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5.       Massive Expulsion, proceeding of expulsion

1.       Can any determined group of immigrant workers and their family members be expelled as a group from your country?

2.       What is the competent authority to determine whether an immigrant worker and members of his family can be expelled from your country? Is it the same authority for both regular and irregular immigrant workers?

a)       Can an immigrant worker and his family members who are expelled from your country go to a country other than his country of origin?

b)       What is the administrative or court procedure to expel an immigrant worker and his family members from your country? Are there different procedures for regular immigrant workers and irregular immigrant workers?

c)       Do both regular and irregular immigrant workers have court remedies to apply for or seek a review of the measure? If so, could you indicate what these actions are and describe them?

d)       When such a review is pending, is the immigrant worker expelled or can he remain in your country until the review is finally resolved?

e)       In what language are immigrant workers informed of the decisions of administrative or court authorities?

3.       If an immigrant worker and his family members are expelled under the terms of a resolution from an administrative authority and the resolution is later nullified, does that person have a right to any compensation? If so, can you describe the procedure followed to obtain such compensation?

4.       After an expulsion resolution is issued, how much time is given to the immigrant worker and his family members to leave the country? What information is taken into account to determine how much time they have before they must leave your country?

5.       If an immigrant worker is expelled or deported, whether he is regular or irregular, what happens to any pending matters related to him, an example being any wages owed to him?

BOLIVIA

1.       Yes, they can be expelled as stipulated in Article 48 of Supreme Decree Nº 24423, “Legal Migration Regime.”

2.       The competent authority for expelling or deporting regular and irregular immigrant workers, as stipulated by the Legal Migration Regime, is the National Migration Service.

a.       Expelled immigrant workers and their family members may not go to any state of their choosing: if they are from a neighboring country they are returned to their country of origin; those from non-neighboring countries are deported from their original points of entry.

b.       The administrative procedure for expelling immigrant workers and their families is carried out by the National Directorate of Inspections and Confinements, an agency of the National Migration Service, by means of a resolution issued in accordance with Articles 20 and 48 of the Legal Migration Regime.

c.       Immigrant workers, regular and irregular alike, may bring legal action to challenge that measure or appeal against it within the following 48 hours; such appeals must be answered by a legal report within 48 hours of the case being received by the National Juridical Directorate, and they must be resolved by the Director of Migration within 72 hours of his receiving the case file and the corresponding legal report.

d.       Immigrant workers awaiting for such a review will remain in the country while a final resolution is reached.

e.       The authorities’ decisions are communicated to the immigrant workers in Spanish.

3.       Immigrant workers and their family members expelled by an administrative authority under a resolution that is subsequently cancelled are not entitled to any compensation.

4.       Once the expulsion resolution has been issued, the National Directorate of Inspections and Confinements will take the immigrant worker to the place where his deportation is to take place within a period of 48 hours.

5.       For all the immigrant worker’s pending affairs-such as wages still owed, etc.- the consulate of his country shall act on his behalf.

BELIZE

1.       Yes.

2.       Yes.

a.       Yes.

b.       A case for such expulsion is made to the Honorable Minister responsible for Immigration.

c.       No.

d.       The immigrant is expelled.

e.       In a language which they understand.

3.       No.

4.       The person is expelled immediately.

5.       It is ensured that his salary and all benefits are paid to him.

COSTA RICA

1.       No. Mass expulsions do not occur in Costa Rica: each individual’s case is processed separately, to allow them to pursue the remedies available on a personal basis.

2.       The Director General for Immigration and Nationality.

a.       Yes. It is covered by Article 119 of the General Migration and Nationality Law, which states that: “The General Directorate will order the foreigner to be deported to his home country or to another country that will admit him.”

b.       They are different procedures:

For deportations, the procedure can be initiated on an ex officio basis or at the instigation of private citizens. Ex officio proceedings begin when immigration authorities or any other government officials are made aware that a foreigner could be in one of the situations set forth in law as causes for deportation. The same applies to foreign convicts who have served prison time.

Proceedings begin at the instigation of private citizens when said citizens present a formal complaint to the immigration authorities in any part of the country. In all deportations, a case dossier will be prepared, gathering together all the documents related to the case and leaving record of all formalities pursued, such as investigations, eye-witness inspections, interrogations, witness statements, any personal complaints that were filed, etc. The case dossier will also contain reports from other national or foreign police agencies and any correspondence entered into in connection with the case. In addition, the individual who is to be deported shall be clearly identified.

