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Due Process Rights Of College Students: The Case Of Virginia Tech and Yunsong Zhao

due-process-300x172Two of the most fundamental rights from the U.S. Constitution are the right to due process and the right to be free from false arrest. Anyone who has taken a basic Civics class knows that every person in America has the right to be heard before deprivation of their life, liberty, or property. Contrary to those fundamental principles, Nexus Derechos Humanos’ most recent case is one where those two rights were stripped from a student at Virginia Tech University. His name is Yunsong “Bellamy” Zhao. Bellamy was arrested unlawfully by the Virginia Tech police and then expelled from the university without an opportunity for due process.

Bellamy is arrested based on false evidence, according to the Complaint

Bellamy came to the U.S. from China on a student visa to study at Virginia Tech in 2017. He was 19 when he arrived and started college. He spent his 20th birthday in jail. Always having a fascination with America, he taught himself English by watching movies. He became interested in American law enforcement and gun culture. Once he moved to Virginia, he bought a used police car from a dealership in Roanoke; he thought it was cool to cruise in his blue and silver Crown Victoria. He got a good deal on the car too.

A perfectly innocent purchase of a police car to live a little bit like the heroes he watched growing up in American movies turned into a target on Bellamy’s back. The Virginia Tech police began noticing Bellamy because they saw his Crown Victoria around campus. The police questioned him many times throughout the fall semester about why he would want a used police car. Further, Sergeant McClain, of the Virginia Tech police, called local gun stores and told them not to sell guns to Bellamy—based only on his purchase of a used police car, according to the recent complaint filed by Nexus Derechos Humanos.

The truth is that he is an Asian man, interested in law enforcement culture. Buying a gun, such as Bellamy did, is a fundamental exercise of one’s rights under the Second Amendment of the Constitution to bear arms. Unfortunately for Bellamy, he is Asian, just like the shooter that brought tragedy to Virginia Tech’s campus in 2007. Bellamy can’t help that he grew up in China.

Bellamy lawfully bought an AR-15 in January 2018, which increased Virginia Tech Police’s suspicion of him tenfold. Virginia Tech mandates that each student who lives on campus keep all firearms in a student gun locker, rather than in the residence halls or cars on campus, which is regulated by the Virginia Tech Police. Bellamy complied with this policy at all times, so the police knew when he checked a gun in out of the locker. An Asian man with an AR-15 scared the police, so they proceeded to go out of their way to arrest Bellamy on any grounds they could find–see our Complaint.

The police heard rumors that Bellamy had a 30-round magazine for his AR-15, which is a violation of Virginia law. In Virginia, non-U.S. citizens and non-permanent residents are prohibited from possessing assault rifles. An assault rifle is defined by Virginia law as a semi-automatic weapon that “is equipped at the time of the offense with a magazine which will hold more than 20 rounds of ammunition.” Va. Code Ann. § 18.2-308.2:01. Bellamy knew that his AR-15 could not hold more than 20 rounds at a time, so he did not purchase, own, possess, or use a 30-round magazine at any time while he had the AR-15, according to the Complaint. In fact, when he bought the rifle through a local pawn shop, the gun came with two 30-round magazines, but Bellamy refused to take possession of the because he knew it was unlawful to do so; instead, Bellamy traded those for a tactical sling with the pawn shop owner rather than taking them from the shop, according to the Complaint.

Though Bellamy never had a 30-round magazine, police heard rumors that he did, which they immediately believed, according to the Complaint, the Virginia Tech police department reached out to the Blacksburg police department, asking Detective Wilson to follow Bellamy to the shooting range and document his use of a 30-round magazine. Detective Wilson allegedly saw Bellamy shoot a 30-round magazine from his AR-15, though the Detective could not remember many other details. For example, Bellamy was with a friend that day at the shooting range, another Chinese man, and Detective Wilson could not remember which Asian man was shooting the AR-15. Detective Wilson also did not count the number of bullets he saw/heard Bellamy shoot that day and could not recall how many magazines Bellamy had with him either. While not knowing which Chinese man he saw shooting the gun, Detective Wilson is still sure that he saw Bellamy shooting a 30-round magazine. 20-round PMAGs and 30-round PMAGs—the type of magazine Bellamy was using—look identical, except a 30-round magazine is about 2.5 inches longer. Even though Detective Wilson was sure that he saw Bellamy shooting a 30-round PMAG that day, Detective Wilson misidentified a 20-round magazine for a 30-round magazine in Bellamy’s preliminary hearing. He misidentified the type of magazine from a still photo, while under oath. Detective Wilson seeing Bellamy shooting a 30-round magazine that day is the only basis for Bellamy’s arrest.

Once Bellamy was arrested, the police searched his dorm room and cars and never found a 30-round magazine.

