President Donald Trump has at every opportunity falsely stated that anywhere from three to five million illegal votes were cast in the 2016 presidential election. Neither he nor anyone else in his administration has provided the public, any law enforcement agency, or members of Congress with an iota of evidence to substantiate these reckless allegations. In fact, every legitimate, bi-partisan or non-partisan, study has found real voter fraud to be statistically non-existent.
The president has charged that many of these fraudulent ballots were cast by either “illegal aliens” or aliens not authorized to vote. Again, there has been absolutely no evidence offered that supports that aliens have voted in statistically relevant numbers.
Penalties for Voting Fraud are Steep
18 U.S.C. § 611(a) prohibits “any alien” from voting in a presidential election or any other federal election.
8 U.S.C. § 1227(a)(6) provides for the removal of an “alien” who votes in violation of either state or federal laws.
A “green card” holder is a lawful permanent resident (LPR). LPRs cannot vote in federal elections. Homeland Security estimated that in 2012 there were 13.3 million LPRs in the United States.
One of those LPRs was a Peruvian citizen named Margarita Del Pilar Fitzpatrick who came to the United States in 2002 to study English in college. She earned a certificate and became an Interpreter before earning a nursing degree.
Green Card Holder Removed from US for Voting
On February 13, 2017, the Seventh Circuit of Appeals upheld an order of removal from this country by the Bureau of Immigration Appeals because Fitzpatrick voted twice in federal elections in 2006.
Fitzpatrick’s immigration problems began in 2005 when she applied for a driver’s license in Illinois. She provided the Department of Motor Vehicles with her green card and Peruvian passport. She was then given a standardized form pursuant to the “motor-voter law,” 52 U.S.C. §§ 20503-06, necessary to complete in order to secure the issuance of a driver’s license. The form contained a checkbox that, as the appeals court noted, “would lead to registration as a voter.”
The DMV desk clerk asked Fitzpatrick if she wanted to register to vote.
“Am I supposed to?” she asked.
“That’s up to you,” responded the clerk.
The Seventh Circuit pointed out that at the time the State of Illinois required that DMV clerks not provide either advice or assurances that it was lawful to register to vote. Federal law, 52 U.S.C. § 20506(a)(5)(C), also forbids “state officials to say anything that will discourage an applicant for a driver’s license from registering to vote.”
The appeals court added that “this statute leads to unhelpful responses such as the one Fitzpatrick received.”
Fitzpatrick’s first mistake at the DMV office when filling out the form was to check the box “claiming to be a citizen of the United States,” against a stern warning for LPRs not to check the box. Her second mistake was to check the box registering to vote and actually voting in federal elections in 2006.
Disclosed Voting on Application for Citizenship
In 2007, Fitzpatrick filed an application for citizenship—a process that required she honestly describe her voting history.
Upon learning about Fitzpatrick’s 2006 voting history, the Department of Homeland Security initiated “removal proceedings” against her. This led to decisions by an Immigration Judge and the BIA that she indeed had to “leave the United States.”
Removal Legal Even Though Led Productive Life in US
The Seventh Circuit noted that these decisions were lawful “even though [Fitzpatrick] 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.”
The Fitzpatrick case was argued before the Seventh Circuit on January 17, 2017—just three days prior to President Trump being sworn into office. At oral argument the three judge panel asked attorneys for the Government if Fitzpatrick was “the kind of person the Attorney General and Homeland Security wanted removed from the United States.” The attorneys responded, “yes.”
Obama Immigration Policy was Unforgiving
That was the Obama administration’s deportation policy in a nutshell. Infractions of rules, no matter how slight, or violations of the law (except for misdemeanor traffic offenses) would result in removal/deportation proceedings.
The Seventh Circuit concluded: “That decision is entrusted to executive officials, leaving us no option other than to deny the petition for review of the BIA’s decision.”
President Trump is now aggressively exercising his broad executive authority to round up more LPRs like Fitzpatrick who have made relatively minor mistakes that will now see them separated from their families and removed from this country where they established what the Seventh Circuit described as “productive and otherwise-unblemished [lives].”
Executive Decisions About Who to Enforce Law Against is Unreviewable
For the most part, these executive decisions are indeed “unreviewable” by the courts unless, as in the case of the Trump administration’s travel ban, they infringe on clearly established constitutional rights. Executive immigration decisions find their power in statutory provisions, but these provisions do not usurp the power of constitutional rights.
These constitutional protections notwithstanding, the Trump administration is pursuing immigration policies that will cause widespread human suffering and lead to countless individual tragedies like the Fitzpatrick case.
These policies will test the soul of this nation.