Non-Citizens Lured into Voting: The Motor-Voter / Deportation Crossfire
Published: February 28, 2009

It’s a problem. A big problem. Innocent foreign nationals from countries far and wide are finding themselves in the middle of the Motor-Voter/Deportation crossfire here in the U.S. In Illinois, the following scenario (or a version of it) is unfortunately popping up way too often:

Foreign national – we’ll call her Daisy, arrives in the U.S. legally, on an immigrant visa (permanent resident), and starts the process of obtaining identification documents such as a social security card, state i.d., drivers license, etc. Upon her visit to the Illinois Secretary of State office (DMV), Daisy is greeted by an agent who asks for identification. Daisy presents the passport issued by her government, along with other required documentation and advises the agent that she would like to obtain a state i.d. The agent asks Daisy, in assembly-line fashion, “would you like to be an organ donor?” Daisy says, “sure.” Agent asks Daisy, “would you like to vote?” Daisy – thinking wow, that’s cool, what an honor! – responds, “sure I would!” and even wonders if the government will be offended if she refuses this offer of such a privilege, thinking she must certainly be eligible for it since a knowledgeable government official in a position of power is presenting it. Agent proceeds quickly, asking Daisy to sign a document or two, and orders her to move along in line so the next customer can get serviced. Daisy gets her state i.d and drivers permit, leaves the facility and goes about her business.

A few weeks later Daisy receives a voter registration card, and thinks to herself how lucky she is, that she now has the right to vote. In fact, she proceeds to exercise this precious right, her civic duty even, voting at least five times in the ensuing five year period – in a presidential election, a federal congressional election, and even in the local school board contest.

Daisy applies for U.S. citizenship after accruing five years as a U.S. resident, and studies hard for her civics test. She becomes a bit concerned about some of the information she is learning, like the provision about having to be a U.S. citizen in order to vote. But she also feels like she is on solid footing legally, since the right to vote was offered to her by a government official who knew she was a foreign national. Daisy appears for her interview, passes all of the required tests, answers all of the examiners questions (including admitting that she voted in five elections) and is told by the immigration examiner that she will receive the final decision in the mail. One month later, Daisy receives a decision denying her application, as well as a notice to appear before an Immigration Judge for removal proceedings due to her “voting in violation of law” as a non-citizen.

Sadly, this scenario, or a version of it, is becoming way too common. The problem is that during that initial visit to the Secretary of State’s office upon first arriving in the U.S., Daisy likely, and unknowingly of course, signed a document declaring that she is a U.S. citizen. From there, the voter registration card followed.

The problem stems from motor voter laws designed to allow for easy, non-discriminatory access to voter registration. Clearly the process became too easy, and too non-discriminatory, since Daisy should never have been registered in the first place. Further, there are laws already on the books in Illinois requiring all foreign born voter registrants to be asked where and when they were naturalized as U.S. citizens. Clearly, this did not happen in Daisy’s case. Had it, her immigration nightmare would never have come about.

So, what can Daisy, or other foreign nationals who were mistakenly registered to vote and/or voted, do? Firstly, Daisy has a strong defense to any charges of removal, since she was clearly relying on the guidance and cues of a governmental official who knew she was a foreign national, but nevertheless prompted the voter registration process. Since case law is still developing in this area of immigration law, however, it remains to be seen what success she will have at the initial hearing stage. For certain, a solid legal basis to defend such charges does exist, as does a strong basis to prevail before a federal court of appeals, if need be. Still, this sort of legal battle can get complicated and present significant challenges. My advice to all foreign nationals who are offered a chance to register to vote or vote: Just say no! For anyone who may have unsuspectingly been lured into the motor voter/deportation crossfire, by either registering to vote, or even voting, my advice is to consult counsel before filing paperwork to facilitate any type of immigration benefit, such as U.S. citizenship.

Copyright © 2009, By Law Offices of Richard Hanus, Chicago, Illinois