Ninth Circuit Overturns Order for Deportation of Alien Who Voted, Says Intent to Break Law Not Proven

Thursday, March 3, 2005

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Ninth Circuit Overturns Order for Deportation of Alien Who Voted, Says Intent to Break Law Not Proven

By KENNETH OFGANG, Staff Writer/Appellate Courts

An alien who voted in two elections is not removable from the United States in the absence of proof she knew it was illegal for her to do so, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel overturned a Board of Immigration Appeals order that would have required Ellen Valle McDonald, a native of the Philippines whose husband and child are U.S. citizens, to leave the country. McDonald will now be free to seek naturalization, Judge Michael Daly Hawkins said.

Senior Judges Warren J. Ferguson and John T. Noonan joined in the opinion.

McDonald has been facing deportation since 1997, when—during her naturalization interview—she volunteered the fact that she had voted in the 1996 primary and general elections in her home state of Hawaii.

Removal Statute

The agent then terminated her naturalization proceedings and referred the matter for investigation under 8 U.S.C. Sec.1227(a)(6)(A). The statute mandates removal from the United States of any alien who votes “in violation of any Federal, State, or local constitutional provision, statute, ordinance or regulation.”

McDonald contended the statute did not apply because an ineligible voter is guilty of a crime under Hawaii law only if the person “knowingly votes when the person is not entitled to vote.”

She testified that when she first registered—at the time she applied for her driver’s license, pursuant to the National Voter Registration Act, better known as the “motor voter” law—she believed that her marriage to a U.S. citizen automatically made her a citizen as well.

That belief was based on misinformation from friends, she explained.

McDonald acknowledged that when she received an information form following her registration, she checked a box indicating she was not a citizen, based on her husband’s telling her he did not believe she was. But when she subsequently received a voter registration card in the mail, she said, she assumed she was allowed to vote.

The fact that the registration card included a notice that one could not vote absent compliance with three requirements—age, citizenship, and permanent Hawaii residence—did not cause her to believe she could not vote, she explained, because she erroneously assumed that she only needed to meet one of the three tests.

Expert Excluded

The agent who conducted the naturalization interview testified that McDonald and her husband might have been correct in testifying that they told him at the time that she voted by mistake and did not intend to violate any law, but that he thought that irrelevant. McDonald attempted to call a former Hawaii prosecutor as an expert on the intent element of the crime, but the immigration judge excluded the testimony.

The IJ concluded that McDonald had the requisite intent under Hawaii law, citing a statute based on the Model Penal Code that adopts three definitions of the word “knowingly,” one of which is that “[a] person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result.”

By not inquiring of a knowledgeable person as to whether she was eligible to vote, the IJ reasoned, McDonald made it “practically certain” that she would be able to vote illegally.

The BIA summarily affirmed.

Hawkins, however, said the IJ erred by excluding the expert witness and that the analysis of the scienter requirement was “critically flawed.”

The appellate jurist explained:

“Under Hawaii law, the government must prove beyond a reasonable doubt each element of an offense, as well as the state of mind required to establish each element of the offense....Hawaii law further provides that ‘when the definition of an offense specifies the state of mind sufficient for the commission of that offense, without distinguishing among the elements thereof, the specified state of mind shall apply to all elements of the offense.”

Thus, Hawkins continued, McDonald only violated the statute if she had the requisite intent both to vote and to do so without eligibility. Under the IJ’s interpretation, Hawkins reasoned, McDonald would be removable based on mere negligence in believing she was eligible.

Given the totality of the circumstances, Hawkins said, it was reasonable for McDonald to “have a mistaken impression about her citizenship status and the right to vote” and to conclude that she was eligible when the state sent her a registration after she notified it that she was not a citizen.

“The IJ did not find that McDonald was aware that she was ineligible to vote, only that she should have made herself aware,” the judge wrote. “This does not a violation make.”

McDonald was represented in the Ninth Circuit by Stuart I. Folinsky of Los Angeles.

The case is McDonald v. Gonzalez, 03-71986.