H.      Personal liberty


311.        The Rapporteurship will now consider the deprivation of liberty of migrants in Mexico, insofar as it is among the migration procedures faced by a considerable share of the persons who violate immigration laws, including migrant workers. The deprivation of liberty of  migrants should observe the limitations and guarantees of Article 7 of the American Convention. The Rapporteurship uses that legal standard to describe and analyze the procedures for deprivation of liberty as well as the conditions of detention of persons in Mexico from the normative and factual standpoint, mindful of the information received by the Rapporteurship during and after its visit.


          Deprivation of liberty


312.        Depriving the liberty of a foreigner depends on whether the person is violating the immigration laws, and that this situation merits expulsion from Mexico.  A foreigner may be deprived of liberty in the course of immigration verification and control operations at ports, airports, and border posts, as well as in all other actions for the same purpose established in Article 151 GPL (see part on non-discrimination in Section VII, Due Process Guarantees, and part on immigration control measures at Section V, Migration Policy and Practice). A person may also be detained in the course of a procedure to check immigration status when it is determined that he or she is violating the immigration laws.


313.        Immediately after a foreigner is detained, he or she should be placed at the disposition of the competent authority. The person apprehended should be taken immediately to the INM detention facility, under the authority of the person in charge, who has the duty to so communicate to his or her superiors (Articles 152 GPL and 199 and 207 GPL Regulation).  In those cases in which the detention is ordered and the person is not taken to the detention facility in Mexico City, the authority who orders the detention must carry out each of the steps until the expulsion order has been issued (Circular 010/99). In practice, foreigners are apprehended and may be deprived of their liberty in prisons for several days until they are taken to the INM detention facilities.


314.        According to immigration procedures in Mexico, the deprivation of liberty may continue after the immigration authority hands down the expulsion order when it cannot be carried out for circumstances beyond the control of that authority.  In such cases, the term of the deprivation of liberty must be extended (Article 211(I) GPL Regulation). A foreigner with legal residence or a person of Mexican nationality may request that the person with an expulsion order pending be released under his or her custody until the expulsion order is executed (Article 211(II) GPL Regulation).


315.        The Rapporteurship is concerned about the reports it received during and after its visit regarding physical and verbal abuses against migrants when they are apprehended by the Mexican authorities, as well as during the time they are deprived of liberty at the INM detention facilities.[185] In this connection, the Rapporteurship has insisted on the duty of the State to respect and guarantee the personal integrity of migrants, which includes taking measures to ensure that the authorities do not attack or undermine the personal integrity of migrants; and the duty to investigate and punish all violations reported.  The Rapporteurship has learned of several such incidents, and based on them calls on the INM, the National Human Rights Commission, and the Office of the Attorney General to act diligently and promptly to determine whether there were actually abuses, and if so, to punish the persons responsible and make reparation to the victims.


          Procedures for detainees


316.        The GPL Regulation establishes the following procedures and elements that should be performed and offered to any person detained at a migration station: (1) the person is given a medical exam; (2) the person is allowed to communicate by telephone or any other means with the person of his or her choosing; (3) the consular representative accredited in Mexico is notified, and if the person lacks travel documents and identification papers, a request is made for these to be issued; (4) an inventory is drawn up of the person’s belongings, which are held in deposit during the period of detention; (5) a statement is taken by administrative act, in the presence of two witnesses, indicating the acts of which the person is accused, his or her right to present evidence and arguments. At the moment the act is drawn up, the person is told that he (or she) has the right to appoint a representative to assist him (or her) in the proceeding against the person, and that said person will have access to his (or her) file; (6) at the detention facility the person should be offered a “dignified space, food, basic items for personal hygiene and medical care”; (7) the person has the right to be visited by his (or her) family members and representative or person of trust; (8) families should be held in the same facility and should be allowed to spend their days together; (9) when the person’s exit or release is authorized, the belongings the person had on being brought in are returned (Articles 209 GPL Regulation). By Circular 010/99 of April 1999, the Director of INM issued guidelines on immigration proceedings in which the person detained or deprived of liberty is involved. In general, the guidelines reiterate the procedures described above and develop other aspects in more detail.


          Immigration detention facilities (Estación y estancias migratorias)


317.        In Mexico a significant number of persons are detained at the INM’s Iztapalapa detention facility (Estación Migratoria de Iztapalapa) and at the detention facilities (Estancias Migratorias) found in several parts of the national territory.[186] While the Estación Migratoria is designed and operates as a detention facility in which persons stay for a long time, the Estancias are, as their name indicates, for holding the persons detained for very short periods of time, either because they are going to be expelled immediately, or until they are transferred to Iztapalapa, as explained by the Commissioner of the Instituto Nacional de Migración to the Rapporteurship during its visit.[187]


318.        The GPL authorizes the Interior Ministry to establish detention facilities (estaciones migratorias) for the purpose of holding foreigners under detention orders pending deportation, or for their provisional stay in the event that they are unable to comply with some requirement upon reviewing their documentation. The estaciones migratorias are under the authority of the INM.  The personnel assigned to the respective facility have custody over the detainees and are responsible for surveillance at the detention facilities. Persons who have been authorized to enter provisionally, or who are to be expelled, are held at the estaciones migratorias. Places for detaining persons convicted and given prison sentences may not be used as estaciones migratorias (Articles 71 GPL and 94 GPL Regulation).


319.        The executive order on detention facilities of November 26, 2001, provides that the facilities should suffice to house the persons detained.  That order provides for separating men and women, and for setting aside an area for families, and other areas for psychiatric patients and for persons who are carriers of infectious diseases.  The guards in the women’s sleeping quarters must be women.  In addition, the persons detained must be assigned a dormitory and given a mat and articles for personal hygiene.  The persons detained have the right to receive food three times a day.[188]


320.        In its visit to the INM detention facilities in Tapachula and Ciudad Juárez, the Rapporteurship observed that while men and women are detained in different areas, in almost all cases they are guarded by men.  At the Iztapalapa detention facility female personnel were observed keeping guard over the women.  In the opinion of the Rapporteurship, this situation ignores these laws and places women deprived of liberty in more vulnerable conditions.


321.        The interior minister issues rules regarding the facilities, which must include: the purpose of the detention, the maximum duration of the stay of the persons detained, and respect for the human rights of the persons detained (Article 208 GPL Regulation).  In the exercise of this power, an “Order issuing rules for the operation of the INM detention facilities” was issued on November 26, 2001. That decree expressly prohibits: (1) any act or omission against the physical or moral integrity of the persons detained; (2) conditions that result in discriminatory treatment of the persons detained; (3) the provision of drugs (stimulants, psychotropics, or toxic substances), and drugs not prescribed by a physician; (4) the trade, entry, possession and use of firearms, cutting instruments, explosives, cell phones, and any object that might endanger order and security at the detention facilities; (5) the entry of persons without a visitor’s pass authorized by the Coordinator for Immigration Control and Verification or the Chief of the detention facility; (6) offensive expressions and attitudes against the persons detained and their visitors; and (7) all other prohibitions set forth in the laws and regulations. As described below, the immigration authorities have had serious difficulties verifying that these provisions are enforced at the Iztapalapa detention facility.


