Daily life for non-citizens is not always easy. Recent immigrants may face language difficulties, may struggle to find work, and may be frustrated by the increasingly-complex rules under the immigration laws. As part of daily life, if a non-citizen happens to deal with any government agency, he may be asked about his immigration status, perhaps as part of a routine inquiry to determine eligibility for any number of government services or programs. Answering that question accurately and truthfully is important. Under federal immigration law, any alien “who falsely represents, or has falsely represented, himself to be a citizen of the United States for any purpose or benefit” under any Federal or State law can be deported on that basis alone (8 U.S.C. § 1227(a)(3)(D)(1)). That penalty applies to any non-citizen making such a statement, including all people who are legally in the U.S. who are not citizens.
“In most cases, an individual residing lawfully in the U.S. who the immigration authorities determine has made a false claim of U.S. citizenship may be stripped of their lawful status and deported from the U.S.,” explains Moises Hernandez, and immigration lawyer practicing in Chicago. “Further, that individual will be ineligible for any future immigration benefit, and that includes not being able to legalize and return to the U.S. regardless of whether they have a U.S. citizen spouse, child or parent who otherwise be able to petition them for legalization.”
Sometimes in Illinois, the various agencies and offices of state government have made it too easy for a non-citizen to misstate his immigration status accidentally. As discussed below, many Illinois agencies ask confusing questions about citizenship status (and often ask non-citizens about their immigration status). An immigrant may try to answer those questions honestly and fairly, but without complete proficiency in English, without a legal background, and without a native-born sense of how government institutions work in the U.S. And in many immigrant communities, residents rely on word-of-mouth advice on legal issues, which means that many people do not get accurate information about their legal rights and responsibilities. Adding all of these factors together, an immigrant can easily stumble into an inadvertent misstatement regarding his citizenship status.
The Size of the Problem. This problem — the risk of an inadvertent misrepresentation about citizenship status — impacts many people in Illinois. More than 450,000 people in Illinois are undocumented non-citizens,1 and thousands more people live here as permanent residents, refugees, asylum participants, or other qualified aliens. For non-citizens, the risk of an inadvertent misrepresentation is especially dangerous, because the U.S. Immigration and Customs Enforcement office is initiating a record number of removal proceedings
lately, 2 often for legal violations that do not involve any violent conduct.3
As a matter of fairness and public policy, should immigrants have to worry that they will jeopardize their chances for becoming lawful permanent residents by unwittingly misstating their immigration status? Should Illinois government agencies be in the business of tripping up non-citizens who are not trying to defraud anyone?
The Drivers’ License Application Process Illustrates the Issue. Consider, for example, a recent program change at the Illinois Secretary of State’s office regarding drivers licenses for non-citizens. Under a program that launched in November of 2013, the Illinois Temporary Visitor Drivers’ License (“TVDL”) program became available to non-citizen drivers who do not have a social security number, including, for example, undocumented non-citizens.4
But still, the process for obtaining a driver’s license can be confusing for non-citizens,5 some of whom have a limited mastery of English. While applying for a license, some non-citizens have checked the wrong box on the forms and they have registered to vote,6 without fully realizing what they are doing.7 Some non-citizens have registered to vote when the desk personnel at the driver’s license facility have encouraged them to register to vote; even though the non-citizen is not eligible to do so.8 But there are other ways in which non-citizens can make an inadvertent false statement regarding their immigration status. For example, think how often a person with a clipboard approaches and asks if you will sign a nominating petition to help put a candidate on a ballot. If a non-citizen happens to sign such a petition, he has represented himself (incorrectly) as a registered voter,9 implicitly claiming to be a U.S. citizen.10 Similarly, if a non-citizen agrees to collect signatures on a nominating petition on behalf of a candidate, the non-citizen could end up inadvertently representing himself as a registered voter.11 Without an understanding of the ballot petition process in Illinois, an immigrant might accidentally misrepresent his citizen status.
Complex and Confusing Forms. In other situations, an immigrant might overlook the fine print on an application form, or might struggle with questions relating to complex eligibility rules for a program. For example, when a non-citizen applies for financial aid for college, he faces a complex set of eligibility rules for Federal and State financial aid.12 Illinois also has several student-loan forgiveness programs that depend on citizenship status as part of their eligibility.13 The Illinois Public Aid Code also has a complex set of eligibility rules relating to the applicant’s citizenship status,14 as does the Illinois Children’s Health Insurance Program.15 Given the complexity of the paperwork for many government programs, a non-citizen can make a costly misstatement about his own citizenship status.16
Unclear Statutes. Some Illinois statutes fail to clearly state how an undocumented individual is supposed to answer questions about his or her citizenship status. For example, when a non-custodial parent is the subject of an Income Withholding Order for child support, the Order is supposed to set forth the non-custodial parent’s citizenship status. If that parent is a non-citizen, the statute requires that he “shall disclose to the Court, and the Court shall include in the Order for support, the obligor’s alien registration number, passport number, and home country social security or national health number, if applicable.”17 But the statute is silent with regard to how the case is to proceed or the support is to be withheld if the undocumented litigant does not have an alien registration number. In this situation it is not hard to imagine how even a well-intentioned person can answer inaccurately.
Just as confusing, an undocumented non-citizen may be eligible for the In-State rate for tuition at an Illinois university, but to qualify he must submit an affidavit stating that he will apply to become a permanent resident as soon as he is eligible to do so.18 An applicant might be intimidated or confused by the prospect of filing an affidavit that (i) admits he is undocumented, and (ii) promises to correct his status in the future.
