Published May 11, 2015
It’s maddening. At least once a week over the course of the past 6 years, I hear a story of a foreign national mistakenly being registered to vote, and even voting, and then facing the scare of their life when it comes to the processing of their US green card, or citizenship. Some may even have to fight off deportation. In case after case, it involves an otherwise law abiding foreign national being lured into registering to vote by a well-intended but misinformed Department of Motor Vehicle employee, or other voter registration recruiter. Shortly thereafter, the foreign national is issued a voter registration card and given the reasonable impression that they are authorized to vote. From there, whether they vote or not, their eligibility to become a U.S. resident, or U.S. citizen, or even remain in the U.S., is jeopardized. The good news is that in the vast majority of cases there exists a legal remedy for the accidental voter or registrant to still qualify for their desired immigrant benefit, or at least to avoid being deported.
I am discussing this scenario once again, because in the past week, the U.S. Board of Immigration Appeals issued a decision upholding an order of removal against a U.S. lawful permanent resident who voted in a U.S. election. In Matter of Fitzpatrick, Margarita Del Pilar Fitzpatrick was mistakenly registered to vote by an official with the State of Illinois’ Secretary of State/Motor Vehicle Division office on August 5, 2005 and approximately 2 years later, proceeded to vote in a federal election. When she applied to become a U.S. citizen several years later, she openly admitted her voting activity, thinking it was entirely permissible since it was the state that solicited and approved her voter registration. The result: a denied Application for Naturalization and an eventual order of removal.
This decision is frightening on many levels. First, between the date of the lower court’s order of removal in 2009 and the issuance of last week’s BIA decision, the U.S. Court of Appeals for the Seventh Circuit issued their precedent decision in Keathley v. Holder, where an applicant for U.S. residence successfully fought off deportation and was eventually approved for permanent residence, although she mistakenly voted in a U.S. election. (Full disclosure, I was the attorney in that case). The BIA’s failure to reference the Keathley decision in any way, shape or form tells me that the Keathley case was never brought to the BIA’s attention by any of the parties to the litigation and/or there was a failure to develop adequate facts to support the defense that played a role in the Keathley decision.
If the state’s solicitation for Ms. Fitzpatrick’s voter registration took place despite clear disclosure to the official that she was not a U.S. citizen, then a Keathley type of defense might be available i.e. we, as a society, do not impose legal penalties on individuals who act in good faith and in complete reliance on the guidance of government officials.
Officials in the State of Illinois, like other states, and pursuant to federal motor voter law, invite voter registration at the time of any new driver’s license application. The process involves a state official soliciting each and every license applicant for voter registration, and no matter the type of identification the applicant provides, whether it be a foreign passport, permanent resident card, work visa, etc. I have even heard of cases where license applicants are solicited for voter registration even after they clearly advise the DMV official of their non-U.S. citizen status. This is not surprising because according to the official federal motor voter policy, each applicant, no matter what, must be asked if they would like to register to vote. And the official technically has no authority whatsoever to inquire into or assess the applicant’s immigration status. In other words, the official is supposed to act robotically, and without regard to conflicting facts in front of them e.g. foreign passport, green card, etc., in registering to vote unsuspecting applicants.
The bottom line, unsuspecting foreign national applicants for drivers licenses continue to be solicited for voter registration by state officials and despite an applicants’ own clear representations of their non-U.S. citizen status. However, as stated, a variety of remedies and defenses are available to these accidental registrants and voters. After all, just as it would be an absolute injustice for a police officer to issue a ticket to a cooperative automobile driver who is waved through a stop sign and complies, our Department of Homeland Security cannot justly seek to deport an otherwise law abiding foreign national who discloses their non-U.S. citizen status and is nevertheless waved through the voter registration process and approved for voter status.
PUBLISHED May 11, 2015– “IMMIGRATION LAW FORUM” Copyright © 2015, By Law Offices of Richard Hanus, Chicago, Illinois