Amid arrest of pro-Palestinian student organizer, what rights do visa holders and others have?
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The federal government’s move to revoke a Columbia University graduate student’s green card and deport him for his involvement in a pro-Palestinian student encampment last year is raising fresh questions about the risks associated with political activism for non-United States citizens.
Mahmoud Khalil was a prominent negotiator representing student protesters at Columbia, which was one of many campuses nationwide that was roiled by demonstrations over the war in Gaza. A number of protests featured the establishment of pro-Palestinian student encampments, such as those that were eventually dismantled at UCLA, UC Irvine, Cal Poly Humboldt, UC Santa Cruz, UC Berkeley, Stanford and San Francisco State.
Khalil, a permanent U.S. resident, was arrested March 9 at his university-owned apartment by U.S. Immigration and Customs Enforcement agents. According to the Associated Press, agents said they were executing a State Department order to revoke Khalil’s student visa. When Khalil’s lawyer clarified that he is a green card holder, officials said they were revoking that, as well.
Khalil’s ultimate fate is not yet clear — his possible deportation is on hold while a court considers the legal argument that he was engaging in protected free speech. But the move mirrors an executive order President Trump signed at the start of his term to deport and cancel the student visas of all “Hamas sympathizers on college campuses.”
Mahmoud Khalil was at his apartment in Manhattan when several Immigration and Customs Enforcement agents entered the building and took him into custody.
Secretary of State Marco Rubio doubled down on the administration’s actions at a press conference soon after Khalil’s arrest, saying, “This is not about free speech. This is about people that don’t have a right to be in the United States to begin with.”
Khalil’s arrest has “undoubtedly sent a chill through university communities all around the country, and it has definitely sparked a round of fear amongst university students, particularly those who are involved in Gaza [related] political protests,” and faculty, said Ahilan Arulanantham, co-director of the Center for Immigration Law and Policy at UCLA’s School of Law.
So what protections are there for non-U.S. citizens participating in political activism? Here’s what some experts have to say.
Immigration enforcement agents arrested Mahmoud Khalil, a permanent U.S. resident who is married to an American citizen, in New York on Saturday.
1st Amendment considerations
Immigration advocates and legal experts say everyone who lives in the United States has the 1st Amendment right to participate in activism and political demonstrations, including protests, regardless of their immigration status.
Revoking a person’s green card, temporary visa or Deferred Action for Childhood Arrivals status just because of their political activity would violate the 1st Amendment, Arulanantham said.
“The problem is it’s very difficult to prove that’s what’s happening and the avenues for challenging such revocation are extremely limited,” he said.
Even though non-U.S. citizens have the right to protest, though, there is a risk of “being charged with something that could put your status in danger,” such as a vandalism misdemeanor or resisting arrest, said Veronica Garcia, staff attorney with the Immigrant Legal Resource Center.
Rubio alluded to that rationale in his press remarks.
“When you apply for a student visa or any visa to enter the United States, we have a right to deny you for virtually any reason, but I think being a supporter of Hamas and coming into our universities and turning them upside down and being complicit in what are clearly crimes of vandalization, complicit in shutting down learning institutions — there are kids at these schools that can’t go to class,” he said.
“If you told us that’s what you intended to do when you came to America, we would have never let you in,” he added. “And if you do it once you get in, we’re going to revoke it and kick you out.”
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Can your green card be revoked just for participating in political activism, including protests?
Generally, no. But there are some caveats.
The government has no authority to revoke your green card status because “it’s a distinct legal category and under the law you have the right to reside here permanently,” unless you violate a set of rules laid out specifically in the statute, Arulanantham said.
Under Section 237 of the Immigration and Nationality Act, a green card holder could be subject to deportation for being charged with a violent crime or marriage fraud, for example.
“In the context of protests, someone might be convicted of vandalism, assault and battery with a police officer or resisting arrest so that could lead to [the green card holder] being deportable,” said Miosotti Tenecora, staff attorney with the Immigrant Legal Resource Center.
Pro-Palestinian tent encampments remained peaceful on some campuses and descended into violence at others, leading to law enforcement interventions and damage to university property.
In a recent blog post Arulanantham co-authored on Just Security, he argued that in Khalil’s case, the Supreme Court has held that “the law does not permit the government to deport a non-citizen on grounds that are too vague to provide fair notice of what they did wrong.”
“But the question is, if the government is violating the 1st Amendment and wants to deport you for it, can you do anything to stop them?” he told The Times.
Claiming the United States was being invaded by a Venezuelan gang, President Trump has invoked the Alien Enemies Act of 1798. A judge’s order delays deportations.
What about temporary student or faculty visas?
The government can revoke a temporary student or faculty visa and does not have to give a reason, Arulanantham said.
The student would then have to try to prove that the revocation was because of their pro-Palestine activity, which is difficult to prove.
Another example Arulanantham gave is if the student goes home for spring break and they’re trying to come back into the U.S., an official at the airport can deny them entry — and again, they don’t have to give a reason.
This, too, would be difficult to prove in litigation.
Immigration officials have arrested a second person who participated in Pro-Palestinian protests at Columbia University, and have revoked the visa of another student.
What about DACA recipients?
If you’re a DACA recipient, you’re at risk of having your status rescinded or deemed ineligible for renewal if you’ve been convicted of three or more misdemeanors, Garcia said. Participating in a protest is not a violation of the program.
“There are some grounds that are beyond just criminal activity, like national security-related grounds, but the government would have to argue that just your protest activity is sufficient,” Arulanantham said.
If ICE shows up, how does your immigration status protect you?
Legal experts say non-U.S. citizens, regardless of their status, have 4th Amendment constitutional rights, so they can choose not to answer questions or open their door without seeing a valid warrant.
Arulanantham’s advice for foreign students with temporary visas, other temporary visa holders and DACA recipients is: If you have employment authorization or other proof of status, you should carry it with you.
Students shouldn’t carry documents that show they were born outside the U.S., he said, but instead those that prove they have lived here for more than two years. The government typically takes the position that if you lived here for less than two years, then you can be deported without an immigration court hearing under the expansion of expedited removal, he said.
Green card holders should carry their green card.
ICE agents could question people at a protest, for example, but Tenecora says they can’t go any further without “reasonable suspicion that this person doesn’t have lawful status.”
The University of California shelled out an estimated $29 million to handle this spring’s protests over the Israel-Hamas war, with 90% of the costs going toward law enforcement.
Avoid social media
Tenecora and Garcia advise against posting your participation in a protest, because the government can use it as evidence to connect you to the event.
If the protest turned violent, for example, and there is proof you at some point attended the protest, the government could use the photo or video and link you to a violent charge.
Both attorneys said non-U.S. citizens have a right to participate in protests and other forms of peaceful activism. However if you want to more clearly understand the risks associated with that, they recommend consulting a lawyer.
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