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There is a lot in the news about unlawful voting these days.  Many states have enacted laws that require specific forms of voter identification before one can step into a voting booth.  Voting experts state that voter fraud is infinitesimally small, but the concern over ineligible people voting has grown despite the lack of evidence of its ubiquity.  The consequences for the non citizen who votes are drastic.  Unlawful voting is a ground of deportability and a ground of inadmissibility.  It is a basis for denial of citizenship.  However, removability can not be established by simply showing that an individual voted.  Such voting must be in violation of  law.  Many criminal statutes require knowledge that the act is illegal for conviction.  Others, known as strict liability offenses, are crimes regardless of the level of knowledge.  In addition, since the ground of removability requires that a violation of law occurred when the individual voted, defenses and procedural protections that attach to criminal prosecution must be in the mix when evaluating removability.  Courts have struggled with the overly harsh potential immigration consequences of a finding of a violation of law.  They have demanded that immigration courts dive deeply into the facts to determine if a violation of law occurred.

On August 22, 2012, the U.S. Court of Appeals for the Seventh Circuit issued two decisions regarding the immigration consequences of voting by non-citizens.  The outcomes are widely divergent and emphasize the importance of a careful and through recitation of the facts in cases where voting by non-citizens arises.    In Kimani v. Holder, the Court upheld the finding of inadmissibility for voting in violation of federal law against petitioner Kimani.  The Court found that Kimani had falsely represented himself as a U.S. citizen and voted in violation of federal law.  However, in Keathley v. Holder, the Court sent the case back to the immigration judge to determine if Keathley made any representations of U.S. citizenship in registering to vote and to determine what the motor vehicle officials, who registered her to vote, understood her status to be.  The Court noted that the immigration judge found Keathley to be credible, but  felt that he could not consider any legal defenses to whether Keathley voted illegally.  The Court of Appeals held that any legal defenses to the crime of unlawful voting had to be considered in immigration proceedings and the immigration judge had to make findings on relevant factual issues.  The court determined that the case had to return to the immigration judge so that the judge could hear the testimony and reach factual conclusions.  The difference between these two decisions comes down to the particular facts of the acts of registering to vote and of voting.  In Kimani, the court found that the voting was a function of dishonesty and an effort to represent oneself as a citizen, whereas in Keathley, the court concluded that “a person who behaves with scrupulous honesty only to be misled by a state official should be welcome in the country.”

Last year, we represented a Palestinian man who volunteered in his citizenship interview that he had voted in a referendum election where a measure for a tax increase in support of the Mt. Healthy School District was on the ballot.  This was not a federal election, so only Ohio state law was implicated.  Our client registered to vote within a few days of arriving into the US as a permanent resident.  He went to obtain a driver’s license and was asked by the Ohio DMV official if he wanted to register to vote.  He asked her if he was allowed to vote and she told him “yes, in America, everyone can vote.”  He received his voter registration card in the mail and received notice of an election and went to vote on the tax measure.  When he went to vote, he produced his permanent resident card (green card) to the voting official, who asked if he had anything else.  When he produced a driver’s license, she sent him to the booth.  He left happy and proud, thinking that he had joined an important American tradition.  He did not think about it again until he applied for citizenship and he provided the full details to the immigration official, who asked him to obtain his registration documents from the Ohio Board of Elections.  He did so, and handed the government the documents it used to support its charges in removal proceedings that he voted in violation of law.  How’s that as a reward for scrupulous honesty?  In removal proceedings, we convinced an immigration judge that our client had no intention to violate the law and believed, based upon multiple official representations, that he was allowed to vote.  We argued that the Ohio statute requires a willful violation of law and he did not intentionally violate the law.  The judge found our client completely credible and terminated removal proceedings.  It is worth mentioning that the government behaved atrociously in this case, fighting his removal tooth and nail, despite the overwhelming evidence that he did not intentionally violate the law.  This even occurred in the beginning months of prosecutorial discretion, whose spirit did not trickle down to the office of chief counsel in Cleveland, Ohio.   Although our client ultimately prevailed, it took him two years to work through the maze of immigration court, when the government could have and should have ended the matter far sooner.

The Republican Party has endorsed state voter id laws in its 2012 platform.  Although voter fraud is exceedingly rare, it is likely that if provisions of the voter id plank in the GOP platform were to be enacted, we will see further idiocies like the one Cleveland Immigration & Customs Enforcement put our client through.