DOS Adds Limited Exception to Unlawful Voter Rule
Posted Jul 01, 2005
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Non-U.S. citizens who vote in U.S. elections are in violation of applicable federal, state, or local constitutional provisions, statutes, ordinances, or regulations and are generally inadmissible to the United States. This means that a non-U.S. citizen who claims to be a U.S. citizen and votes cannot obtain either an immigrant or nonimmigrant visa, gain admission to the U.S., or adjust status to permanent residence within the U.S. Whether a non-U.S. citizen has voted is also specifically requested when filing for naturalization and could make an individual deportable. The Child Citizenship Act of 2000, however, provided an exception to this ground of inadmissibility, which the U.S. Department of State (DOS) will implement through a proposed rule published in the Federal Register on June 21, 2005.
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Exception to Inadmissibility for Unlawful Voters
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Citing the Child Citizenship Act of 2000 as the basis for the exception, the DOS establishes in the interim rule that foreign nationals who are unlawful voters may be exempt from inadmissibility if either the natural or adopted parent of the foreign national is or was a citizen of the U.S., the individual resided permanently in the U.S. prior to reaching age 16, and the non-U.S. citizen believed at the time of committing the violation that s/he was a U.S. citizen. For the purposes of the rule, the parents could have obtained U.S. citizenship through birth or naturalization.
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Effective Date is July 21, 2005
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The effective date of this exception is July 21, 2005. The DOS is accepting comments on this interim rule until August 22, 2005. Since it is an interim rule, it has full effect. At some later date, the DOS is likely to publish a final rule.
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Law Versus Regulation
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When Congress passes a bill and the President signs it into law, everyone must examine how the law applies to them. In many instances, a law will create obligations or directives for government agencies. In this case, the Child Citizenship Act of 2000 directed the DOS to implement an exception to the inadmissibility rules and regulations. When a government agency realizes that they have received a directive or obligation, they must determine what they have been told to do. Their formal interpretations are issued in regulations. Regulations tell the agency employees and the general public how the agency has interpreted and will implement the law. Before the implementing regulations are published, the agency may either enforce the law through policy memos or cables, or may not enforce the law at all. Usually, policy memos or cables are generated by the agency without the opportunity for public comment that is provided by publishing regulations in the Federal Register.
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It is possible, as in this case, that a law may be passed years before the regulation is implemented. There may be many reasons for this, including lower priority of the law for the particular agency or disagreement among decision makers within the agency on how the law should be implemented.
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Conclusion
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We at The Law Office of Sheela Murthy applaud the DOS for implementing this exception. Anyone who finds her/himself subject to this exception should discuss the case with a qualified immigration attorney to determine proof that may be provided to show that this exception applies. Keep in mind that this is a very limited exception for adopted or natural children of U.S. citizens, who believed that they were themselves U.S. citizens. Non-U.S. citizens are not permitted to vote in government elections in the United States. Doing so creates the immigration problem described above.