Eighth Circuit Rejects Defense to Unlawful Voting

The petitioner, when obtaining a driver's license in Minnesota, did not attest to being a US citizen, but nevertheless, was registered to vote by the state and mailed a voter registration card.  The petitioner subsequently voted in an election.  In subsequent removal proceedings, she was deemed inadmissible for her unlawful voting, and her application for adjustment of status was denied.  The Court rejected her invocation of the defense of "entrapment by estoppel."  The Court noted that the sign in logs at the voting booths required the person to affirm that they are a US citizen.  

The full text of Chernosky v. Sessions can be found here:

http://media.ca8.uscourts.gov/opndir/18/07/171400P.pdf

Seventh Circuit Finds Lawful Permanent Resident Removable for Voting

Margarita Del Pilar Fitzpatrick, a lawful permanent resident, contends that when filling out the forms at the Department of Motor Vehicles she displayed her green card and her Peruvian passport—but she admits that she also checked a box claiming to be a citizen of the United States.  Fitzpatrick maintains that the desk clerk asked whether she wanted to register, and when she inquired “Am I supposed to?” he replied: “It’s up to you.” She checked that box, was duly registered, and in 2006 twice voted in elections for federal officials.

In light of these facts, the Seventh Circuit would not allow her to take advantage of the “official authorization" defense.  The defense is available to someone who makes complete and accurate representations to a public official and then receives permission from that official, when acting within the scope of his or her authority.  Because Fitzpatrick did not give accurate info to the DMV by virtue of claiming in writing to be a citizen, and because the clerk did not explicitly tell her it was permissible for her to vote, she could not take advantage of the defense.

The full text of Fitzpatrick v. Sessions can be found here: 

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D02-13/C:15-2204:J:Easterbrook:aut:T:fnOp:N:1911733:S:0

BIA Issues Decision on Unlawful Voting

In Matter of Fitzpatrick, the Board of Immigrations Appeals (BIA) determined that unlawful voting by a lawful permanent resident could render the individual deportable, even if the person did not know she was committing an unlawful act by voting.  The BIA found that Fitzpatrick had violated a federal statute that did not require any specific intent - that is, it did not require the government to prove that Fitzpatrick intended to commit an unlawful act by voting, only that she actually voted and that she knew she was not a United States citizen.  Fitzpatrick tried to argue that she was exempt from the cited federal provision, but the BIA rejected her argument.

As states contemplate laws that automatically register people to vote when they apply for driver's licenses, this decision becomes all the more worrisome.  How many non-citizens, having been automatically registered to vote by the Department of Motor Vehicles and having received mail about where and when to vote, will unwittingly lose their immigration status by unlawfully voting?

The full decision in Matter of Fitzpatrick can be found here: 

http://www.justice.gov/file/3835pdf/download