Unlawful Voting and Naturalization
Voting by a noncitizen can create consequences far beyond an ordinary good moral character problem. Depending on the election, applicable federal, state, or local law, citizenship representations, and surrounding facts, USCIS may question good moral character, find a person deportable, place the applicant in removal proceedings, or deny naturalization. At the same time, voter registration is not the same as voting, and not every vote by a noncitizen is necessarily unlawful.
Can Unlawful Voting Prevent Naturalization?
Yes. Unlawful voting can affect naturalization through more than one legal rule.
Voting in violation of federal, state, or local law can make a noncitizen deportable under INA §237(a)(6)(A).
USCIS also treats unlawful voting in a federal election as an unlawful act that may adversely affect good moral character.
If USCIS initiates removal proceedings, INA §318 generally prevents completion of ordinary naturalization while those proceedings are pending.
But USCIS must first determine that the person actually voted and that the vote violated the law applicable to that election.
Three Related Acts Can Produce Different Immigration Consequences
Voter Registration
Registering to vote can raise questions about whether the person was legally eligible to register and whether the registration form included a false claim to U.S. citizenship.
Actual Voting
Casting a ballot can create a separate deportability issue if the vote violated applicable federal, state, or local law.
Citizenship Claim
A person may face an additional false-citizenship issue if the registration, ballot process, or other record contains an affirmative representation of U.S. citizenship.
USCIS Should Determine Whether a Ballot Was Actually Cast
Registered to Vote
A voter registration record shows registration. It does not necessarily establish that the person later voted.
Registration itself may nevertheless create a separate issue, particularly if the registration form contained a citizenship certification.
Cast a Ballot
A voting history or election record may establish participation in an election.
USCIS must then determine whether the vote violated a federal, state, or local constitutional provision, statute, ordinance, or regulation.
18 U.S.C. §611 Generally Prohibits Noncitizen Voting in Federal Elections
Federal law generally prohibits a noncitizen from voting in an election held solely or partly for the purpose of electing a candidate for President, Vice President, presidential elector, United States Senator, Member of the House of Representatives, Delegate, or Resident Commissioner.
The statute contains exceptions, including circumstances involving an election with another lawful purpose for which noncitizens are authorized to vote and where voting for that other purpose is conducted independently.
The precise election and ballot structure therefore matter.
Do Not Assume Every Noncitizen Vote Violates the Law
INA §237(a)(6)(A) applies when a person votes in violation of a federal, state, or local constitutional provision, statute, ordinance, or regulation.
Voting Was Prohibited
If the applicable law restricted voting to U.S. citizens and the noncitizen's vote violated that law, the immigration deportability provision may apply.
Voting Was Legally Authorized
Some jurisdictions have permitted certain noncitizens to vote in particular local elections.
USCIS itself recognizes that voting in a local election is not an unlawful act for GMC purposes when the person was legally eligible to vote under the applicable law.
Unlawful Voting Can Create a Separate Ground of Deportability
INA §237(a)(6)(A) makes deportable a noncitizen who voted in violation of any federal, state, or local constitutional provision, statute, ordinance, or regulation.
A criminal conviction is not required before this immigration provision can become relevant.
USCIS may rely on election records, voter registration records, admissions, government records, sworn statements, and other evidence when evaluating the conduct.
Do Not Assume That Lack of Intent Automatically Eliminates the Immigration Problem
Different unlawful voting provisions may have different intent requirements.
For federal voting under 18 U.S.C. §611, the Board of Immigration Appeals has held that deportability under INA §237(a)(6)(A) does not depend on whether the person knew that voting was unlawful.
State and local voting allegations still require analysis of the particular law that was allegedly violated.
This is another reason the specific election law should be reviewed before assuming that lack of knowledge is a complete defense.
Unlawful Voting Can Also Affect the GMC Determination
USCIS's current policy identifies unlawful voting in a federal election as an unlawful act that can affect good moral character.
