(A)  Elements of the Category.  In 1996, Congress created a new ground of deportation[1372] for any noncitizen “who has voted in violation of any Federal, State, or local constitutional provision, statute, ordinance, or regulation . . . .”[1373]  It applies to voting occurring before, on, or after September 30, 1996.[1374]  NOTE: No conviction is required to establish this ground of deportation.  The elements of this ground of deportation are:

 

(1) voting conduct

(2) in violation of any

(3) Federal, State, or local

(4) constitutional provision, statute, ordinance, or regulation.

[1372] IIRAIRA § 347(b) (creating INA § 237(a)(6), 8 U.S.C. § 1227(a)(6)).  Unlawful voting is also a ground of inadmissibility.  See C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure § 63.11[4] (2004).

[1373] INA § 237(a)(6)(A), 8 U.S.C. § 1227(a)(6)(A).

[1374] IIRAIRA § 347(c).

Ninth Circuit

GROUNDS OF DEPORTATION - UNLAWFUL VOTING - NONCITIZEN NOT DEPORTABLE FOR VOTING IN VIOLATION OF HAWAII LAW SINCE SHE DID NOT HAVE THE MENS REA REQUIRED TO VIOLATE THE HAWAII STATUTE
McDonald v. Gonzales, ___ F.3d ___ (9th Cir. March 2, 2005) (noncitizen found not to have voted "in violation of any Federal, State, or local constitutional provision, statute, ordinance or regulation," under 8 U.S.C. 1227(a)(6)(A), because she did not have the requisite mental state to have violated the Hawaii unlawful voting statute, H.R.S. 19-3.5(2)).
http://caselaw.lp.findlaw.com/data2/circs/9th/0371986p.pdf

DEPORTATION GROUNDS - ILLEGAL VOTING
McDonald v. Gonzales, 400 F.3d 684 (9th Cir. Mar. 2, 2005) ("Ellen Valle McDonald, a native of the Philippines and legal permanent resident of the United States, was found removable under 8 U.S.C. 1227(a)(6)(A) for voting in violation of Hawaii law. Although 1227(a)(6)(A) provides the reason for deportation, we look to the relevant Hawaii statute, H.R.S. 19-3.5(2), to decide whether that reason is substantiated, i.e., whether a violation occurred. Because we determine that McDonald did not have the requisite mental state to have violated H.R.S. 19-3.5(2), we grant her petition.").

Other

RELIEF - NATURALIZATION - ILLEGAL VOTING
See Yates Memo (May 7, 2002), "Procedures for Handling Naturalization Applications of Aliens Who Voted Unlawfully or Falsely Represented Themselves as U.S. Citizens by Voting or Registering to Vote."

UNLAWFUL VOTING
It is risky for a noncitizen who has voted unlawfully to apply for naturalization, unless they have a defense under McDonald v. Gonzales, 400 F.3d 684 (9th Cir. 2005), but proving something was not willful can be difficult. Cancellation of removal is possible to avoid the unlawful voting ground of deportation, but the immigration court might deny it in the exercise of discretion. Illegal voting is not only a Good Moral Character issue. While the passage of time may take the unlawful voting and the making of a false statement under 8 CFR 316.10(b)(2)(vi) outside the period for which good moral character must be shown to naturalize, the noncitizen is still subject to deportation under INA 237(a)(6), 8 U.S.C. 1227(a)(6). The trend in adjudications on false claims and illegal voting has gotten tougher in the last five years, and ICE rarely exercises prosecutorial discretion in favor of the noncitizen. Thanks to D. Jackson Chaney.