Could posting an unpopular opinion online really get you kicked out of the U.S.?

After Marco Rubio’s comments on hate speech and immigration, plenty of people are wondering. In this episode of Immigration Weekly, Rosanna Berardi breaks down what’s politics, what’s law, and what foreign nationals actually need to know about free speech, borders, and due process.

Listen to the Episode

Watch the Episode

Transcript

Everyone’s talking about U.S. immigration law, but nobody really knows how it works. I’m Rosanna Berardi. I’m the daughter of an immigrant, a former immigration inspector at the border, university professor, and founder and managing partner of Berardi Immigration Law.

I’ve done nothing but U.S. immigration law for over 30 years, and it’s time to stop the misinformation on all sides. I’m going to tell you how it all works, the inside story. This is Immigration Weekly with Rosanna Berardi.

Hello, hello, hello, and welcome back to Immigration Weekly with yours truly, Rosanna Berardi. Whoa, no shortage of immigration news. There never is.

Hate Speech and Immigration Enforcement

This administration is obsessed with keeping immigration in the national news. Today, we’re going to talk about hate speech. What if you say something that is unpopular that the federal government doesn’t like?

Can they boot you from the United States? Canadians, listen up. This one can apply to you as well.

What is going on? Well, we’re about a week, week and a half out from the assassination of political activist Charlie Kurt. We all know that story.

Very tragic story in American history. Almost immediately upon that happening, we heard from Secretary of State Marco Rubio. Now, he’s the guy in charge of the embassies and a lot of immigration-related things, and he said, hey, listen, if you’re in the U.S. as a foreign national, that means you Canadians, and you engage in hate speech, we’re going to boot you. We’re going to kick you out. Don’t violate these rules. Forget about free speech.

He also directed the U.S. consulate officers worldwide to deny any visa applicant who has hate speech or anything of that nature in his or her social media. So what is going on here? Well, let’s zoom out for a minute.

The Legal Landscape of Hate Speech

I love zooming out to see what’s happening. Remember, we have an administration that was elected to fix immigration. They’re having a hard time fixing it.

Why? It’s a mess. There’s so many people.

There’s 4 million cases backlogged in the immigration court system. So what’s going on? Well, they are nothing but persistent in terms of keeping this in the news, and the messaging to people is, don’t misbehave or we’re going to boot you from America.

Can this happen? Well, let’s go back to law school and talk about hate speech. Now, don’t turn this off.

I am very, very relatable and educational. I will not bore you to death. So there’s really no definition of hate speech under the U.S. law, and hate speech is anything that can be inflammatory, generally protected under the First Amendment of the U.S. Constitution, unless it constitutes a threat. So in America, hate speech isn’t illegal. It’s protected speech unless it crosses a line of some sort, and the Supreme Court says, you know it when you hear it. You know it when you see it.

Rights of Foreign Nationals

So the First Amendment, remember that guy from the U.S. Constitution, protects speech from government censorship, including offensive speech. You don’t lose rights in the United States because your opinion is unpopular. I mean, think of your friends on X and Facebook.

Yada, yada, yada. Everybody’s a keyboard warrior with an opinion on something, right? 99.99999% of those people are not getting in trouble with the law. Why? Because we have this called the First Amendment. So can the government remove someone from the United States who engages in this hostile speech?

Well, the standards to remove somebody in the U.S. are pretty high, and speech generally does not meet the threshold. So you can’t be kicked out of the United States for saying something unpopular or inflammatory. It’s really not legally permissible.

Why? Well, let’s talk about the constitutional rights of foreign nationals. When I say foreign nationals, that is someone who is a non-U.S. citizen, not born in the United States. Foreign national equals everyone that was not born in the United States. So let’s go back. What rights do you have?

Canadians say to me all the time, well, you know, I have all the same rights as an American. False. You don’t.

Sorry. Sorry to be the bearer of bad news, but you don’t. So foreign nationals, they are subject and protected to two huge words, due process.

Free Speech, Due Process, and Borders

What does that mean? Due process means your day in court. So if you’re in the U.S. as a Canadian, you’re working, or as an Australian, or you’re visiting, or what have you, you are physically present on U.S. soil, and you do something wrong, no one’s grabbing you and saying, get on the next plane. Nope. What you’re seeing on the news, the individuals that are being grabbed and booted, they have final orders of deportation. But if you’re just picked up for some type of criminal or immigration violation, you are entitled to due process.

Due process means your day in court, criminal court, immigration court. The Constitution doesn’t just protect U.S. citizens on this one. It protects all people or persons, and that includes anybody that’s physically present in the U.S. Now, how about free speech? Well, non-citizens or foreign nationals also have free speech rights. If you’re in the United States and here visiting, or working, or doing research, even if you were born here, your speech is still protected. Search and seizure.

