Can Foreign Students' Visas be Revoked for Exercising Constitutional Rights?

At least sometimes, yes.

I'm not an expert on immigration law, but it appears that US law prohibits entry for foreigners who support designated Foreign Terrorist Organizations, such as Hamas. This in turn leads to the question of whether foreign students who have already been admitted can have their visas revoked (or not renewed) for supporting Hamas while in the US, as the Trump administration has announced plans to do. This question was the subject of Eugene's very interesting post yesterday about the ACLU's letter on the matter.

One thing that occurred to me is that it's clear that visas *can* be revoked for actions that involve the exercise of constitutional rights, for which Americans could not be punished. While the Supreme Court's jurisprudence on economic rights is quite forgiving of government regulation, assumedly the Court would not permit the government to enforce a law prohibiting university students from working in any off-campus job without special authorization. And yet, the US government does enforce such a rule against foreign students, and also limits them to working on-campus twenty hours a week while school is in session. So while this in itself does not resolve the First Amendment issue regarding supporting Hamas, it does show that foreign visa holders can have their visa status revoked for engaging in activities for which Americans could not be punished.

As an aside, it's worth noting that the ACLU's letter attempts to obscure this distinction by referring to foreigners lawfully present in the US on students visas as "immigrant students." They are not, in fact, "immigrants" are not here on immigrant visas, and while many (but hardly all) foreign students find a way to stay in the US, student visas are not intended to provide a means of permanent immigration to the US.

On another point, I disagree with Eugene (rare for me) that deporting Hamas supporters is bad policy "because chilling the speech of lawful visitors to the U.S. does interfere with the marketplace of ideas for Americans." Foreign students are here as visitors to study, not to be members of the American polity. That doesn't mean that we should prohibit them from expressing their opinions, but, e.g., holding protests in favor of an enemy country during wartime, or, more controversially perhaps, prohibiting foreign students from using their status as such to try to influence American public opinion on behalf of organizations that Congress has sanctioned as enemy terrorist organizations, strikes me as perfectly reasonable.

Comments

[ReaderY]

Foreigners have no constitutional right to enter or remain in this country and are here at this country’s pleasure. Like any other guest, they can be uninvited for any reason or no reason.

As an alien has no right to remain in this country, deportation simply isn’t a violation of any constitutional rights. Deportation is not in any way a punishment. So deporting aliens for their speech is not punishing them. Indeed, since remaining in this country is entirely a matter of this country’s pleasure and grace rather than right, deportation of aliens for their speech does not deprive aliens of anything they have a right to possess.

Harisiades v. Shaugnessy, 342 U.S. 580 (1952) which held that aliens can be constitutionally deported for membership in the Communist Party, remains perfectly good law today. It applies equally to Hamas and indeed any other organization, party, or movement our government doesn’t like, for any reason or no reason.

[Bill Poser]

Insofar as the US is signatory to treaties regarding political asylum, and has legislation regarding the rights of asylum seekers, I wonder whether there are limited circumstances in which foreigners do have a right to enter and remain in the United States. Suppose that a member of Islamic Jihad, another terrorist group, seeks asylum in the United States after Islamic Jihad has a falling out with Hamas and he can validly argue that his life would be at risk if he were to be returned to Gaza. What are his rights?

[jimc5499]

Why is that the problem of the United States? ReaderY has it right. There are other places that the IJ member can go.

[Rossami]

I'm not so sure. The right to exclude guests is a sovereign right - that is, inherent to being a nation. But to the extent that we signed a treaty, that right may be waived. Our obligations to comply with the treaty (which, again, we voluntarily consented to) could trump the sovereign right to exclude "for any reason or none".

The fact that there are other places one could seek asylum does not automatically absolve us of all treaty obligations.

Of course, the extent to which a treaty applies to a specific situation is likely going to be complicated and fact-specific. But I think there likely are situations where your and ReaderY's simple answer don't work.

[ReaderY]

The problem (from your point of view) is that courts have generally held that treaties are not self-executing and do not give foreigners rights enforcible in American courts, unless either the treaty specifically says so or Congress passes enforcement legislation. See for example Meddellin v. Texas, 552 US 491 (2008).

[Roger S]

This is like asking if the USA should take a Trotskyist who had a falling out with the Stalinist. I say we should keep out all those with unamerican ideologies.