322.        The INM prepared and must make available to the persons detained a document called “Rights and Rules for the Conduct of Foreigners in the Detention Facility.” The rules include: the duty to treat the immigration authorities with respect; the duty to report when one has been the victim of a physical assault; the right to contact the consular representation in keeping with the Vienna Convention on Consular Relations; the right to be received and informed by the Chief of the detention facility, as deemed advisable, to receive information on one’s current situation and likely date for leaving the country; the right to receive visits from family members and friends, with prior authorization from the chief of the detention facility; and the right to a dignified space, to receive food and items for personal hygiene, and medical care, if needed.  The rules also include the duty to treat the other persons detained respectfully and cordially; to abide by the schedule; to deposit all of one’s belongings upon entering; and to be subject to a disciplinary measure in the event that a detainee violates the aforementioned rules. The November 26, 2001 order provides that when the persons do not speak Spanish or cannot read, they must be given the assistance of a translator or interpreter.


323.        The November 26, 2001 order on the detention facilities establishes that the guards must physically check the detainees and their dormitories. The women detained must be checked by female personnel. The same decree establishes the power of the immigration authorities to take the necessary measures to protect the detention facility in the case of organized resistance, riot, attack on the personnel, or disturbances. In addition, it establishes the authority of the personnel to “take the pertinent measures” when in the face of a situation that endangers the security of the facility, without prejudice to the applicable criminal and administrative sanctions.


324.        The order on detention facilities also lists the infractions that merit a disciplinary sanction, as well as the sanctions. And it establishes certain requirements for disciplinary proceedings. In addition to the need to give the person to be sanctioned an opportunity to be heard, it establishes the duty to attach to that person’s file any information on the disciplinary proceeding and the sanction imposed.


325.        In April 1999, the Director of the INM issued Circular 009/99 regarding health care for persons deprived of liberty in the course of being transferred to and during their stay at the Estación Migratoria. The circular describes the procedure that should be followed for transferring a person with health problems, to ensure he or she is offered the medical care needed. In addition, the 2001 decree on the detention facilities establishes the duty to include a medical certificate of admission based on a medical exam upon arrival.  In the event that the person needs specialized medical care, appropriate measures should be taken.  The same decree has a section that provides for the procedures and duties related to medical care for persons deprived of liberty at the detention facilities.


326.        The order on detention facilities refers to social work, for which a physical space should be set aside within the Estación Migratoria. The personnel responsible for social work has the following functions, among others: to prepare an initial assessment of those persons who, based on national origin and socioeconomic status, are more likely to remain in the facility for a prolonged time, and to provide attention and follow-up to those persons who ask to be given asylum or refugee status. Based on the assessment prepared by the personnel, the Chief of the detention facility may take actions aimed at contacting relatives or friends of the detainee, or seek donations of clothes for the persons detained.


327.        The Coordinator for Immigration Control and Verification or the Chief of the facility have the power to authorize visits and issue the corresponding passes. Pursuant to the Order on Detention Facilities of November 26, 2001, one may only receive visits from family members or friends (the latter must show they are in Mexico legally), one’s spouse or permanent partner, authorities, consular representatives, non-governmental organizations, legal representative, and ministers of worship. The decree spells out the days of the week, visiting schedules, and the duration of the visits.


328.        The Coordinator for Immigration Control and Verification is to visit the detention facilities periodically with a view to supervising and evaluating their proper functioning. Furthermore, the National Human Rights Commission may also visit and verify the conditions of detention of migrants as part of its functions. In the opinion of the Rapporteurship, civil society organizations can play a very important role in monitoring the conditions of detention.


          Visit by the Rapporteurship to the Iztapalapa Detention Facility


329.        During its visit to Mexico, the Rapporteurship had the opportunity to visit the Estación Migragoria de Iztapalapa, or Iztapalapa Detention Facility. The day of its visit, the Rapporteurship found that there were 289 persons deprived of liberty: 227 men and 62 women. Eleven were minors. The facility has a capacity for 140 persons.[189] It was readily apparent that the problem of overcrowding is serious.[190]


330.        The facility is divided into one section for men and another for women. During its visit, the Rapporteurship observed that there were minors in both sections. It also found a group of men in the women’s section within one cell who said they had been punished. The persons detained receive a blanket upon entering. The persons who must sleep on the floor when all of the beds are occupied receive a mat. Overcrowding in the men’s section is much more severe, as reflected in the lack of facilities for personal cleansing and the condition of the cells.  The women’s section appeared to be built more recently and therefore is in better shape.


331.        The Rapporteurship observed that the hygienic conditions in the sanitary facilities for men and women had serious shortcomings.[191] The persons detained complained to the Rapporteurship about the lack of toilet paper and articles for personal cleaning. The women said they received one sanitary napkin and that if they needed more they had to purchase them. In addition, they said that the guards sold them the articles for personal cleaning. The Rapporteurship is aware that after its visit, the toilets have been cleaner, and toilet paper and other articles for personal cleaning are being distributed in adequate quantity.


332.        When the Rapporteurship visited Iztapalapa it observed that it was being remodeled and expanded to increase the capacity, and to include visiting areas.  The Rapporteurship has learned that those improvements have not been completed, even though in November 2002 the INM announced that it had accelerated the work. Nonetheless, an area was refurbished for visits and interviews with consuls and legal representatives, which is very positive. In addition, a dormitory was set up for unaccompanied minors and families in the women’s area, which is another positive initiative.  In a subsequent communication the state indicated that as part of the plan for modernizing the facility its capacity had more than tripled (a 212% increase) for the men’s section and more than doubled (110%) for the women’s section.


333.        During its visit, the Rapporteurship verified that the rules of conduct are not available at the Iztapalapa detention facility. Indeed, when entering, some persons were posting the rules on display boards. Seven of the persons detained told the Rapporteurship during its visit to the Iztapalapa detention facility that they were unaware of the rules of conduct, in particular those who did not speak Spanish.


334.        During the visit, the persons who were detained told the Rapporteurship of their displeasure with the poor quality of the food and the poor sewerage services. With respect to the food, the Rapporteurship has learned that efforts are being made to improve the quality and quantity of food and to address special dietary needs. The detained migrants told the Rapporteurship that during the rainy season the patios and cells flood. The detainees said that the telephones didn’t work well and that the personnel sold them telephone cards at inflated prices. Even though the INM staff told the Rapporteurship that there was a medical corps that provided care to the persons detained, the detainees complained that they did not receive timely medical care.  The Rapporteurship observed persons with mental illnesses who clearly required specialized care as well as disabled persons among the detainees. More than anything else, the persons detained expressed their frustration at not knowing the status of their immigration proceedings and at being subjected to mistreatment by the personnel in charge of the detention facility.


          Operation in Iztapalapa


335.        The Rapporteurship learned that after its visit to Mexico on October 12, 2002, a “surprise operation” was carried out at the Iztapalapa detention facility, with the participation of the INM, the Specialized Organized Crime Unit of the Office of the Attorney General, the Federal Preventive Police, the Ministry of Public Health, and the Ministry of the Comptrollership and Administrative Development. The Office of the Third Visitor of the National Human Rights Commission witnessed the operation.


