Program for the Safe and Orderly Repatriation of Central American Migrants from Mexico

334.        Mexico and Belize return migrants from Central America–as well as from other parts of the world–to Guatemala, on the grounds that these people must have entered by illegally crossing the border from Guatemala. [337] Some time ago, the US Immigration and Naturalization Service used to cover the cost of deporting Central American migrants from Mexico to their countries of origin. This program was called “Safe and Orderly Repatriation of Migrants” and involved providing them with ground transportation back to their home countries in buses guarded by private security guards. The suspension of the program was announced in December 2002, when the US government revealed that it was no longer going to fund it. [338]

335.        Prior to the creation of the aforementioned program, Central American migrants carrying the CA4 Central American free transit card were expelled from Mexico into Guatemala. [339] These individuals were taken to El Carmen, a border station with exceedingly limited infrastructure and services. The Guatemalan authorities say they are aware how vulnerable the deported or expelled Central American migrants who pass through El Carmen are. [340] It should be noted that Guatemala authorizes Nicaraguans, Salvadorans, and Hondurans with CA4s to remain in the country for up to 15 days. This means that they have to find a way to return home or to continue their journeys; otherwise, these people can be arrested and then expelled. The recent decision to suspend the Safe and Orderly Repatriation Program will presumably have the effect of increasing insecurity in border areas as it will augment the floating population. 

Reception of Irregular Guatemalan Migrants

336.        As a country that sends out migrants, Guatemala every day receives citizens who have been rejected, deported or expelled–depending on the legal system in question–from other countries. Although many of these Guatemalans arrive by air, particularly from the USA, over the past year the number of people returning by land has increased exponentially. Between January 2000 and February 2001, the DGM reported that 3,964 Guatemalans returned through La Aurora airport after being expelled or deported.

337.        Over the year 2000, the authorities calculate that between 2,000 and 4,000 Guatemalans were expelled or deported from Mexico over land routes. In January and February 2001, 12,437 Guatemalans were deported from Mexico to Guatemala. [341] In March 2001, the number of Guatemalan citizens expelled from Mexico totaled 5,727. [342] The deportees from Mexico are taken by bus from the Migration Station in Tapachula, Mexico, to El Carmen in Guatemala. There they are handed over to Guatemalan migration authorities, which check their nationality by means of their identification papers or by interviewing them in order to confirm that the deportees are indeed Guatemalans. It should be pointed out that many Central Americans claim to be Guatemalans in order to avoid being returned to their countries of origin.

Deportation of Nonregional migrants from Mexico to Guatemala

338.        Prior to January 2002, Mexico rejected or deported extra regional migrants caught in the south of that country to Guatemala arguing that these people had illegally entered it through Guatemala. As described above, that practice has been halted. In such cases, the Guatemalan authorities detain those nonregional migrants lacking permits to visit or remain in the country and initiate deportation proceedings. [343]

The Crimes of Concealing and Hiring Irregular Migrants

339.        Guatemala’s migration regime proscribes a number of crimes, including concealing illegals and hiring illegals. Concealing illegals is when a person allows the concealment of foreigners who have entered or have remained in Guatemalan territory without meeting the legal requirements, in any item of real or personal property, with the aim of concealing them on their way to another country or of facilitating their continued presence. This crime is punishable by prison terms of between three and six years. Hiring illegals is when an individual or corporation hires the services of foreigners who are in the country without having met the applicable legal requirements, lacking the documents required by General Migration Directorate for remaining in the country. This crime is punishable by between two and five years in prison. [344]

340.        Some nongovernmental organizations that work with the migrant population–particularly those that provide them with food, shelter, and medical attention–are justifiably concerned by the broad terms in which these crimes are defined, under which these organizations’ activities could be considered criminal acts. The Rapporteur is concerned that no distinction is made between emergency assistance given to a person in need and other actions carried out with a clearly illegal intent. Consideration should be given to redrafting the definitions of the crimes of concealing and hiring illegals and to guaranteeing that organizations assisting the migrant population can continue to do so without fear of criminal prosecution.