[Dr. Ed 2]

Well, Trotsky was in Mexico and not New Mexico when he was murdered...

[Stupid Government Tricks]

Executed, please. He was not murdered.

[David Nieporent]

I say we should keep out all those with unamerican ideologies.

So when are you self-deporting?

[ReaderY]

I limited my comment to constitutional rights. The power is Congress’. Congress has chosen to delegate essentially all its power to the President. But it can take it back any time it wants (in theory, it certainly doesn’t seem inclined to now). It can limit the President’s discretion, create new rights by statute or treaty, give the courts back jurisdiction to decide a whole series of immigration matters that they are barred from deciding under current law, etc. etc. etc.

No argument here about any of this.

One practical issue with current treaties is that signing a treaty doesn’t create a private right to enforce it. Congress can of course create such a right. But it generally hasn’t. As a result, foreigners claiming that treaties give them judicially enforceable rights have generally been turned down by the courts.

[bernard11]

Deportation is not in any way a punishment.

Seems like one to me.

[vaadu]

Sounds more like self-defense.

[Jett's Pop]

Not necessarily inconsistent. Maybe it's both.

[Stupid Government Tricks]

"Seems"? A lawyer relying on feelz and emotions instead of quoting laws?

[JoeFromtheBronx]

Galvin v. Press in the 1950s recognized that "the intrinsic consequences of deportation are so close to punishment for crime" but held that for legal purposes, it was not.

We can recognize how it might be realistically a punishment.

[rloquitur]

There was a 7-2 case about ineffective rep because the guy would be deported upon conviction.

[JoeFromtheBronx]

Ineffective rep?

The case involved deportation for involvement in the Communist Party & part of the claim was that it violated the Ex Post Facto Clause, which only applies to criminal acts. The opinion held the clause did not apply. It also held that there were no other grounds to find the deportation inappropriate.

[ReaderY]

Being kicked out of someones’s house isn’t a punishment. It’s just the other guy exercising discretionary property rights. The concept of punishment has nothing to do with it. How you feel about it doesn’t affect this.

[MollyGodiva]

Could the president legally order all visas for Christians be cancelled?

[ReaderY]

Short answer is probably yes. And even if not, a semi-competent lawyer can help him structure an order in a way that 99% of the canceled people are Christians and 99% of the rest aren’t.

[JoeFromtheBronx]

The First Amendment bans religious establishments though the Muslim Ban Case (Trump v. Hawaii) shows the creativity in avoiding recognizing them.

Kleindienst v. Mandel involves the right of non-citizens to enter the country, which if anything should be easier to block than removing those already here. The argument made was an academic was wrongly denied entry and thus hindered the rights of American citizens who had interests in listening to his ideas.

The opinion for the court, which was cited with approval in the Muslim Ban Case, spoke of "facially legitimate and bona fide reasons" not being second guessed by the courts.

In other words, even there, it wasn't simply carte blanche. There might be some illegitimate reason flagged, however rarely.

[Longtobefree]

Support of a terrorist organization should result in imprisonment, THEN deportation.

[CindyF]

Narrator's Note: The students were Hamas-supporters when applying for a student visa. They just lied when asked.

Open border-supporting law professors will still be advocating for Hamas terrorists being able to freely come to the U.S. while kneeling on the ground with a knife against their throat.

[tkamenick]

"but, e.g., holding protests in favor of an enemy country during wartime,"

What if there are reasonable disagreements over whether a country/entity that has been declared an "enemy" really should be an enemy? What if there is massive support for this supposed "enemy" among the people, even if not among the state? What if a sufficient number of people would rather be subject to this "enemy" than a current state?

The primary purpose of the First Amendment is permitting disagreement with the state. You don't throw that out the window.

[Stupid Government Tricks]

Do student visa holders have a right to be part of the polity discussing such matters? That is what the post asked.

Foreign students are here as visitors to study, not to be members of the American polity

[Longtobefree]

"What if there are reasonable disagreements over whether a country/entity that has been declared an "enemy" really should be an enemy? What if there is massive support for this supposed "enemy" among the people, even if not among the state? What if a sufficient number of people would rather be subject to this "enemy" than a current state?"

I refer you to the period that genteel southern ladies refer to as "The Late Unpleasantness" in the early and mid eighteen hundreds.