When the dossier has been completed with all these documents, and when all the necessary formalities have been carried out, it shall be forwarded to the Migration Legal Office for it to be studied and a report to be issued. If the study indicates that due process was observed and that deportation can proceed, a resolution signed by the Director General of Migration and Nationality ordering the deportation shall be issued.

In contrast, the established procedure for expulsions is set forth in Chapter III, “Expulsions”; it is specifically dealt with by Article 123, which indicates who is to issue the pertinent resolution.

c.       The remedies of cancellation and appeal against the Director General’s resolution are admissible only if the cause of the deportation is one of those set forth in paragraphs 3, 4, and 5 of Article 118, which reads as follows:

Article 118. Deportation is an action ordered by the competent immigration authority by means of which foreigners in any of the following situations are to be placed outside the nation’s territory:

3.         Remaining in the country once the period of time authorized has expired.

4.         Remaining in the nation’s territory after residence permission has been cancelled.

5.         When the permits of non-residents are cancelled and they do not leave the country in the allotted period of time.

The law thus excludes the possibility of appealing against the provisions of paragraphs 1 and 2 of Article 118, which cover illegal entry and the use of falsified documents to obtain entry or residence.

The cancellation or appeal must be filed with the General Directorate within five working days of notice being served, along with all the evidence deemed necessary. Cancellation remedies must be resolved by the General Directorate within no more than 30 days of the date on which they were filed. After that time, the remedy shall be considered denied. If a remedy for appeal was also filed, it shall be immediately forwarded to the Ministry of Public Security, the Interior, and Police, where it shall be studied and a resolution issued. In such a case, after a negative ruling on the cancellation, the General Directorate shall admit the appeal and summon the appellant to appear before the Minister within the following three days to assert his rights. The Minister of Public Security, the Interior, and Police shall resolve appeal remedies within a fixed period of 15 working days following receipt of the case file.

In addition, the resolution ordering expulsion may be appealed against on one occasion before the Third Chamber of the Supreme Court of Justice.

The appeal writ shall contain all the evidence. The Chamber shall issue its ruling no later than eight working days after the date on which the documents were presented.

d.       With both expulsions and deportations, as long as the cancellation and appeal remedies have not been resolved on time, the effects of both are suspended until the appellate authority has issued its decision.

e.       Communications are in the Spanish language. However, a recent ruling by the Constitutional Chamber established that to ensure due process, foreign citizens who do not speak Spanish shall be entitled to the assistance of an official translator during the entire proceedings.

3.       In this regard, it should be noted that until the appeal remedy has been resolved by the Interior Minister (for deportations) or by the Third Chamber of Supreme Court of Justice (for expulsions), the effects of the administrative order are suspended. If the expulsion or deportation is carried out before the appeal is resolved, Costa Rican law provides for a series of instruments, such as amparo relief, to guarantee the individual’s basic rights and freedoms. Said relief may be filed at any time as long as the violation, threat, disturbance, or restriction remains in effect and until two months after the direct impact thereof on the victim has ceased.

With expulsions and deportations and because it is a positive action, the ruling granting amparo relief shall be intended to restore or guarantee the victim’s full enjoyment of his rights and to reinstate, when possible, the prior state of affairs.

All resolutions admitting the relief will theoretically entail indemnification of the damages inflicted and payment of the costs of the relief.

4.       Although the General Migration and Nationality Law does not stipulate a specific period of time, past decisions from the Constitutional Chamber have ruled that it must be “the time that is strictly necessary,” arrest, and transfer. Once the deportation or expulsion is decided, the individual must be documented at his consulate and immediately transferred, with all his belongings, to the border area or, alternatively, transport negotiations must begin with an airline. Generally, efforts are made to streamline the process, but on occasions it is hindered by bureaucratic formalities; for example, if the consulate is closed and unable to process the paperwork.

5.       In connection with this issue, on January 14, 1997, the immigration directors of Costa Rica and Nicaragua exchanged notes establishing, inter alia, “the right of full consular protection, the right to take personal belongings and to receive wages and other benefits owed.”