341.        The presidential decision to intervene the operations of the DGM was taken because of the corruption surrounding migration matters. It should be noted that for quite some time, the DGM has been under the authority of an auditor. [345] Corruption mostly entails human trafficking and smuggling (discussed in section VI of this report, “Guiding, Smuggling, and Trafficking of Migrants”) and activities at the hostels where migrants are detained. In addition, a criminal investigation is currently underway into sales of falsified passports and visas. There were also cases in which the guards on the buses bringing Central American deportees back from Mexico agreed, for a fee, to let migrants alight inside Guatemala. [346]

Migrant Deaths and Searching for Missing Migrants

342.        The number of migrant deaths has been on the increase: during the second half of 2001, a total of 26 people died; during the first six months of 2002, there were 85 deaths. Many of these cases seem to be due to common crime, or to smugglers abandoning their clients (migrants) on dangerous places. The number of reports of missing migrants has increased, particularly as regards Guatemalan citizens missing in Mexico. The Defense Office states that 81 cases were reported between November 2001 and November 2002. The Defense Office visits Guatemala’s consuls in Mexico and the attaché in charge of migratory affairs at the Mexican Embassy, who help investigate the whereabouts of the missing individuals. In some cases, Mexico has granted humanitarian visas to the relatives of missing people, to facilitate their searching.

343.        In addition, the Guatemalan Ombudsman’s office has signed an agreement with CARECEN Internacional of El Salvador that covers searches for Salvadorian migrants lost in Guatemala’s territory. Under this agreement, in 2001 a body was exhumed and identified as a Salvadorian migrant in Quetzaltenango.

Physical Mistreatment

344.        The Rapporteurship  took note of an incident in which two Ecuadorian nationals detained at one of the hostels set to host migrants managed to escape and were later captured by the National Civil Police. The police officers insulted and beat them over a period of several hours. Although the migrants reported the incident, and even though the Ombudsman launched an investigation and determined that the physical integrity of the two victims had been violated, no action was taken. The Rapporteurship  found no information to indicate that criminal and disciplinary investigations were carried out or that the perpetrators were punished. [347]

345.        Likewise, information gathered by the Rapporteurship  from interviews and the resolutions of the Attorney for Human Rights indicate that some detainees have been mistreated. The existence of punishment rooms or cells is a cause for concern. All the necessary measures–including training courses, complaint procedures, and criminal and disciplinary investigations–must be pursued in order to protect the physical integrity of migrants.

F.       Trafficking in, smuggling, and guiding migrants [348]

346.        The presence of migrant trafficking, smuggling, and guiding in Guatemala can be explained by the country’s status as both a sending and receiving country. Guatemala is an obligatory waypoint for individuals headed overland to North America. Guatemalans who use guides or smugglers (also known in Central America and Mexico as “Polleros” or “coyotes”) to avoid migration controls and get into North America claim to pay different amounts for the service. “Polleros” or “coyotes” who help people get across the border between Guatemala and Mexico charge around USD $500 for their services. [349] It has also been reported that payments of between USD $3,500 and US$7,000 have been made to a smuggler offering to take people from Guatemala to the USA. [350]

347.        During its visit, the Rapporteurship perceived that the Guatemalan authorities were concerned about trafficking and guiding of migrants, foreign and Guatemalan alike. Because it is a country of transit, these phenomena occur with some frequency, as a result of which the authorities have taken steps to combat these activities.

Actions by the State

348.        Guatemalan law defines several crimes relating to trafficking, smuggling, and guiding migrants. Encouraging or facilitating the entry of foreigners who do not meet the country’s requirements for entry or presence is punishable as the offense of illegal entry of persons with an uncommutable prison term of between five and eight years. When similar take place with the aim of getting them into another country, it is considered the crime of illegal passage of persons, punishable by the same penalty as the previous offense. The law defines the offense of transporting illegals as driving or making available any means intended for the transportation of foreigners who have illegally entered or are illegally inside Guatemalan territory. This crime is punishable by a prison term of between three and six years. Finally, individuals who allow the concealing in their property of foreigners who have illegally entered or are illegally inside Guatemalan territory, with the aim of concealing them on their journey to another country or of enabling them to remain in Guatemala, are committing the crime of concealing illegals. This crime is punishable by prison terms of between three and six years. [351]