336.        According to Bulletin No. 400/02 of the INM’s General Bureau of Information and Dissemination, the operation was requested by the Office of the Deputy Minister of Population and Migration Matters of the Interior Ministry and the Instituto Nacional de Migración for the purpose of “verifying respect for the human rights of the detained foreigners, as well as the conditions of the facilities.” During the operation they found “administrative anomalies having to do with the documents or lack thereof” of the persons detained, cutting instruments, stimulants, alcoholic beverages, and products or substances that are illegal or not permitted at the station.   The Public Ministry agents took statements from the persons allegedly involved in the irregularities, with which they should have begun the respective investigation, prosecution, and punishment. According to the information received by the Rapporteurship, the weapons, alcoholic beverages, and prohibited substances were found in the possession of the INM staff, not the persons detained.


337.        As a result of the operation, 18 INM personnel and agents were detained, along with 27 persons who were being held at the detention facility, and 23 members of the Auxiliary Police.  As a result of the operation, the following items were seized: US$4,000, 50 cutting instruments, seven bottles of liquor, a small amount of marijuana, medicines, basic necessities, and medicines that were illegally traded in the facility.[192]


338.        The INM informed the Rapporteurship of several measures it had taken to improve the conditions of detention at Iztapalapa. Accordingly, at this time the Banking and Industrial Police should be providing security services, instead of the Auxiliary Police. In addition, they should have installed metal detectors and x-ray scanners; they should have changed the mechanism for selling goods to the detainees; there should be a vending machine that sells phone cards; and a new power plant should be up and running.


339.        As of this writing, no preliminary inquiry has been initiated into the INM officials implicated in the events described above. In a communication after the Rapporteurship’s visit to Mexico, on July 1, 2003, the INM stated that the resolution on this measure is still pending. The Rapporteurship has learned of efforts by the organization Sin Fronteras, which has persisted in looking into progress in the investigation, and has stated its willingness to help identify witnesses. More than six months have elapsed since the date of the operation at Iztapalapa, and the Rapporteurship has not observed significant progress.


Visit by the Rapporteurship to the Tapachula INM detention facility (la estancia migratoria de Tapachula)


340.        During its visit to Chiapas, the Rapporteurship was able to visit the Estancia Migratoria de Tapachula, or the Tapachula Detention Facility. The facility has three cells, each with an area of approximately 10 m2 to 50 m2. The three cells are connected by a corridor with chairs, a kind of waiting room, and a bathroom. The day the Rapporteurship visited some 180 persons were being detained at the Estancia Migratoria.  Three cells were occupied by men, as follows: Guatemalan nationals in one cell, Salvadorans in another, and Guatemalans, Hondurans, and Nicaraguans in the third cell.  The first two cells held more then 60 people.[193]  The Rapporteurship observed that the fans did not work, and the two urinals – the only sanitary services available – had no running water.  The condition of the bathrooms and the lack of water were a serious problem tending to undermine the health of the persons detained.  Furthermore, the scant ventilation throughout the facility, but especially in the cells, made the conditions all the more inclement.  The women and small children were in the hallways. There were also large bottles or tanks of drinking water for those persons who were in the corridor. There was no drinking water in the cells. Within the cells there was no possibility of access to drinking water. The Rapporteurship observed the food served to the detainees: ham-and-cheese sandwiches, a piece of fruit, and a bottle of water.


341.        The Rapporteurship’s team had the opportunity to engage in dialogue with the persons who were detained. In general, the persons indicated that the authorities had told them that they were going to be returned to their countries of origin.  They told the Rapporteurship that in the detention facility there was no toilet paper, and that the only bathroom available for all the persons held there was in very poor hygienic condition. In general, the persons there complained of overcrowding, the impossibility of drinking water, and the heat. The temperatures in the cells were particularly high. Some persons complained to the Rapporteurship that they had been subject to mistreatment and robbery by the Mexican authorities, but they could not specify to what entity or police corps those officials belonged.


342.        The Rapporteurship learned that in early 2003, the INM purchased a lot of almost 30,000 m2 in Tapachula, Chiapas, to build an INM detention facility. That lot is occupied by a leasee and therefore the construction of a new space has yet to begin.


343.        The conditions of detention at the Tapachula detention facility are inadequate for the volume of persons who are expelled from Mexico across the southern border, and who must spend at least a few hours there.  The conditions of overcrowding in Tapachula aggravate the persons’ conditions of detention.


Provisional and definitive release of the persons detained at the detention facilities


344.        In keeping with the immigration laws, persons deprived of liberty must be released by an official note or administrative resolution that is duly justified.  A person may be released provisionally when it is done for the purpose of a judicial or administrative proceeding, or to be transferred for medical treatment. A person who is detained obtains the “Definitive Release” when an exit order (oficio de salida) is issued for any of the following reasons:   (a) to leave the country; (b) because the person showed that his or her entry or stay was or is lawful; (c) because the person is going to be allowed to regularize his or her immigration status; (d) because the person has been expelled; or (e) when provisional custody over the person has been entrusted to a third person (Article 27 of the Executive Order setting forth the rules for the operation of the detention facilities of the Instituto Nacional de Migración). Third-person custody occurs in the case of persons who apply for recognition of refugee status, once they are interviewed and evaluated by the Mexican Commission for Refugee Assistance (COMAR). In those cases, COMAR is given provisional custody over the persons.


          Custody by third persons


345.        As mentioned above, the Mexican immigration regime provides for the possibility of alternatives to deprivation of liberty, such as custody by third persons. The Interior Ministry can entrust a person detained to the custody of a person or institution of recognized moral standing. In that case, the person detained must put up a security, appear before the immigration authority, and sign the book for control of foreigners (Article 153 GPL).  A person who receives a foreigner in custody and allows that person to escape the control of the immigration authorities will be sanctioned by a fine of up to 1,000 days’ minimum salary (Article 139 bis GPL). The Rapporteurship considers that custody by third persons is a good practice aimed at seeking alternatives to detention that do not limit personal liberty. Moreover, custody by third persons gives the persons subject to this measure the opportunity to more easily become incorporated into and adapt to their new environment.


          Prolonged detention


346.        The Mexican legal framework on immigration matters establishes that the legal situation of a detained person should be resolved within 15 working days (Article 6 of the Order of November 26, 2001). The detention of a person cannot exceed 90 days, except in the following situations: (1) there is no diplomatic representation of the state of which the person is a national; (2) the person does not have identification papers or travel documents; (3) the consulates require a longer period for issuing identification papers and travel documents; (4) the INM lacks financial resources; (5) there are no available spaces or connections on the flights; (6) there are no itineraries for their trip; (7) the transit of foreigners through third countries is prohibited; (8) the person is subject to a criminal proceeding; (9) an administrative remedy has been invoked that hinders execution of the resolution; (10) an amparo proceeding is instituted that hinders execution; (11) the physical or mental illness of the person detained (certified by a physician); (12) the person detained provides false information about his or her identity, nationality, etc.; (13) a request for protection from national or international agencies; (14) the person does not have identification papers or travel documents due to the responsibility of his or her diplomatic or consular representation; and (15) other reasons duly explained and justified by the Coordinator for Control and Verification of the INM (Article 7 of the Order of November 26, 2001).


