Responding to the arrest of a nonimmigrant student or exchange visitor or scholar (F-1, M-1 & J-1 visas)
by NAFSA: National Association of International Educators Washington DC, March 2015
All of us dread the call notifying us that one of our students has been arrested
The type of advice and assistance provided to an international student or exchange scholar enrolled in the Student and Exchange Visitor Program who has been arrested is similar to that provided to a US citizen, with the exception of the overlay of culture and immigration. International students may not understand the US criminal justice system, and their legal situation could be complicated because of their immigration status.
International advisers should follow established campus policies and procedures in providing advice and assistance. In particular, it is important to limit advice to the areas of staff expertise and refer the student to qualified practitioners when expert advice is required.
Advise the student to be cautious until they've spoken with legal counsel
Before you speak with the student, remember that you could be required to testify under oath about what the student tells you. Whether privilege exists between you and the student depends on a range of factors. For example, if you are serving as the student's attorney or clergy, your conversations could be privileged. If any part of your conversation is considered an educational record, it could be protected by FERPA. In general, be cautious, and advise the student to do the same, until the student has an opportunity to speak with counsel.
1) Immigration status complicates almost every legal violation because a guilty plea, a plea of no contest, or even attending a program for offenders may impact immigration status.
2) Offer to assist the student in seeking counsel. If your office maintains a referral list of attorneys, share it with the student. An international student facing criminal charges should seek advice from counsel with expertise in both criminal and immigration law.
3) Key offices at your institution should be notified of a student’s arrest. Such offices include, dean of students, judicial affairs, university counsel, university relations, campus police and any unit which could be brought into the situation by surprise (for example, with a call from the family, the victim or the family of the victim of the crime, the media, and so on). Some campuses require students to notify a specific office of arrests; others may not.
4) Advise the student to notify the academic adviser and professors, especially if the student will be unable to attend classes. If the student asks for your help on this, then do it without providing any case-relevant or any more information than you need to.
5) Talk with the police. Where is the student being held? What are the charges? Who has custody of the student? Police, ICE, etc.? (If held by ICE, you can locate them here) Is the student eligible for bail? Has a court appearance been scheduled? When? Follow your campus policy with respect to visiting the student in jail or accompanying the student to court.
If the student was arrested by the campus police, they will know the details of the situation. But if the student was arrested off campus, you'll need to learn which jurisdiction. Your campus police can provide assistance in finding out what happened, which law enforcement agencies are involved, and where the student is.
6) If bail has been set, the student may need assistance contacting friends or family to help.
7) Family may come from abroad. They may need logistical assistance (housing, directions, etc.).
8) If the student is charged with a violent crime or with a drug-related crime (such as assault, rape, or "possession with intent to sell"), he or she may be temporarily evicted from university housing, even before a trial, and may need assistance locating temporary accommodations.
9) The student may be going through both the campus discipline process as well as the court system at the same time, but may not understand the differences in these systems. You can provide the student with information about the campus judicial system and explain where to get information about the court system.
10) When an F-1, M-1 or J-1 visa holder is charged with a crime, ICE most often learns of it through data shared among law enforcement agencies. They may contact the school to ask if and when the student's SEVIS record will be terminated. Follow the regulations and your office or school policy in determining whether, or when, to terminate the student.
11) If the student is a participant in your school's Exchange Visitor program, you may be required to report the incident to the Department of State. Whether you must do this depends on the decision of the program's Responsible Officer, who is required to notify DOS "promptly by telephone (confirmed promptly in writing) or facsimile of any serious problem or controversy which could be expected to bring the Department of State or the sponsor's exchange visitor program into notoriety or disrepute."
12) If the situation that led to the student's arrest is of interest to the media, your campus public information office may be involved. Follow your school's policy with respect to conversations and/or interviews with the press and other media representatives.
SPECIAL NOTE ABOUT SCHOLARS (SUCH AS J-1 VISA HOLDERS)
Many of the points addressed above will pertain equally to scholars, typically exchange visitors who may be formally or informally associated with a sponsoring agency and/or educational institution. But the situation of a scholar can differ markedly from that of a student because the scholar is most often not subject to the campus disciplinary process and may not be eligible for certain benefits afforded students such as access to resources provided through student affairs at the university.
In addition, a scholar who is also an employee of the institution may be subject to employee disciplinary procedures for offenses that occurred at the place of employment and to federal law governing the relationship between employers and employees. Assistance can be provided to scholars who have been arrested by making appropriate referrals to criminal and immigration attorneys and by explaining aspects of the court system that may be culturally unfamiliar to the scholar. If the scholar is an employee, the human resources unit and/or general counsel should be the primary institutional representatives working with the scholar. The international office can provide consultation and assistance as appropriate. In such cases, it is most important to serve as a source of information and not as an advocate, in order to preserve the integrity of the institution's employee discipline processes.
This information does not constitute legal advice and is not a substitute for individual case consultation and research. No representations are made as to the accuracy of this information and appropriate legal counsel should be consulted before taking any actions. Above guidelines published March 2015 by and copyright © 1998-2017 NAFSA National Association of International Educators.
DOn'T DELAY IF CHARGED WITH A CRIME
If you are a noncitizen charged with a crime, it is critical to quickly seek legal advice to minimize potential immigration consequences
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