[MonitorsMost]

I don’t have a strong opinion on what the correct answer is under current case law, but I am surprised that the starting point being used is not Kleindienst v. Mandel. While I suppose there is a distinction to be made between granting of a non-immigrant visa and revoking a non-immigrant visa, it sure seems like this would be the starting point on the First Amendment question.

[Kords]

Not saying you are wrong, but could you explain the basis for your assertion that "the Court would not permit the government to enforce a law prohibiting university students from working in any off-campus job without special authorization"?

I see a potential First Amendment/freedom of association problem, but having not ever considered this before, I'm curious what obvious constitutional objections you have that justify assuming the Court wouldn't allow enforcement of such a law.

[JasonT20]

...prohibiting foreign students from using their status as such to try to influence American public opinion on behalf of organizations that Congress has sanctioned as enemy terrorist organizations, strikes me as perfectly reasonable.

My problem with your post here comes down to this: What is going to count as "supporting Hamas" or speaking "on behalf" of them, and who gets to decide that?

[JoeFromtheBronx]

Yes. It is a line drawing problem.

On this blog, some time back, people were quite concerned, for instance, about anti-harassment campaigns in high school because they were worried about vagueness problems.

Now, we are talking about protests "in favor" of enemies, which can mean a myriad of things.

[JoeFromtheBronx]

On another point, I disagree with Eugene (rare for me) that deporting Hamas supporters is bad policy "because chilling the speech of lawful visitors to the U.S. does interfere with the marketplace of ideas for Americans." Foreign students are here as visitors to study, not to be members of the American polity.

They are here to study. What does studying in educational institutions entail if not being involved in the marketplace of ideas? It is a basic part of going to college and so forth.

What does "American polity" involve here? We welcome foreign students here since we in some fashion think they add something to our society, our polity. This includes them engaging with citizens and other long-term residents, including sharing their ideas.

If we are going to expel them for the wrong sorts of protests, it is not going to merely affect them. It is going to affect citizens who engage with them. This is a reason offered. They are seen as a sort of foreign threat that is poisoning the well.

[David Bernstein]

We welcome foreign students here primarily because they generally pay full tuition, or because they have math and science skills in high demand and short supply.

[JoeFromtheBronx]

And we welcome them to study, which includes taking part in the marketplace of ideas. Your reply doesn't refute my point.

[David Bernstein]

Studying does not actual include posting pro-Hamas propaganda on X, nor participating in pro-Hamas campus rallies.

[JoeFromtheBronx]

Studying very well entails taking part in discussions, protests, and posting opinions on social media. Including "propaganda" about each side of various conflicts. It is part of the general education experience, even high school, to take part in such things.

If the government wants to only fund some sort of correspondence course or something, fine, but if they want to welcome them to our education institutions, this is going to be part of it.

[AtR]

I believe in foreign students' right to say whatever they think ... in their own country.

Think of an analogy in your home ... if a guest comes over and starts ridiculing you, insulting your cooking, and making a move on your spouse, you have every right to kick them out.

[JoeFromtheBronx]

They are being welcomed here to study in our institutions where there is a wide range of discussion of ideas. That is part of what going to the institutions entails.

The home analogy is a bit off. I don't think many invite people to dinner for open debate. Likewise, the concern here is not about foreigners committing adultery. It is about their views.

OTOH, if the guests are part of a culinary meet-up where there is open debate on cooking techniques, kicking the guest for criticizing the cooking (while letting everyone else who does so stay) is somewhat unfair. Even if it's your house.

[cannpro]

I guess that means David is perfectly cool with deporting zionists. No first amendment problems there?

[MollyGodiva]

All people in the US have the same Constitutional rights. Of course Trump can't revoke a visa for a student's protected speech.

[JoeFromtheBronx]

All people don't have the same constitutional rights except in a very broad sense (that is, all persons have "liberty" or some such thing).

A non-citizen visitor does not have a right to remain in the country in the same way that a citizen does. A child doesn't have the same rights as an adult. And so on.

[JasonT20]

All people don't have the same constitutional rights except in a very broad sense (that is, all persons have "liberty" or some such thing).

The right to "liberty" that all persons get is not vague in the way you imply. Many of the civil rights protection in the constitution apply to all persons, or the Constitution says what the government cannot do to an individual without limiting that prohibition to citizens.

