Illegal Aliens vs Citizens by Constantin Belyayev
This article is prompted by a recent (27 June 2024) S.C.O.P.E. mailing entitled “Non-Citizen Voting”. Based on my 20-plus years of immigration enforcement experience I thought I would throw in my 2 cents.
First, a little bit of background. I joined the former Immigration and Naturalization Service (INS) in 1996 as a criminal investigator / special agent. My first duty post was in New York City, a common first stop. Shortly thereafter I transferred to an INS office located within the New York State Department of Correctional Services (NYSDOCS), where our mission was to identify and remove incarcerated criminal aliens, legally or illegally present in the U.S. In 1999 I transferred to the Albany, NY, field office, where I remained until my retirement in 2018.
When I first started, INS itself was an agency within the Department of Justice (DOJ). In 2003, right after the creation of the Department of Homeland Security (DHS), the agency’s functions were merged with those of U.S. Customs, formerly of the U.S. Treasury, and transferred to the new department. The new combined agency became the Bureau of Immigration and Customs Enforcement (BICE) first, and then simply Immigration and Customs Enforcement (ICE) as we all know it today. (Word on the street was that the FBI could not suffer any other “bureau” to exist…)
During my career with INS and then with ICE, I was primarily tasked with enforcing criminal and civil statutes dealing with aliens and nationality. In the latter part of my career, I concentrated on cases involving Identity and Benefit Fraud, which concerned various schemes to obtain immigration benefits in the U.S. through fraudulent means.
The subject of non-citizen voting necessarily leads to far too many other collateral issues that could be addressed. To keep it brief and to the point I shall limit my comments to a just a few.
The Immigration and Nationality Act (INA) is part of Title 8 of the United States Code (USC), a set of laws which deals with aliens and nationality. The INA contains civil provisions describing prohibited conduct with respect to U.S. immigration laws. Civil provisions of the INA allow for deportation (removal) of aliens who have violated U.S. immigration laws based on a multitude of grounds. They also allow for fines against aliens and U.S. citizens such as employers hiring aliens without work authorization. Criminal provisions of Title 8 and Title 18 (General Crimes) allow for criminal prosecution of aliens and those aiding and abetting them to violate U.S. laws.
With respect to non-citizen voting, several civil INA statutes come to mind immediately:
INA 212(a)(6)(C)(i) – Willful Misrepresentation of a Material Fact (making some type of false claim)
INA 212(a)(6)(C)(ii) or INA 237(a)(3)(D) – False Claim to U.S. Citizenship
INA 212(a)(10)(D) or INA 237(a)(6) – Aliens who Voted Unlawfully
Bear in mind that an alien does not have to be illegally present in the U.S. to be deported (removed) under the above statutes. According to Federal law, only U.S. citizens may vote. And thus, we proceed to the next section involving criminal statutes.
18 USC 911, False Claim to U.S. Citizenship, a felony. The law applies to documented provable oral and written false claims of U.S. citizenship. Even falsely marking a check box on a form stating "U.S. Citizen" could make one chargeable under this law. It is a “bread-and-butter” statute commonly used in immigration enforcement. My colleagues and I used this statute successfully on many occasions. It goes hand in hand with unlawful voting by aliens since to vote, an alien must swear or affirm that he or she is a U.S. citizen. We have seen, in recent times, numerous attempts by local and state governments to “bend the rules” so that non-citizens could vote, but the Federal statutes are quite clear:
18 USC 611, Voting by Aliens, a felony, specifically proscribes voting by aliens in any Federal election.
18 USC 1015, Naturalization, Citizenship, or Alien Registry, specifically subsection (f) makes it unlawful for any alien to vote in any Federal, state, or local election by falsely claiming U.S. citizenship. A violation of this statute is also a felony.
