A Fraudulent Sense of Belonging: The Case for Removing the ?False Claim to Citizenship' Bar for Noncitizen Voting

Author:Anne Parsons
Position:Third-year student at American University Washington of Law, and a student attorney in the Immigrant Justice Clinic
I. Introduction
        
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   
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      
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         
     
       
        
      
A little known fact in U.S. history is that noncitizens3
once had the right to vote in local, state, and even national
elections.4 Today, not only are noncitizens largely prohibited
from voting, except in a few local jurisdictions, noncitizens may
lose their chance to become citizens, and face the additional
threats of deportation and criminal sanctions for voting or
merely registering to vote. While noncitizens have always
faced consequences for fraud or willful misrepresentation
of a material fact under the Immigration and Nationality Act
(“INA”),5 the Illegal Immigration Reform and Immigrant
Responsibility Act of 19966 (commonly known as “IIRIRA
or “IIRAIRA”) changed the law in several ways, including by
adding specific grounds of inadmissibility and removability
related to voting in any local, state, or federal election.7
This paper criticizes IIRIRA’s addition of the “false
claim to citizenship” provision to regulate noncitizen voting
as inconsistent with the proper role of immig ration law
in creating and defining the body politic. Part I explores
democratic concepts of citizenship in the context of
noncitizen voting rights. This view of citizenship as political
voice and belonging, however, must inevitably confront the
perceived imperative of the modern nation-state to create
legal distinctions between citizens and non-citizens. Part I
then explores how the U.S. does so by examining theories
underlying the naturalization process and looking specifically
at how “citizenship” is defined in current U.S. immigration law.
Part II briefly examines the connection between
immigration policy and the gradual erosion of noncitizen
voting rights as a backdrop to IIRIRA’s creation of the
“false claim to citizenship” provisions. In Part III, the paper
argues that the IIRIRA amendments to the “false claim to
citizenship” provisions have several negative consequences.
First, the provisions risk unnecessarily excluding or
deporting viable candidates for citizenship, including long-
time legal permanent residents (“LPRs”) like the individual
in the epitaph. Second, these provisions validate unfounded
concerns about noncitizen voter fraud, thereby further
polarizing the immigration debate in unproductive ways. And
third, the provisions are inconsistent with the underlying goals
of the naturalization process, and jeopardize noncitizens’
opportunity for meaningful political participation.
The paper concludes by suggesting various ways
the false claim to citizenship provisions could be reformed,
arguing that removing the immigration consequences
for noncitizens who vote is most in line with democratic
ideals. It calls upon immigrants’ advocates to reconsider
arguments for extending voting rights to noncitizens
in light of predicted demographic change and the
growing push for Comprehensive Immigration Reform.
II. What Makes a Citizen?
The legal definition of “citizen” is “a person
who, by either birth or naturalization, is a member of a
political community, owing allegiance to the community and
being entitled to enjoy all its civil rights and protections.8
Constitutional democracies are premised on the notion
of consent by the governed, with the vote serving as the
primary mechanism through which members of the polity
realize democratic ideals.9 All democracies index insiders
and outsiders based on existing members’ collective notions
of who constitutes “the people.” If formal citizenship
is the marker of membership in the political community,
this means that in a democracy, noncitizens are governed
by the laws but do not have a formal voice. 10 Why and
how is for mal citizenship taken into account in defining
SPRING 2011 5
the body politic? In its reference to naturalization, the
definition of citizenship hints at another fundamental
question: how do nations, and the U.S. in particular,
determine who becomes a citizen in the first place?
Today, with a few exceptions,11 formal citizenship is
the primary marker of an individual’s inclusion or exclusion
in the body politic in the U.S.12 Despite the fact that certain
classes of noncitizens, LPRs in particular, share many
characteristics with citizens—they pay
taxes, own property, and serve in the
armed forces—only citizens can vote.
And yet, this has not always been the case.
In his socio-historical account
of noncitizen voting rights in the
U.S., Maryland State Senator and Law
Professor Jamin Raskin, notes that the
extension of voting rights to noncitizens by states stemmed
from a strong federalist paradigm.13 Depending on the time
period, states had different reasons for allowing noncitizens
to vote.14 In the eighteenth century, states extended the
right to vote to propertied, white, male noncitizens both
because they exhibited those attributes most valued in
electors, and because doing so allowed states to justify
the exclusion of people without those attributes from
the ballot by delinking citizenship from the franchise.15
Later, in the nineteenth century, states used the franchise
primarily to draw noncitizens to settle in their territory.16
Raskin derives three interrelated normative
arguments for alien suffrage based on state’s express or
implied rationales for allowing noncitizens to vote. First,
doing so logically follows from the democratic ideal of
“citizenship as presence,” in that extending the right to
vote to noncitizens merely recognizes those individuals’
participation in the social life of the community.17 Second,
allowing noncitizens to vote serves the practical function of
assimilating them to local values, a rationale Raskin terms
“citizenship as integration.”18 A third and similar rationale,
“citizenship as standing,” reconstitutes the vote as a form
of public acknowledgement that noncitizens belong in
American society.19 The latter two rationales provide strong
justification for extending the vote to individuals who intend
to naturalize. Although current U.S. immigration law does not
explicitly distinguish between those who intend to become
citizens and those who do not, LPR status is the closest
proxy even though LPRs are not required to naturalize. Not
surprisingly, serious arguments have been made that LPRs
should be able to vote at the local level,20 and a few localities
in the U.S. have extended the franchise to this group.21
Serious consideration of the first rationale, however, has
the potential to lead to a more radical conclusion: that all
noncitizens with presence and a significant stake in their
communities should have a voice in all those communities
in which they participate, whether local, state, or national.22
Theoretically speaking, however, a democracy is
not obligated to extend suffrage to noncitizens.23 The U.S.
Constitution does not deny noncitizens the right to vote, 24
yet arguably neither does it require it.25 Whether a nation-
state chooses to extend the vote to noncitizens might depend
on that particular state’s constitutional values in relation
to noncitizens.26 The more constitutional protections
a state grants to noncitizens, the
more important it becomes for
citizens to maintain the vote as a
distinguishing and exclusive right.27
Correspondingly, the more courts
extend to noncitizens the rights to due
process, free speech, and association,
the less crucial the vote is for ensuring
noncitizens’ political voice and sense of belonging.28 As
one scholar points out, this may explain why “[noncitizen]
suffrage is, at once, insignificant and central” in the U.S.29
In today’s world of increased border restrictions,
the effect of immigration law in defining the body politic
has become increasingly important.30 The increasing
overlap between immigration, criminal, and national
security law has greatly enhanced the gate-keeping function
of immigration law in the U.S.31 As a prime symbol of
these conceptual overlaps, IIRIRA’s amendments to the
Immigration and Nationality Act (“INA”) significantly
expanded the exclusionary function of immigration law.
Historically, immigration law played a minimal role
in regulating noncitizen voting rights, which instead were
regulated by state election laws. Generally, laws that govern
the lives of noncitizens already living in the U.S. are termed
“alienage laws,” as distinct from immigration laws which
determine who has the right to be present in the first place.32
In the U.S., both alienage laws that restrict noncitizens’ right
to vote, and immigration laws that delineate the grounds of
inclusion and exclusion, play a role in defining the body politic.
In comparison, in countries such as New Zealand that allow
noncitizens to vote in national elections, immigration laws
alone define the people.33 In reality, alienage and immigration
laws often overlap,34 but they remain nonetheless analytically
distinct.35 For example, alienage laws often receive strict
scrutiny by the courts,36 while Congress retains plenary
power over immigration law.37 Though both types of laws
play a role in defining the electorate, essentially, this paper
argues that using immigration law, rather than alienage law,
  
to regulate noncitizen voting undermines the democratic
ideals the immigration system should seek to promote.38
A society’s immigration statutes reflect its
perception of how the process of national self-definition
should take place. Conversely, whether and how a society
permits noncitizens to vote depends on that society’s
ideas about how the integration of
noncitizens should occur.39 According
to Immig ration Scholar and Historian
Hiroshi Motomura, U.S. immigration
law is a blend of three competing
views of immigration: immig ration
as contract, immigration as affiliation,
and immigration as transition.40 Each view reflects a model
of justice based on differing notions of the relative equality
between citizens and noncitizens. Under the contract
theory, citizens and noncitizens are not equal.41 Lawful
immigrants have the right to remain in the U.S. only so long
as they obey the rules.42 For Motomura, contract theory
is inadequate as an exclusive foundation for immigration
law because the contract is one-sided—the immigrant
must take it or leave it.43 This violates the requirement
of consent underlying modern democratic politics.44
Affiliation is the second conceptual foundation
and serves as immigration law’s counterpart to Raskin’s
notion of “citizenship as integration.” Viewing
immigration as affiliation means that the longer that
lawful immigrants remain in the U.S., the more citizen-
like rights they gain.45 Paradoxically, the more the law
prioritizes a person’s ties to the U.S., the less important
formal citizenship becomes as a means of g aining rights.46
One form of relief in U.S. immigration law that seems
to reflect the affiliation concept is cancellation of removal.
