As the 2016 presidential election approaches, election reminders abound encouraging everyone to get out and vote on November 8th. Largely focused on the importance of participation, these messages do not typically distinguish between U.S. citizens, lawful permanent residents (LPR), and individuals in the United States pursuant to temporary nonimmigrant visas. In fact, it is critically important for LPRs and temporary nonimmigrants to understand the negative consequences that involvement in the election process could have on their U.S. immigration status. This is especially true in jurisdictions where it is relatively easy to register to vote.
Under federal law, noncitizens who have unlawfully voted “in any election . . . for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner,” or falsely represented themselves as U.S. citizens in association with registering to vote or by voting may face criminal prosecution and/or administrative removal (i.e., “deportation”). An alien convicted of violating this provision of the law may be fined, imprisoned for up to one year (five years for making a false claim to U.S. citizenship), or both.
When a non-U.S. citizen has voted in a general election involving candidates for federal office, there are very limited defenses. The Board of Immigration Appeals has consistently held that there is no requirement that an alien have knowledge that voting was in violation of law. Only recently has the defense of “official authorization” successfully emerged in some cases where there is significant evidence that a government official has affirmatively assured ineligible individuals of their right to vote. There is also a potential defense for an LPR whose parents are U.S. citizens.
As exciting as participating in the election process can be, it is reserved for U.S. citizens. In a time when it is increasingly difficult to obtain a green card and even some nonimmigrant visas, noncitizens will best protect their statuses in the United States by approaching any opportunity to register to vote with extreme caution.