349.        The authorities’ efforts to control migrant smuggling and trafficking focus on Guatemala’s ports of entry and exit. The use of false visas is one way in which migrants, smugglers, and traffickers try to avoid Guatemalan migration controls. The authorities have detected Ecuadorians and Asians (particularly from the People’s Republic of China) trying to get into Guatemala illegally on their way to North America. [352]

350.        Corruption is one factor that contributes to migrant trafficking and smuggling. For example, in June 2002, the Chief Migration Officer of La Aurora airport was arrested while helping a group of Ecuadorians with false visas to clear migration. Together with her, the person who was allegedly helping the migrants to travel and who set up the necessary contacts was also arrested. [353] Similarly, the Public Prosecution Service asked the police to rotate the officers stationed at key transit points in El Petén department, in order to keep tighter controls over trafficking and smuggling in human lives and merchandise. [354]

Actions by Civil Society

351.        The human rights office of the Migrants’ House in Tecún Umán has undertaken a very novel and important project. It has set up a group of legal promoters, covering an area of 30 municipalities. These promoters organize talks with the community, during which they educate people about the history of migration and the risks that making the journey entails. They also explain how guides, smugglers, and traffickers operate, to help potential migrants assess the risks they will encounter if they hire such individuals’ services.

352.        One of the project’s promoters, Egón Hidalgo Salvador y Salvador, received death threats. The Inter-American Commission on Human Rights ordered precautionary measures in order for the Guatemalan authorities to take the steps necessary to protect his life and investigate those threats. [355] The IACHR continues to monitor compliance with those measures. The work of this office is of great importance in that it offers education aimed at preventing human trafficking and smuggling.

Migrant Vulnerability

Migrant Children

353.        Commonly, a single family will travel to their destination country separately; this is particularly true among irregular migrants. Generally, one or both parents goes first, and their minor children undertake the journey later. Recently, an increase has been observed in the number of children traveling without an adult family member. Some of these children migrate in order to be reunited with their parents working in North America. Recently, migration authorities have carried out joint operations to arrest individuals who transport children for profit. As an example, during the first half of 2002, a group of 52 Salvadorian and Honduran children were detained in Santa Rosa, Guatemala, in the company of a group of adults, smugglers and undocumented migrants alike, on their way to the United States. The children’s ages ranged from 18 months to 17 years. [356] The authorities explained that within one country’s territory, one group of smugglers is in charge of the migrants; control is passed on to another group at the border, which remains in charge until the next border crossing. According to press reports, the families paid between USD $2,500 and $5,000 for their children to be transported and smuggled into the USA. [357] The press later reported that the arrest and prosecution of 12 individuals who were leading the group of children and adults had been ordered. [358] Some months later, the US Immigration and Naturalization Service reported that similar arrests had been made in the United States. [359] The presence of such a large group of children put the DGM’s capabilities to the test (see section VIII, “Personal Liberty”).

Traveling in Risky Conditions

354.        Migrants who travel with guides, smugglers, or traffickers frequently place their lives in danger. In their desire to get across the border illegally, migrants of many nationalities make use of particularly risky means of transport and expose themselves to very dangerous conditions. One form of transport used are small, unstable boats that leave Guatemala, avoid border controls, and then disembark along the Mexican coast. Another method involves traveling in goods vehicles. On several occasions, Mexican customs have found people hiding amid the merchandise in goods containers being transported by land or in other cargo vehicles. Sometimes they travel in refrigerated trucks, which poses additional risks on account of the low temperatures. [360] According to information obtained by the authorities, people pay USD $200 to travel from Guatemala into central Mexico. [361]

Treatment of Migrants Arrested in Migration Control Operations

355.        On its visit to Guatemala, the Rapporteurship was able to talk with Guatemalan authorities about the US Coastguard’s interception of vessels in international waters. On occasions, these intercepted boats carry migrants who are being guided, smuggled, or trafficked along their way to North America. After being intercepted, the boats are taken to the closest port. The US government assists the Guatemalan authorities in processing the migrants in accordance with Guatemalan law, assisting them, and ultimately returning them to their countries of origin. [362] The Rapporteurship has been informed of one incident of this kind in December 1999 when 249 citizens of the People’s Republic of China were arrested after their ship was intercepted. The last of these people were expelled on January 6, 2000. [363] On May 14, 2000, a vessel carrying 146 Ecuadorians was forced to dock at Puerto Quetzal. [364] In June 2002, the Alexander, with 191 migrants on board, was shepherded into Puerto Quetzal by the US Coastguard. [365]