Cancellation of removal is a form of relief that allows
noncitizens who are otherwise inadmissible or deportable
to stay in the U.S. based, in part, on their length of residence
in the country and other equities including the presence of
family, property, or business ties. 47 In general, Motomura
sees current U.S. immigration law as a blend of the contract
and affiliation theories.48 While the rationale for cancellation
of removal recognizes the inherent unfairness in severing
an individual’s ties to the U.S., in reality, the law also contains
an element of contract. To be eligible for cancellation of
removal, for example, both LPRs and other noncitizens
(“non-LPRs”) must prove that they have not committed
certain types of crimes.49 It is also worth mentioning, though
perhaps not surprising, that the law as applied to non-LPRs
includes more stringent “contractual terms” in addition to
requiring a longer period of residence to establish eligibility.50
In contrast to the first two views, immigration
as transition means that all lawful immig rants are treated
as potential citizens upon entry and thus benefit from a
presumption of equal rights.51 Only when an immigrant
expresses her intention not to naturalize would that person
lose her citizen-like rights.52 While not erasing the distinction
between lawful immigrant and citizen completely, the
view of immigration as transition would tend to support
voting rights for intending citizens. Motomura argues
that, historically, the concept of
transition played an impor tant role.
In particular, he points to declarations
of intent to naturalize, a feature of
U.S. immigration law from 1795 to
1952, which could be filed by eligible
noncitizens several years in advance
of a naturalization application, and which elevated the
noncitizen to a pre-citizen status.53 For Motomura, the history
of transition and its emphasis on inclusion is an antidote
to the logic of the other two concepts, which pervades
the U.S.’s increasingly restrictive immigration policies.54
c. Citizenship in U.S. Immigration Law
If immigration law plays a role in defining the body
politic, citizenship and naturalization are the primary means
by which it does so. People gain citizenship by bir th in the
U.S.,55 through naturalization,56 or in limited cases, by blood.57
The naturalization process in the U.S. has traditionally been
characterized as easy or open by international standards, which
reflects the importance of naturalization as a governmental
objective.58 In other words, the U.S. government can justify
retaining a firm citizen/noncitizen distinction as an incentive
for people to naturalize, so long as it compensates by making
the transition to citizenship a relatively quick process.59
Very generally, to qualify for citizenship,
naturalization applicants must have lived in the U.S.
for at least five years as an LPR,60 or three years if they
are spouses of U.S. citizens.61 Applicants must meet a
minimum period of physical presence in the U.S.,62 in
addition to demonstrating “good moral character.”63
In practice, the transition to citizenship is easy for
many people, and the denial rate is relatively low.64 Still,
denial rates do not account for those who fail to apply out
of fear of being denied. Many potential citizens find the
English and civics requirements insurmountable obstacles.
Others may not be able to pay the $675 application fee.
Still others may not apply out of fear that past crimes
or violations of immigration law will lead to a denial, or
even deportation. With IIRIRA’s dramatic expansion
of the grounds for inadmissibility to, and removal
from, the U.S., these fears have gained new currency.
the more the law prioritizes a person’s ties
to the U.S., the less important formal
citizenship becomes as a means of
gaining rights.
SPRING 2011 7
III. From Suffrage to “Falsely Claiming Citizenship”
a. Restrictive Immigration and the Erosion of Noncitizen Voting
An undeniable correlation exists between U.S.
immigration policy and noncitizen voting rights.65
Noncitizens voted and held local office throughout the
colonies beginning as early as 1692.66 The extension of
voting rights to noncitizens in the U.S. occurred during a
period of relatively open immigration. During the early
colonial period, the federal government left the regulation
of immigration, including alien suffrage, largely to the
states.67 Its first attempt to create uniformity among the
states came with the passing of the 1790 Naturalization
Act, which regulated who could become a U.S. citizen.68
The federal government only began to centralize
control of immigration in the late nineteenth century.
Not surprisingly, throughout history, “the rise and
fall of xenophobic and nationalist tendencies” has greatly
impacted both immigration law and immigrant voting
rights.69 During the War of 1812, for example, increasing
suspicion of non-English immigrants decreased popular
support for noncitizen voting, 70 though voting rights
expanded again in the years leading up to the Civil War.71 At
the height of noncitizen voting in 1875, twenty-two states
and territories had extended the franchise to noncitizens.72
Beginning that same year, however, the U.S. government
passed a series of exclusion laws due in part to the influx of
Chinese immigrants.73 As anti-immigrant sentiment began
to rise around the turn of the century, states one by one
terminated voting rights for noncitizens.74 The final end to
noncitizen suffrage roughly coincides with the end of World
War I,75 which also put an end to unlimited immigration
and led to the creation of a nation-origins quota system.76
Even though the U.S. government eventually
centralized control over immigration matters, it did not seek
to regulate noncitizen voting. In fact, the government did
not create a provision barring entry for misrepresentation,
the statutory precursor to IIRIRA’s false claims provisions,
until after World War II.77 In 1952, the drafters of the
INA supported incorporation of the misrepresentation
provision into the per manent statute as an anti-communist
measure.78 Initially, the INA’s provisions related to false
claims were narrowly drawn: noncitizens were only guilty
of making a false claim to citizenship if the claim was
made to a U.S. government official for the purpose of
securing admission into the U.S.79 The 1986 Immigration
Marriage Fraud Amendments80 significantly strengthened
the fraud provisions, but continued to limit their application
to noncitizens who made material representation
for the purpose of receiving immigration benefits.81
b. IIRIRA: A Fraudulent Sense of Belonging?
These provisions changed again for the worse in 1996
when President Clinton signed IIRIRA into law. IIRIRA
closely followed another piece of legislation, the Antiterrorism
and Effective Death Penalty Act of 199682 (“AEDPA”), which
was enacted one year after the Oklahoma City bombing
to combat domestic and international terrorism. IIRIRA,
on the other hand, focused on illegal immigration reform.
According to former INS General Counsel, Paul W. Virtue,
IIRIRA represented the culmination of
immigration-reform efforts that began with
the Republican Party assuming majority
control of the House and Senate in 1994.
Congress was faced with the task of trying
to strengthen our national security in the
wake of the 1992 terrorist attacks on the
World Trade Center, while at the same time,
trying to find a way to discourage illegal
migration. What had started as separate
bills, one designed to reduce the annual
number of family and employment-based
immigrants to the United States
(legal immigration) and the other designed
to address border security and deportation
issues (illegal immigration), were combined
in each house and then split again due to
a concer ted g rass-roots lobbying effort.
Separated from the more popular illegal-
immigration bills, the legal-immigration
measures were defeated in both houses.83
Although Congress rejected the proposed bill on
restrictions for “legal immigration,” many of IIRIRA’s
provisions, including those related to noncitizen voting,
have nonetheless affected authorized immigrants.84
Few of IIRIRA’s sixty-plus provisions are immigrant-
friendly. To achieve its g oal of curbing unauthorized
immigration, IIRIRA strengthened border security, initiated
the border fence project, added three and ten-year bars to re-
admission for immigration violators, tightened eligibility for
cancellation of removal, streamlined removal proceedings
for certain classes of immigrants, and severely restricted
judicial review.85 The legislation also instituted electronic
employment verification pilot programs, and removed
public benefits for most undocumented immigrants while
tightening eligibility restrictions for lawful immig rants.86
Similarly, AEDPA and IIRIRA both expanded
the criminal and non-criminal grounds of inadmissibility
and removal.87 IIRIRA also broadened the fraud
provisions of the INA and made penalties more stringent
to support efforts to curb unauthorized immigration
at the border and in the workplace.88 IIRIRA added a
ground of inadmissibility, which effectively extended the
applicability of the general misrepresentation ground to
false claims of citizenship made to private employers.89
It also added a comparable ground of removability90 and
made it a crime to make a false claim of citizenship.91
Even though the general false claim to citizenship
provisions could technically encompass unlawful voting
by immigrants, Congress added parallel provisions to
deal specifically with that issue. Section 347 of IIRIRA
creates new grounds of inadmissibility and removal for
noncitizens who vote in violation of “any Federal, State,
or local constitutional provisions, statute, ordinance, or
regulation.”92 Though section 347 technically only applies
to noncitizens who have actually voted, a noncitizen who
unlawfully registers to vote may also be inadmissible or
removable under the broad “any purpose” language of the
general false claim to citizenship provisions.93 In contrast to
the unlawful voting provisions, the false claim provisions do
not require a finding that the individual violated underlying
election law, only that the person falsely represented herself
as a U.S. citizen on or after September 30, 1996 for the
purpose of registering to vote or voting.94 Unlike the
general false claims provisions, the provisions that apply
specifically to unlawful voting are applicable retroactively.95
Interestingly, IIRIRA creates two separate criminal
penalties for unlawful voting. Section 216 makes noncitizen
voting in federal elections a general intent crime, punishable
by fine and/or one year prison
sentence.96 In addition, IIRIRA further
provides that knowingly making a false
statement or claim to vote or register
to vote in any Federal, state, or local
election constitutes a felony punishable
by fine and/or five years in prison.97
In 2000, the Child Citizenship Act98 (“CCA”) added an
exception to the inadmissibility, removability, criminal
prosecution, and finding of lack of good moral character
provisions related to false claims to citizenship and unlawful
voting, but it is extremely limited in its application.99
Given Congress’s addition of specific and undeniably
harsh provisions to deal with noncitizen voting, this was
presumably an issue of major concern. The legislative
history, however, is silent on these provisions. On one
hand, their addition makes sense given Congress’s general
intent to curb fraud with the enactment of IIRIRA. On
the other hand, the provisions do not even loosely relate to
the prevention of unauthorized immigration—the prospect
of voting in U.S. elections is not likely a main reason that
people cross the border without authorization. Perhaps the
provisions were meant to appease those voters who believe
that politicians should not pander to noncitizens who cannot
vote anyway, though this is merely speculation. Whatever
the reason, as discussed below, the impact of the provisions
clearly falls hardest on leg al immigrants, specifically those
applying to adjust status and legal permanent residents.
