Prosecutorial Discretion Cures Illegal Voting Issue in N-400 Naturalization Case

We filed a naturalization case last year that presented us with two very serious issues. The first was that our client had voted in an election without being a US citizen. And the second was that she had a burglary conviction when she was young. Both of these violations not only may prevent a person from becoming a US citizen, they also may render the person deportable from the United States.

We advised her that filing the N-400 application could be risky because she would be required to alert immigration authorities of things that could result in revocation of her green card and deportation. Although it may have seemed that these obstacles were insurmountable, we were able to analyze the specific facts of her case and draft a legal memorandum in support of her application.

Aggravated Felony Conviction

When our client was a minor child under age 18, she was convicted of breaking and entering a dwelling with intent to commit larceny. She pled guilty and was sentenced to probation. After she completed probation, the case was dismissed because she was a first offender and a juvenile. She has maintained a clean record since.

Burglary is one of the crimes listed in Section 101(a)(43) of the Immigration and Nationality Act (INA) as an aggravated felony. A foreign national with an aggravated felony conviction is barred from becoming a US citizen. Not only that, the person is also subject to green card revocation and removal from the US. In addition, to qualify for naturalization, the applicant must be of good moral character. According to federal law, a person who has been convicted of an aggravated felony after November 29, 1990 is permanently barred from establishing good moral character for naturalization.

In our legal memorandum in support of our client’s application, we explained to the USCIS that although our client had a burglary conviction, she did not commit an aggravated felony according to federal law. INA Section 101 states that burglary is an aggravated felony when the term of imprisonment is at least one year. We reasoned that since she was sentenced to probation instead of imprisonment, the crime was not an aggravated felony as defined by law, and therefore it should not prevent her from obtaining US citizenship.

Illegal voting

Several years ago, our client went to the Michigan Department of Motor Vehicles (DMV) to get a replacement driver’s license, and she used her permanent resident card as identification. The DMV state employee told her she was eligible to vote and asked her if she would like to register to vote. Our client agreed, so the DMV employee registered her to vote. Our client did not know she was not legally allowed to vote, and she did vote in some elections. Once she learned that she was ineligible to vote, she never voted again.

Any alien who has voted illegally is deportable, according to INA section 237, and therefore ineligible for US citizenship. Our legal research showed that according to this law, she was ineligible for naturalization and could be deported. However, we believed that she should qualify for prosecutorial discretion, which is a USCIS policy that permits immigration officers to grant leniency in certain cases if it will promote the interests of justice.

In our legal memorandum, we conceded the unauthorized voting charge. However, we requested prosecutorial discretion based upon several relevant factors we knew were favorable to her case.

  • She is a lawful permanent resident and therefore her case warranted greater consideration;
  • She came to the US when she was a baby, and she lived in the US for 35 years since;
  • She maintained a clean criminal record since her single juvenile offender conviction 18 years ago;
  • Humanitarian concerns: she has extensive family ties in the US, her husband and children are US citizens, she entered the US at a young age, she has no ties to her home country, she does not speak her native language, she has no memory of her home country, and she has never been to her native country since she left as a baby;
  • She has never violated the immigration laws and has always maintained valid immigration status;
  • Several people have written letters in support of her naturalization application;
  • She earned an associate degree in applied science, and she is currently pursuing a bachelor degree in business administration.

We argued that because of the above factors, her naturalization case merits prosecutorial discretion in the interest of justice.


We recently received notice from the USCIS that her application for naturalization was approved. She just took her citizenship oath in federal court and was sworn in as a new United States citizen. This good news was a great relief to our client because she knew the risk involved. We felt confident that we presented a very strong case for her, but we knew there was no guarantee the immigration officer would grant her prosecutorial discretion since it is not a legal entitlement, but rather a privilege. The result proves that even when a case looks bleak at the outset, careful legal research and proper application of the law to the facts can result in a favorable outcome.