347.        In the opinion of the Rapporteurship, the reasons for prolonging the deprivation of liberty for longer than 90 days should be more limited. The exceptions to the time limit for the deprivation of liberty should be the result of a balancing test in which the rights to personal liberty and the due process guarantees are respected and guaranteed over and above other practical considerations. The situation is aggravated in cases known to the Rapporteurship of person who have been deprived of liberty by the INM for very lengthy periods.  In particular, the Rapporteurship refers to the time that persons are detained while their travel documents are issued, once they have completed other procedures such as requests for asylum that have been denied.  In some cases, the persons have been deprived of liberty awaiting travel documents for almost six months.[194]


          I.        Labor rights and economic, social and cultural rights


348.        The Rapporteurship must also examine the importance of economic, social and cultural rights to migrant workers and their families. For this purpose, this section of the report succinctly highlights some normative and practical aspects it considers relevant.


          Labor rights


349.        The Mexican Constitution establishes preference for nationals over foreigners in equal circumstances for government concessions, jobs, posts, or commissions for which being Mexican is not necessary.[195] There is no similar provision for the private sector, which, in the view of the Rapporteurship, is positive.


350.        The case-law has established that the Office of the Director-General of Professions should not condition the issuance of the professional identity card (cédula profesional) for a foreigner on compliance with the immigration laws. In addition, it has indicated that the professional ID card does not constitute a permit to enter or reside in Mexican territory.[196]


351.        There is no positive definition on the relevance of a worker’s immigration status when it comes to filing a recurso de amparo against his or her employer. The circuit courts of appeal (Tribunales Colegiados de Circuito) have produced divergent rulings, limiting or expanding the application of articles 1, 17, and 33 of the Constitution to Article 67 of the GPL. In summary, it is not clear whether Article 67 allows foreigners to recur to an amparo proceeding without having to show first that they are in the country legally, that their immigration status and quality allow them to pursue it, or otherwise to obtain special permission from the Interior Ministry.[197]


          Temporary agricultural workers


352.        As indicated in section 3 of the report, Guatemalan peasant farmers enter Mexico to work under the temporary agricultural workers program.[198] This program is based on an agreement between farm owners[199] and enganchadores or labor contractors.[200] The contractor presents the documentation and seeks authorization for the admission of a given number of persons, to whom the INM issues immigration form FMVA.[201]  Through the immigration permit a worker can enter to work on a specific agricultural property for a specific employer.  The person can enter with the members of his or her family, and may enter and leave Mexico multiple times, though transit is limited to the state of Chiapas. At present, it is common to observe that women and children are no longer entering as acompañantes as they did in the past, entering instead as workers, due to their economic needs.  The contractor receives remuneration from the worker and from the employer for having put them in contact with one another.


353.        According to INM statistics, the number of temporary agricultural workers who entered Mexico has diminished. Whereas in 1999, 64,691 persons entered, in 2000, this figure increased to 69,036, but in 2001 it fell to 42,475, and for 2002 it was estimated that only 39,256 persons had entered Mexico[202] with immigration form FMVA.[203]


354.        In July 2002, the minimum wage in agriculture was $42 Mexican pesos per day; in Chiapas wages are lower. Nonetheless, the temporary workers receive from $30 to $35 pesos daily, a place to sleep, and three meals daily.  Usually, more than paying them a daily minimum wage, the farm owners prefer to pay the temporary workers per task performed.


355.        The Rapporteurship had the opportunity to meet with the municipal comptroller of Tapachula and other members of the local government. The municipal administration is of the view that the conditions for temporary workers are good; they have health and education, housing, and food. The social security law establishes the duty to register agricultural day laborers.  Nonetheless, they recognize that their immigration status limits their access to medical services and assistance.


356.        The Rapporteurship also had the opportunity to meet with some member organizations of Foro Migraciones in Tapachula. These organizations expressed their concern over the working conditions of the temporary agricultural workers. They explained to the Rapporteurship that the working conditions are established by the contractor, who holds the workers’ papers and their wages. The contractor charges the worker a commission of $5 quetzals.  They added that there is only one labor inspector for the whole Soconusco region, who does not have a vehicle for visiting the farms. Accordingly, the complaints must reach his office, which is not feasible for the agricultural workers. This situation makes it possible for abuses of temporary agricultural workers to go without any investigation or punishment.


357.        This situation is confirmed in a case denounced by the Human Rights Office of the Casa del Migrante in Tecún Umán. In March 2002, 173 Guatemalan agricultural workers were dismissed after six weeks of work, with a wage of $36 Mexican pesos daily without having been paid their wages. The employers alleged they had no money with which to pay them. The Rapporteurship has learned that the labor proceeding is now under way, and that civil society organizations are advising the workers. This situation highlights the vulnerability of the migrant workers and the need to establish conditions for the protection of their labor rights.  Furthermore, the Rapporteurship has learned of the work of the Guatemalan Consulate in Tapachula, which had identified the employers who were not paying their workers.[204]  All this indicates that there is information on the employers who fail to comply with their labor obligations but that no specific actions are taken to punish illegal practices that violate the rights of the agricultural workers.


          Domestic service employees


358.        In Tapachula, young Guatemalan women, ages 12 to 20 years, mostly minors, migrate to work as domestic servants. In general, they enter Mexico with the local pass, though some enter irregularly. The member organizations of Foro Migraciones with which the Rapporteurship met expressed their concern over the labor conditions to which these women are subjected.  In particular, they are concerned that the work day is very long, that the women are poorly fed, and that they are subject to verbal, physical, and sexual abuse.  The organizations alleged that the labor laws are violated, in particular by unwarranted dismissals, withholding of wages, and lower pay and longer hours than Mexican domestic employees.  The organizations consider that these women are subject to discrimination for being women, indigenous, and undocumented.[205] The protection afforded by the state, through the labor inspector, is very limited. To that end, the Rapporteurship is urging the Mexican authorities to take measures to protect migrant women who work in the domestic service.


          Trade union freedom


359.        Freedom of association is guaranteed by the Mexican Constitution, which expressly restricts the freedom of foreigners to associate for the purpose of participating in domestic political affairs.[206]  Indeed, when Mexico ratified the Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights, it presented a declaration with respect to Article 8, which refers to trade union rights. The Mexican State said that it understood that Article 8 applies to Mexico within the modalities and in keeping with the procedures of the domestic legal order. A similar declaration had been presented by the Government of Mexico when it ratified the International Covenant on Economic, Social and Cultural Rights with respect to Article 8 of that instrument, which also refers to the right to form and join trade unions. Accordingly, it can be inferred that Mexico is under an obligation to protect and ensure the freedom of association of foreigners, unless the association has the purpose of participating in domestic political affairs.


          Right to property


360.        In Mexico, foreigners, independent of their immigration status, can acquire values, make bank transactions, acquire real property and rights over it, in keeping with the limitations at Article 27(I) of the Constitution on ownership of lands, waters, and their accessions or to obtain concessions to mines and waters (Article 66 GPL).  Those foreigners who wish to acquire real property are under a duty to undergo a procedure before the Foreign Ministry as a prerequisite in which their immigration status is verified.[207]  Furthermore, migrants in transit cannot acquire the assets described here, based on the nature of their immigration status.