Virginia Tech does not give Bellamy any due process, according to the Complaint

Though the police did not find a 30-round magazine, they did find a small knife that was a violation of the Virginia Tech Student Code of Conduct in Bellamy’s car. Bellamy had been written up once before for having the knife on campus. Bellamy had never used the knife and does not have a history of violence. His Student Conduct hearing was scheduled for February 2, 2018. Bellamy was arrested on January 29, 2018, so Student Conduct knew that he could not attend his own hearing because he was in jail. When Bellamy asked them to reschedule the hearing, Student Conduct refused.

Student Conduct held the hearing in Bellamy’s absence and expelled him from the university. (See Complaint.)

When Bellamy tried to appeal the decision, Student Conduct denied his one opportunity for appeal. The letter giving reasons for denying his appeal included information that was known to be false. Student Conduct stated that an AR-15 rifle was found in Bellamy’s car when police executed the search warrant after his arrest. However, the AR-15 was safely locked in the student gun locker, which records show. The Virginia Tech Code of Student Conduct only allows one appeal of the decisions made in formal hearings, so Bellamy has no other opportunity to try to overturn his expulsion.

Bellamy did write a letter to Student Conduct asking them to reopen his case and give him another hearing, but Student Conduct refused. He also pointed out the false information that was in the letter denying his appeal. The response to the false information was that Student Conduct changed the ultimate basis for denying the appeal after a lawsuit had been filed.

Bellamy has more at stake than the average student; when he was expelled from Virginia Tech, that ended his lawful immigration status. He is here on an F-1 student visa, which requires that Bellamy be a full-time student to remain in the United States. Virginia Tech took the opportunity for an education from Bellamy without a hearing, which is a blatant violation of the right to due process. But his immigration status was tied to his enrollment at Virginia Tech, so they took that away from him without a hearing as well.

Further, once Bellamy paid his bail for his criminal charges, ICE detained him because his visa had been terminated. He is still in federal immigration custody today. Bellamy has been detained in jail and then in immigration detention since January 29, 2018, without ever even committing a crime.

Our team at Nexus Derechos Humanos has been trying to get Virginia Tech to reinstate Bellamy so he can regain his F-1 student visa. Bellamy has agreed to transfer to another university. Based on how Virginia Tech has treated him, it makes sense that he would not want to return to school there. But to get his visa back, he needs Virginia Tech to reinstate him, since that is the school his visa was from originally. Only once he regains his visa can he transfer to another school.

We filed a Motion with the court asking for a preliminary injunction for Bellamy. An injunction is a form of relief available in extreme circumstances; it is when the court tells someone to do something. Injunctive relief is an unusual remedy because most civil cases get relief in the form of money damages. To get an injunction, you have to show the court that the circumstances are severe enough to warrant intervention by the judge. We think Bellamy’s three month long, ongoing detention without committing a crime is extreme enough to warrant this kind of relief, so we filed the motion to ask the court to help Bellamy get his immigration status back.

In the Motion , we ask the court to return Bellamy to the same status he was in before Virginia Tech denied him an opportunity for due process. Before he was expelled, he was still a student at Virginia Tech, so he still had his student visa status. Therefore, we ask the court to order Virginia Tech to reinstate Bellamy, give him time to regain his student visa from the federal government, and, once he is back to lawful student status, give him another hearing—a fair hearing that he can attend to present evidence and examine witnesses presented against him.

Bellamy has a good chance of defeating expulsion in a fair hearing because the language in the Virginia Tech Code of Student Conduct regarding weapons is ambiguous and convoluted. The knife was only ever found in Bellamy’s car, parked on campus. In the Code of Conduct, they define “other weapons” as “any instrument of combat or any object not designed as an instrument of combat but carried for the purpose of inflicting or threatening bodily injury. Examples include but are not limited to knives with blades longer than 4 inches . . . .” (“Weapons,” Virginia Tech Code of Student Conduct) (Emphasis added). Since the Code requires that the: other weapons” be “carried for the purpose of inflicting or threatening bodily injury,” the fact that the knife was only ever in Bellamy’s car—not even on his person, but in the backseat of the car—does not constitute a violation of the Code of Student Conduct as it is written. Since Bellamy was prevented from attending his hearing, he was not able to present evidence in his own favor to prove this point. That is why Nexus Derechos Humanos is asking for a new hearing, a fair hearing, so Bellamy can clear his name and leave Virginia Tech on his own terms.

The Virginia Tech police arrested Bellamy on false charges based on an unreliable account from one Detective, an account that law enforcement could not corroborate with any evidence. The university, playing into Virginia Tech police’s suspicion, expelled Bellamy without giving him a chance to be heard. The message from this case is clear: Asian men who have an interest in guns are not welcome at Virginia Tech, and the university will do everything in its power to not only expel them, but also have them arrested.