the statutory period may be found to lack good moral character if the act reflects adversely on his or her character, unless the applicant can demonstrate extenuating circumstances. An act is considered to be unlawful if it violates the criminal or civil law of the jurisdiction where the act was committed. Unlawful voter registration and false claims to U.S. citizenship made during the statutory period can therefore bar an individual from establishing good moral character because they may be considered unlawful acts under federal or state law. The updated USCIS guidance focuses on three separate topics: false claims to citizenship, unlawful voting, and voting in a federal election while the applicant was a noncitizen. Below is a summary of the most important points for each section.

False Claims to U.S. Citizenship

A welcome change in this section of the updated guidance is the clarification that, in order for a false claim to U.S. citizenship made during the statutory period to be considered an unlawful act, it must have been made “knowingly.” This is because, when looking at whether a false claim to citizenship constitutes an “unlawful act,” USCIS considers the federal statutes on false claims to citizenship found at 8 USC § 1015(e) (false claims to citizenship for purpose of any benefit or service, or for employment) and 8 USC § 1015(f) (false claims to citizenship in order to register to vote or vote). Both federal statutes require that the false statement be made “knowingly” in order to constitute a crime. This contrasts with the ground of deportation found at INA § 237(a)(3)(D)(i), which does not have an intent requirement. See Matter of Zhang, 27 I&N Dec. 569 (BIA 2019) (finding that the plain language of the statute at INA § 237(a)(3)(D)(i) does not require an intent to falsely represent citizenship status in order to make an individual deportable under this ground). Therefore, an individual who inadvertently or without knowledge of the falsity of the statement claims to be a U.S. citizen will not be found to lack good moral character because the person will not have committed an unlawful act.

However, USCIS states in this updated guidance that it will consider an applicant to have falsely claimed to be a U.S. citizen if they knowingly answer “yes” to a question asking whether they are a U.S. citizen in order to register to vote. This finding may be made even if the representation was contained in an application for a driver’s license or other state benefit application and not specifically with an application for voter registration. This false statement may not be a violation under 8 USC § 1015(f) if the applicant did not know that the false statement would result in their voter registration, but it may be a violation under 8 USC § 1015(e) and, therefore, an unlawful act.

If the applicant registered to vote but did not affirmatively claim to be a U.S. citizen, USCIS will not consider that person to have committed the unlawful act of falsely claiming U.S. citizenship. However, if the applicant registered to vote, he or she will have the burden to prove either that the registration form did not specifically ask about citizenship status or that the applicant did not profess to being a U.S. citizen.

Unlawful Registration to Vote

USCIS will generally look to applicable state law to determine if an applicant who knowingly or willfully registered to vote while knowing that he or she was not eligible has committed an unlawful act. It may therefore be necessary to research the laws of the particular jurisdiction or state where the applicant registered to vote in order to determine whether or not this voter registration would be considered to be an unlawful act.

USCIS notes that there are safeguards in place to prevent noncitizens from registering to vote. For example, a state driver’s license application will typically include warnings that that a person should not register to vote if not a U.S. citizen. In addition, while some jurisdictions allow noncitizens to vote in local elections, these registrations are typically made as part of a different application from the general voter registration application and do not require a claim to U.S. citizenship.

Unlawful Voting

An applicant commits an unlawful act if he or she votes unlawfully. Under federal law, the relevant statute criminalizing unlawful voting is 18 USC § 611. However, voting in a local election is not considered to be an unlawful act if the applicant is eligible to vote under the relevant law.

Tips for Practitioners:

• Know the facts before filing for naturalization. While surprises may happen when representing clients, practitioners will want to minimize them as much as possible. Make sure to screen for any possible false claims to citizenship, unlawful voter registration, or unlawful voting. These questions are all asked on the N-400, Application for Naturalization, and should also be discussed with clients orally. Voter registration records can be searched relatively easily online in most jurisdictions — it is worth taking the time to search these records with your clients to be aware of any possible issues that may arise during the N-400 adjudication process.
• Take ameliorative action, if applicable. If you determine that your client has inadvertently or unknowingly registered to vote when not eligible, you may consider helping your client make a request to be removed from the voter list. This may help to support the argument that the false claim to citizenship or unlawful voter registration was not made “knowingly” and therefore should not constitute an unlawful act and a bar to good moral character. USCIS indicates in the guidance that it may ask for proof of the applicant’s requests to be removed from the voter list or proof of actual removal from the voter list when determining whether the applicant has committed an unlawful act, suggesting that this type of evidence may support a claim that the voter registration was not knowing or willful.
• Argue for extenuating circumstances. Remember that even if USCIS finds an unlawful act has been committed during the statutory period, this is not the end of the inquiry. The officer must then make an assessment regarding whether the act reflects adversely on moral character and consider any extenuating circumstances. Extenuating circumstances are those which render the crime less reprehensible than it otherwise would be or the actor less culpable than he or she otherwise would be. Advocates should argue that extenuating circumstances could include a confusing driver’s license application process or perhaps poor advice provided by a motor vehicle official.

• Don’t forget about removability! Remember that eligibility for U.S. citizenship and the grounds of deportability are distinct. Consider a client, Ricardo, who has been a lawful permanent resident, or LPR, for 20 years. Ricardo made a claim to U.S. citizenship six years ago on a driver’s license application and also registered to vote. This client is not barred from naturalizing — the false claim happened outside of the statutory period. In addition, Ricardo may argue that the claim was not “knowing” if it was an inadvertent error or if someone else helped him complete the application. However, this client may still be subject to deportation under INA § 237(a)(3)(D)(i) for having falsely claimed citizenship at any time after admission.

  Whenever considering whether to file for citizenship for a potentially deportable client, the practitioner should advise the client of the risks of referral to immigration court proceeding and screen for eligibility for relief in removal proceedings, such as LPR cancellation of removal pursuant to INA § 240A(a). The practitioner should also consider current guidelines on the issuances of Notices to Appear and prosecutorial discretion to assess whether a denied N-400 for an LPR is likely to lead to the initiation of removal proceedings. Note that in this example that Ricardo is likely eligible for LPR cancellation if placed into proceedings and is not considered a priority for immigration enforcement under the current guidelines. Therefore, after being advised of the risks of applying, Ricardo may choose to move forward with his naturalization application. However, that calculation may be different depending on the facts of each client’s case and the enforcement priorities in effect at the time of the naturalization application.

• Screen for lawful admission to LPR status. Recall that USCIS will also determine at the naturalization interview whether the applicant an individual was properly granted LPR status. An applicant who was not substantively eligible for LPR status at the time it was granted may not be eligible to naturalize because USCIS will not consider the person to be an LPR. If your client falsely claimed to be a U.S. citizen on a driver’s license application prior to obtaining LPR status, the person may have been inadmissible at the time of admission and therefore ineligible to naturalize. Therefore, if a false claim to citizenship was made, it is vitally important to be aware of the timing. A client who falsely claimed to be a U.S. citizen after becoming an LPR may be in a better position than one who made this claim prior to the LPR grant because there is no concern about the underlying LPR status.

Conclusion

This newly issued policy guidance may help to ameliorate some of the harsh consequences for individuals who have unwittingly or unknowingly registered to vote or claimed U.S. citizenship. However, it remains vitally important that practitioners screen for issues involving unlawful voting and false claims to citizenship so that they can understand the best ways to address them for a client contemplating U.S. citizenship.