IV. The Negative Consequences of an Illogical
 
Although noncitizens are prohibited from voting
in all federal, and most state and local elections, registering
to vote as a noncitizen is fairly easy and many noncitizens
may do so inadvertently. The National Voter Registration
Act of 1993100 (also known as the “Motor Voter Act”)
requires states to provide individuals with the opportunity
to register to vote when they apply for or renew their
driver’s license.101 Only fifteen states require documentar y
proof of citizenship at the Department of Motor Vehicles
(“DMV”).102 Many states simply require the driver’s license
applicant or the DMV clerk to check a box to indicate the
individual’s citizenship status.103 Other states do not require
any proof of citizenship.104 DMV employees routinely ask
driver’s license applicants whether they would like to register
to vote and do not have to verify that the person is actually
eligible to vote.105 Noncitizens asked by a governmental
official may assume they are eligible. Similarly, community-
based org anizations and voter registration campaigns may
also encourage noncitizens to vote.
Lastly, in contrast to the first two
situations in which the noncitizen
registers inadvertently, the possibility
exists that some noncitizens knowingly,
and without encouragement,
register to vote and vote.
The above scenarios raise a key question—the issue
of intent. The provisions that specifically address unlawful
voting do not explicitly require intent. If a noncitizen
votes in violation of federal, state, or local election law, that
individual may be found inadmissible or removable under
these provisions.106 Intent does come into play, however, in
the determination of whether the noncitizen violated election
law by voting if the election statute requires a showing of
specific intent. Department of Homeland Security (“DHS”)
policy guidelines clarify that in cases where the underlying
election law requires a finding of specific intent, adjudicating
officers must assess the circumstances surrounding
the voting accordingly.107 If the officer determines the
individual knowingly violated the relevant election law,
the individual is removable subject to the officer’s exercise
     
  
 
SPRING 2011 9
of prosecutorial discretion.108 If there is no evidence of
specific intent and the statute requires such a showing, then
presumably the individual cannot be deemed removable.
It is less clear whether an individual can be deemed
inadmissible or removable absent a showing of intent
under the general provisions, which apply to false claims
of citizenship for any purpose or benefit under state or
Federal law.109 The answer may hinge on the meaning of
“false” in the context of these provisions, a question which,
to date, no courts have addressed. One citizenship expert
suggested conflicting interpretations of the provision
based on two distinct meanings of “false.”110 A court may
construe the provision as embodying an intent requirement
based on the common understanding that false implies
“intentionally untrue.”111 On the other hand, a court may
construe Congress’s use of “falsely claiming” as an attempt
to distinguish this provision from adjacent ones dealing
with fraud and misrepresentation.112 The former provision
would clearly result in fewer immigration consequences
for noncitizens who are charged with inadmissibility
or removability under the false claims provisions,113
but for the moment, there is little indication how the
immigration agencies are actually implementing them.
The fact that a noncitizen voted or registered to
vote may become relevant at four points: application for
a nonimmigrant visa, application for relief from removal,
adjustment of status, and naturalization. It is unclear if
and how the various immigration agencies’ policies for
handling noncitizen voting issues differ, and whether some
agencies go to greater lengths than others to determine
whether a noncitizen has unlawfully voted or registered to
vote. Still, the following discussion outlines the provisions’
potential to negatively impact noncitizens at each stage.
i. Application for Nonimmigrant Visa
The provision may impact “nonimmigrants,” a legal
term used to designate noncitizens whose presence in the
U.S. is authorized on a temporary basis.114 A nonimmigrant
visa applicant who violates the false claims or unlawful
voter provisions can apply for a waiver.115 An otherwise
inadmissible applicant may only be g ranted admission
as a temporary nonimmigrant at the discretion of the
Attorney General.116 To qualify for a nonimmigrant visa,
however, most applicants must demonstrate that they do
not intend to stay in the United States.117 An individual
who has previously voted or registered to vote in the U.S.
will likely have a hard time convincing a consular office
that she does not have the intention of staying.118 Thus,
in most circumstances the waiver will mean ver y little.
ii. Adjustment of Status
Under the INA, adjustment of status is treated
as an admission to the U.S. 119 Thus, if a noncitizen
becomes inadmissible as result of making a false claim
to citizenship for the purpose of voting or registering to
vote, or voting unlawfully, this will bar her from adjusting
her status to permanent residence.120 While there is a
waiver available for immigrants who are inadmissible under
the general misrepresentation provision, 121 there are no
waivers available for those who are found inadmissible as
a result of false claims to citizenship or unlawful voting.122
Currently, it is unclear how aggressively DHS
checks whether an applicant has registered to vote at
the adjustment of status stage. There are no questions
pertaining to unlawful voting on the adjustment of status
application.123 Still, some applicants have been denied on
these grounds.124 Regardless, given the increasing integration
of government databases, a mere change in policy
could make screening of this kind routine procedure. 125
iii. Relief from Removal
If a noncitizen is found removable as a result of
voting-related violations, she can still apply for relief from
removal. Unlawful voting or a false claim to citizenship
can affect eligibility for relief in several ways. First, if the
individual is in exclusion proceedings and the violation
constitutes a crime involving moral turpitude, the individual
will be statutorily barred from applying for non-LPR
cancellation of removal.126 DHS has determined that a
conviction under 18 U.S.C. § 1015(f), the specific intent
provision, constitutes a crime involving moral turpitude.127
There do not appear to be any cases challenging this
designation, perhaps because convictions for knowingly
making a false statement or claim to vote or register to vote
are rare. In the same policy statement, DHS indicates that a
conviction under 18 U.S.C. § 611, the general intent provision,
likely do not constitute a crime involving moral turpitude.128
Interestingly, if a noncitizen were found to have been
convicted of a crime involving moral turpitude as a result of
unlawful voting or false claims to citizenship, theoretically
that individual could apply for a discretionary waiver,129 even
though there is no way to directly waive the false claim to
citizenship or unlawful voting grounds of inadmissibility.
If the individual is in removal proceedings, rather than
exclusion proceedings, false claims to citizenship constitute
an independent bar to non-LPR cancellation of removal.130
Second, even if the conviction does not constitute a
crime involving moral turpitude a violation may preclude an
individual from establishing good moral character, a statutory
requirement for certain forms of relief such as non-LPR
cancellation of removal and voluntary departure.131 Any
two or more convictions, regardless of whether the offenses
involve moral turpitude, can preclude a finding of good
moral character if the aggregate sentences to confinement
were five years or more.132 Additionally, confinement to a
penal institution for 180 days or more bars a finding of good
moral character.133 An individual can only avoid the bar if he
or she met the narrow exception established by the CCA.134
Lastly, even in the absence of a criminal conviction,
a violation negatively factors into the discretionary
analysis accompanying many applications for relief
including asylum, voluntary departure, and both LPR
and non-LPR cancellation of removal. For noncitizens
who lack strong equities, voting or registering to vote,
could be a deciding factor in a denial of relief, depending
on the immigration judge. Further, many types of
discretionary decisions are not subject to judicial review.135
iv. Naturalization
The provisions’ biggest impact is likely to be at the
naturalization stage. After IIRIRA, all officers conducting
naturalization interviews are required to ask the applicant if
she has ever voted or registered to vote in any election in the
United States.136 In addition, the application for naturalization
was amended to include questions related to false claims
and voting.137 If the individual violated relevant election
law or made a false claim to citizenship when registering to
vote or voting, and the applicant does not qualify for one
of the CCA exceptions, the adjudicator’s decision to initiate
removal proceeding is one of prosecutorial discretion.138
If the adjudicator decides that the case merits
prosecutorial discretion, the adjudicator must still make a
good moral character finding.139 If a
noncitizen has actually been convicted
under either of the voting related
provisions, then the same analysis
outlined above applies.140 In the
absence of a conviction or a finding
that a conviction constitutes a crime
involving moral turpitude, DHS policy guidelines suggest
that if the violation occurred in the distant past and the
individual can establish good moral character “in spite of
making a false claim to U.S. citizenship,” the adjudicator
may exercise her discretion favorably, though DHS
guidelines set the bar fairly high.141 If the adjudicator
denies the application, the noncitizen must apply for
administrative review of the decision within thirty days.142
If she fails on the second review, as a last resort, the
applicant can petition a federal district cour t to conduct
a de novo review of her eligibility for naturalization.143
It is impossible to tell how often voting-related false
claims determine the outcome of an application because
DHS does not publish statistics of its denial rate specific
to these grounds. It is equally impossible to tell how many
LPRs do not file applications for fear that they will be denied.