JAMAICA

1.       This is possible, however, presently no group has been so determined.

2.       Depending on the circumstances the Ministry of National Security and Justice in collaboration with the Ministry of Labor, Social Security and Sports would determine whether an immigrant worker can be expelled.

a.       Once a worker and his dependents are expelled from Jamaica, they may return to their country of origin or any country that they have permission to enter.

b.       If for any reason an irregular or regular immigrant worker is brought before a court and ordered deported, the Minister would issue an Order against him.

c.       The particular circumstances would determine whether an application should be made to the Court or the Ministry.

d.       This would be determined by the merits of the case.

e.       English.

3.       The immigrant has no right to compensation.

4.       The time period for departure would depend on the circumstances for expulsion. The worker may be required to leave forthwith or as soon thereafter as arrangements for repatriation/onward journey are finalized.

5.       Each case is treated on merit.

NICARAGUA

1.       Expulsion is applied solely and exclusively to individuals involved in criminal activities, or when they do not meet the requirements set for those purposes.

The causes for expulsion could include cancellation of a residence permit or visa, considerations of public order, defense, or domestic security, or behavior in contravention of the principles and interests of the government.

When a foreigner is a repeat offender in serious crimes of types that threaten society, such as trafficking in human lives, weapons, or narcotics.

2.       The Interior Ministry is the agency responsible for ordering expulsions, be they of regular or irregular immigrants.

An expelled foreigner is free to choose the country he wishes to enter, subject to entry authorization from the state in question.

The Directorate of Migration and Nationality is responsible for carrying out deportations and expulsions. However, such expulsions do not oblige a foreigner to leave the country and enter the territory of a government that is pursuing him for political reasons or where his life or that of his family would be in danger.

The administrative procedure is for the agency or institution hiring the migrant worker to lodge a request with the Directorate of Migration and Nationality, indicating their reasons; the Directorate then issues a resolution on the matter.

All foreigners, irrespective of their status in the country, are entitled to file appeals with the competent authorities for the review of any measures they deem unfair or legally inadmissible. The procedure is based on a written submission (Review Remedy) that the foreigner files with the Directorate of Migration and Nationality and in which he explains his grievances; once it has been lodged, a resolution, be it favorable or not, must be issued within 15 days.

If the resolution goes against him, he may appeal to the Interior Ministry; if the Ministry’s resolution is negative, he may file a final appeal with the Supreme Court of Justice; and, while the matter is being resolved, he may remain in the country until a final resolution is issued.

Language is not a barrier for a foreigner to be apprised of a decision or resolution; if he does not understand Spanish, the services of an interpreter will be provided.

3.       No reply.

4.       Consideration is given to the reasons for the expulsion and to the terms set by the competent authority (Interior Ministry); however, since deportation is a power exercised directly by the Directorate of Migration and Nationality, that agency sets a period of three days following notification of the order to leave the country.

5.       Article 57 of the Nationality Law defines migratory offenses and does not relieve employers from paying wages, salaries, or other forms of remuneration to the foreign staff hired by them. This article applies to irregular migrant workers.

PANAMA

1.       In such an instance, the circumstances surrounding the case would have to be studied.

2.       The National Directorate of Migration and Naturalization is the competent national authority responsible for ruling on the expulsion or deportation of migrant workers and their families, irrespective of their status. In this regard, we can point out that the National Directorate takes pains to ensure that immigrants are directed to states other than their countries of origin.

The procedure followed for deportations or expulsions, as appropriate, is as follows:

a.          Once an arrest order has been issued, in the form of a resolution, notice is served on the individual in question.

b.         The resolution ordering deportation or expulsion is drawn up, and the Director and Subdirector of Migration sign it.

c.          The individual in question is personally notified.

In either instance (arrest or deportation), the individual may file for one of several forms of relief: habeas corpus, with the Supreme Court of Justice; reconsideration of the resolution, with the Director of Migration; or an appeal with the Ministry of Government and Justice, the immediate superior of the immigration officials.

If one of the above remedies is filed, execution of the order is suspended.

These administrative decisions are issued in Spanish; however, when so required, the services of an interpreter are used.

3.       No reply.

4.       The law stipulates that once the last notification has been issued, the immigrant has three days to leave the country.

