WHAT INTERNATIONAL STUDENTS SHOULD KNOW ABOUT PARTICIPATING IN PROTESTS AND IMMIGRATION CONCERNS
Note: This article was originally published in 2003. It has been edited and updated for current use.
In 2003, several students visited the Office of International Student and Scholar Services and inquired whether there are any immigration consequences to protesting the current Iraq war. Anyone in the United States, be they U.S. citizens or foreign nationals, have rights under the U.S. Constitution. This includes the right to free speech and freedom of assembly. However, given the current restrictive legal climate at the federal level, it's helpful for international students to be well informed about this issue.
Ellen Badger, ISSS Director, consulted with then-Captain Donald Chier of the Binghamton University Police Department, and Stephen Yale-Loehr, nationally known immigration attorney with the law firm of Miller Mayer in Ithaca, New York and co-author of Immigration Law and Procedure (a 20-volume treatise on U.S. immigration law that is considered the standard reference work in that area of law).
We offer three separate hypothetical scenarios, followed by the combined responses of Captain Chier and Attorney Yale-Loehr.
1. A foreign national in the United States writes a letter or sends an e-mail message to the President of the United States protesting the United States' involvement in the Iraq war. Are there any negative consequences to sending such a letter or e-mail?
From a U.S. constitutional perspective, writing such a letter or e-mail message is perfectly legal. However, any message that includes a threat or perceived threat to the President would be immediately turned over to federal authorities for investigation, so be polite when you write. In certain remote instances, a letter or e-mail that includes a significant amount of identifying information about the sender (your country of citizenship, your field of study, your level of study, etc.) could be turned over to federal authorities for further review if it was felt that you were from a country or studying in a field that is of security concern to the United States.
Recommendation: don't draw negative attention to yourself.
2. If I attend a rally or protest off campus, will I be videotaped or photographed? Who might be taking those pictures or videos?
From a legal perspective, foreign nationals have a legal right to attend a rally. But in this technological age, cameras are everywhere. Many large buildings, especially government buildings but commercial buildings as well, have video cameras permanently mounted both inside and outside. There may also be cameras mounted on street lights. These cameras may be recording images 24 hours a day. So, the issue is not just hand-held video cameras or still cameras. In some large municipalities, it is standard procedure to tape any major event (this could be a celebration or a protest) to be able to record evidence of any injuries or property damage should that occur.
Recommendation: Do not engage in illegal activities. Be aware that such activities may be recorded or photographed.
3. What are the consequences if I choose to engage in an act of civil disobedience at a protest or rally that leads to my arrest? Or perhaps I am in an area where others are engaged in an act of civil disobedience, and am mistakenly arrested because the police think I am part of the larger group? Might there be immigration consequences?
An example of civil disobedience can include being instructed by the police authorities to disperse, and choosing instead to sit down. The police then announce that anyone who does not disperse will be arrested, and you continue to sit, inviting the police to arrest you.
There certainly could be immigration consequences to such an action, and we would urge international students to seriously consider the potential risks before choosing to engage in this behavior. The second part of the question, being arrested in error because you are presumed to be part of a larger group, is what we call "being in the wrong place at the wrong time."
Recommendation: your best option, if you are part of a group that chooses to engage in an act of civil disobedience or if you come upon people engaged in such acts, is to leave the area immediately and not risk arrest. Depending upon the charge(s) brought against you, as well as any previous arrests, you could be barred from returning to the United States. Also, the charges can vary based on the location of the protest. For example, if your protest is on federal property, such as a Federal building in a local municipality or in the nation's capital, an act of civil disobedience on federal property could lead to federal criminal charges being brought against you. In any of the situations described above, it's essential that you weigh the potential risks to yourself, and then make the appropriate decision. Attorney Yale-Loehr also recommends that international students be aware of their rights under federal law. For more information on the rights of foreign nationals, visit the website of the National Lawyers Guild to review the brochure “You Have The Right to Remain Silent”: