Unlawful voting is defined as any person who has voted in violation of any federal, state, local constitutional provision, statute, ordinance or regulation. 8 C.F.R.§1227(a)(6). INA §237(a)(6). A conviction is NOT required. This definition applies to voting that occurred on or after 9/30/96.

Voting in an election when you are not a U.S. citizen carries serious criminal and immigration penalties. You may be placed in removal proceedings and/or be criminally prosecuted. Prior to initiating proceedings, a Department of Homeland Security (“DHS”) agent is supposed to determine whether the individual acted knowingly or willfully including the extent of the applicant’s knowledge of election laws.

Depending upon the federal, state, or local law that was violated, DHS may be required to prove that the individual acted knowingly or willfully. To determine whether a respondent knowingly or willfully violated a voting statute, adjudicating officers should determine:

  1. How, when and where the applicant registered to vote and/or voted;
  2. The extent of the applicant’s knowledge of the election laws
  3. Whether the applicant received any instructions, or was questioned verbally about his or her eligibility to vote
  4. Who provided the applicant with information about election laws on his or her eligibility to vote
  5. Whether the election registration form and/or voting ballot;

a. Contains a specific question asking if the applicant is a U.S. citizen
b. Requires the applicant to declare under penalty of perjury that he or she is a U.S. citizen; or
c. Requires the applicant to be qualified to vote and lists specifically the requirement of U.S., citizenship elsewhere on the form.

If  the Department of Homeland Security places the person in removal proceedings, it must prove, by the Woodby standard that a violation occurred under the federal or state statute.

An officer may balance the unlawful voting or false claim to USC against:

  1. Family ties and background
  2. The absence or presence of other criminal history
  3. Education and school records
  4. Employment history
  5. Other law-abiding behavior such as paying taxes, child support
  6. Community involvement
  7. Credibility of the applicant
  8. Length of time in the U.S.

The Law Office of Susan N. Rosti, Esq. has the experience you need plus a proven track record in representing DWI, DUI and related traffic offense cases. Attorney Rosti specializes in this area of law and understands that an individual needs a lawyer to explain their options clearly and assist them in achieving the best resolution possible. Call The Law Office of Susan N. Rosti, Esq. today at 973.883.5977 to schedule a consultation today if you are facing motor vehicle, DWI or DUI charges and need representation.