356.        The Rapporteur’s team noted that the DGM’s facilities did not have the capacity to house a large number of people who must remain in detention until their expulsion is sanctioned and their home countries’ authorities can issue them travel documents. The Rapporteurship was told that these large groups of migrants were held in different locations in inadequate conditions. The DGM should have a contingency plan under which such migrants are given decent lodging and any medical attention they may require, and which also upholds their guarantees of due process while their cases are processed and decided on.

G.      Guarantees of due process

357.        By means of interviews, documents gathered during its visit, and its investigative work, the Rapporteurship  studies how the right to due process is protected and guaranteed. The office focuses on due process guarantees during migratory proceedings that decide whether to deny migrants the right to remain in the country and to deport or expel them. In analyzing and assessing the prevailing situation with respect to due process in Guatemala, this report’s frame of reference is provided by the elements of due process listed in the Rapporteur’s Annual Report for 2000. Thus, this analysis considers the following points: (i) the restrictions imposed on migration policies by international human rights law; (ii) the principle of nonrefoulement (no forced return of refugees) and the Convention against Torture; (iii) the absence of discrimination; (iv) the principle of legality; (v) the prohibition of mass expulsions; (vi) the existence of a responsible and impartial arbitrator; (vii) the right to be heard; (viii) the right to information, translation, and interpretation; (ix) the right to legal assistance; (x) judicial review; and (xi) consular assistance. In addition, the Rapporteurship  takes note of the judicial remedies lodged by migrants and other persons in order to uphold their rights; it also notes the investigations conducted by the Defense Office for Uprooted and Migrant Populations and as a result of which the Ombudsman has issued several resolutions. The office also refers to legal rulings handed down in migration cases.

358.        In Guatemala, the Constitution sets forth the guarantees of due process in Title II, Chapter I. As described in section IV, “Migration Policies and Practices,” Decree 95-98 and its regulations establish a legal framework under which people can enter Guatemala and remain in its territory. This same legal framework stipulates the procedures and conditions in accordance with which migration control operations and activities are to be carried out. This section analyzes how the guarantees of due process apply in those situations.

Limitations Placed on Migratory Policies by International Human Rights Law

Inability of the State to Prevent its Citizens from Entering, Leaving, or Remaining in the Country

359.        In general, Guatemala’s migration rules do not refer to exit visas or requirements that citizens must meet to exit the country. [366] People wishing to leave the country must be in possession of the necessary documents and go through migration controls. The migration authorities are required to prevent the departure of individuals without the requisite documents or with respect to whom an arrest warrant or confinement order has been handed down by a competent court. [367]

360.        Because of their particular circumstances, certain individuals are required to meet additional requirements. Asylum seekers, refugees, and stateless persons must request authorization before leaving Guatemala. Failure to do so results in the forfeiture of that status. [368] Similarly, the mentally incapable must secure written authorization from their legal representatives. The migration authorities are required to prevent the departure of individuals lacking the requisite documents or with respect to whom an arrest warrant or confinement order has been handed down by a competent court. [369]

Principle of Nonrefoulement in Refugee Law and the Convention Against Torture

361.        Guatemala’s Constitution guarantees the right of asylum and specifically prohibits expelling political refugees back to the countries from which they fled. [370] In late 2001, there were 729 refugees in Guatemala, most of whom were Nicaraguans and Salvadorans. During 2001, a total of 70 asylum requests were resolved; in 21 of these asylum was granted, 35 were rejected, and the remainder are still pending or the cases were closed for other reasons. [371]

362.        The regulations for protecting and deciding on refugee status describe the way in which the principle of non-refoulement must be protected and upheld. The DGM is required to admit foreigners who seek entry to the country because they are being persecuted on the grounds of race, religion, nationality, belonging to a given social group, or their political opinions, or who fear for their lives, safety, or freedom under threats of generalized violence, foreign aggression, internal conflicts, massive human rights violations, and other circumstances of grave upset to the social order. [372] The procedure includes the lodging of an application and an interview with the DGM. The National Refugee Commission then issues a resolution, which can be appealed by means of a revocation remedy. After this, the administrative proceedings are exhausted; in other words, an administrative dispute suit may be filed. [373]