The lack of immigrant waiver and very limited exception
means the laws will have the hardest impact on applicants
at the adjustment of status and naturalization stages, in
other words, the most viable candidates for citizenship.
Immigration law defines the body politic “by
establishing a ladder of accession to permanent residence
and then for mal U.S. citizenship.”144 The immigration
debate focuses on what set of criteria a noncitizen must
be required to meet before her inclusion into the body
politic.145 Although lawmakers may have rational reasons
for withholding voting rights for noncitizens,146 it does
not follow that it is thus rational or necessary to deny
immigration benefits to and potentially deport noncitizens
who vote or register to vote in violation of election law.
Congress enacted IIRIRA in response to the
growing fears over “illegal immigration.”147 Ironically,
since the enactment of IIRIRA, immigration experts
have criticized the legislation on the grounds that it has
contributed to an increase in the number of unauthorized
immigrants in the U.S.148 It is no coincidence that IIRIRA
passed shortly after AEDPA, which Congress enacted
primarily to combat the threat of international terrorism.
Advocates and academics alike have decried the increasingly
frequent discursive linkages made by lawmakers between
illegal immig ration, crime, and terrorism as a sort of fear-
mongering.149 While the rule of law and national security are
undeniably of utmost importance to all
members of a society, the negative
consequences of this rhetoric are
clear: an increasingly polarized, and
oftentimes vitriolic, immigration debate.
The thrust of the debate is the big
question of line drawing—who is “in”
and who is “out” and, just as important, who has the right to
decide. In the context of voting rights, the debate centers on
the issue of voter fraud. Anti-immigrant advocacy groups
and media personalities frequently allege that noncitizen
voting is undermining the integrity of the electoral process
and manipulating election outcomes.150 These voices use fear
of widespread voter fraud by noncitizens to gain support
for stricter immigration policies.151 The false claims and
unlawful voter provisions validate and legitimize those fears,
regardless of the real—de minimis—extent of the problem.
Those seeking to counter claims of widespread voter
fraud by noncitizens frequently argue that voter fraud is rare,
    
      
     
SPRING 2011 11
largely because the consequences of committing voter fraud
are so disproportionate to the individual’s gain of a single
vote.152 Though convincing, this argument is not alone
sufficient to counter arguments in favor of maintaining the
IIRIRA provisions. For one, if noncitizen voter fraud is a
myth then the false claims and unlawful
voting provisions do no harm. Likewise,
one might argue, if noncitizens do
commit voter fraud, then the provisions
are necessar y as a deterrent in the
rational actor’s cost-benefit analysis.
There are several responses, however,
that highlight both the irrationality and the destructive effect
of IIRIRA’s false claims and unlawful voting provisions.
First, even if noncitizens are voting or registering
to vote, studies have largely debunked the myth that
noncitizen voting has improperly influenced elections.153
Those individuals who violate election laws likely do so
unintentionally. Either they believe they are citizens,
or they are not aware that only citizens can vote. Many
noncitizens may register to vote, at the DMV for example,
but never actually cast a vote, in which case they have no
effect on the outcome of elections. There have been a few
incidents or allegations of larger-scale voter fraud.154 In
those types of cases, however, individual noncitizens are
led to believe they can vote by trusted community-based
organizations. These situations are likely to be rare. Even
where noncitizens face draconian enforcement measures,
like what is currently happening in Arizona,155 immigrant
advocacy groups are unlikely to risk the political and
criminal consequences of encouraging noncitizens to vote
when alternate methods of advocacy exist. Thus, as long
as advocacy groups are aware of the voter restrictions, they
are unlikely to use noncitizen voting as a strategic tool.
Second, the IIRIRA provisions are not necessary to
deter voter fraud. The laws likely do not factor into the
individual’s decisional calculus because most noncitizens,
and even many immigration attorneys, are not aware of
the consequences of making a false claim to citizenship or
even what making a false claim entails.156 Even assuming
that noncitizens are aware of the consequences of
making a false claim in the context of voting, the threat
of deportation or denial of immigration benefits is not
necessary to deter noncitizens. Noncitizens who knowingly
commit voter fraud can be prosecuted under existing
state and federal laws, which impose significant penalties
for unlawful voting.157 Immigration law can then treat
these convictions the same way they treat all convictions.
From a deterrence perspective, it is simply not necessary
to create separate grounds of inadmissibility and removal.
Using deportation to sanction noncitizens for voting
or registering to vote is grossly disproportionate to the offense,
especially if the noncitizen did so unknowingly.158 A single
fraudulent vote is not likely to undermine the integrity of the
electoral process, and yet, the consequences of deportation
to an individual are enormous.159 Neither agency discretion
nor the availability of forms of relief mitigates this fact.160
For one, cancellation of removal and
other forms of removal relief are quite
limited in their availability.161 Second,
in both cases, the adjudicator—
either an immigration judge or an
agency official—is choosing between
imposing the sanction or not imposing
the sanction.162 Thus, the exercise of discretion does not
“inject proportionality” into the immigration system, simply
put, because there are no alter native sanctions available.163
Lastly, even if noncitizen voting is rare, the IIRIRA
false claims and unlawful voting provisions are far from
benign. For one, the provisions apply not only to those
who vote, but also to those who register to vote.164 Those
noncitizens that are found inadmissible or removable
for either violation are equally negatively impacted—they
may be denied immigration benefits and face possible
deportation.165 In addition, the provisions bolster the
rhetoric of anti-immigration advocates. Perhaps most
disturbing, however, is their symbolic impor t. In essence,
the IIRIRA provisions use elections, the symbol of the
democratic process itself, to enforce immigration law. It
is difficult to imagine what could be further from the
aspirational view of democracy as “citizenship as presence.”166
c. An Improper Role for Immigration Law
The tension between democratic norms of inclusion
and the inherently exclusive function of immigration law
may never be fully resolved. Still, as Motomura sugg ests in
his analysis of three different conceptions of immigration
law, society can choose the deg ree to which it incorporates
notions of equality into the immigration system.167
Regardless of a society’s ultimate decision to incorporate
noncitizens into the political process, the body politic has
a duty to ensure that U.S. immigration law both serves the
needs of society and reflects societal ideals.168 In this respect,
IIRIRA’s provisions represent a huge ste p backwards.
Motomura’s call to view immig ration as transition
requires revisiting the idea of extending voting rights to
noncitizens.169 For Motomura, “immig ration as transition
means treating lawful immigrants as Americans in waiting
from their first day in this country.”170 Because immigration
as transition presumes full equality for LPRs who intend
to naturalize,171 logically, this leads to the conclusion that
LPRs should have some voting rights.172 Raskin and others
have convincingly argued that LPRs should be allowed to
The tension between democratic norms
of inclusion and the inherently exclusive
function of immigration law may never
be fully resolved.
vote in local elections.173 Motomura echoes these proposals
with the qualification that voting rights for LPRs should be
temporally limited to the five-year period during which they
are not allowed to naturalize.174 Motomura’s proposal to
view immigration as transition bears significant resemblance
to the history of noncitizen voting in the U.S. as described by
Raskin. For Motomura, immigration law could do a better
job of recognizing the role of LPRs in modern American
society (“citizenship as standing”).175 In addition, extending
the franchise to LPRs serves the
practical function of “foster[ing] civic
education and involvement as aspects of
integration and transition to citizenship”
(“citizenship as integration”).176
Prior to the enactment of
IIRIRA, noncitizen voting in the
U.S. most closely resembled Motomura’s second concept
of immigration as affiliation. The logic of immigration
as affiliation prescribes that lawful immigrants gain rights
proportionate to their length of time in the country.177 In
a system that is mostly based on the affiliation concept,
the importance of naturalization is deemphasized since
LPRs eventually gain most of the rights of citizenship.178
Motomura points out that in certain European countries that
closely fit the immigration as affiliation model of citizenship,
resident noncitizens are allowed to vote in local elections.179
If naturalization is a priority in the U.S., under the affiliation
rationale, it makes sense to withhold certain rights, such as
the right to vote, in order to provide noncitizens with the
incentive to naturalize.180 The withholding of voting rights,
however, is only justified so long as noncitizens actually
benefit from other constitutional protections.181 While it is
debatable whether the rights of noncitizens were sufficiently
protected prior to the enactment of IIRIRA, when noncitizen
voting rights were governed exclusively by election law (with
criminal sanctions attached), the balance, though perhaps
not ideal, was still justifiable under democratic principles.
