Cite as
26 I&N Dec. 559 (BIA 2015) Interim Decision #3835
Matter of Margarita Del Pilar FITZPATRICK, Respondent
Decided May 7, 2015
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
An alien who has voted in an election involving candidates for Federal office in
violation of 18 U.S.C. § 611(a) (2012) is removable under section 237(a)(6)(A) of the
Immigration and Nationality Act,
8 U.S.C. § 1227(a)(6)(A) (2012), regardless of whether
the alien knew that he or she was committing an unlawful act by voting.
FOR RESPONDENT: Rick Hodge, Esquire, Wichita, Kansas
BEFORE: Board Panel: GRANT, MALPHRUS, and MULLANE, Board Members.
GRANT, Board Member:
In a decision dated June 19, 2009, an Immigration Judge ordered the
respondent removed from the United States.1 The respondent has appealed
from that decision. The appeal will be dismissed.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Peru whose nonimmigrant
status was adjusted to that of a lawful permanent resident of the
United States on June 4, 2004. On August 5, 2005, she applied for an
Illinois driver’s license and signed a voter registration application in which
she checked a box indicating that she was a United States citizen.
The respondent filed an application for naturalization dated April 17,
2007, in which she indicated that she had registered to vote and had voted
in an election in the United States. During an interview regarding her
application, she disclosed that she had voted in 2006.
On January 11, 2008, the Department of Homeland Security (“DHS”)
issued a notice to appear, alleging that the respondent voted in the general
election in Illinois on November 7, 2006, in violation of 18 U.S.C. § 611
(2006), and charging her with removability under section 237(a)(6) of the
Immigration and Nationality Act,
8 U.S.C. § 1227(a)(6) (2006), as an alien
1
The Immigration Judge previously issued a written decision dated April 21, 2009, in
which he found the respondent removable on the charges in the notice to appear.
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who voted in violation of law. The DHS also charged the respondent with
removability under section 237(a)(3)(D) of the Act as an alien who falsely
represented herself to be a United States citizen. The Immigration Judge
found that the respondent was removable on both charges.2
The respondent asserts that the Immigration Judge erred in finding her
removable. We disagree and conclude that the respondent is removable
under section 237(a)(6)(A) of the Act as an alien who voted in violation
of a Federal statute, namely,
18 U.S.C. § 611(a). See
8 C.F.R.
§ 1003.1(d)(3)(ii) (2014) (providing that the Board reviews de novo
questions of law, discretion, and judgment and all other issues in appeals).
II. ANALYSIS
According to section 237(a)(6)(A) of the Act, “Any alien who has voted
in violation of any Federal, State, or local constitutional provision, statute,
ordinance, or regulation is deportable.”3 Under 18 U.S.C. § 611(a), it is
“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 does not dispute that she voted in a general election
involving candidates for Federal office in November 2006 and that she
knew she was not a United States citizen at the time she voted. She
contends, however, that the DHS has not shown that she intended to vote in
violation of 18 U.S.C. § 611. Therefore, the respondent argues that the
charge of removability under section 237(a)(6) of the Act cannot be
sustained. We do not agree.
In meeting its burden of proof to establish the respondent’s removability,
the DHS need not show that the respondent knew she was committing an
unlawful act by voting in the election. The relevant Federal statute,
18 U.S.C. § 611(a), contains no specific intent requirement. It is, instead, a
general intent statute, which does not require “proof that the alien knew
2
The respondent also voted in an Illinois State primary election on March 21, 2006,
which the DHS alleged in the notice to appear as an additional factual basis for her
removability under section 237(a)(6) of the Act. However, the Immigration Judge did
not address whether the respondent is removable based on her voting in the State primary
election, and neither party has raised this issue on appeal.
3
There is an exception to this ground of removability in section 237(a)(6)(B) of the Act,
but it does not apply to the respondent and is not at issue in this case.
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that it was unlawful for him to vote.” Kimani v. Holder,
695 F.3d 666,
669 (7th Cir. 2012); see also United States v. Knight,
490 F.3d 1268,
1270−71 (11th Cir. 2007) (stating that
18 U.S.C. § 611 is a general intent
statute); cf. section 237(a)(6)(A) of the Act (containing no requirement that
an alien have knowledge that voting was in violation of law).
