The case of Margarita Del Pilar Fitzpatrick

Of course noncitizens never vote, a faithful reader sarcastically writes. Our reader practices immigration law and directs us to the Seventh Circuit opinion in Fitzpatrick v. Sessions, hot off the press yesterday in the United States Court of Appeals for the Seventh Circuit. The Seventh Circuit opinion briefly summarizes the factual background:

Margarita Del Pilar Fitzpatrick, a citizen of Peru, had lived in the United States for three years when she applied for a driver’s license in Illinois. She contends that when filling out the forms at the Department of Motor Vehicles she displayed her green card and her Pe ruvian passport—but she admits that she also checked a box claiming to be a citizen of the United States. The form sternly warns aliens not to check that box, and Fitzpatrick does not contend that she has any difficulty understanding written English. (She came to the United States in 2002 to study English in college, and after earning a certificate as a medical translator she spent some time working as an interpreter be fore training as a nurse.) As required by the motor voter law, 52 U.S.C. §§ 20503–06, the form also contained a checkbox that would lead to registration as a voter. Fitzpatrick main tains that the desk clerk asked whether she wanted to register, and when she inquired “Am I supposed to?” he replied: “It’s up to you.” She checked that box, was duly registered, and in 2006 twice voted in elections for federal officials.

Aliens are forbidden to vote in federal elections. 18 U.S.C. § 611. Another statute, 8 U.S.C. § 1227(a)(6), provides for the removal of aliens who vote in violation of either state or fed eral law. After discovering that Fitzpatrick had voted in a federal election, the Department of Homeland Security initiated removal proceedings. An Immigration Judge and then the Board of Immigration Appeals (initially and when denying reconsideration) decided that she must indeed leave the United States, even though she has led a productive and otherwise unblemished life in this country, is married to a U.S. citizen, and has three U.S. citizen children. Her children were born in Peru and naturalized after arrival. Her own 2007 application for citizenship is what brought her 2006 voting to light, when response to questions asked of all applicants she honestly described her voting history.

Fitzpatrick acknowledges that she voted in apparent violation of §611, which does not require proof that the alien knew that only citizens can vote in federal elections. [Citation omitted.] Nonetheless, she contends, she did not actually violate § 611…

The final paragraph of the Seventh Circuit opinion notes the court’s possible disagreement with the upshot of the court’s decision:

The panel inquired at oral argument whether Fitzpatrick is the kind of person the Attorney General and the Department of Homeland Security want removed from the United States. The answer was yes—that consideration had been given to exercising prosecutorial discretion in Fitzpatrick’s favor, but that the possibility had been resolved adversely to her. That decision is entrusted to executive officials, leaving us no option other than to deny the petitions for review of the [Board of Immigration Appeals] decisions.

Our reader comments: “The arguments made by the plaintiff give insight into the kind of crazy things that have worked in the past.” The opinion is short and pointed. I encourage interested readers to check out the whole thing.

Our reader adds this postscript:

The naturalization application (Form N-400) has two questions related to voting and I wonder if President Trump could order DHS to publish how many naturalization applications have been filed where the answer to those questions was “YES” – one question relates to registering to vote while the other relates to actually voting. Of course this is not the whole universe of people who are non-citizens who voted as it would be limited to those non-citizens who later apply for naturalization (US citizenship) and are truthful but the data would give some insight as to how much it is occurring. I believe that under prior Administrations the policy was to use favorable discretion and “forgive” this…

The appeal in the Seventh Circuit was argued on January 17, in the closing days of the Obama administration. Although the Seventh Circuit decision was released yesterday, the proceedings predate the new administration. I’m thinking that this Seventh Circuit decision won’t get much coverage in the news — Reuters covers it here — although it is both newsworthy and interesting.

The Reuters story is written entirely from the perspective of Ms. Fitzpatrick. The Reuters story is nevertheless itself of interest. The story indicates that Ms. Fitzpatrick’s immigration attorney “said he has seen dozens, perhaps hundreds, of cases over the years in which an immigrant voted without realizing it was illegal.” Quotable quote: “There’s no fraud. It arises out of confusion.”