The landscape changed with the enactment of
IIRIRA, which essentially gave immig ration law a role to play
in regulating noncitizen voting. This aspect of immigration
law now most fully embodies the view of immigration as
contract, with the grounds of inadmissibility and removal
representing the “terms” of the contract. Before, noncitizens
who voted unlawfully had only to suffer the criminal
consequences, though still severe, of their actions. Now, the
fact that a noncitizen voted or registered to vote is by itself,
sufficient grounds for terminating that individual’s “contract”
to remain in the United States.182 The contract theory of
immigration, as described by Motomura, is premised on
the notion that fairness and justice can be achieved through
notice, promise, and expectations, rather than through any
assumption that noncitizens are entitled to equal rights.183
There are numerous problems with this rationale in
the case of the false claims and unlawful voting provisions.
First, the terms of the contract are unclear—what is a “false
claim to citizenship” anyway?184 Second, at least in the case
of the unlawful voting provision, which applies retroactively,
noncitizens do not get notice.185 Third, noncitizens may
not reasonably expect to be denied immigration benefits
or de ported for voting or merely registering to vote.
Motomura echoes the concerns, discussed above, about
the inadequacy of cancellation of
removal and discretion for preser ving
fairness.186 Lastly, noncitizens have
little choice over the terms.187 While
Motomura highlights the unequal
bargaining power of noncitizens vis-
à-vis many aspects of the immigration
system, nowhere is this more clearly reflected than in the
IIRIRA provisions: noncitizens may be deported for
participating, even unknowingly, in the process through
which their political rights are denied in the first place.
In that sense, the IIRIRA provisions are doubly punitive.
While these provisions make up only a small par t
of the immigration system as a whole, they are nevertheless
important because of the values they reflect. The provisions’
attempt to validate the concerns of some citizens that the
line between citizen and noncitizen has grown blurr y risks
further marginalizing noncitizens from the political process.
Noncitizens have the right to participate politically through
grassroots organizing and other informal channels.188
Even if one accepts the premise that denying noncitizens
the right to vote is a legitimate part of self-definition in
a democracy, the IIRIRA provisions go one step too far
in that they deny noncitizens even the potential to have
a voice—formal or infor mal. In Motomura’s words, “In
the context of national self-definition, focusing only on
promises, notice, and expectations is too narrowly utilitarian
and cavalier in its dismissal of equality, even where, as in
immigration and citizenship, some inequality is assumed.”189
V. Time for Radical Reform?: The Meaning of
“Citizenship” for Noncitizens
As currently written, the IIRIRA false claims
and unlawful voting provisions solidly reject the notion
of “citizenship as presence.” This paper has argued that
these provisions have threatened rather than protected
American democratic ideals. There are many easy fixes
that could mitigate their effects to some degree. Cong ress
could amend the provisions to explicitly incorporate
a specific intent requirement, or make an immigrant
waiver available, similar to one that exists for fraud and
misrepresentation. In the end, however, these solutions
From an advocacy perspective,
these provisions should be a
wake-up call.
SPRING 2011 13
do not go far enough. If naturalization and integration
are main goals of the immigration system, immigration law
cannot treat formal citizenship as an impermeable border.
At the very least, the provisions must be removed. Even
then, more is required to transition to a system that more
fully accounts for the true role of noncitizens in society. 190
From an advocacy perspective, these provisions
should be a wake-up call. Certainly, for the time being,
immigration attorneys must pay greater attention to the
implications of these provisions for their individual clients.
But, the provisions raise even greater issues in the context
of immigration reform: in whatever form it is likely to take,
it is ironic that those most likely to be affected do not have a
formal voice in the process. Advocacy groups should push
for the removal of these provisions, which both literally and
symbolically silence the noncitizen voice. Advocates should
also consider pushing for more radical reform, perhaps
even going so far as to reinvigorate the noncitizen suffrage
movement. Given the growing political influence of recently
naturalized citizens, 191 the time may soon be right for such
a movement, even if its scope is limited to voting rights at
the local level.192 In the end, if the project of self-definition
excludes individuals like the one whose story began this
paper, we have to question the validity of the project.
1 Anne Parsons is a third-year student at American
University Washington of Law, and a student attorney in
the Immigrant Justice Clinic. She would like to thank
Professor Elizabeth Keyes and The Modern American for
their significant contributions to this article. Any errors
are entirely her own.
2 Wszopa, Posting to Voter Registration Card & Voting
Through a Misunderstanding, MURTHY FORUM (July 3, 2005,
7:41 AM), http://murthyforum.atinfopop.com/4/Open
3 Throughout this paper, I make an attempt to use terms
that are both neutral and precise. In making general
references to all categories of immigrants, I use the term
“noncitizen” rather than the legally accurate, but more
inflammatory, “alien.” In addition, rather than “alien
suffrage,” I use various iterations of “noncitizen voting
rights.” Lastly, I avoid the use of “undocumented” or
“illegal” and instead refer to “unauthorized” migrants or
immigration. See Hiroshi Motomura, The Rights of Others:
Legal Claims and Immigration Outside the Law, 59 DUKE L.J.
1723, 1725-26 (2010) (commenting on language’s power
to depersonalize noncitizens).
4 See generally Virginia Harper-Ho, Noncitizen Voting Rights:
the History, the Law and Current Prospects for Change, 18
LAW & INEQ. 271, 273-83 (2000) (outlining the scope
of noncitizen voting rights through six periods of U.S.
history: Colonization, post-War of 1812, pre-Civil War,
Reconstruction, the turn of the 20th century, and current
5 Immigration & Nationality Act (INA) § 212(a)(6)(C)(i),
8 U.S.C. § 1182(a)(6)(C)(i) (2009).
6 Div. C, Omnibus Consolidated Appropriations Act,
Pub. L. No. 104-208, 110 Stat. 3009-546 (1997) (codified
as amended in scattered sections of 8 U.S.C.) [hereinafter
7 Id. § 347 (codified as amended at INA § 212(a)(10)(D),
8 U.S.C. § 1182(a)(10(D) (2009) and INA § 237(a)(6), 8
U.S.C. §1227(a)(6) (2008)).
8 BLACKS LAW DICTIONARY 278 (9th ed. 2009).
9 See Cristina M. Rodríguez, Noncitizen Voting and the
Extraconstitutional Construction of the Polity, 8 INTL J. CONST.
L. 30, 30 (2010).
10 Cf. Cabell v. Chavez-Salido, 454 U.S. 432, 439-40 (1982)
(“The exclusion of aliens from basic governmental
processes is not a deficiency in the democratic system
but a necessary consequence of the community’s process
of political self-definition. Self-government, whether
direct or through representatives, begins by defining the
scope of the community of the governed and thus of the
governors as well: Aliens are by definition those outside
of this community.”).
11 Most states also prohibit convicted felons from voting
while in prison, on probation, or in parole. A few states
impose a lifetime denial of the right to vote on all citizens
with a felony record. See Brennan Center for Justice,
Criminal Disenfranchisement Laws Across the United
States (May 3, 2007), http://www.brennancenter.org/
21 (2008) (conceptualizing citizenship as a set of “rules
and practices of distribution and exclusion”).
13 See Jamin Raskin, Legal Aliens, Local Citizens: The Historical,
Constitutional and Theor etical Meanings of Alien Suffrage, 141
U. P A. L. REV. 1391, 1397-98 (1993) (explaining that
states’ extension of voting rights to noncitizens reflected
the prevalent belief that individual states could define
their citizenry independent of the national government).
14 See id. at 1395.
15 See id. at 1401.
16 See id. at 1405 (discussing Illinois’s early policy of
encouraging settlement through the vote as also expressing
the notion that political inclusion should be based not
on for mal citizenship, but on habitation, residence, and
social membership).
17 See id. at 1398.
18 Id.
19 Id.
20 See, e.g., id. at 1441-67; Harper-Ho, supra note 4, at
298-305 (refuting arguments against permanent resident
21 See Harper-Ho, supra note 4, at 310-22 (describing several
city and state initiatives to enfranchise noncitizens); see also
Immigrant Voting Project, http://www.immig rantvoting.
org/ (last visited Apr. 26, 2010) (providing updates on
current efforts to restore voting rights for noncitizens in
the U.S.).