Absence of Discrimination

363.        Guatemala’s migration rules and procedures do not, in general, contain discriminatory provisions based on categories forbidden by international law. In practice, however, the treatment given to  extra regional migrants is different. They are detained for longer periods; they are kept in conditions not in accordance with their culture and religion; they have problems communicating with the migration authorities, lawyers, and organizations that could help them; the process of gathering together the documents for their expulsion can be more laborious; and there are problems relating to their travel tickets. In light of all this, migratory procedures have a discriminatory impact on them. [374]

364.        As an example, the Rapporteurship notes with concern Guatemala’s shortage of resources for carrying out migration control operations. The fact that irregular migrants end up at the mercy of decisions made by those who finance these operations could lead to discrimination. Although the cost of the expulsions is met by the embassy of the United States, that does not relieve the Guatemalan government of its obligations toward the detainees. Because of this, the Rapporteurship  is concerned to see the DGM justify the continued detention of three Dominicans who have not yet been deported on the grounds that the US embassy’s budget does not provide for deportations to the nations of the Caribbean. Migrants awaiting expulsion cannot be detained indefinitely, particularly not when the reason given by the authorities is that the deportation budget–which is financed by another government–does not cover individuals of the nationality in question. [375]

Principle of Legality

365.        Several organizations concur in describing the detention of migrants in the hostels as an unconstitutional and illegal measure. The decisions handed down in several different habeas corpus filings seem to support these organizations’ position. This is a fundamental issue that must be resolved. Likewise, the principle of legality is undermined when a state agency lacks the wherewithal for performing the tasks assigned to it by law, as is the case with the DGM.

366.        The principle of legality also implies that an administrative measure must achieve the goals set for it. The principle of legality is violated when an individual with criminal charges against him in a third country is expelled and his itinerary includes a stopover in that country, where he can be arrested and taken before the criminal justice system. This was what happened with the crew of the Ecuadorian ship carrying undocumented migrants from Ecuador: they were deported from Guatemala to Ecuador on a flight that stopped over in Miami, where they were arrested and charged with transporting undocumented persons. In such instances, the expulsion effectively becomes an extradition, which additionally fails to meet the due process requirements applicable to extraditions. The situation is more serious when the country in which the criminal charges are pending is paying for the deportees’ airline tickets. [376]

Prohibition of Mass Expulsions

367.        The fact that there are situations in which a considerable group of individuals of the same nationality are detained in migration control operations does not mean that this principle can be ignored. Migration control operations may give rise to the need for migration proceedings to be opened with respect to a considerable number of individuals. For example, over one three-month period, 396 Ecuadorian citizens were expelled, [377] 199 Ecuadorian citizens were detained over a three-day period, [378] and a group of 249 people from the People’s Republic of China traveling on a ship were intercepted by the US Coastguard and taken to Guatemala. [379] The migratory situation of each person needs to be determined on an individual basis.

Sufficiency of Due Process

Responsible and Impartial Arbitrator

368.        The Rapporteurship  notes that expulsion proceedings do not feature a responsible and impartial arbitrator. The DGM assesses the person’s migratory status and, if it rules that his presence in the country is contrary to law, orders his expulsion. This is an automatic procedure, in which the decision is made by a DGM official who does not act as an impartial arbitrator. In contrast, as noted above, deportation proceedings require a deportation order be issued by a judge, who does serve as a responsible and impartial arbitrator. Later, an administrative procedure begins in which the interested party is notified and evidence may be submitted. [380]

Right to be Heard 

369.        Migrants must be able to present the identification papers they have on them and to explain their migratory status. The Rapporteur’s staff received repeated reports about incidents in which National Civil Police officers tore up Central American migrants’ CA4 cards. In addition to the destruction of an ID document and the abuse of authority this entails, this is also a violation of the right to be heard. Although some migrants do occasionally report these abuses to the Ombudsman Office, which then asks for a disciplinary investigation to be opened by the National Civil Police’s Professional Responsibility Office. In practice, the police officers are not punished. Likewise, the DGM’s expulsion proceedings should guarantee migrants the right to be heard.