These are all potential traps for the unwary in Illinois, and there may be others. And while some innocent mistakes will not trigger removal proceedings,19 the real issue is one of fairness. Because the consequences are so serious, should it be so easy for someone to make such a costly misstatement?
Possible Solutions. A solution to this problem involves at least four parts. First, Illinois governmental agencies can help. Public officials should be aware of the problems that recent immigrants face when answering questions about their citizenship status. Sometimes, a social service agency needs to know the individual’s status, such as when determining eligibility for a program. Shouldn’t the questions be easy to answer truthfully and accurately? For an example of a best practice, the application form used by the Illinois Department of Healthcare & Family Services for its Illinois Healthy Women program (available online at www.Illinoishealthywomen.com) is especially clear and fair. Other agencies can follow that lead.
Second, whenever possible, non-citizens should try to steer clear of immigration problems by understanding their immigration status and making sure that they understand any governmental request for information regarding that immigration status.
And, just like everyone else, non-citizens should never sign a document that they do not understand.
Third, as a legal community, we can help spread the word that there is no substitute for sound legal advice. When recent immigrants have questions about the law, they are better off asking for help from an immigration lawyer or a non-profit agency with expertise, rather than relying on a trusted friend or word of mouth advice. Finally, a statutory fix is in order. While comprehensive immigration reform may be at a political standstill, the problem of an inadvertent misstatement regarding legal status is an issue that is ripe for a legislative fix. Congress could create an exception for inadvertent false claims of citizenship that did not benefit anyone, so that individuals would no longer face an automatic lifetime bar for future immigration benefits such as a green card and the ability to petition family unless granted a waiver.20
Alternatively, Congress could also permit immigration authorities – and immigration judges – to waive any penalties for false statements on citizenship, if equity and fairness suggest that a waiver is in order.
Daily life is hard enough for people who are new to this country. In Illinois, we can do more to ensure that non-citizens do not accidentally get themselves into trouble by misstating their citizenship status.
1 Population Decline of Unauthorized Immigrants Stalls, May Have Reversed, Pew Research Center, September 23, 2013 (“Pew Report”), at p. 13. See also Illinois’ Undocumented Immigrant Population: A Summary of Recent Research, by the Illinois Coalition for Immigrant and Refugee Rights, February 2014, at p. 1.
2 Pew Report, (n.1, above), at p. 18.
3 More Deportations Follow Minor Crimes, Data Shows, by Ginger Thompson and Sarah Cohen, New York Times, April 7, 2014, at p. A1.
4 625 ILCS § 5/6-105.1.
5 Marwa Eltagouri, “Immigrant Who Wrongly Voted Wins Right to Stay, Chicago Tribune, July 6, 2014, at 6; Sandy Fitzgerald, “Illinois Immigrant Cleared to Stay After Voting By Mistake,” Newsmax, July 5, 2014.
6 In recent years, the U.S. Attorney General has pursued removal proceedings against non-citizens who have unlawfully registered to vote. See Ali v. Holder, 536 Fed. Appx. 429 (5th Cir. 2013); Pasha v. Holder, 481 Fed. Appx. 594 (11th Circ. 2012); Agholor v. Holder, 454 Fed. Appx. 360 (5th Cir. 2011); and Matute v. Holder, 354 Fed. Appx. 426 (11th Cir. 2009).
7 See, e.g., Kimani v. Holder, 695 F.3d 666, 671 (7th Cir. 2012).
8 See, e.g., Keathley v. Holder, 696 F.3d 644, 645-46 (7th Cir. 2012).
9 10 ILCS § 5/3-1.2 (by signing a petition, a person states that he is registered to vote).
10 10 ILCS § 5/7-10 (registered voters must be U.S. citizens).
11 10 ILCS § 5/7-10 (requiring that a person circulating a petition must certify that they are a registered voter).
12 See, e.g., http://studentaid.ed.gov/eligibility/non-us-citizens (explaining eligibility rules for non-citizens under the federal
financial aid programs). See also http://www.isac.org/students/during-college/applying-for-financial-aid/citizenshiprequirements.html (same eligibility rules for Illinois aid programs).
13 See, e.g., the Teachers and Child Care Providers Loan Repayment Program (110 ILCS § 947/65.56); the Loan Repayment Assistance for Dentists Act (110 ILCS § 948/25); the Loan Repayment Assistance for Physicians Act (110 ILCS § 949/25); and the Veterans’ Home Nurses Loan Repayment Act (110 ILCS § 972/20).
14 305 ILCS §5/1-11.
15 215 ILCS §106/20.
16 See, e.g., Dwumaah v. Holder, 609 F.3d 586, 588 (3rd Cir. 2010) (removal proceeding based on false statement of citizenship in a student loan application).
17 750 ILCS § 28/20.
18 110 ILCS § 307/7e-5.
19 Recently, one Court of Appeals raised questions about whether every misrepresentation on citizenship will support removal proceedings under Section 1227. Richmond v. Holder, 714 F.3d 725, 730-31 (2nd Cir.2013).
20 8 U.S.C. § 212(a)(6)(c) The Immigration and Naturalization Act (1952).
Tom Doyle is Of Counsel with Wexler Wallace LLP, in Chicago. He represents plaintiffs in class actions, including antitrust and employment cases. Tom serves on the Board of Latinos Progresando, a family immigration clinic in Chicago. He is a graduate of the University Of Illinois College Of Law, and Bradley University.