          J.       Consular protection


361.        Mexico has one of the most extensive and active consular networks in the world. It has 129 consular offices (29 consulates general, 30 career service consulates, 69 consular sections, and one consular liaison office), and 146 honorary consulates. As the majority of Mexicans abroad reside in the United States, naturally the lion’s share of the Mexican government’s efforts are in the United States. According to the information provided by the Mexican authorities, Mexico has 45 consular representatives in the United States. These include 18 consulates general (including in San Juan, Puerto Rico), 27 career-service consulates, and one consular section. The cities with Mexican consulates in the United States include: Albuquerque, Atlanta, Boston, Brownsville, Chicago, Dallas, Denver, Detroit, Douglas, Eagle Pass, Fresno, Houston, Indianapolis, Kansas City, Laredo, Las Vegas, Los Angeles, Miami, New Orleans, New York, Nogales, Orlando, Omaha, Oxnard, Philadelphia, Phoenix, Portland, Presidio, Raleigh, Sacramento, Salt Lake City, San Antonio, San Bernardino, San Diego, San Francisco, San Jose, San Juan, Santa Ana, Seattle, Tucson, Washington (consular section), and Yuma.


362.        This extensive consular network seeks to safeguard the interests and protect the rights of the millions of Mexican nationals who reside in the United States. The consulates attempt to assist and advise Mexico’s nationals in their interactions with the U.S. authorities. The Mexican consuls and Foreign Ministry personnel under them regularly visit prisons and other detention centers, the INM detention facilities, hospitals, and psychiatric hospitals to provide assistance to Mexicans held in such institutions. In addition, the consuls and their teams provide advisory services and support on labor, criminal, civil, immigration, and administrative matters.[208]  Among the services provided by the Mexican consular network, one can mention collaboration to transfer the remains of persons who have died, recovery of unpaid wages, assistance in securing compensation payments, and child support payments, repatriation of the sick, indigent, and unaccompanied minors, finding persons and support in the exchange of Mexican prisoners in transfers and repatriations. The consular network also helps Mexicans obtain and/or legalize documents. The Mexican consuls also participate in several mechanisms for consultation with the U.S. authorities. Some of these are mechanisms of consultation are within the United States (22), while others refer to mechanisms for cross-border liaison (10).[209]


363.        In this connection, one of the most important and novel efforts is the recent creation of the so-called consular registration card. Under agreements between the government of Mexico and municipal authorities in the United States, Mexican consulates may issue identification papers (bilingual) to Mexicans in the United States.  The consular registration card is issued for US$ 29, and is used as an identification document by Mexicans who are in the United States irregularly.  This document enables these persons to gain access to various important services, such as opening bank accounts, receiving medical care, and, in a few cases, obtaining a drivers’ license. In the case of accidents, it also enables the authorities to identify the victims. In 2002 alone, Mexican consulates issued 1,190,000 consular registration cards. At present, 13 states, 30 municipalities, and approximately 700 banks in the United States recognize this document. Obtaining identification papers is a very important step that helps migrant workers reduce their vulnerability.[210]


364.        Mexico’s consular network also provides a very important service in the area of human rights. The consuls and staff receive reports of homicides, abuse, mistreatment, and accidents with fatalities, and they assist persons who are unable to appear personally in cases involving civil suits, custody of minors, and successions.  In this sense, one of the most important actions of the consular protection network is the legal representation that Mexico provides to its nationals who are sentenced to death. At present Mexico’s consular network is assisting 54 persons sentenced to death. Thanks to the action of the Mexican authorities, from December 1994 to June 2002, capital punishment was avoided for 149 Mexicans (36 of them during the current administration). On January 9, 2003, the government of Mexico submitted a complaint to the International Court of Justice in which it indicated that the United States had violated Articles 5 and 36 of the Vienna Convention on Consular Relations in the case of 54 Mexicans sentenced to death. According to the Mexican State, having been afforded the right to communicate with one’s consular legation could have avoided the death penalty in these cases. In February of this year, the 15 judges of the Court voted unanimously to grant an interim measure ordering the United States to suspend the executions of three Mexicans sentenced to capital punishment.[211] To date, the executions have not been carried out. In addition, in 1999, the government of Mexico asked the Inter-American Court of Human Rights to issue an advisory opinion about the right to consular protection, and its relationship to the death penalty. The Inter-American Court then issued Advisory Opinion OC-16.  In addition, in 2002 Mexico submitted a request to the Inter-American Court for an advisory opinion that has yet to be issued on the right of migrant workers whose legal status is irregular to non-discrimination in relation to labor rights.


          K.       Conclusions and recommendations


365.        In consideration of the various issues addressed in the foregoing paragraphs, the Rapporteurship takes this opportunity to draw some conclusions on the study of Mexico’s immigration policy and practice today.  These final considerations will follow the same order as the preceding sections, and in each case the Rapporteurship will make some recommendations to the Government of Mexico in an effort to contribute to enhancing the protection of the human rights of migrant workers subject to Mexican jurisdiction.


366.        The Rapporteurship considers that the initiative of the Beta Groups represents a novel and positive response aimed at protecting migrants insofar as it helps reduce their vulnerability. In this sense, it is a practice that should clearly be emulated by other states of the region. Nonetheless, the Rapporteurship considers that certain problems need to be addressed. For example, it is necessary to step up and continue the internal controls and training to avoid cases of abuse and corruption by members of the Beta groups.


367.        The Rapporteurship is of the view that the Paisano Program and the Project for the Attention of Border Youth are two good practices that should be maintained and reinforced.


368.        The Rapporteurship appreciates the efforts that Mexico has made to address migration as a bilateral problem and to try to move forward constructively in an effort to negotiate an agreement with the United States to increase the protection of its nationals abroad.


369.        The Rapporteurship highlights the importance of remittances for migrants and their families and urges the government to continue taking appropriate measures to ensure that this money flows unhindered. The Rapporteurship appreciates the support that the Mexican government has lent to development initiatives financed in part with such remittances.  It should be reiterated, however, that any initiative of this sort should take into account the interests of those who send the remittances and the interests of their families.  The arrival of remittances, it should be noted, does not release the state of the responsibility of financing and promoting the country’s development for the well-being of the population.


370.        Insofar as is possible, programs to support the persons in the communities of origin who, as a result of the exodus of their family members abroad, are in situations of disadvantage and vulnerability, should be fostered and developed.


371.        The Rapporteurship is concerned about the increase in crime in the border areas, in particular because this makes migrants all the more vulnerable. While the Rapporteurship recognizes the effort made by the government, it considers that to date it has been insufficient. Accordingly, the Rapporteurship calls on the State to redouble its efforts to take measures to help overcome this important problem.


372.        The Rapporteurship recognizes the effort made by the Mexican government to try to promote the development of historically neglected zones. Such measures could become an incentive for many people not to have to emigrate from their country in order to make a living for themselves and their families.


373.        The work of the Foro Migraciones is worthy of special mention as a practice coming out of civil society that should be supported and imitated to benefit the work on migration and migrants.


374.        As it has done in previous reports, the Rapporteurship would also like to highlight the work of the Casas del Migrante as a good practice, and to reiterate the importance of guaranteeing the conditions for these organizations to be able to do their work.