22 See Erin E. Stefonick, Note, The Alienability of Alien
Suffrage: Taxation Without Representation in 2009, 10 FLA.
COASTAL L. REV. 691, 696-97 (2009) (arguing that denying
taxpaying noncitizens benefits, including the right to
vote, is unjust). But see Raskin, supra note 13, at 1468
(expressing doubt that arguments for noncitizen voting
in local elections apply with equal force in state and
national elections due to the strong ideological hold of
nationalism); Harper-Ho, supra note 4, at 294 (echoing
Raskin’s asser tion that extending suffrage to noncitizens
at the national level would implicate valid foreign policy
23 See Rodríguez, supra note 9, at 35 (stressing that although
a democratic regime must find ways to account for the
interests of noncitizens subject to its jurisdiction, it can
do so without extending voting rights to noncitizens).
24 See Raskin, supra note 13, at 1421-31 (arguing that alien
suffrage is consistent with the principles of republicanism,
the suffrage amendments, and the Naturalization
25 With regards to whether noncitizens have a
constitutionally protected right to vote, the Supreme
Court has remarked: “This Court has never held that aliens
have a constitutional right to vote . . . under the Equal
Protection Clause. Indeed, implicit in many of this Court’s
voting rights decisions is the notion that citizenship is a
permissible criterion for limiting such rights.” Sugarman
v. Dougall, 413 U.S. 634, 648-49 (1973).
26 See Rodríguez, supra note 9, at 36.
27 See id. at 39.
28 Id.
29 Id. at 40.
30 See id. at 46 (noting that a society’s manner of selecting
immigrants dictates the character of the polity).
31 See Juliet Stumpf, The Crimmigration Crisis: Immigrants,
Crime, and Sover eign Power, 56 AM. U. L. REV. 367, 414-15
(2006) (questioning whether members of a democratic
society should have the power to exclude individuals).
UNITED STATES 46 (2006).
33 See Rodríguez, supra note 9, at 45.
34 See MOTOMURA, supra note 32, at 47-48 (discussing
the overlap between alienage laws that limit noncitizen
eligibility for public benefits and the “public charge”
exclusion and deportation grounds). Before 1996,
noncitizen voting was regulated exclusively by alienage
laws. IIRIRA effectively made noncitizen voting the
subject of immigration law as well. See infra Part III(b).
35 See MOTOMURA, supra note 32, at 46.
36 See Korematsu v. United States, 323 U.S. 214 (1944);
Graham v. Richardson, 403 U.S. 365 (1971).
37 See Chae Chan Ping v. United States, 130 U.S. 581, 603
(1889) (establishing Congress’s plenary power to exclude
38 See infra Part IV.
39 See Rodríguez, supra note 9, at 36.
40 See MOTOMURA, supra note 32, at 9-12.
41 See id. at 10 (observing that the contract model
holds that providing notice, keeping promises, and
protecting expectations are sufficient to secure justice for
42 See id.
43 See id. at 60 (analogizing immigration to an unenforceable
“adhesion contract”).
44 See id.
45 See id. at 11 (discussing that immigration as affiliation is
premised on the notion of “earned equality”).
46 See id. at 94-95 (expressing concern that reducing
incentives to naturalize will lead to a large population of
noncitizens who are less than full participants in society).
47 See INA § 240A, 8 U.S.C. § 1229b (2008); see also Matter
of C-V-T-, 22 I&N 7, 11 (BIA 1998) (listing relevant
discretionary factors).
48 See MOTOMURA, supra note 32, at 11.
49 LPRs must prove that they have not committed any
aggravated felonies. INA § 240A(a)(3). Other noncitizens
must prove that they have not committed cer tain crimes
involving moral turpitude, aggravated felonies, or certain
types of document fraud. INA § 240(A)(b)(1)(c).
50 Additional requirements include: proof of good moral
character, “exceptional or extremely unusual hardship” to
a U.S. citizen child, spouse, or parent, and proving ten
years of continuous residence instead of the seven years
SPRING 2011 15
required of LPRs. INA § 240(A)(b)(1).
51 See id. at 13.
52 Id.
53 Id. at 8.
54 Id. at 9.
55 See INA §§ 301-09, 8 U.S.C. §§ 1401-09 (1994).
56 See INA § 310, 8 U.S.C. § 1421 (1994).
57 The INA contains special provisions for children of
U.S. citizens who are born outside of the U.S. See INA §
322, 8 U.S.C. § 1443 (2008).
58 See MOTOMURA, supra note 32, at 144.
59 Cf. Rodríguez, supra note 9, at 40 (asserting that the U.S.’s
generous naturalization regime “balances the objective of
giving those who are governed by the law a voice, on the
one hand, with the interest in ensuring the acculturation
of members of the polity who exercise state authority”).
60 See INA § 316(a)(1), 8 U.S.C. § 1427(a)(1) (2006).
61 See INA § 319(a), 8 U.S.C. § 1430(a) (2008).
62 See INA § 316(a)(2), 8 U.S.C. § 1427(a)(2) (2006).
63 See INA § 316(a)(3), 8 U.S.C. § 1427(a)(3) (2006). Several
categories of people are precluded from establishing
“good moral character,” including habitual drunkards,
persons convicted of serious criminal offenses, and
noncitizens who make false claims of citizenship, or who
unlawfully register to vote or vote in a local, state, or
federal election. INA § 101(f), 8 U.S.C. § 1101(f) (2009).
64 See MOTOMURA, supra note 32, at 143 (noting that average
denial rates were once as low as 3 percent but spiked
dramatically in the late 1990s to around 35 percent).
The United States Citizenship and Immig ration Services
(“USCIS”) posts its approval and denial statistics for
naturalization benefits each month. In February 2010,
USCIS approved 50,520 and denied 4346 applications
for citizenship. In that same month, the number of
approvals and denials for FY2009 totaled 741,982 and
109,832 respectively. See USCIS, Naturalization Benefits
(Feb. 2010), available at http://www.uscis.gov/USCIS/
65 See Rodríguez, supra note 9, at 44 (concluding that a
society’s immigration regime reflects its method of
balancing democratic accountability and sovereignty).
One interesting comparative study of resident alien
voting rights in twenty-five democracies found that states
that offer birthright citizenship, and hence tend to view
the nation as a multicultural community, are more likely
to extend voting rights to noncitizens than are states
operating on the doctrine of jus sanguinis. See also David C.
Earnest, Neither Citizen Nor Stranger: Why States Enfranchise
Resident Aliens, 58 WORLD POL. 242, 263 (2006).
66 See Harper-Ho, supra note 4, at 274.
67 See Walter A. Ewing, Immigration Policy Ctr., Opportunity
and Exclusion: A Brief History of U.S. Immigration Policy (Nov.
25, 2008), available at http://www.immigrationpolicy.org/
68 Id. (noting that the Naturalization Act limited citizenship
to “free white persons” of “good moral character”).
69 See Harper-Ho, supra note 4, at 273 (including
constitutional amendments, changes in voting rights laws,
and demographic changes in the immigrant population
as other factors contributing to the decline of noncitizen
voting rights).
70 Id. at 275-76 (commenting that Michigan’s decision to
extend the vote to noncitizens when it entered the Union in
1835 sparked controversy among nativist Congressmen).
71 Id. at 276-77 (describing how frontier states used the
franchise to draw immigrant settlers during this period).
72 Id. at 281.
73 See Ewing, supra note 67, at 3 (discussing the
Immigration Act of 1875 that excluded criminals,
prostitutes, and Chinese contract laborers; the infamous
Chinese Exclusion Act of 1882; and a separate 1882 act
that excluded “lunatics” and persons likely to become a
“public charge”).
74 See Harper-Ho, supra note 4, at 282.
75 Id. (noting that four of the last states allowing noncitizens
to vote terminated noncitizen suffrage in 1918).
76 In 1921, Congress passed the first immigration law
imposing numerical limits on immigration, which created
an annual immigration cap of 350,000 with geographical
restrictions favoring immigrants from northwestern
Europe. See Ewing, supra note 67, at 4.
77 Refugee Relief Act of 1953, Pub. L. No. 83-203, § 11(e),
67 Stat. 400; see also Charles Gordon, Stanley Mailman, &
Stephen Yale-Loehr, 5-63 IMMIGRATION LAW & P. § 63.07
(201) (explaining that inhibiting the entry of former
Nazis, spies, and terrorists was the primary purpose of
the Act).
78 Id. § 63.07(3)(a).
79 Id.
80 Pub. L. No. 99-639, § 6(a), 100 Stat. 3537, 3543-44
(codified as amended at INA § 212(a)(6)(C), 8 U.S.C. §
1182(a)(6)(C) (2009)).
