Dykema Gossett PLLC

Dykema Labor & Employment Law Blog

The Risk of Voting In A Presidential Election If You’re Not a U.S. Citizen—A Timely Reminder From The Seventh Circuit


The Risk of Voting In A Presidential Election If You’re Not a U.S. Citizen—A Timely Reminder From The Seventh Circuit

With Election Day approaching and the lengthy presidential campaign coming to an end, it is easy to conclude that any person in this country who can vote should do so. However, noncitizens risk harsh consequences if they vote or even register to vote in a federal election. The Seventh Circuit provided a timely reminder in two decisions that only U.S. citizens may legally vote in the upcoming presidential election. Noncitizens who vote may jeopardize the future they sought in the country for themselves and their families, and dash the plans of employers that want them to work here.  

In Kimani v. Holder and Keathley v. Holder, both written by Chief Judge Easterbrook and decided August 22, 2012, the petitioners were married to U.S. citizens and arrived in the U.S. years earlier, but their ability to stay in the U.S. was in dispute because of voting. The cases concerned federal law prohibiting persons who are not citizens from voting in federal elections. The key statute, 18 USC §611, generally provides it is a crime for an alien to vote in a federal election, punishable by fine and imprisonment. A person who votes in violation of that law (or other federal, state or local election law) also is inadmissible, and so cannot adjust immigration status when in the U.S. and is subject to removal.  8 USC §1182(a)(10)(D)(i); 8 USC §1255(a)(2).

In Kimani v. Holder, the petitioner, a citizen of Kenya, entered the U.S. in 2000 and overstayed his visitor’s visa. After marrying a U.S. citizen, he sought to stay here permanently and requested to adjust status. However, in 2003, he registered to vote by checking a box on an application for a driver’s license, and voted in the presidential election in 2004. His request to adjust status was denied by an immigration judge and the Board of Immigration Appeals affirmed, and he was ordered removed from the U.S. The Seventh Circuit denied his petition for review, rejecting his argument that Section 611(a) required specific intent—that he knew it was unlawful to vote. Instead, the Court followed another appellate decision that Section 611 is a "general intent" statute, and so Mr. Kimani had sufficient intent because he voted and understood what he was doing.  He also argued for an "entrapment by estoppel" defense, which the Court characterized as involving "official authorization" that it was lawful for him to vote. The Court rejected the argument because he was not told by a state official to vote or that it was permitted. Accordingly, the Court denied review of his petition, and he is subject to removal from the U.S.

The petitioner in Keathley v. Holder was somewhat more successful on appeal. She was a citizen of the Philippines who married a U.S. citizen.  Ms. Keathley came to the U.S. in 2004 with a K-3 visa, which allowed her to remain in the U.S. while she waited for permanent resident status. However, she voted in the November 2006 election. She contended that when she applied for a driver’s license before the election, she presented her Philippine passport and K-3 visa, and a state official, who was aware that she was not a citizen, asked if she wanted to vote.  She said "yes" and was registered and voted. Because of that an immigration judge ordered her removal and the Board of Immigration Appeals affirmed. The Seventh Circuit though ruled the record was not clear regarding what occurred when she registered to vote because findings had not been made on that aspect. The case was remanded to determine whether the facts satisfied the "official authorization" defense. The Court explained, "A person who behaves with scrupulous honesty only to be misled by a state official should be as welcome in this country in 2012 as when she entered in 2004."  Accordingly, Keathley held an "official authorization" defense may be raised against removal, but whether the defense applied in that or other cases is to be determined.

Kimani and Keathley highlight risks a person in Green Card (lawful permanant resident) or nonimmigrant status in the U.S. runs by voting or registering to vote in a federal election. Doing so violates federal criminal law and may prevent remaining in the country. Employers whose workers in the U.S. include noncitizens might want to spread the message of these cases to those employees that if they vote they may jeopardize remaining and working here.