Information, Translation, and Interpreting

370.        The Rapporteur’s team heard complaints from a range of sources regarding failures to provide information to detainees. They say they are given no idea about the procedures that are to be carried out, or about when they are to be expelled. In addition, the absence of an interpreter has been identified as a hindrance to expulsion formalities. [381] The incidents involving people from India and China provide examples of the need for a network of interpreters for use both in migration proceedings and in connection with detention conditions. The authorities must take steps to communicate with detainees in order to investigate their identities, migratory status, and health conditions, and to provide them with any medical attention they may require.

Legal Assistance

371.        In general, individuals in migration proceedings do not receive legal assistance. The Rapporteurship  notes that nongovernmental organizations and the Defense Office perform a vitally important function by offering legal assistance to detained migrants. This legal assistance generally focuses on reporting abuses and on lodging habeas corpus remedies. We must insist on the need for detainees to be provided with communications channels, particularly telephones, through which they can seek legal assistance. Likewise, it is essential that non-governmental organizations and the Defense Office be guarantees access to hostels and other facilities where migrants are detained.

Judicial Review

372.        All individuals facing migration proceedings must be entitled to request that the final decision be reviewed by a judge. Guatemalan law guarantees this under its jurisdiction governing administrative disputes. In addition, migrants may lodge amparo and habeas corpus remedies in order to ensure protection for their basic rights and to seek a review of the legality of their detention, respectively. Consequently, Guatemalan law does provide judicial review. The Rapporteurship  is concerned by the fact that DGM officers exert pressure on the detainees or obstruct their pursuit of those remedies, particularly the ability to seek out and receive legal assistance. [382]

Consular Assistance

373.        The Rapporteurship notes that some consulates fail to issue travel documents speedily when their nationals are detained and facing expulsion or deportation proceedings. The cases concerning Indian migrants, the incident with the boatload of Ecuadorian citizens, and the prolonged detention of Cuban nationals point to weaknesses in consular assistance. This mechanism is intended to offer additional protection to people in vulnerable situations, and it is therefore necessary for states to take swift, effective measures to assist their citizens. The speed with which their travel documents are issued determines how soon they can return to their countries of origin. Moreover, visits to migrant detention centers by consular officials can lead to improvements in their conditions. Consular assistance is fundamental for migrants facing expulsion proceedings.

H.      Personal liberty

374.        This section describes how migrants are detained and the conditions in which they are held. It comments on the existing legal framework, cites jurisprudence and official documents, and includes comments arising from interviews and the visit conducted by the Rapporteurship . The Guatemalan Constitution, Title II, Chapter I, places restrictions on imprisonment and guarantees the right to personal liberty. However, these provisions refer to imprisonment for the commission of crimes and misdemeanors. Imprisonment for violating migration rules is not legislated for in the Guatemalan constitutional order.

Detention

375.        Officers of the DGM and the National Civil Police are authorized to arrest or detain migrants found illegally in the country during migration control operations. However, the Ombudsman Office has intervened in cases in which other authorities–such as the Nature Protection Service–have arrested illegal migrants. [383]

376.        According to existing migration regulations, the DGM can “hostel” foreigners in specially designated centers, in conditions that respect and uphold their human dignity. It should be pointed out that the rules do not use the terms “detain” or “arrest,” but instead speak of hosteling. In practical terms, however, these people are detained in that they cannot leave the facilities where they are kept. If it deems necessary, the DGM may create or authorize existing lodging centers to host migrants. The rules also authorize the DGM to enlist nonprofit organizations to help take care of these migrants. The DGM must keep a special register of deported and expelled foreigners. [384]

377.        The Ombudsman Office for Uprooted and Migrant Populations maintains that holding a person for longer than 24 hours constitutes an illegal arrest. The Criminal Code stipulates that the maximum duration of an arrest is 24 hours. In the Defense Office’s opinion, this kind of detention in hostels is illegal and unconstitutional. [385] Some nongovernmental organizations (including Médecins Sans Frontières) and Guatemalan legal professionals agree with this analysis. [386]

378.        The Rapporteur’s staff found no legal or constitutional grounds for the DGM’s detention of irregular migrants. Thus, the Rapporteurship  shares the opinion of the Defense Office and the NGOs. The American Convention on Human Rights (American Convention) stipulates, in Article 7(2), that no one shall be deprived of his physical liberty except as provided for in the Constitution or by law; other forms of detention constitute arbitrary arrest and, as such, are expressly forbidden by Article 7(3) of the American Convention. Consequently, pursuant to the laws in force, the detention of migrants in Guatemala represents arbitrary imprisonment and is expressly forbidden under international human rights law.

