Matter of Fitzpatrick, 26 I&N Dec. 559 (BIA 2015): Examining Deportability Provision for Unlawful Voters

Matter of Fitzpatrick


Introduction: Matter of Fitzpatrick, 26 I&N Dec. 559 (BIA 2015)

On May 7, 2015, the Board of Immigration Appeals (BIA) issued a published decision in Matter of Fitzpatrick, 26 I&N Dec. 559 (BIA 2015) [PDF version]. In Matter of Fitzpatrick, the Board held that an alien who voted in an election involving candidates for Federal office in violation of 18 U.S.C. 611 is deportable under section 237(a)(6)(A) (unlawful voting), regardless of whether he or she knew that the voting was unlawful.

Matter of Fitzpatrick is the Board's most notable statement on the unlawful voting deportability ground in section 237(a)(6)(A). Furthermore, its reasoning extends to the nearly identical inadmissibility ground for unlawful voting found in section 212(a)(10)(D). In this article, we will examine the facts and procedural history of Matter of Fitzpatrick, the Board's analysis and conclusions, and what the decision means today.

Please see our full article on inadmissibility and deportability for unlawful voting to learn more about the subject [see article].

Factual and Procedural History: 26 I&N Dec. at 559-60

The respondent, a native and citizen of Peru, became a lawful permanent resident of the United States through adjustment of status in 2004.

Just over one year later, the respondent applied for an Illinois driver's license and signed a voter registration application. On the voter registration application, the respondent checked a box indicating that she was a U.S. citizen.

In 2007, the respondent filed an application for naturalization. On her application, she indicated that she had both registered to vote and had voted in an election in the United States. The respondent stated in her naturalization interview that she had voted in 2006.

Based on these facts, the Department of Homeland Security (DHS) issued a notice to appear in 2008. The notice to appear alleged that the respondent voted in the general election in Illinois on November 7, 2006, in violation of 18 U.S.C. 611. The DHS charged the respondent with removability under section 237(a)(6)(A) of the INA as an alien who voted unlawfully. Separately, the DHS also charged the respondent as removable under section 237(a)(3)(D) as an alien who had made a false claim to U.S. citizenship.

The Immigration Judge found that the respondent was removable on both the section 237(a)(3)(D) and 237(a)(6) charges. Regarding section 237(a)(6), the Immigration Judge based the conclusion that the respondent had voted in violation of 18 U.S.C. 611(a) on her having voted in the November 7, 2006 general election in Illinois. The DHS alleged in its complaint that the respondent had also voted in the March 21, 2006 primary election in Illinois. However, the Immigration Judge did not address that in the decision and it was not raised by either party on appeal.

The respondent appealed from the Immigration Judge's decision to the BIA. The respondent took the position that the Immigration Judge erred in finding her removable under section 237(a)(6)(A) for having voted in violation of a Federal statute (in this case, 18 U.S.C. 611(a)).

Analysis and Conclusions: 26 I&N Dec. at 560-62

Under section 237(a)(6)(A) of the INA, “[a]ny alien who has voted in violation of any Federal, State, or local constitutional provision, statute, ordinance, or regulation is deportable.” Please see the relevant section of our full article on the provision to read more about the statute [see section].

In Matter of Fitzpatrick, the DHS alleged that the respondent had violated 18 U.S.C. 611(a), a Federal statute. The Board excerpted the pertinent part of 18 U.S.C. 611(a), which makes it “unlawful for any alien to vote in any election held solely or in part for the purpose of electing a candidate 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.”

The respondent did not dispute either of the following points:

1. That she had voted in the November 7, 2006 general election, which involved candidates for Federal office; and
2. That she had known she was not a U.S. citizen at the time she voted.

The respondent, however, argued that she had not intended to vote in violation of 18 U.S.C. 611. Based on this claim, the respondent argued that she was not deportable under section 237(a)(6) of the INA. The Board, for the foregoing reasons, rejected the respondent's argument.

First, the Board took the position that “the DHS need not show that the respondent knew she was committing an unlawful act by voting in the election.” Furthermore, the Board explained that the Federal statute relied upon by the DHS, 18 U.S.C. 611(a), is not a specific intent crime. This conclusion was in accord with the United States Court of Appeals for the Seventh Circuit in Kimani v. Holder, 695 F.3d 666, 669 (7th Cir. 2012) [PDF version], which concluded that 18 U.S.C. 611(a) is a “general intent crime.”