375.        The Rapporteurship issues an appeal to the Mexican authorities and civil society to provide support to the intergovernmental organizations and to allow them to carry out activities aimed at protecting and guaranteeing the human rights of migrants and their families.


376.        Based on the information set forth in the respective section of this report, the Rapporteurship presents its conclusions and recommendations on the measures aimed at controlling migration. The Rapporteurship makes an appeal to the INM and to the security forces of the Mexican State that carry out operations in which migrants are detained to order and verify that its officers and agents abide by the duty of identifying themselves verbally and by means of a badge when performing their functions.


377.        The Rapporteurship considers that the states should refrain from developing their immigration policy objectives through requirements or obstacles that limit the exercise and enjoyment of the rights of persons who find themselves in an irregular situation or undocumented. The power granted to many authorities to request documents places undocumented persons in a situation of greater vulnerability, because they face the dilemma of turning to the authorities in search of assistance or for any other purpose and running the risk of confronting the immigration authorities, with the consequences described herein.  In view of the foregoing, the Rapporteurship urges the Mexican State to eliminate the duty of the public authorities to request immigration papers from persons.


378.        The Rapporteurship considers that unauthorized entry should not be defined as a crime, for several reasons. As stated above, it is an offense whose prosecution depends on a complaint being lodged and in practice the INM refrains from presenting the respective complaint.[212] Furthermore, considering the massive nature of “illegal entry,” one could conclude that its criminalization gives rise to obligations to investigate and detain on the part of the police authorities, who have the duty to investigate and detain the persons responsible for more serious conduct, as spelled out in the GPL, for which persons are tried and sentenced criminally.  This situation could prove detrimental to the protection of the security of inhabitants in the face of the crimes defined as more serious in the Mexican legislation to the extent that human and material resources are diverted from the police. For all these reasons, the Rapporteurship recommends to the Mexican State that it consider eliminating the criminal treatment of this conduct.


379.        The Rapporteurship considers that the programs for regularizing immigration status constitute a good practice that should be emulated by other states. Mexico’s experience highlights the importance of publicity campaigns, and of involving civil society and the consulates to ensure the success of such campaigns, measured by the number of persons who avail themselves of it.  It is important that the regularization programs have a very low cost for processing vis-a-vis the state that issues them, or for the issuance of identification papers by the state of which one is a national, such that low-income persons can avail themselves of such services. Usually, these programs are the only alternative for regularizing the immigration status of migrant workers and their families.


380.        The Rapporteurship wishes to reiterate the need to distinguish in the criminal definition between trafficking of persons and smuggling of migrants. In addition, the Rapporteurship calls on the authorities to focus their efforts on criminally prosecuting the smugglers of migrants whose conditions of travel and methods of transport result in deaths or endanger the life and personal integrity of migrants. The Rapporteurship also issues an appeal to implement and maintain preventive strategies aimed at protecting the lives of migrants, based on informing them of the dangers of the trip, in addition to a punitive approach.


381.        The Rapporteurship recommends to the Mexican authorities that they establish a legal and regulatory framework that limits the discretion of officers and agents, respecting the principle of non-discrimination enshrined in the international human rights instruments ratified by Mexico. In addition, it calls on the authorities to develop instructions or guidelines to establish the criteria under which the authorities can decide to ask persons for their documents in such a manner that respects the right to non-discrimination. Finally, the Rapporteurship suggests that the INM and PFP agents be trained in the specific application of the principle of non-discrimination to the activities under their responsibility.


382.        Consideration should be given to the possibility of eliminating or regulating Article 37 of the GPL so as to guarantee the principle of legality in immigration proceedings.


383.        The Rapporteurship urges the authorities to establish a summary procedure that is respectful of the guarantees of due process for expelling migrants not authorized to enter Mexico. It is fundamental that a procedure be established for expelling Central American migrants overland that ensures that their detention and travel take place in dignified and safe conditions. To this end, it calls on the governments of Mexico, Guatemala, Honduras, El Salvador, and Nicaragua to sign and implement an agreement setting forth the procedures for the safe and orderly repatriation of Central American migrants from Mexico.


384.        The Rapporteurship is concerned that INM officers may not meet the criteria for an impartial adjudicator, as set forth by the Rapporteurship in its second progress report.[213] Accordingly, it reiterates that measures should be taken, as necessary, to ensure that an officer who makes a decision in an immigration proceeding meets the following criteria: an officer should be accountable to superiors and to the oversight organs, for his or her actions and the legality of his or her decisions; and must not have any link or power related to the deprivation of liberty of the person with respect to whom the officer is making a decision regarding remaining in or being expelled from Mexican territory.  It is important that the appointments of such officers, and their continuation on the job, enjoy guarantees of impartiality and that they be protected from pressures on or influence in their decisions.


385.        The Rapporteurship calls on the Mexican immigration authorities to guarantee the right to information, in particular for persons who are deprived of liberty.  The Rapporteurship reiterates the importance of the right to information in immigration proceedings; accordingly, it is important that due notice be given, and that there be a written record of such notice.


386.        It is also extremely important to guarantee access for civil society organizations so that they may offer legal assistance to migrants. In addition to individualized assistance, they should be given access to groups of persons detained at the INM detention facilities (estancias y estación migratoria) to give informational talks.


387.        The Rapporteurship considers that the State should do everything possible to enable the legal representatives of those who have money to pay their fees, and to enable the civil society organizations to be able to provide such assistance to those migrants  who cannot pay an attorney. This includes allowing them to meet and communicate with the civil society organizations, and to facilitate such meetings and communication, and allowing the organizations to provide them legal representation when the two parties so agree.


388.        Given that the judicial decisions have upheld divergent positions, the Rapporteurship issues an appeal to the Mexican State to take the necessary measures so as to not require the presentation of identification papers or of immigration status (Article 67 GPL) of foreigners who seek the effective judicial protection of their rights. 


389.        The Rapporteurship recommends that the resolutions handed down by the immigration authorities expressly mention the remedies available to challenge them.  Furthermore, the Rapporteurship wishes to highlight the importance of guaranteeing the means and conditions that make it possible to pursue the respective administrative and judicial remedies. In other words, a copy of the documents should be provided to the person affected by them, copies of the file should be provided to their legal representatives, the remedies should be ruled on based on legal reasons, and the procedures established by law should be followed.


390.        The Rapporteurship urges the Mexican authorities to train the INM officers in the practical application of the Vienna Convention on Consular Relations in relation to consular assistance. In every case, a person who is detained should be informed of his or her right to seek assistance, and should also be able to request that the consular officials not be informed. In that case, the authorities should not inform the consulate as to the person’s presence, unless an expulsion order is issued against the person and it is necessary to ask the consulate to provide identification papers and travel documents.