81 Id. § 212(a)(6)(C)(i) (providing “[a]ny alien who, by
fraud or willfully misrepresenting a material fact, seeks to
procure (or has sought to procure or has procured) a visa,
other documentation, or admission in the United States or
other benefit provided under this Act is inadmissible”).
82 Pub. L. No. 104-132, 110 Stat. 1214 (codified as amended
in scattered sections of 8 U.S.C.).
83 Shortfalls of the 1996 Immigration Reform Legislation: Hearing
Before the Subcomm. on Immigration, Citizenship, Refugees, Border
Security, and International Law of the H. Comm. on the Judiciary,
110th Cong. 29 (2007) (prepared statement of Paul W.
Virtue) [hereinafter Shortfalls of the 1996 Immigration Reform
84 Id. at 29-30 (referring to the retroactive changes to
the “aggravated felony” definition and other new bars
to admissibility and their effect on lawful permanent
& Elliot Robert Barkan eds., 1999).
86 Id.
87 See generally Kathleen Sullivan, IIRAIRA: Comparative
Charts, 2 BENDERS IMMIGR. BULL., Feb. 1, 1997, at 90
(comparing the pre- and post-IIRIRA grounds of
excludability, inadmissibility, and deportability). As part
of these extensive changes, IIRIRA also introduced the
concepts of “admission” and “removal” to replace the old
concepts of “entry” and “deportation.” §§ 301, 304(a).
88 See 142 CONG. REC. S4577 (daily ed. May 2, 1996)
(statement of Sen. Simpson) (agreeing that creating a
disincentive for immigrants to make a false claim to
citizenship in the form of new grounds of exclusion
and deportation will counteract any weaknesses in the
electronic employment verification pilot programs).
89 § 344(a) (creating new INA § 212(a)(6)(C)(ii), 8 U.S.C.
§ 1182(a)(6)(C)(ii) (2009)). The provision bars admission
to any noncitizen who falsely claims citizenship “for any
purpose or benefit under [the INA] . . . or any other
Federal or State law,” expressly including benefits under
INA § 274A, which deals with the unlawful employment
of noncitizens.
90 § 344(b) (creating new INA § 237(a)(3)(D), 8 U.S.C. §
1227(a)(3)(D) (2009)).
91 § 215 (creating new 18 U.S.C. § 1015(e) (2009)).
92 § 347 (creating new INA § 212(a)(10)(D), 8 U.S.C. §
1182(a)(10(D) (2009) (inadmissibility ground)); (creating
new INA § 237(a)(6), 8 U.S.C. §1127(a)(6) (2009) (removal
93 § 344.
94 Id.
95 See id. (applying to noncitizens who vote unlawfully
before, on, or after Sept. 30, 1996).
96 § 216 (codified as amended at 18 U.S.C. § 611).
97 § 215 (codified as amended at 18 U.S.C. § 1015(f)
98 Pub. L. 306-395, 114 Stat. 1631 (Oct. 30, 2000) (codified
as amended in scattered sections of 8 U.S.C.).
99 The exception applies if the noncitizen meets three
conditions: 1) reasonable belief of citizenship; 2) both
parents are U.S. citizens; and 3) permanent residence in
the U.S. before the age of sixteen.
100 Pub. L. No. 103-31, 107 Stat. 77 (codified as amended
at 42 U.S.C. §§ 1973gg-gg-10 (2006)).
101 Id. § 1973gg-2.
2 (2007).
103 Id. at 3.
104 Id.
105 See Christina Murdoch, Motor Voter Laws: A Potential
Trap for Non-citizens, SCOTT D. POLLOCK & ASSOCIATES,
P. C . (Dec. 15, 2009, 3:03 PM), http://www.lawfirm1.
106 See INA §§ 212(a)(10)(D), 237(a)(6).
107 D. Martin, INS Memorandum, Legal Consequences of
Voting by an Alien Prior to Naturalization (Feb. 13, 1997),
available at http://www.uscis.gov (Adjudicator’s Field
Manual, Appendix 74-9) [hereinafter Martin Memo].
Accord McDonald v. Gonzales, 400 F.3d 684 (9th Cir.
2005) (finding the government failed to prove that a
naturalization applicant was removable by clear and
convincing evidence since she lacked the requisite mens
rea necessary to establish a violation of state election
108 See W. Yates, DHS Memorandum, Procedures for Handling
Naturalization Applications of Aliens Who Voted Unlawfully
or Falsely Represented Themselves as U.S. Citizens by Voting or
Registering to Vote (May 7, 2002), published at 8 Immigration
L. Service 2d PSD Selected DHS Document 1530 (2010)
[hereinafter Yates Memo].
109 See INA §§ 212(a)(6)(C)(ii), 237(a)(3)(D).
110 See Kathrin S. Mautino, False Claims to U.S. Citizenship,
2008 LEXSEE EMERGING ISSUES 1748 (2008).
111 Id.
112 Id.
113 INA §§ 212(a)(6)(C)(ii), 237(a)(3)(D).
114 See INA § 101(a)(15)(A), 8 U.S.C. § 1101(a)(15)(A)
115 See INA § 212(d), 8 U.S.C. § 1182(d) (2009).
116 Id. § 212(d)(3A).
117 See Mautino, supra note 110.
118 Id.
119 See INA § 245(a), 8 U.S.C. § 1255(a) (2006). Under the
INA, admission is defined as “lawful entry of the alien
into the United States after inspection and authorization
by an immigration officer.” INA § 101(a)(13)(A), 8 U.S.C.
SPRING 2011 17
§ 1101(13)(A) (2009).
120 INA §§ 212(a)(6)(C)(ii), 212(a)(10(D); see also, Martin
Memo, supra note 107 (noting that the INS has little
discretion when making admissibility determinations).
121 See INA § 212(i), 8 U.S.C. § 1182(i) (2009).
122 Note, however, that DHS has broad authority to
waive these grounds of inadmissibility for U and T visa
applicants pursuant to INA § 212(d)(14). The U and T visa
are nonimmigrant visas that provide a pathway to adjust
status, thus, these visas may provide an indirect waiver for
the inadmissibility grounds at INA §§ 212(a)(6)(C)(ii) and
212(a)(10)(D) for U and T visa holders.
123 See USCIS, Form I-485, available at http://www.uscis.
124 See, e.g ., USCIS, Administrative Appeals Office,
Application to Register Permanent Resident or Adjust Status under
Section 245 of the Immigration and Nationality Act; 8 U.S.C.
§ 1255 (May 19, 2006), available at http://www.uscis.gov/
(finding an applicant inadmissible and thus ineligible for
adjustment of status under INA § 212(a)(10)(D) when
applicant voted in a federal election while believing he
was a U.S. citizen).
125 See generally, SEAGO, supra note 102. But see HANS A.
NONCITIZEN VOTING 4-5 (2008), available at http://www.
of-Non-Citizen-Voting (asserting that federal agencies
routinely fail to honor election officials’ requests to verify
citizenship status of registered voters).
126 INA § 240(A)(b)(1)(C).
127 See Yates Memo, supra note 108, at 8.
128 See id. The Board of Immigration Appeals addressed
this issue in Matter of K-, 3 I&N 180, 180-2 (BIA 1949)
(holding that a noncitizen who voted in a national election
because his union required its member to vote was not
precluded from establishing good moral character even
though he knew he was not eligible, when he retracted
his claim in a timely manner). Subsequent decisions
finding that offenses that entail “a deliberate deception
and impairment of governmental functions” constitute
crimes involving moral turpitude cast doubt on the
holding in Matter of K-. See Matter of Flores, 17 I&N
225, 230 (BIA 1980) (denying voluntary departure based
on a finding that a conviction for selling counterfeit
documents relating to the registry of aliens constitutes
a crime involving moral turpitude); see also Martin Memo,
supra note 108, n. 6 (speculating that the Board may
reconsider its holding in Matter of K- based on its holding
in Matter of Flores, and noting that actual intent to deceive
the government may weigh heavily in the deter mination
of whether a particular voting related offense constitutes
a crime involving moral turpitude).
129 INA § 212(h) (authorizing waiver of certain crimes if
the offense occurred more than fifteen years before the
date of the noncitizen’s application for a visa, admission,
or adjustment of status, the admission is not contrary
to the national welfare or security of the U.S., and the
noncitizen can prove rehabilitation).
130 See id. (referencing INA § 237(a)(3)(D), the false claim
to citizenship grounds for removal).
131 INA §§ 240A(b)(1)(B), 240(B)(b)(1)(B).
132 INA § 101(f)(3).
133 INA § 101(f)(7).
134 INA § 101(f)(9).
135 INA § 242(a)(2)(B)(i) (barring judicial review of any
judgment regarding the granting of relief under the
waiver provisions in § 212(h) and § 212(i), cancellation or
removal, voluntary departure, and adjustment of status).
Note that judicial review is available for asylum, also a
discretionary form of relief, but under a highly deferential
standard. See INA § 242(b)(4)(D).
