Rights of Aliens
One of the most important principles operative in the U.S. is the rule of law. This means that we are governed by laws, not by people, that the law is supreme. People change the law only by proper legislative procedures. Once the law is established, is must be observed by all, including government officials from the President through a law enforcement officer. The principle of the rule of law protects us from the arbitrary actions of government and law enforcement agencies as their authority is limited by the law. The U.S. Constitution is the highest law of the land; all other laws must be consistent with it. Those laws or governmental actions which are not consistent with the Constitution can be challenged in court and declared invalid or unconstitutional. In this way, laws and regulations undergo a constant process of testing to be sure that they conform to the principles set forth in the Constitution.
DUE PROCESS OF LAW AND EQUAL PROTECTION UNDER THE LAW
Our Constitution guarantees due process of law to all persons, including aliens in the U.S. The concept of due process of law requires that specified orderly procedures be followed in the enactment, administration, and enforcement of the laws. The Constitution also guarantees each person equal protection under the law. This concept means that the law applies to all equally, regardless of status, wealth, or position, and that the state may not discriminate between person for arbitrary and capricious reasons. There are, of course, special laws and regulations that establish the conditions under which international students and scholars may study, teach, or pursue research in the U.S., but within these general and reasonable limits, international students and scholars and other aliens in the U.S. are subject to the same laws and are guaranteed the same protection of the laws and the same civil rights as are American citizens.
CIVIL RIGHTS OF INTERNATIONAL STUDENTS AND SCHOLARS
One of the most important civil rights is that of free speech and assembly. The Constitution guarantees the right of free expression to all persons, regardless of citizenship. International students and scholars have the constitutional right to express their views freely, to join together with others in the expression of those views, and to participate fully in the propagation and publication of ideas, popular and unpopular, so long as those expressions are made in an orderly and peaceful manner. They should not be frightened into quietness or apathy by rumors of prosecution or deportation resulting from the exercise of their rights of free speech.
The Constitution also guarantees to all person, including aliens, certain substantive and procedural protections against improper investigation, arrest, or conviction of any alleged violation of the law. A person accused of violating the law may not be forced to confess or to give evidence against himself; he may remain silent and refuse to answer any questions regarding the accusation against him if he so chooses. If a person is booked for arrest, he must be told his rights under the law by the arresting officer, and he is entitled to make two telephone calls. He is entitled to have a lawyer defend him in court, and if he cannot afford to hire one, he may have one appointed by the court. While awaiting trial, he is entitled to be released from jail upon posting of a bond, the amount of which is set by the court. He is entitled to a fair trail conducted according to all the rules of evidence and court procedure. He is presumed innocent until found guilty by a court.
IN CASE OF TROUBLE
The international student or scholar who runs afoul of the law needs advice and assistance to be sure his rights are protected. The most logical person to whom to turn for initial guidance is the International Student Adviser or International Scholar Adviser. This individual is not a law enforcement officer. Rather, this person is an adviser, friend, and advocate of international students and scholars. His role is not to prosecute the student or enforce the law, but rather to ensure that the student or scholar understands the law and is given fair treatment under the law. Often, he can give direct help; in other cases, he may refer students or scholars to a legal assistance program, a private attorney, or some other person or agency that can provide knowledge and assistance needed.
Some aliens feel that if they are convicted or even accused of a violation of any law, they will be deported immediately and automatically. That is not true. In most cases, conviction of a single misdemeanor or minor offense will have no effect on a student or scholar is immigration status. Conviction for a more serious offense can result in deportation. For example, if a student or scholar is convicted of petty theft, disturbing the peace, drunkenness, or a similar minor offense, it will not affect his immigration status. On the other hand, he can be deported if he is convicted of a crime involving moral turpitude for which he is sentenced to at least one year in confinement. Also, an international student of postdoctoral scholar with F-1 visa status convicted of a crime of violence for which a sentence of more than one year could be imposed is considered to have violated his F-1 status, and is thus subject to deportation proceedings. The law provides for the possible deportation of any person who is a narcotic addict or who is convicted of a violation of any law or regulation relating to the illicit possession of or traffic in narcotic drugs or marijuana [more than one ounce of the latter].
In addition to violation of laws, an international student of scholar must consider other related factors that may affect his immigration status. If a student violates the rules of his university and is disciplined by suspension or dismissal from the university, he is no longer a student, and is therefore not maintaining his status as a student under immigration law, and can be deported for that reason. A sponsored student must keep in mind the particular regulations of his sponsoring agency, for if he violates them, the agency may withdraw financial and visa sponsorship, making the student possibly subject to deportation.
Finally, a student or scholar must always consider the attitude of his home government toward any of his actions in the U.S., for the home government may at any time withdraw or cancel his passport, thereby making him subject to deportation.
CIVIL LAW
Most of the above discussion relates to criminal law. The student or scholar must also be aware of the existence of civil law - that body of law governing relationship between individuals not involved in criminal conduct, such as the fulfillment of contracts, the payment of bills, business arrangements, and similar matters. Contracts may be either written or oral, and in either case, they are enforceable by law. An example of a contract entered into by many students and scholars is a lease for an apartment. If the conditions of a contract are violated by either party, the other party may bring suit in court to enforce the contract or to recover damages. A civil suit may also be initiated to force the payment of bills or financial obligations. In California, many individuals turn to Small Claims Court to settle civil claims amounting to $5,000 or less. Attorneys cannot represent individuals. However, for international employees, off-campus legal aid societies, do help individuals learn how to present their case. Scholars should consult IRSO. In case of an injury, a lawyer should be consulted to see if compensation for the injury is possible.
Laws exist to protect us from arbitrary and unreasonable actions by the government or other persons. The U.S. system is by no means perfect, but it does provide important protections for all of us. In order for the system to be effective, we must be aware of our rights and insist that they be respected by others. At the same time, we must accept our responsibilities under the law and respect the rights of others.
*Information provided by IRSO LBNL
