Update: Imperfect Voter Registration Initiatives and the Dangers Faced By Noncitizens

By: Richard Hanus

 

Far too often, highly imperfect voter registration processes create moments of government assisted immigration suicide, whether it leads to a denied application for lawful permanent resident status (“Green Card”) or U.S. citizenship or even the commencement of removal proceedings aka deportation proceedings. The good news is that in many cases, all is not lost and a solution for non-citizens facing a seeming immigration dead-end may be available.

The doom a noncitizen may face in this context is rooted in the coming together of two realities at play in our society: 1) federal legislation imposing extreme immigration law consequences for noncitizens who vote in a U.S. election OR falsely claim to be a U.S. citizen by way of a mistaken voter registration and 2) overly eager and outreaching voter registration systems lacking adequate quality assurance in vetting unsuspecting ineligible applicants, e.g. non-citizens.

Voter registration hiccups for noncitizens most often can be traced to a misstep by a local Department of Motor Vehicle official in the way they administer the “Motor Voter” registration process, a protocol where all applicants for drivers licenses and state I.D.’s are invited to register to vote. Other times, the mistake gets made by a voter registration drive volunteer, whether at state or county fairs, a college campus, or by way of neighborhood house to house solicitations. The requirement that a voter registrant and ultimately, voter, must be a U.S. citizen is not always made clear to the folks being solicited. Even worse, sometimes the trusted registering agent wrongly advises ineligible noncitizens that voter registration and voting is permissible.

After a mistaken voter registration is processed and the applicant is mailed a voter registration card, the wheels, unfortunately, are now in motion for a noncitizen to be led to believe they very well may be eligible to vote in a U.S. election. That belief, albeit mistaken, is particularly reasonable after the foreign national may have communicated very clearly to the registering official they are not a U.S. citizen, by their words and/or actions, such as by presenting their foreign passport, U.S. visa page, or some other evidence of their foreign citizenship.

The dramatic, life changing circumstances involved in this type of scenario were the subject of a federal U.S. Court of Appeals precedent deportation defense decision, Keathley v. Holder as well as in the critically acclaimed play and feature film, The Courtroom. In this case, Elizabeth Keathley, a citizen of the Philippines and new arrival in the U.S., accidentally registered to vote and voted, but was spared from deportation because her actions stemmed from her reasonable reliance on government official guidance. (side note: I was privileged to be Elizabeth Keathley’s deportation defense counsel throughout her legal proceedings).

Thus, just because a noncitizen mistakenly registered to vote, or voted in a U.S. election, does not necessarily mean their application for U.S. citizenship (N-400) or lawful permanent residence/Green Card (I-485) is doomed, or even worse, that they will be deported. Noncitizens who have been caught up in this trap and are seeking a solution should consider the following before taking any steps:

• Map out a strategy taking note of whether the circumstances (as referenced below) surrounding your mistaken registration or vote necessarily disqualify you from having your application approved,

• Did you advise the soliciting voter registration official you were NOT a U.S. citizen, either in words or deed, but the process was nevertheless facilitated and you were still nevertheless issued a voter card?

• In the context of motor voter registration, especially automatic voter registration, did you even know a voter registration process was being instituted or that you were possibly making a “false claim to U.S. citizenship”?

• Are the upsides of filing an N-400 or I-485 application worth the risks at play, especially if a denied application may lead to the commencement of removal proceedings against you?

• What arguments or defenses do you have in appealing a decision denying your application for citizenship or permanent residence, OR in defending against deportation proceedings? Are these arguments or defenses strong ones?

In sum, proceed with extreme caution if any of these circumstances are at play in your case.

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