136 See R. Bratt, INS Memorandum, Voter Registration and
Standardized Date Citizenship Testing (May 13, 1997), available
at http://www.uscis.gov (Adjudicator’s Field Manual,
Appendix 74-10).
137 See USCIS, Form N-400, available at http://www.uscis.
138 See Yates Memo, supra note 108.
139 Id. (directing adjudicators to consider factors such as
family ties and background, criminal history, education,
employment history, community involvement and other
law-abiding behavior, credibility, and the length of time
in the U.S.).
140 See supra notes 131-37 and accompanying text.
141 See id. For example, the guidelines suggest that an
officer might find good moral character if the applicant
registered to vote in a federal election fifteen years ago,
but did not actually vote. In addition, the guidelines
state the applicant must have been “specifically told by
a community organization that he or she was entitled to
vote.” Fur ther, if the applicant has any other criminal
history, the officer is more likely to find lack of good
moral character. Id.
142 See INA § 336(a) (providing that a naturalization
applicant may request a hearing before another
immigration officer if her application is denied).
143 See INA § 312(c).
144 Stumpf, supra note 31, at 398.
145 Id.
146 This paper accepts that denying noncitizens the right
to vote may not be inherently at odds with democratic
principles, especially in societies where the right to vote
constitutes the only meaningful distinction between
citizens and noncitizens. See supra Part II(a). For a detailed
analysis of the arguments for and against extending voting
rights to noncitizens, see Harper-Ho, supra note 4, at 294-
147 See Motomura, supra note 3, at 1725-26 (noting the use
of such charged terms by anti-immigration advocates to
stimulate public emotion over immigration issues).
148 See Shortfalls of the 1996 Immigration Reform Legislation,
supra note 83, at 32 (prepared statement of Paul W. Virtue)
(arguing that IIRIRA’s expansion of the grounds of
admissibility and creation of the three and ten years’ bars
to re-admission discourage circular migration patterns
and force individuals to choose between unauthorized
presence and separation from family). But see id. at 52
(prepared statement of Mark Krikorian) (asserting
that lack of interior enforcement is the root of the
unauthorized immigration problem).
149 See Stumpf, supra note 31; Matthew J. Lindsay,
Immigration as Invasion: Sovereignty, Security, and the Origins of
the Federal Immigration Power, 45 HARV. C.R.-C.L. L. REV. 1
(2010); Jennifer M. Chacón, Unsecured Borders: Immigration
Restrictions, Crime Control, and National Security, 39 Conn. L.
Rev. 1827 (2007).
150 See, e.g., Federation for American Immigration Reform,
Illegal Aliens in Elections and the Electoral College (Oct. 2004),
ationissuecentersd70b; Lou Dobbs Tonight (CNN broadcast
Jan. 17, 2008), available at http://www.youtube.com/
151 See, e.g., VON SPAKOVSKY, supra note 125.
153 See id. at 19 (refuting allegations of voter fraud).
154 A widely publicized incident in 1997 involved a
Latino rights organization in California that distributed
voter registration forms to noncitizens whom it was
helping through the naturalization process. The charges
were dropped after a yearlong investigation failed to
substantiate the allegations of widespread voter fraud. See
Michael G. Wagner & Nancy Cleeland, D.A. Drops Voter
Probes After Indictments Rejected, L.A. TIMES, Dec. 20, 1997,
at A1. In 2008, national community group Acorn came
under scrutiny for fraudulently registering voters in poor
neighborhoods, though there were no specific allegations
of widespread voting by noncitizens. See John Schwartz,
Report Uncovers No Voting Fraud by Acorn, N.Y. TIMES, Dec.
23, 2009, at A15.
155 See Randal C. Archibold, Arizona Enacts Stringent Law on
Immigration, N.Y. TIMES, Apr. 23, 2010, at A1 (reporting on
the new state law which gives state and local police broad
powers to detain any individual suspected of unauthorized
presence in the U.S.).
156 See Murdoch, supra note 105.
157 See LEVITT, supra note 152, at 7 (noting the penalty for
violating federal election law includes five years in prison
and a $10,000 fine).
158 See Juliet Stumpf, Fitting Punishment, 66 WASH. & LEE L.
REV. 1683, 1689 (2009) (calling for the use of graduated
sanctions in immigration law).
159 Padilla v. Kentucky, 130 S. Ct. 1473, 1481 (2010) (“We
have long recognized that deportation is a particularly
severe ‘penalty,’ . . . but it is not, in a strict sense, a criminal
sanction.”) (citing Fong Yue Ting v. United States, 149
U.S. 698, 740 (1893)).
160 See Stumpf, supra note 158, at 1693-1706.
161 Id. at 1699.
162 Id. at 1705.
163 Id. at 1704.
164 INA §§ 212(a)(6)(C), 237(3)(D).
165 See supra Part IV(a).
166 See Raskin, supra note 13, at 1392 (“But if ‘universal
suffrage’ for all persons living in the governed jurisdiction
is not logically required by democratic ideology, through
social struggle it has almost always become a political
imperative in democratic history.”). See also David C.
Earnest, Noncitizen Voting Rights: A Survey of Emerging
Democratic Norms, 2003 Annual Meeting of the American
Political Science Association, Philadelphia, PA (Aug.
29, 2003), available at http://www.odu.edu/~dearnest/
pdfs/Earnest_APSA_2003.pdf (creating a typology of
“resident-alien” voting rights by surveying the practices
of democratic states worldwide).
167 See generally MOTOMURA, supra note 32, at 9-14 (articulating
the differences between the concepts of immigration as
contract, affiliation, and transition).
168 There are those who argue that the only alternative
to “open borders” is a “tightly controlled immigration
system.” See, e.g., Shortfalls of the 1996 Immigration Reform
Legislation, supra note 83, at 55 (prepared statement of Mark
Krikorian). Motomura’s approach is not inconsistent
SPRING 2011 19
with the rule of law, and in fact, he argues that when our
immigration system does not adhere to concepts of due
process, checks and balances, and discretion, immigration
law itself undermines the r ule of law. See id. at 42-47
(prepared statement of Hiroshi Motomura).
169 See MOTOMURA, supra note 32, at 191.
170 Id. at 155.
171 Id. (admitting that affording LPRs g reater rights will
likely mean that the distinction between intending citizens
and other categories of noncitizens will become more
172 Id. at 191.
173 See Raskin, supra note 13, at 1460-66; see also Harper-
Ho, supra note 4, at 294-98.
174 See MOTOMURA, supra note 32, at 193.
175 Id.
176 Id. at 194.
177 Id. at 154 (describing affiliation as a system of “earned
178 Id. at 157.
179 Id.
180 Id. (hypothesizing that the noncitizen suffrage
movement has not gained currency in the U.S. because
of the relative ease with which long-time LPRs can
181 Id.
182 See INA §§ 212(a)(6)(C)(ii), 212(a)(10), 237(a)(3)(D),
183 See MOTOMURA, supra note 32, at 37.
184 See Mautino, supra note 110 (stating that the lack of
analysis of these provisions by courts or administrative
agencies is “both surprising and troubling” given the
extreme consequences attached to a finding of a false
claim). But cf. United States v. Knight, 490 F.3d 1268,
1271 (11th Cir. 2007), cert. denied, 552 U.S. 1016 (2007)
(rejecting defendant’s arguments that 18 U.S.C. § 611, the
statute criminalizing noncitizen voting in federal elections,
violated his due process rights on the grounds that the
statute is overbroad and impermissibly vague).
185 See INA §§ 212(a)(10), 237(a)(6).
186 See MOTOMURA, supra note 32, at 55.
187 Id. at 60.
188 For a comprehensive discussion of LPR’s First
Amendment right to donate to U.S. political campaigns
and arguments for why nonimmigrants should be
afforded the same rights, see generally, Bruce D. Brown,
Alien Donors: The Participation of Non-Citizens in the U.S.
Campaign Finance System, 15 YALE L. & POLY REV. 503
(1997). It is worth mentioning that, absent a criminal
conviction, apparently no immigration consequences
attach to a non-LPR’s violation of campaign finance laws,
an anomaly which further undermines arguments that the
IIRIRA provisions are necessary to prevent noncitizens
from influencing election outcomes.
189 Id. at 62.
190 Id. at 202 (arguing that “new lawful immig rants [should]
be treated just like citizens in a number of key areas,
including family reunification, public education, public
assistance, voting, and public employment”).
191 See Rob Paral & Associates, Immigration Policy Ctr.,
The New American Electorate: The Growing Power of Immigrants
and Their Children (2008).
192 See Raskin, supra 13, at 1468 (discussing the foreign
policy implications of noncitizen voting at the national
See Anne Parson’s “Inside the Authors’ Studio” inter view on our website to learn more about her inspiration for the article, and her
thoughts about the issues and questions emerging from the article.