391.        In this context, the Rapporteurship makes a special appeal to the Central American countries, and to Ecuador and Colombia, considering the volume of the migratory flow of their nationals through Mexico, to take all measures necessary to offer their nationals the consular assistance they require. In this regard, the Rapporteurship wishes to highlight as a good practice the initiative of establishing a Central American consulate in Veracruz. The Rapporteurship is also particularly concerned by the situation of the nationals of states that do not have any consular or diplomatic representation accredited in Mexico. The Rapporteurship calls for mechanisms to be developed to issue travel documents to these persons through international agreements and with the participation of the international cooperation agencies or the good offices of other diplomatic delegations.[214] In addition, the Rapporteurship would like to recommend that consideration be given to establishing a maximum time of detention for a person whose expulsion has been ordered but cannot be carried out due to the impossibility of obtaining the travel documents, for example because of the lack of adequate consular representation (see Section VIII, Personal Liberty).


392.        The Rapporteurship issues an appeal to the INM to incorporate female personnel who can take charge of the custody of migrant women deprived of liberty.


393.        It is necessary to offer training to the personnel at the detention facilities so that they can ensure the security of the facility and the life and physical and mental integrity of the persons held.  It is important that a decision be made that the force used to address situations such as those described in the body of this report should be proportional to the situation, and that it should be limited to the force necessary to re-establish the security of the detention facility.


394.        The Rapporteurship issues an appeal to the INM to allow access for civil society organizations and the state human rights agencies to the INM detention facilities so that they can perform their tasks of monitoring, supporting, and assisting the immigrants as part of a process of dialogue aimed at improving the conditions in which they are being held.


395.        One can conclude that the immigration authorities have established a normative framework for the functioning of the detention facilities that guarantees adequate conditions of detention for the persons detained there. Nonetheless, many of the rules described here are not abided by in the detention facilities. Therefore, the Rapporteurship urges the immigration authorities to take necessary and immediate measures for the agreement to be carried out, taking into account the specific observations and aspects mentioned in the section of conclusions regarding the conditions of detention at the Iztapalapa facility.


396.        As regards the inspection of Iztapalapa, the Rapporteurship wishes to reiterate the importance of carrying out the corresponding criminal and administrative investigations and of punishing the persons responsible. The commitment of the Mexican State to defend and promote the human rights of migrants should be translated into specific criminal and disciplinary actions.


          Conclusions on the conditions of detention at the Iztapalapa detention facility


397.        The Rapporteurship recommends to the INM that it take the necessary measures to complete the remodeling of the facility as soon as possible. It is particularly important that the capacity be expanded to end the overcrowding.


398.        It is essential that the disciplinary rules the detainees are required to abide by are made known to them beforehand.  Accordingly, the Rapporteurship reiterates the importance of these rules being available to and posted in places where they can be seen by the detainees. In addition, an appeal is made for the rules to be translated into several languages, and, in the case of persons who are not Spanish-speakers, that a copy be provided in a language that the person understands.


399.        In the opinion of the Rapporteurship, it would be advisable for the rules of conduct to list and describe the infractions and the respective disciplinary measures. In addition, the Rapporteurship reiterates the importance of ensuring that the disciplinary measures are applied objectively and impartially.[215]


400.        The Rapporteurship considers that the conditions of detention at Iztapalapa can be improved if a series of actions are adopted aimed at implementing the existing legal framework. The Rapporteurship lists some aspects that it observed during its visit which, if addressed, will help improve the conditions of detention.


401.        The Rapporteurship celebrates the fact that hygiene and the provision of services and articles for personal hygiene have improved at the Iztapalapa Station, and expects that minimal conditions of hygiene will be ensured for the persons deprived of liberty, which includes distributing hygienic articles in sufficient quantity.


402.        Minors should be held at Iztapalapa unless accompanied by adult members of their families, in which case they should be housed in a separate area. The guards for the women detained should be women.


403.        It is necessary and a high priority to solve the problem of overcrowding and the problem of overflow of wastewater. In addition, the INM is responsible for providing on a regular basis and in sufficient quantity and quality articles for personal cleanliness and hygiene for the persons detained.


404.        The food should be of adequate quality and should take into account any dietary restrictions of the persons detained whether for religious or health considerations. In addition, the Rapporteurship urges the authorities to ensure that the telephones are kept in working order, and that a vending machine is installed to dispense telephone cards.


405.        Visits should be allowed by civil society organizations and legal representatives of some of the persons detained to offer assistance to all the persons detained, and to monitor the conditions of detention; the National Human Rights Commission should also be able to make such visits.


406.        Medical care and medicines should be offered to the persons detained.


407.        In addition, the Rapporteurship is of the view that a mechanism should be established to enable the persons detained to denounce irregularities to an independent organ.  Complaints of physical abuse, acts of corruption, and other violations of the immigration laws should be investigated, and, if appropriate, administrative and criminal sanctions should be imposed.[216]


         Recommendations with respect to the INM detention facilities known as estancias migratorias


408.        The Rapporteurship urges the State to take urgent measure to solve the overcrowding in Tapachula. The temperature and physical space per person should be in keeping with the relevant international standards.[217] In particular, sanitary services should be constructed that should have water and articles for personal hygiene.


409.        In addition, it is essential that drinking water be available in all areas where persons are detained.


410.        The Rapporteurship considers that the persons detained should have access to telephones and a machine that dispenses telephone cards.


411.        It is also of the view that the food should be adequate and in keeping with minimum hygienic standards.


412.        Civil society organizations and the National Human Rights Commission should be given access in order to monitor the conditions of detention.


          The detention of immigrants and alternatives


413.        The Rapporteurship invites Mexico to consider the possibility of expanding the use of custody by third persons.


414.        The INM should take all measures necessary for persons to be deprived of liberty for the shortest possible time. The reasons set forth at sections 4, 5, 6, 7, and 15 of Article 6 of the Order of November 26, 2001 appear to accord priority to administrative considerations, ignoring the imperatives of human dignity.


415.        Furthermore, the Rapporteurship wishes to urge the states to have consular or diplomatic representations to carry out all necessary steps to issue identification papers and travel documents to their nationals expeditiously, in particular when they are deprived of liberty. In any event, the Rapporteurship considers that migrants cannot be detained indefinitely due to the lack of diplomatic representation from their country or for other reasons for which their travel documents are not issued to them.  Accordingly, the Rapporteurship suggests that initiatives be taken aimed at addressing the difficulty of documenting and identifying nationals from countries that do not have diplomatic or consular representations in their territory, with the collaboration of the intergovernmental organizations and the good offices of other diplomatic representations.


416.        With respect to the exceptions to the limit of 90 days for depriving persons of liberty, the Rapporteurship considers that those persons who are subject to a criminal proceeding should be deprived of liberty by the immigration authorities for more than 90 days. If the criminal provisions establish deprivation of liberty as a precautionary measure or if the person has been sentenced to a penalty entailing deprivation of liberty, that person should be transferred to the custody of the competent authorities.


417.        With respect to persons detained because they are especially vulnerable, the Rapporteurship considers that the request for protection is not satisfied by deprivation of liberty. The INM should implement other mechanisms of protection that do not entail restricting the freedom of movement of a person who, because of his or her vulnerability, requires special attention or security.


418.        The Rapporteurship considers that it is fundamental to guarantee the right to judicial protection (Article 25 of the American Convention); therefore it issues an appeal to the Mexican authorities to amend Article 67 of the GPL so that it is not necessary to show that one is legally in the country in order to go before the administrative or judicial authorities to seek effective protection of one’s rights.


