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April 04, 2005

Ninth Circuit Reverses Removability Finding Based on Voter Fraud

McDonald v. Gonzales, (9th Cir. March 2, 2005) Petitioner, a lawful permanent resident, registered to vote by completing the bottom portion of her application for a Hawaii driver's license. At the time, Petitioner erroneously believed that she might have obtained citizenship through her marriage to a citizen. She later received a voter registration or voter inquiry postcard in the mail. On the form, Petitioner indicated that she was not a U.S. citizen. She subsequently received a Notice of Voter Registration and Address Confirmation in the mail. Petitioner interpreted receipt of these documents as government permission to vote even though the government was aware that she was not a citizen. Petitioner then voted in the 1996 primary and general elections.

In 1997, Petitioner applied for naturalization. At her naturalization interview, Petitioner admitted to having voted and the interview was terminated. She was subsequently charged and found removable under INA §237(a)(6)(A) for having voted in violation of Hawaii law. The voter fraud statute she was accused of violating provides that "any person who knowingly votes when the person is not entitled to vote" is guilty of a felony. The immigration judge (IJ) excluded the testimony of a former Hawaii state prosecutor who would have testified regarding mens rea and his former office's methods for screening cases. The IJ found that Petitioner knowingly voted when she was not entitled to vote. The Board of Immigration Appeals affirmed the decision without opinion. The Ninth Circuit reversed.

The court held that that Petitioner did not "knowingly" commit voter fraud and, thus, she lacked the requisite mental state for violating the Hawaiian statute at issue. First, the court found that the IJ erred when he excluded the testimony of the former state prosecutor, who could have informed the IJ's interpretation of the mental state needed for a conviction under the Hawaii statute. Next, the court concluded that the IJ applied the wrong definition of "knowingly." Specifically, the IJ applied the definition of knowingly that applies to the result of someone's conduct when he should have sought to determine whether Petitioner was aware that she was ineligible to vote. "The IJ thus transformed a requirement of knowing conduct in a criminal statute into a civil standard akin to "knew or should have known," the court said.

As the finding of removability was not sustainable, the court granted the petition for review.

Posted by VisaLawyer at April 4, 2005 07:43 AM

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