I would say that it is only indisputable that citizens get two specific rights that non-citizens do not: the right to vote and the right to live here. Yes, that means that non-citizens can be removed from the U.S. But not arbitrarily, as the due process and equal protection clauses apply to persons, not just citizens.

[Bruce Hayden]

There are others, such as the right to Keep And Bear Arms.

[JasonT20]

True, that is a right reserved to "the people", and while that is not the same word as "citizen", it is "the people" that establish the United States as a sovereign nation, and that implies that the people consist of all citizens with voting rights collectively.

But, there is the still the historical and textual debate over whether that right is an individual one. Those in favor of the individual right interpretation won at the Supreme Court. But Justice Jackson is wrong*, because the Supreme Court is not infallible at all, and precedents are not final, as they can be overturned. (Their judgement in a specific case is final, not the precedent.)

*"We are not final because we are infallible, but we are infallible only because we are final."

[JoeFromtheBronx]

The right to "liberty" that all persons get is not vague in the way you imply. Many of the civil rights protection in the constitution apply to all persons, or the Constitution says what the government cannot do to an individual without limiting that prohibition to citizens.

I'm not sure how saying "liberty" is broad implies it is vague.

Anyway, yes, as noted, ("many" not being all) different classes of people don't have the same rights. That was the context of the quoted comment: everyone doesn't have the "same" rights except in a very broad sense.

Also, "many" leads to the question of "what ones?" The word "liberty" alone doesn't clarify.

I would say that it is only indisputable that citizens get two specific rights that non-citizens do not: the right to vote and the right to live here.

Traditionally, citizens alone had the right to be on juries and members of the organized militia. Toss in living here and voting, and that alone is significant. Another thing cited by the Slaughterhouse Cases would be protection abroad.

[The right of non-citizens to have arms for self-defense has not been conclusively determined, but I would acknowledge it.]

Different classes of citizens also don't have the same rights. Children, for instance, do not have the right to marry. The incompetent lack certain rights the competent have. etc.
 
Yes, that means that non-citizens can be removed from the U.S. But not arbitrarily, as the due process and equal protection clauses apply to persons, not just citizens.

I don't begrudge that. My concern was the usage of "same." My other comments on the thread don't exactly imply I am unconcerned about the rights of non-citizens.

[JasonT20]

You made good points, and I acknowledge the incompleteness of my analysis. Thank you for the thoughtful reply.

[Sarcastr0]

It probably is legal - broad discretion and all that.

It is pretty authoritarian to exercise that authority based on speech, though.

The McCarthy era was not America's finest hour. It was a paranoid and unfree time. I would not like to reopen that box. Not about being anti-abortion, not about being anti-Israel.

[Longtobefree]

Is there a constitutional right to support terrorism?

[John F. Carr]

"to try to influence American public opinion on behalf of organizations"

Now we get into some important legal hair-splitting.

The law prohibiting material support for designated terrorist organizations does not prohibit sharing their views or working towards the same goal. It prohibits coordinated action. Saying Israel deserved the October 7 attacks is not working "on behalf of" Hamas. Neither is calling for the abolition of Israel. Providing an outlet for terrorist videos has been successfully prosecuted when there was evidence the defendant was working with the terrorist organization. I assume the Trump administration will be looking for evidence of coordination between SJP members and Hamas. If they find it, wouldn't criminal prosecution be a better response than visa revocation?

[Yogis_dad]

Does this mean the USA can now block the BBC from our land? Hope so.

[David Bernstein]

Material support is a crime. Support that doesn’t have be material is grounds for visa revocation.

[Yogis_dad]

A fellow student once said, "Of course I am communist. I am from Yugoslavia." That student and a sibling are now legal residents of the USA (who knows, maybe even citizens) and employed here. Yugoslavia is gone, of course. and the brand of communism it practiced under Tito was a more effective economic model than England had before Margaret Thatcher's election. But you have to wonder how schools or the nation benefit from admitting or retaining foreigners who have no loyalty to this republic.

[questioner7]

"assumedly the Court would not permit the government to enforce a law prohibiting university students from working in any off-campus job without special authorization" -- based on which constitutional right?

[alexarafat]

This raises important questions about the balance between free speech and visa regulations. As a student, I rely on https://wgustudentsportal.us/ for academic resources, but it’s also crucial to understand how policies impact international students' rights and experiences in the U.S.