5.       No reply.

PARAGUAY

1.       They cannot be expelled.

2.       The regular courts and/or competent administrative or judicial authority.

a.       They can go to any state they choose that is willing to admit them.

b.       Legal procedures are provided for in the Migrations Law.

c.       No reply.

d.       They are allowed to remain in the country.

e.       Notice is served in their own language.

3.       No such cases have been reported. The procedure if anything like that were to occur would be to take legal action before the courts.

4.       Determined by the resolution in each specific case.

5.       If the migrant worker’s situation is in order, he can appeal to the regular courts. This does not apply to irregular migrants.

PERU

1.       No reply.

2.       No reply.

3.       No reply.

4.       No reply.

5.       No reply.

6.       Judicial Guarantees and Due Process of law

1.       Are irregular immigrant workers and their family members entitled to fair trial and court protection on the same terms as citizens of your country? Can an irregular immigrant worker be expelled from your country merely by appearing before the court system for any other matter? Are legal counsel services available to migrant workers who are unable to pay the legal services of a professional?

2.       Are immigrant workers and their family members entitled to appear before the diplomatic authorities of their country of origin or to seek assistance for the protection of their rights, or from the authorities who represent the interests of that country? If so, how is that right made available to the migrant workers and their family members?

BOLIVIA

1.       Irregular immigrant workers and their families do not have the same right to judicial guarantees and judicial protection in the same terms as Bolivian nationals.

An irregular immigrant worker cannot be expelled from the country simply for appearing before the courts; the matter that brought him before the law must first be analyzed. For example:

If it is for a crime punishable by more than six months in prison, the worker will be expelled from the country.

If immigrant workers appear before the courts to denounce violence or abuse committed against them or their families, they cannot be deported, because they can straighten out their legal status in the country.

The Bolivian State provides free legal advice services, known as the ‘public defense’ system, which are available to irregular immigrant workers.

2.       Yes, they have every right to seek assistance from the diplomatic authorities representing their home countries.

BELIZE

1.       Yes, No, Yes.

2.       Yes.

COSTA RICA

1.       Under Article 39 of the Constitution, due process is guaranteed as a constitutional right, irrespective of color, religion, or nationality. That same legal guarantee grants individuals the right to appear before the courts and to assert their rights, irrespective of migratory status, because the protection of human dignity stands above all else.

2.       Yes. Our neighboring countries’ diplomatic missions usually provide legal services that advise their nationals.

JAMAICA

1.       Yes; No; Depending on the nature of the matter pro bono legal services may be available.

2.       Immigrant workers may seek assistance from their diplomatic or other authorities who represent the interest of that country. No special measures are undertaken by the Government to facilitate that interaction in normal circumstances. However, if a foreign national is detained on criminal charges efforts are made to contact the appropriate authorities, in accordance with Jamaica’s Treaty obligations.

NICARAGUA

1.       No reply.

2.       All migrant workers, whether regular or irregular, are entitled to ask their duly accredited embassies or consulates for support and protection if their rights are violated.  Should foreigners violate the laws of our country, they are detained in the immigration offices and reported to the Foreign Ministry  within five working days during which a resolution of the matter is made; in addition the Foreign Ministry informs the respective embassies so that they might take cognizance of the matter and make contact with their nationals.

PANAMA

1.       Yes; both irregular immigrants and their families are entitled to judicial guarantees and protection under the same terms as Panamanian nationals; they are even not necessarily expelled from Panama when they have to appear before the courts.

          As regards legal advice services, Panamanian law stipulates that any person who is arrested is entitled to the assistance of a lawyer.

2.       Yes; migrant workers and their families are entitled to contact diplomatic authorities to seek help in asserting their rights. Such requests can be made by telephone, in notes or personal messages, through the National Directorate of Migration and Nationalization, or by means of any other form of communications.

PARAGUAY

1.       Only migrants whose situation is in order can appeal to the regular courts. Irregular migrants can be expelled from the country.

2.       The relevant consulates are responsible for providing the assistance that migrants require.

          In addition, the Paraguayan Episcopal Conference, through its pastoral services for migrants, offers professional legal services.

PERU

1.       No reply.

2.       Peru provides all the facilities necessary for foreigners to receive assistance from accredited diplomatic or consular offices in the country.