Unlawful voting has serious consequences for noncitizens.  The BIA confirmed this in a precedent decision finding that a noncitizen is removable under INA § 237(a)(6)(A), regardless of whether the alien knew that he or she was unlawfully voting in violation of 18 USC § 611(a).  Matter of Fitzpatrick, 26 I&N Dec. 559 (BIA 2015).

The Respondent in this case was a lawful permanent resident, who applied for an Illinois driver’s license and signed a voter registration form indicating that she was a United States citizen.  In her naturalization application and during her interview, she disclosed that she had registered to vote and had voted in a federal election.  Specifically, she voted in a local school board election on a ballot that included candidates for both local office and federal office.  The IJ found her removable under INA § 237(a)(6)(A) for unlawful voting and under § 237(a)(3)(D) for false claim to citizenship.  Respondent did not dispute that she had voted in a general election involving candidates for federal office and that she was not a U.S. citizen at the time she voted.  Instead, the case hinged on whether DHS was required to show that she intended to vote in violation of 18 USC § 611 or whether the act of unlawfully voting in a federal election was sufficient to make her removable under INA § 237(a)(6)(A).

Under 18 USC § 611, it is unlawful for any noncitizen to vote “in any election held solely or in part for the purpose of electing a candidate for federal office.”  The Respondent argued that she was unaware that she was acting unlawfully by voting, and that DHS failed to meet its burden of proof because it did not show that she had specific intent to violate the law.  Relying on a prior Seventh Circuit decision, the BIA held that § 611 is a statute of general intent, which requires only that “the defendant performed the acts that the law forbids, understanding what he was doing.”  Kimani v. Holder, 695 F.3d 666, 699 (7th Cir. 2012).  Under this reasoning, it does not matter that the noncitizen is uninformed that it is unlawful for him to vote.  The act of voting alone is sufficient to violate § 611 and trigger deportability.  

The Ninth Circuit reached a different conclusion in McDonald v. Gonzales, 400 F.3d 684 (9th Cir. 2005), a case involving a lawful permanent resident who voted in a Hawaii state election and was subsequently charged with removability.  The Ninth Circuit found that the respondent in this case did not violate Hawaii law because she was unaware that she was not entitled to vote.  Noting that it was not bound by Ninth Circuit decisions, the Kimani court distinguished McDonald v. Gonzales, because it involved a state statute with different language, which unlike 18 USC § 611(a), required “proof of an alien’s knowledge that voting [was] forbidden.”  Matter of Fitzpatrick, 26 I&N Dec. 559 (BIA 2015) note 4.

Limited exceptions to § 611 apply if the election is 1) held partly for some other purpose; 2) the noncitizen is authorized to participate in the election under state or local law; and 3) voting for such other purpose is conducted in way that allows the noncitizen to vote for a valid state or local purpose, but not the opportunity to vote for a candidate for federal offices.  18 USC § 611(a)(1)-(3).  Additional exceptions exist where the noncitizen reasonably believed at the time of voting that he or she was a U.S. citizen.  Id. § 611(c).

The BIA found that the statute requires all three criteria of § 611(a) to be met before the exception would be applied.  The respondent was unable to meet this requirement, although the election was “held partly for some other purpose,” because she could not demonstrate that she was authorized to vote in the local election and that voting for school board officials was held independently from the voting for federal officials.

This decision illustrates the importance of educating clients about who is eligible to vote and counseling them on the harsh penalties for unlawful voting.