Since a violation of § 611(a) is a crime of general intent, the only proof
required is “that the defendant performed the acts that the law forbids,
understanding what he was doing.” Kimani v. Holder, 695 F.3d at 669;
see also United States v. Knight,
490 F.3d at 1271.4 The respondent does
not dispute that she knew she was not a United States citizen and that she
voted in the general election. We therefore conclude that her act of voting
in the 2006 election was in violation of
18 U.S.C. § 611(a).
The respondent contends, however, that her act of voting falls within the
exception to § 611(a). Under the statute, an alien is prohibited from voting
in a Federal election unless all three of the following criteria apply:
(1) the election is held partly for some other purpose;
(2) aliens are authorized to vote for such other purpose under a State constitution
or statute or a local ordinance; and
(3) voting for such other purpose is conducted independently of voting for a
candidate for such Federal offices, in such a manner that an alien has the
opportunity to vote for such other purpose, but not an opportunity to vote for a
candidate for any one or more of such Federal offices.
18 U.S.C. § 611(a)(1)−(3) (emphasis added).5
The respondent asserts that she falls within the exception in § 611(a)(1)
because the election in which she voted was “held partly for some other
purpose,” namely, to elect members of the local school board. However,
4
The respondent has cited McDonald v. Gonzales,
400 F.3d 684 (9th Cir. 2005), in
support of her contention that a specific intent to violate Federal law is necessary to
sustain her removability. However, the United States Court of Appeals for the Seventh
Circuit, in whose jurisdiction this case arises, rejected this argument in Kimani v. Holder,
695 F.3d at 669−70. The court distinguished McDonald v. Gonzales because it involved
a State statute with different language, which unlike
18 U.S.C. § 611(a), required “proof
of an alien’s knowledge that voting [was] forbidden.”
Id. In any case, we are not bound
by the decision of the Ninth Circuit in this circuit. See Matter of U. Singh,
25 I&N Dec.
670, 672 (BIA 2012).
5
The statute also contains an exception to § 611(a) if “the alien reasonably believed at
the time of voting . . . that he or she was United States citizen.”
18 U.S.C. § 611(c)(3).
However, the Immigration Judge found that this exception was not applicable because the
respondent conceded that she knew she was not a United States citizen at the time she
voted.
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regardless of whether the respondent meets the criterion of § 611(a)(1), the
statute requires that all three criteria of § 611(a) be met.
The respondent appears to allege that aliens were “authorized to vote for
such other purpose,” as required by § 611(a)(2), apparently referring to
local school board elections. But she has not identified any legal authority
indicating that she was authorized to vote in that local election or that
lawful permanent residents were authorized to vote in any election in the
State of Illinois. The criterion of § 611(a)(2) has therefore not been
satisfied.
In any case, the respondent does not claim that the criterion under
§ 611(a)(3) has been met. The record contains no evidence that voting for
local school board officials was conducted independently of voting for
candidates for Federal office. Although the respondent argues that she had
no control over whether voting for a local school board election was
independent of voting for candidates for Federal office, she has not
established that voting in the election in which she participated was, in fact,
conducted independently.
Moreover, the record contains election ballots from the November 2006
general election, which included candidates for both Federal offices and
the local school superintendent. The respondent’s concession that she
intentionally voted in this election therefore forecloses any claim that she
would have had “the opportunity to vote for such other purpose, but not an
opportunity to vote for a candidate for any one or more of such Federal
offices,” as required by § 611(a)(3).
Finally, the respondent asserts that 18 U.S.C. § 611 is overbroad
and unconstitutional. However, we have no authority to rule on the
constitutionality of the laws enacted by Congress. See Matter of
Fuentes-Campos,
21 I&N Dec. 905, 912 (BIA 1997).
Because our determination that the respondent is removable under
section 237(a)(6)(A) of the Act is dispositive of the appeal, we need not
address whether she is also removable under section 237(a)(3)(D). See INS
v. Bagamasbad, 429 U.S. 24, 25−26 (1976); Matter of J-G-,
26 I&N Dec.
161, 170 (BIA 2013). The respondent has not claimed that she is eligible
for any relief from removal. Accordingly, her appeal will be dismissed.
ORDER: The appeal is dismissed.
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