Was the Vote Unlawful?
USCIS must identify the law violated rather than assume that every vote by a noncitizen was prohibited.
Did It Occur During the GMC Period?
The timing of the conduct is relevant to application of the unlawful-acts GMC rule.
Are Extenuating Circumstances Present?
Where the unlawful-acts rule applies, USCIS must consider qualifying extenuating circumstances that existed before or at the time of the conduct.
Later Rehabilitation Is Different From Extenuating Circumstances
Under the unlawful-acts GMC framework, extenuating circumstances must generally exist before or at the time of the conduct and must make the act less reprehensible or the person less culpable.
Later good conduct, regret, community service, or rehabilitation does not by itself become an extenuating circumstance for the earlier act.
Later conduct may still have relevance elsewhere in the broader GMC analysis, but the two concepts should not be confused.
A Narrow Exception Exists for Certain People Who Reasonably Believed They Were U.S. Citizens
INA §237(a)(6)(B) provides an exception for certain people who violated a lawful restriction limiting voting to U.S. citizens but reasonably believed that they were citizens.
All statutory requirements must be satisfied.
Determine Whether the Person Was Actually a U.S. Citizen Before Treating the Vote as Unlawful
Some people born outside the United States acquired or derived citizenship automatically through a parent.
If citizenship was acquired before the election, the premise that the person unlawfully voted as a noncitizen may be incorrect.
Citizenship law can depend on the person's date of birth, parents' citizenship and physical presence, custody, residence, adoption, permanent resident status, and the citizenship statute in effect at the relevant time.
DMV Voter Registration Cases Require the Actual Registration Process to Be Reconstructed
Federal voter registration law has led many states to integrate voter registration with driver's license or state identification applications.
Registration May Be Integrated
The applicant may have encountered voter registration while applying for or renewing a driver's license or state ID.
The actual application, screen sequence, signature page, citizenship question, and agency process can become important evidence.
Registration Still Does Not Prove Voting
Even if the person was improperly registered, USCIS should separately determine whether the person actually cast a ballot.
The voter history from the applicable election authority can help answer that question.
Voting and a False Citizenship Claim Can Overlap—but They Are Separate Grounds
A person may face one problem for voting unlawfully and a different problem if the person affirmatively represented U.S. citizenship in order to register, vote, or obtain another legally regulated benefit.
The citizenship representation should therefore be analyzed separately from the act of casting the ballot.
A case may involve one ground, both grounds, or neither depending on the evidence and applicable law.
Obtain the Voter Registration and Voting Records
USCIS policy specifically identifies voter registration and voting records as evidence relevant to unlawful voting and citizenship claims.
The strongest analysis begins with the actual government records rather than the applicant's memory of an election many years earlier.
Election Records Usually Establish Participation, Not the Candidate Selected
The legal issue is ordinarily whether the person participated in an election contrary to applicable law, not which candidate or position the person selected.
Shows Registration
This may identify registration date, address, political-party affiliation where applicable, and registration status.
May Show Participation
Election authority records may indicate whether a person voted in a particular election.
Usually Does Not Show Candidate Choice
The immigration inquiry generally focuses on participation in the prohibited election rather than the person's political preference.
Removing Yourself From the Voter Rolls Can Be Useful Evidence—but Does Not Erase a Prior Vote
USCIS policy specifically recognizes evidence showing that a person took corrective action after learning that a citizenship claim or registration was improper.
That may include requesting removal from the voter list and obtaining proof that the registration was cancelled.
Corrective action can help establish the later factual record but does not automatically undo an unlawful vote that already occurred.
How to Review a Voting Issue Before Filing Form N-400
Obtain the Voter Registration Record
Determine when and how registration occurred and whether the application contained a citizenship representation.
Obtain the Voting History
Determine whether the applicant actually participated in an election and identify each relevant date.
Identify Each Election
Determine whether it was federal, state, local, or a combined election and what offices or propositions were on the ballot.
