Disrupting an Immigration Nightmare: A Little Relief for Noncitizens Falling Into the Voter Registration Trap

By: Richard Hanus

 

What do you get when you combine a motor voter system that too easily registers non-citizens to vote and federal laws that impose extreme immigration consequences for unsuspecting, inadvertent registrants and voters? I call it government assisted immigration suicide. Sounds hyperbolic, I know. But it’s the best way to describe how well intended laws designed to make voter registration quick and easy can also make life miserable for immigrants who mistakenly get registered and as a result, are denied green cards or U.S. citizenship and sometimes even face deportation. In recent days however, the U.S. Citizenship and Immigration Services (USCIS), well aware of this mess, implemented a policy easing the penalty an accidental voter registrant faces when seeking to become a naturalized U.S. citizen.

Voter registration is supposed to require an applicant to knowingly attest that they are a U.S. citizen. Motor Voter and other registration processes all too often lead foreign nationals to inadvertently get registered to vote and then down the line, get blamed for making a claim to U.S. citizenship they never made. Immigrants presenting foreign passports, green cards or employment authorization documents as identifi cation or even declaring they are not U.S. citizens, are too often invited to register to vote and even sent voter registration cards, despite clear indications they are not U.S. citizens. These are the notable outgrowths from voter registration systems lacking appropriate safeguards. Of course it’s an understatement to say that such a scenario can leave a noncitizen confused and with the reasonable impression that voting in a U.S. election is perfectly legal. However, a noncitizen claiming to be a U.S. citizen or voting in a U.S. election – even innocently – can spell the end of their future in the U.S.

Voter registration may occur at a local DMV, a registration booth at a state or county fair, a college campus voter drive or through door to door solicitation. The requirement that an applicant for voter registration must be a U.S. citizen is not always a part of the document the foreign national signs, or the requirement is innocently misrepresented by the offi cial signing up the new voter. In DMV settings, sometimes the foreign national will end up signing a document or simply a computer fi eld, again without any explicit U.S. citizenship attestation language present. Other times the noncitizen gets registered and without any sense that voter registration is actually taking place at all. In these examples though, the mistaken registrant receives a voter registration card in the mail, a document giving many mistakenly registered foreign nationals the reasonable sense they are eligible to vote in a state or U.S. election.

A version of this nightmare even became the subject of a critically acclaimed Off Broadway play and soon to be released feature fi lm –The Courtroom – based on the precedent setting federal court deportation case of Keathley v. Holder. In this case, Elizabeth Keathley, a then noncitizen who accidentally registered to vote and voted, was able to successfully fi ght her deportation as her actions were deemed to be innocent and taken at the guidance of government offi cials. I was privileged to be Elizabeth Keathley’s deportation defense counsel throughout her legal proceedings.

With automatic voter registration making its way to DMV’s across the nation and it becoming obvious there are too many scenarios that can lead to accidental voter registration or unlawful voting, USCIS is becoming more forgiving in deciding applications for naturalization of accidental voter registrants. Although awkwardly written, the new USCIS policy extends a level of forgiveness for an act not the fault of the applicant, as it:

• “Clarifi es that USCIS will not penalize an applicant who unknowingly or unwilfully registers to vote.

• Clarifi es that USCIS does not consider an applicant to have unlawfully registered to vote if the applicant did not complete or sign the voter registration section (including electronic signature, if applicable) in the motor vehicle or other state benefi t application.

• Clarifi es that USCIS does not consider an applicant to have unlawfully claimed to be a U.S. citizen if the applicant did not affi rmatively indicate that he or she is a U.S. citizen. However, if the applicant registered to vote, the applicant has the burden to prove that the registration form did not contain a question about whether the applicant is a U.S. citizen or that the applicant did not indicate, in response to the question, that he or she is a U.S. citizen.”