Citing to Kimani, 695 F.3d at 669, the Board explained that the only proof required by 18 U.S.C. 611(a) is that the defendant was an alien who voted in an election in which he or she was not permitted to vote. Accordingly, because the respondent did not dispute that she knew that she was not a U.S. citizen and that she voted in the general election, the Board concluded that her act of voting in 2006 was in violation of 18 U.S.C. 611(a).

The respondent argued in the alternative that her unlawful vote fell under an exception to the Federal criminal statute upon which the DHS relied, 18 U.S.C. 611(a). The Board excerpted this exception as follows:

[Click image to view full size]

The respondent argued that she fell within the exception under 18 U.S.C. 611(a)(1) because the election in which she voted was “held partly for some other purpose.” In this case, the election in which the respondent voted was also held to elect members of the local school board.

However, the Board explained that satisfying one of the three prongs of the exception to 18 U.S.C. 611(a) was not sufficient,because all three requirements must be met. First, regarding 18 U.S.C. 611(a)(2), the Board explained that the respondent failed to cite to any legal authority that indicated that she was authorized to vote in that local election or that lawful permanent residents in general were allowed to vote in any election in Illinois. Regarding 18 U.S.C. 611(a)(3), the Board found no evidence in the record indicating that the election for the local school board was conducted independent of voting for candidates for Federal office. In fact, the Board explained that “the record contains election ballots from the November 2006 general election, which included candidates for both Federal offices and the local school superintendent.”

Accordingly, the Board concluded that the respondent was removable for unlawful voting as charged under section 237(a)(6). Because the Board concluded that the respondent was removable for unlawful voting, and because the respondent did not claim that she was eligible for relief from removal, the Board did not reach the question of whether she was also removable under section 237(a)(3)(D).

Rejecting Reliance on Ninth Circuit Decision: 26 I&N Dec. at 561 n.3

Because Matter of Fitzpatrick arose in the jurisdiction of the Seventh Circuit, the Board was bound by the reasoning of the Seventh Circuit in Kimani v. Holder. In presenting her argument, the respondent relied extensively on a decision of the United States Court of Appeals for the Ninth Circuit in McDonald v. Gonzales, 400 F.3d 684 (9th Cir. 2005) [PDF version].

McDonald concerned a violation of a Hawaii unlawful voting statute instead of 18 U.S.C. 611(a). In that case, the Ninth Circuit read the term “knowingly” in the Hawaii statute as requiring that the alien must have known that he or she was voting unlawfully in Hawaii. However, the Board explained that a similar reliance on McDonald was rejected in Kimani, which also involved 18 U.S.C. 611(a), with the Seventh Circuit noting that the Federal statute involved different language than the Hawaii statute involved in McDonald. In any case, the Board added that it was not bound by McDonald in cases arising outside the jurisdiction of the Ninth Circuit.

Please see the relevant section of our main article on unlawful voting for a discussion of the continuing significance, and potential limitations, of McDonald [see section].


Matter of Fitzpatrick highlights the broad reach of the inadmissibility and deportability provisions for unlawful voting. In general, aliens are not permitted to vote in any election for any office. There are limited cases in which a jurisdiction may have a special provision allowing aliens to vote in specified local elections. However, even in a case where a jurisdiction authorizes certain aliens to vote for certain local offices, an alien should seek expert guidance and carefully follow all requirements in order to not run afoul of sections 212(a)(10)(D) or 237(a)(6). Aliens are never permitted to vote in elections for Federal offices.

Although the Board did not reach the issue, it would have likely also upheld the Immigration Judge's decision that the respondent was removable for having made a false claim to U.S. citizenship on her voter registration application. As we discuss in our series of articles on the subject, making a false claim to U.S. citizenship as a particularly punitive inadmissibility/deportability ground that an alien should make every effort to avoid [see index].

An alien who is charged as inadmissible or removable for unlawful voting or on any other ground should consult with an experienced immigration attorney for case-specific guidance.