Month: April 2010

Dear Atty. Lou,

I have a problem in regards to my husband’s situation. We are both residing in the East Coast. I am a US citizen now and my husband is still a permanent resident or a green card holder. He made a major mistake by voting in one of the local elections. He was not supposed to vote because he is not a citizen yet.

He now wants to become a US citizen but his lawyer said that he could no longer become one because his name will show that he voted and will be subject to deportation. My question to you is if there is any possibility that he will be able to apply for citizenship and he will not be caught that he voted. If he applies for citizenship, will he really be deported?

I wrote a letter to the Board of Elections where he registered to vote asking them if he can clear his name from the voters’ list because he did not know that he cannot vote just yet. I did not get a response since I sent the letter one year ago. Please help!

ND

Dear ND,

Generally, unlawful voting by a US citizen is a ground for inadmissibility and for removal/deportation. This particular provision of the law was put in place in 1996 by the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act. The prohibition refers to voting after September 1996.

The provision against unlawful voting refers to any federal, state or local elections. There is no express requirement that the non citizen actually knew of the violation of the voting requirement. However, the Department of State issued guidance, stating that the non citizen may not be held inadmissible if the alien demonstrates to the satisfaction of the consular officer that he did not “knowingly vote in violation of the rule.”

Another exception to the unlawful voting is that if the non citizen resided in the US before age 16, each parent was a US citizen and the non citizen reasonable believed he was a US citizen.

There are also limited municipalities in states such as those municipalities in Maryland and Massachusetts that actually allows non citizen to vote.

In the case of your husband, you mentioned that he voted in a local election. You may want to determine whether the municipality where he voted allows non citizens to vote so he will not be guilty of unlawful voting. Also, you did not mention when your husband received his green card status. If he was living in the US before age 16 and each of his parent are US citizens, he must show proof that he “reasonably believed” that he was a US citizen.

If none of the above exceptions apply to him and he engaged in unlawful voting, then he will risk being put in removal proceedings if he tries to apply for his citizenship. He may also be potentially liable for a criminal offense in addition to his removal charges before the immigration court.

I hope this information is helpful.

Atty. Lou

(Lourdes Santos Tancinco Esq .is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Suite 818, San Francisco CA 94102 and may be reached at 415 397 0808, email at law@tancinco.com. The content provided in this column is solely for informational purposes only and do not create a lawyer-client relationship. It should not be relied as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You may submit questions to law@tancinco.com)

Edgardo comes from a Filipino family with military background. Most of his relatives served in the military forces of the United States either in the air force or in the navy.  He applied to join the US Navy in 1989 through the Philippine Enlistment Program at Subic Bay. When he was accepted, he felt that the door of opportunity opened for him and immediately left the Philippines in 1990 to go to the Recruit Training Center in San Diego.

It did not take long for Edgardo to be in active duty. In 1991, he was deployed to the Persian Gulf War. He returned safe after a few months and was assigned to different US bases until March 2003. During the Bush administration, Edgardo was deployed in Iraq. His war experience in Iraq was very challenging. He witnessed many of his colleagues suffered the atrocities of war and there were casualties in his unit. Edgardo survived and returned to San Diego after six months to be reunited with his spouse and child.

During Edgardo’s deployment in the Persian Gulf and Iraq, he was not in possession of a green card. All he had was his US military identification card. Realizing that there were a significant number of noncitizens serving the US military, the rules on citizenship were amended by then President Bush to give priority to members of the military.

Edgardo finally applied for US citizenship without first becoming a green card holder. He was recently naturalized to become a US citizen and was again deployed abroad. This time he is fighting the war in Afghanistan.

Filipinos As Second Largest Group

According to a study conducted by the Migration Policy Institute, there are about 87,000 immigrants from the Philippines who have served in the armed forces of the United States. The study shows that about 12,000 Filipino immigrants were in active duty in 2008; and, that there are about 75,000 veterans of the US Armed Forces. The Filipinos were determined to be the second largest group among the 650,000 foreign born veterans next to the Mexican nationals.

The history of the enlistment of Filipinos to the US military goes back to 1901 when more than 500 Filipinos registered to be part of the US Navy. Recruitment of Filipino men during World War I and II increased their numbers.

From 1947 to 1989, the US Philippine Military Bases Agreement included a provision allowing for the enlistment of Filipinos through the US Navy Philippine Enlistment Program. Thousands of Filipinos were able to migrate as US soldiers and most of the second and third generation Filipino-Americans are related to someone who was a veteran. There are currently still about 25,000 Filipino immigrants in active military service since 2001.

Naturalization of Non Citizens in the Military

Section 329 of the Immigration and Nationality Act (INA) provides an opportunity for naturalization to those who have served in the US Armed Forces.  Unlike veterans of other US wars, the Filipino World War II veterans were not allowed to be naturalized until 1990.

Generally, enlistment in the US military is limited to US nationals and green card holders. The exception is if the government determines that enlistment of non-citizens or non-green cardholders is vital to the national interest or is based on a treaty like the US-RP Military Bases Agreement.

Military Accessions Vital to the National Interest (MAVNI)

On February 2, 2009 the US Army implemented a Department of Defense enlistment pilot program called the Military Accessions Vital to the National Interest (MAVNI).

Under MAVNI, non green card holders or non citizens may enlist if they are legally present in the United States in E,F,H,I,J,K,L,M,O,P,Q,R,S,T,TC,TD,TN, U or V status, or are in the US as refugee or asylee.

Persons who enlist under MAVNI can obtain US citizenship without first applying for green card.

Learning from WWII Veterans

There are now varying incentives for immigrants to enlist in the US Army. Joining the US military now for immigrants may be by choice. But during World War II, most of the Filipino men were conscripted to the US military by order of then President Roosevelt. The Filipino World War II veterans remained loyal soldiers courageously fighting and sacrificing in the name of freedom and democracy. Unfortunately, their sacrifices and heroic deed were left unacknowledged for a long time and there are still thousands of war veterans who are denied their just recognition. The new generation of Filipino war veterans should learn from the experience of World War II veterans and advocate for better treatment by the US government based on what they justly deserve. Remember Bataan.

(Tancinco may be reached at law@tancinco.com or at 887 7177)