419.        The Rapporteurship calls on the Mexican authorities to take all measures necessary to guarantee protection of the labor rights of temporary workers. The work of the Labor Inspector in the Soconusco region needs to be shored up. It is probably necessary to appoint other inspectors and enable them to visit the farms and receive the complaints from the temporary workers. In addition, those complaints should lead to labor proceedings in which the wages owed are recovered, and the employers sanctioned. Finally, the temporary workers program should consider a mechanism by which a farm that is sanctioned cannot continue receiving temporary agricultural workers.


420.        The Rapporteurship highlights the effort made by Mexico to protect its citizens abroad and invites the state to continue these efforts and take them further.  As indicated, Mexico probably has one of the most developed, extensive, and sophisticated consular networks in the world.  That is why the Rapporteurship urges other states to reproduce Mexico’s example and develop mechanisms that make it possible to defend the rights of migrant workers abroad.


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[185] For example, the Rapporteurship is aware of the case of physical abuse against Griselda Morales and Tomás Castro, who filed the respective complaint in September 2002, administrative file DE/244/02. The Rapporteurship is not aware of the results of that complaint. The Rapporteurship is aware of the case of physical assault against Luis Castillo Sepúlveda, which is currently in the conciliation phase, brought by the National Human Rights Commission, and which resulted in criminal charges being brought against an INM official identified as criminal case 71/2002, and against the auxiliary police agents assigned to the detention facility by criminal complaint FSP/AT3/1261/02-07.

[186] The Rapporteurship received inconsistent information with respect to the number of INM detention facilities in Mexico. On some occasions the authorities referred to 29 estancias, and on other occasions one hears talk of 34, and on still others the figure fluctuates between or is very close to these two numbers.

[187] Some officials told the Rapporteurship that a person cannot be held in a detention facility for more than three hours.

[188] See Article 26 of the Order on the Detention Facilities, of November 26, 2001.

[189] This figure is close to the average of persons detained, which, according to information received by the Rapporteurship, fluctuated between 190 (on December 2, 2002) and 377 (on May 12, 2003).

[190] See, in this regard, Foro Migraciones, Los Procedimientos y las Condiciones de las Personas Migrantes en Situaciones de Detención en México (preliminary version), April 2003, p. 35.

[191] See Foro Migraciones, Los Procedimientos y las Condiciones de las Personas Migrantes en Situaciones de Detención en México (preliminary version), April 2003, p. 39.

[192] Luis Alegre, Interviene la PFP estación migratoria, in Reforma, October 13, 2002, at <www.reforma.com>.

[193] Member organizations of Foro Migraciones assured the Rapporteurship that at one time they had counted 120 people in one of those cells.

[194] The Rapporteurship learned of the situation of Francis Bell Amebley of Ghana, and Yussif Bangurah and Ahmed Sellah of Sierra Leone, among others, mentioned in Official Note 1680 from the Coordinator of Immigration Control and Verification to Fabienne Venet, August 5, 2002.

[195] See Article 32 of the Constitution of Mexico.

[196] Tesis Jurisprudencial 721, 1995 Appendix, 7th Epoch, Tome III, Part TCC, p. 534.

[197] Tesis Jurisprudencial I.9o.T.6 K, Semanario Judicial de la Federación y su Gaceta, 9th Epoch, Part II, July 1995, p. 234; Tesis Jurisprudencial VIII.2o.6 K, Semanario Judicial de la Federación y su Gaceta, 9th Epoch, Part I, April 1995, p.151; and Tesis Jurisprudencial (no number), Semanario Judicial de la Federación y su Gaceta, 8th Epoch, Part XIII, June,
p. 573.

[198] For more information on the profile of the temporary workers and the economic situation in Guatemala, see Herrera Ruiz. 2002. Op. cit., p. 13.

[199] As of July 2002, 196 farms had registered.

[200] To understand the hiring process, see the report of the Rapporteurship on its visit to Guatemala in the Third Progress Report of the Rapporteurship of Migrant Workers and Their Families, in the 2002 Annual Report of the IACHR.

[201] The regulation on Guatemalan temporary agricultural workers is in Circular 247 of October 2, 1997.

[202] According to information from INM, during 2002, 22,291 persons had entered with form FMVA.

[203] Source: Instituto Nacional de Migración, at <http://www.inami.gob.mx/paginas/estadisticas/eneabr03/ registro.mht>.

[204] See Official Note No. DAC-219-N24/2002 from the Consul General of Guatemala in Tapachula to Felipe Solís Gutiérrez, legal counsel with the Centro de Derechos Humanos Fray Matías de Córdova, July 19, 2002.

[205] See Centro de Derechos Humanos Fray Matías de Córdova, Violaciones a los Derechos Humanos Laborales de las Trabajadoras del Servicio Doméstico en Tapachula; and Hugo M. Angeles Cruz, Las Trabajadoras Domésticas en la Ciudad de Tapachula.

[206] See Article 9 of the Constitution of Mexico.

[207] Tesis Jurisprudencial 1a. XI/2002, Semanario Judicial de la Federación y su Gaceta, 9th Epoch, Tome XV, February 2002, p. 27.

[208] According to Foreign Ministry data, in 2001, some 103,000 Mexicans were being held prisoner in the United States.

[209] Information provided by the Permanent Mission of Mexico to the OAS.

[210] Foreign Ministry. 2003. <http://www.sre.gob.mx/tramites/Consulares/certificado_matricula.htm>; Torre Wilburt. 2003. "Sirve Matrícula Consular a Paisanos." Diario Reforma, Mayo 24. <http://www.reforma.com/nacional/ articulo/296990/default.htm>.

[211] Aguilar Zinser, Adolfo. 2003. “Decisión de la Haya.” Diario Reforma February 7. <http://www.reforma.com/ editoriales/articulo/267592/default.htm>.

[212] This is the explanation given by the INM Delegate in Chiapas to the Rapporteurship; he indicated that the policy is to refrain from presenting a complaint for the offense of “unlawful entry” unless the person has committed another offense. In addition, the staff of the Office of the Attorney General confirmed to the Rapporteurship that they have agreements or procedures established for the INM to present complaints, and that these do not include “unlawful entry” as defined at Article 123 of the GPL.

[213] IACHR, Second Progress Report of the Rapporteurship on Migrant Workers and Their Families, 2000 Annual Report, para. 99A.

[214] The Rapporteurship has learned of cases in which the persons whose expulsion has been ordered who expressly request of their diplomatic or consular representation that they not issue them travel documents. These cases are not part of the phenomenon described here, but are also of concern to the Rapporteurship.

[215] See Standard Minimum Rules for the Treatment of Prisoners, approved by the Economic and Social Council of the United Nations in its Resolutions 663C (XXIV) of July 31, 1957, and 2076 (LXII) of May 13, 1977, in particular the section on Discipline and Punishment; and Principle 30 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the United Nations General Assembly by Resolution 43/173 of December 9, 1988.

[216] The Standard Minimum Rules for the Treatment of Prisoners, approved by the Economic and Social Council of the United Nations in its Resolutions 663C (XXIV) of July 31, 1957, and 2076 (LXII) of May 13, 1977; and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the United Nations General Assembly by Resolution 43/173 of December 9, 1988, establish the international standards in this area.

[217] Id.