8 USC 1324, Bringing in and Harboring Certain Aliens. Any and every individual or entity, whether governmental or private, whether acting in their official capacity or privately, is subject to this statute. 8 USC 1324 says, in sum and substance, that it is unlawful to conceal, harbor, shield from detection any illegal alien, or to induce any alien to illegally enter into or reside in the U.S. Of course, there are court precedents and case law upon which prosecutors must rely in undertaking any case, and individual exceptions such as law enforcement bringing in informants or witnesses. Also, there is nothing to prevent U.S. Congress from creating a mechanism for aliens to obtain legal status. But if appropriately applied, many members of the current Federal Administration and New York State government could technically be chargeable under this statute. Failure to process incoming aliens for court hearings, clandestine night-time flights bearing aliens into the interior, unsolicited bus runs upstate from New York City, sanctuary policies of any governmental entity, and any similar conduct all qualify for potential evidence of 8 USC 1324.
Of course, the bigger issue under the current Administration is that U.S. Attorneys who are answerable to DOJ would be understandably reluctant to prosecute these and other similar crimes. It is stating the obvious that the Administration wants as many aliens to enter the U.S. as possible in hopes they would vote for the Democratic establishment. Consequently, the next U.S. Attorney who sticks his or her neck out in this manner may just wind up in Alaska prosecuting Innuits for illegal whale poaching or some such thing. Remember, a federal statute (or any other statute) is only as good as the Executive Branch employee who is willing (or allowed) to enforce it.
New York State has gone to great lengths to keep illegal aliens from being detected and dealt with according to law. Here are a few examples:
New York Driver’s License Access and Privacy Act, S. 1747B, commonly known as the Green Light Law, was signed by Governor Cuomo on 17 June 2019 and took effect in New York on 16 December 2019. It allowed illegal aliens to obtain “standard” drivers licenses (not Federally-accepted documents for travel under the REAL ID Act). Moreover, it took away the ability of immigration officials to access New York State motor vehicle records and instituted a requirement that a judicial warrant or subpoena be served for any such requests.
As if this was not enough, this law was yet further amended as part of the 2020 New York State budget, signed by Governor Cuomo on 3 April 2020. The amended version made it a Class E felony for any official of the New York Department of Motor Vehicles (NYSDMV) to provide any DMV records to any agency “that primarily enforces immigration law” (S. 7508B, Part YYY, Section 1, Subdivision 12 (a) and (b)). Some of the other provisions involve informing the individual whose record is being requested and certifying that the record would not be used for immigration enforcement purposes. Effectively, today an ICE agent may no longer conduct a simple license plate check in New York.
New York Protect Our Courts Act, A. 2176A, was signed by Governor Andrew Cuomo 15 December 2020. This law prevents immigration officials from entering any court in New York State in order to effect a civil arrest of an alien without a warrant or for a matter unrelated to the instant court proceeding. By way of explanation, a warrant is not initially required to effect the arrest of an alien on civil (not criminal) grounds of deportability or removability.
New York For All Act, S. 987 / A. 5686, last introduced in 2023. While, thankfully, this measure has not yet passed after being introduced on multiple occasions since 2019, it shows the lengths to which New York State officials are willing to go in order to unlawfully shield the illegal alien population from Federal enforcement efforts. This act would effectively end all cooperation between any New York State employee and any Federal agency which enforces immigration laws with virtually no exceptions.
Sanctuary city and state laws, while not specific to New York, already prevent cooperation between state and Federal law enforcement. A sanctuary state, by its very definition, violates 8 USC 1324 in that it harbors, conceals, and shields from detection illegal aliens. I wouldn’t bet on any U.S. Attorney taking such a case any time soon, however…
Yes, NY State (and the current Federal Administration) have taken great steps to encourage aliens to vote. And while it is still unlawful to do so under Federal law, "workarounds" persist. The affidavit attached to the NY State Voter Registration form is one such clever “workaround”. It does not require the applicant to blatantly lie by claiming some legal status and the ability to vote through U.S. citizenship. It merely allows the applicant to attest to the fact that he/she does not have a Social Security Number. The State does the rest.
Criminal behavior abounds in NY. Good luck getting anyone charged... unless, of course, you happen to possess a scary-looking black rifle legal in most other states. Or those that have been sitting on the sidelines on election day will finally decide to vote.