Can the government search your stuff? If you’re in the United States, doesn’t matter where you were born, you have the right against unreasonable search and seizure. So, basically, if you’re physically present in the United States, in case you want a sound bite to share with your friends and family at dinner, you have rights.

Practical Advice for Foreign Nationals

You have rights to free speech, due process, rights against unreasonable search and seizure. These are for all people in the United States. Now, if you’re at that U.S. border crossing, you have no rights. If you’re knocking on the door of the United States, you’re a Canadian, you’re coming down to Buffalo, New York for the weekend to see the Buffalo Bills, woo, go Bills, and the government searches your phone and says, oh my god, wow, you hate Donald Trump, you hate Charlie Kirk, you hate everybody. We’re not letting you in. You don’t have any rights there.

Sorry, folks. Government has sweeping powers at the international borders, but if you’re physically present in the United States, your feet are on the ground, you have constitutional rights. So, everyone’s a keyboard warrior.

Everyone has opinions, whether it’s on Charlie Kirk, President Trump, Jimmy Fallon, Jimmy Kimmel, who the heck knows what else, who else. Everyone’s got an opinion on something, and everybody’s on their phone, typing, texting, whatever. So, if you’re in the U.S. and you’re worried about what Marco Rubio said, like, hey, if we don’t like what you’re saying, we’re going to boot you out. Here’s what to do. Okay, always know your immigration status. Are you here visiting?

Are you here as a worker? Are you here as a researcher? Are you here as a U.S. citizen spouse? Always be aware of your immigration status. Make sure it’s up to date. Make sure you carry it with you so you can prove to someone that you’re here lawfully.

Also know that anything that you put online, the government can look at. It’s always been that way. This isn’t a Trump thing.

I say it over and over again. Government has free reign to look at your phone. And understand, while speech is protected inside the U.S., if you’re crossing that border or applying for a visa appointment, it can be scrutinized and can be the cause of a denial. Make sure you keep good records of everything. Free speech is your right, but knowing how it intersects with immigration law is your responsibility. Now, you want some best advice from me?

If you have your opinions or you want to talk about something, talk to your spouse, your friend, your neighbor. Talk, talk, talk, talk, talk. Stay off the phone, people.

Texting, social media, that’s just good advice in general, okay? Even those of you that use Snapchat, oh, it disappears. No, it doesn’t.

Nothing disappears, okay? The takeaway from this episode, Marco Rubio, he is part and parcel with the administration’s messaging of anything that can be related to immigration will be, and it is a get tough measure. Should you lose sleep at night if you’re in the U.S. and you posted something on Facebook, I wouldn’t worry too much. Government’s got bigger fish to fry, but the message is there, so be careful, okay? This statement from Marco Rubio was meant to have a chilling effect. It was meant to make people say, I’m going to behave.

I’m not going to write anything, okay? Regardless of what happens, if you’re physically present in the United States and you were not born here, you are entitled to due process, so nobody’s going to rip you out of your house and send you home, okay? That’s inflammatory.

Don’t listen to people that say, oh, that’s happening. If that is happening, people that they’re taking out of the U.S. have been through their criminal immigration, appeals, courts, processes, and have something called a final order of removal, meaning their day in court is done, a judge decided, and they need to go, okay? So yes, free speech.

Final Thoughts and Takeaways

We love our U.S. Constitution. It applies to all that are physically present in the U.S., but be mindful. This is an administration that is committed to securing the borders and fixing immigration.

So would I lose sleep over Marco Rubio’s statement if I were a Canadian working at a hospital in Buffalo, New York? No, I wouldn’t lose sleep over this one. Best practice, be on your good behavior, be on your best behavior.

That’s good life advice, regardless of if it’s about immigration or something else. We get very brave when we have that phone in our hands. I don’t know about you, but I am part of some community groups on Facebook, Lancaster to Pew, my community, or Clarence.

The things people say to one another is just outright appalling. People are mean behind that keyboard, okay? Be mindful.

You’re in the United States as a guest. I know people hate that concept, but if you’re not born in the U.S., you’re a guest, just like a guest in someone’s house. Be patient, be kind, be mindful of what you’re doing and saying, and the statement from Marco Rubio will not impact you.

Well, thank you for joining for another week. If you liked this episode, be sure to share it with your friends, subscribe to our podcast, give us a review. We love your reviews.

Until next time, I’m your host, Rosanna Berardi. This was Immigration Weekly with Rosanna Berardi. Thanks for joining.

Be sure to connect with me, Rosanna Berardi, on LinkedIn, or go to our law firm at berardiimmigrationlaw.com. If you don’t want to miss the latest and greatest, be sure to subscribe to the podcast and share this with your friends.

Subscribe to the Show on Apple Podcasts, Spotify, Amazon Music, or YouTube. 

Connect with Rosanna Berardi on LinkedIn