Identify the Governing Law
Determine whether the applicant's participation actually violated a federal, state, or local legal restriction.
Analyze Citizenship Claims and Exceptions
Determine whether citizenship was represented, whether the person was actually a citizen, and whether a statutory exception applies.
Analyze GMC and Removal Risk Separately
Determine whether the case raises a current good moral character problem, a deportability issue, a lawful-LPR issue, or more than one of these concerns.
An Old Vote May Be Outside the GMC Period and Still Create an Immigration Problem
The ordinary good moral character period is generally five years for an applicant under INA §316 and three years for many applicants naturalizing through marriage under INA §319(a).
Conduct outside that period may have a different GMC effect.
But the deportability provision for unlawful voting is a separate immigration rule. A vote does not become irrelevant merely because five years have passed.
Answer Voting Questions From the Records, Not From Assumptions
Do Not Hide Voting History
An applicant should answer the N-400 accurately according to the questions asked and should not conceal a voting issue merely because the conduct occurred years earlier.
Providing a false answer during naturalization can create a new credibility or GMC issue.
Do Not Concede More Than the Records Establish
Registration is not voting, and a noncitizen's participation in some local elections may be lawful.
The applicant should determine the actual facts and applicable law before characterizing the conduct as “illegal voting.”
USCIS May Take a Sworn Statement About Voting
USCIS guidance authorizes officers to investigate false citizenship claims, unlawful voter registration, and unlawful voting and, where appropriate, obtain sworn statements.
USCIS may also issue a Request for Evidence seeking registration forms, voting records, or other documentation.
Applicants with a serious voting issue should understand the immigration consequences before providing additional sworn testimony.
A Voting Issue Can Put More Than the N-400 at Risk
USCIS's current policy recognizes unlawful voting as a potential ground for issuance of a Notice to Appear where the statutory requirements are satisfied.
A conviction is not required for USCIS to consider the immigration deportability ground.
Once removal proceedings are properly pending, INA §318 generally restricts USCIS from completing ordinary naturalization until the removal matter is resolved.
Review What USCIS Actually Proved
A denial based on unlawful voting should identify the voting conduct and the legal basis for concluding that the applicant was not legally entitled to participate.
The decision should be reviewed for whether USCIS confused voter registration with actual voting, relied on incomplete election records, applied the wrong state or local law, overlooked a statutory exception, or improperly merged a voting allegation with a separate false-citizenship claim.
An Unlawful Voting Finding Can Be Challenged
Potential Factual Challenges
- The applicant never voted.
- The record proves only registration.
- The voting history is inaccurate.
- The applicant was legally permitted to vote.
- The election identified by USCIS is incorrect.
- The applicant was actually a U.S. citizen.
Potential Legal Challenges
- The cited voting law did not prohibit the conduct.
- A statutory exception applies.
- USCIS applied the wrong legal standard.
- The GMC statutory period was incorrectly analyzed.
- Voting and false-citizenship provisions were improperly merged.
Unlawful Voting & Naturalization FAQs
Can voting as a noncitizen prevent naturalization?
Yes, if the vote violated applicable federal, state, or local law. Unlawful voting can affect good moral character and may also create a separate ground of deportability.
Is registering to vote the same as voting?
No. Registration and casting a ballot are separate acts. A voter registration record alone does not necessarily prove that the person actually voted.
Can unlawful voter registration still create problems?
Yes. Registration may create a good moral character issue or a separate false-citizenship problem depending on the registration form, applicable law, and facts.
Can a permanent resident vote in a federal election?
Lawful permanent resident status by itself does not authorize voting in federal elections. Federal law generally restricts such voting to U.S. citizens, subject to limited statutory exceptions.
Can a noncitizen legally vote in a local election?
In some circumstances, applicable local law may authorize certain noncitizens to vote in specified local elections. The law governing the specific jurisdiction and election must be reviewed.
