US moves closer to Australia's treatment of those on wrong side of migration law

From an Australian perspective the measures that flow from the US President's 25 January executive order are neither novel nor remarkable.

Linda Kirk

28 February 20174 min read

On 25 January US President Donald Trump signed a sweeping executive order directing US executive departments and agencies ‘to employ all lawful means to enforce the immigration laws of the United States’. The target of the executive order is ‘aliens who illegally enter the United States and those who overstay or otherwise violate the terms of their visas [who] present a significant threat to national security and public safety’ including ‘aliens who engage in criminal conduct in the United States.’

Policy guidance issued on 22 February by John Kelly, the Secretary of the Department of Homeland Security, details how this executive order will be implemented by Immigration and Customs Enforcement (ICE) and Customs and Border Protection officers. The new ‘enforcement priorities’ identified in the executive order cast the net much wider than the removal of immigrants with criminal convictions, three million of whom were deported by the Obama administration.

The effect of the Trump executive order is to prioritise for removal not only immigrants who have been convicted of a criminal offence, but also those who have been charged with any criminal offence, and those who have committed acts that constitute a chargeable criminal offence. Also prioritised for removal are people who have engaged in fraud or willful misrepresentation in connection with any official matter or application before a government agency, and any person who has abused any program related to the receipt of public benefits.

The number of undocumented immigrants who can be deported using ‘expedited removal’ procedures will also vastly increase under the new policy. Whereas US border patrol and ICE agents previously only had the authority to immediately remove people within 100 miles of the border who had been in the country for 14 days, the new policy allows for the expedited removal of people anywhere in the country who have been in the United States for up to two years. Expedited removal is conducted by immigration officers without a hearing before an immigration judge. Those subject to expedited removal must be detained until they are removed and normally may only be released due to a medical emergency.

These new measures have been the subject of strong criticism by advocates for immigrants who have warned they will create an atmosphere of fear amongst undocumented migrants causing them to retreat deeper into the shadows. Others who support restricted immigration have hailed the measures as sending a strong message that violating immigration law is no longer a secondary offence.

Unlike in the United States, where the estimated 11 million undocumented migrants have historically not been subjected to the full force of US immigration laws, Australian migration law has zero tolerance for unlawful non-citizens. According to a 2014 Department of Immigration and Border Protection Report, more than 40,000 visitors and 10,000 students overstayed their visa in 2012-13 with nationals from China, the United States and the United Kingdom amongst the highest number of visa over-stayers. If detected by Department of Immigration and Border Protection officers, unlawful noncitizens must be taken into detention and removed from Australia as soon as practicable.

Migrants who hold a valid visa, including long-term permanent residents, are lawful non-citizens and are not therefore subject to removal. However Australian migration law has long provided for the deportation of non-citizens who engage in criminal conduct. Since its introduction, the Migration Act 1958 has included provisions authorising the deportation of non-citizens convicted of serious offences. The existing provisions of the Act permit deportation of a person who is convicted of an offence committed when they had been a permanent resident for less than 10 years and sentenced to imprisonment for at least 12 months, or who is a threat to national security.
The power to cancel a visa on the basis of a failure to pass the ‘character test’ was first introduced in 1992 and operated alongside the deportation powers to authorise the removal of criminal non-citizens from Australia.

Since 2004, the character cancellation powers in section 501 of the Migration Act have been the favoured mechanism to effect the removal from Australia of those who engage in criminal activity. These powers authorise the cancellation of the visa, including a permanent visa, of a non-citizen who has a substantial criminal record, or who has associations with a person, group or organisation that the Minister reasonably suspects has been or is involved in criminal conduct, or where there is a risk that a person would engage in criminal conduct, harass, molest or intimidate another person or vilify a segment of the Australian community, incite discord, or otherwise represent a danger to the Australian community. Following the strengthening of these powers in late 2014, the number of visas cancelled increased twelve-fold, from 76 cancellations in 2013-14. to 983 in 2015-16.

The implementation of Trump's executive order has undoubtedly increased the precariousness of migrants in the United States, but when viewed from an Australian perspective the measures are neither novel nor remarkable.

Photo: Flickr/Jonathan McIntosh

Linda Kirk

About the author

Linda Kirk

Linda Kirk is a Senior Lecturer at the ANU College of Law, Australian National University and a Visiting Fellow at the Refugee Law Initiative, School of Advanced Study, University of London.

Topics

Migration & refugees