Does USCIS need a criminal conviction for unlawful voting?
No. A criminal conviction is not required for USCIS to consider the unlawful-voting deportability ground.
What if I did not know I was prohibited from voting?
The effect depends on the legal provision involved. For federal voting under 18 U.S.C. §611, immigration precedent has held that deportability does not necessarily depend on knowledge that the vote was unlawful. State and local laws must be analyzed individually.
What if somebody told me I was allowed to vote?
That fact can be important to the surrounding circumstances and potentially to certain legal issues, but it does not automatically eliminate every immigration consequence. The governing voting law and applicable exceptions must still be analyzed.
What if DMV automatically registered me?
Obtain the actual DMV and voter registration records. Automatic or integrated registration can matter significantly to how registration occurred, but separate evidence is needed to determine whether the person actually voted.
What if I registered but never voted?
The unlawful-voting ground may not be established merely by registration, although the registration itself may raise separate issues.
What if I voted only once many years ago?
The age of the conduct may affect the GMC analysis, but a separate deportability issue does not necessarily disappear simply because the vote occurred more than five years ago.
What if I believed I was a U.S. citizen?
Federal immigration law contains a narrow exception for certain individuals whose natural or adoptive parents were U.S. citizens, who permanently resided in the United States before age 16, and who reasonably believed they were U.S. citizens.
What if only one of my parents was a U.S. citizen?
The specific unlawful-voting exception in INA §237(a)(6)(B) requires each natural parent, or each adoptive parent in an adoption case, to satisfy the citizenship requirement. Separate acquisition or derivation-of-citizenship rules may still need review.
What if I was actually a U.S. citizen when I voted?
Then the premise that the person unlawfully voted as a noncitizen may be incorrect. Potential acquisition or derivation of citizenship should be analyzed before conceding the issue.
Does voter registration automatically prove a false claim to citizenship?
Not necessarily. The actual registration form and citizenship question must be reviewed. Registration, citizenship claims, and voting should be analyzed separately.
Can removing myself from the voter rolls fix the problem?
Cancellation can be useful evidence of corrective action, but it does not automatically erase an unlawful vote that already occurred.
How do I prove that I never voted?
Obtain voting-history records from the appropriate election authority. Those records may distinguish registration from actual election participation.
Can USCIS issue an RFE for voter records?
Yes. USCIS policy specifically identifies voter registration and voting records as evidence officers may request when investigating unlawful registration or voting.
Can USCIS put me in removal proceedings because I voted?
Potentially. If USCIS concludes that the statutory unlawful-voting deportability requirements are satisfied, the agency may initiate removal proceedings.
What happens to my N-400 if removal proceedings begin?
INA §318 generally prevents ordinary naturalization from being completed while removal proceedings are pending, subject to limited exceptions such as certain military naturalization cases.
Can I challenge an unlawful-voting N-400 denial?
Yes. A timely N-336 may challenge whether the person actually voted, whether the vote violated applicable law, whether USCIS applied the correct statutory provision, and whether an exception applies.
Should I file N-400 if I voted before becoming a citizen?
A pre-filing legal and records review is advisable because the potential issue may extend beyond an N-400 denial to removability or the validity of permanent resident status.
Continue Reviewing Voting, Citizenship Claims & GMC
Unlawful Voting & Naturalization
Registered or Voted Before Becoming a U.S. Citizen?
The Messersmith Law Firm, P.A. represents clients in complex naturalization matters involving unlawful voting, voter registration, false claims to U.S. citizenship, good moral character, immigration history, removal risk, N-400 denials, and N-336 hearings.
Request a Naturalization Case ReviewThis website provides general information and does not create an attorney-client relationship. Voting issues depend on whether the person actually voted, the election involved, federal, state, or local law, citizenship status, registration records, citizenship representations, statutory exceptions, good moral character timing, immigration history, jurisdiction, and current law applicable to the individual case.