379.        Finally, it should be pointed out that Guatemalan law does not set a maximum limit on the time migrants can be kept in detention. Consequently, in those cases in which their home countries refuse to issue them with travel documents, migrants can be detained indefinitely or for unduly lengthy periods. This occurred in several cases that are described below.

Habeas Corpus

380.        The Guatemalan Constitution establishes the remedy of personal exhibition or habeas corpus. This right means that persons who are held, detained, or otherwise restricted in their personal freedom are entitled to request their immediate appearance before a court of law, which must then rule on the legality of their confinement and, if admissible, order their immediate release or the cessation of any mistreatment or coercion they are suffering. [387]

381.        The case of two groups of Indian men in Guatemala provides a good example of the scope of this remedy and illustrates several ways in which the personal liberty of migrants has been violated in Guatemala. Between 2000 and 2001 a group of forty men of Indian nationality were detained for four months at the Hotel Brasilia hostel. The group was larger at first, but 40 Indians and one Pakistani managed to escape. The men had been detected by the Mexican authorities and, after being detained in Mexico for almost six months, they were deported to Guatemala. [388]

382.        One of the migrants in this group, Kanubhai Shankards Patel, committed suicide at the hostel on December 2, 2001. It is significant that for the people who had contact with Mr. Patel, his poor state of mental health was apparent; in a letter to the DGM, he had said that he was thinking about suicide; and he had already attempted suicide on two occasions during his detention in Guatemala. The Ombudsman Office ruled that Mr. Patel’s right to life and to humane treatment had been violated by keeping him detained indefinitely in subhuman conditions. [389]

383.        India’s honorary consulate in Guatemala did not issue these people with travel documents. Neither did the Indian Consul in Mexico, who was responsible for taking care of the matter. The Defense Office and the Follow-up Unit of the Ombudsman’s office lodged a habeas corpus filing on behalf the Indian citizens and four other migrants who were being held with them. On December 21, 2001, the Third Chamber of the Court of Appeal ruled on the filing and ordered their release. The DGM freed them and granted them a ten-day period in which to straighten out their migratory status. They chose to continue their journey toward the United States. [390]

384.        Twenty-five Indian nationals were apprehended in El Petén on January 15, 2002. The MENAMIG lodged a habeas corpus remedy, which was resolved in their favor. The Twelfth Chamber of the Appeals Court ruled that they had been arrested illegally, in that they had committed no crimes but merely an administrative infraction. The facts as they were reported indicated that actions had been committed that could constitute crimes or misdemeanors, so notice was served on the Metropolitan Prosecutor’s Office of the Public Prosecution Service in order for the pertinent investigations to be pursued. [391] The Rapporteurship  has not been informed about the progress or results of those investigations.

Detention Conditions

385.        During the Rapporteurship’s visit to Guatemala, only one operating hostel was found, located in a building adjacent to the DGM’s offices. The Rapporteur’s team was told that another two hostels were in operation until early 2002. The hostel is guarded by the National Police. In the opinion of the Ombudsman, the facility does not meet standards of habitability and poses a danger to the safety and persons of the individuals held there. [392]

386.        The building is used to house both men and women. There are segregated dormitories and bathrooms. There is a communal area, equipped with a television set. The detainees spoke of the irregularity of the water supply, which meant that the bathrooms were without water at certain times of day. The detainees have no access to a telephone for placing calls. Neither is there an area for receiving visitors.

387.        The Rapporteurship confirmed that the detainees receive no personal toilet items. They have the option of acquiring them through informal trade with the police officers and migration officials. According to the DGM, the detainees receive medical attention from a doctor hired by the DGM. However, the resolutions issued by the Attorney for Human Rights repeatedly refer to complaints about the lack of medical care, even though the detainees suffer from poor physical and mental health. [393] The Rapporteur’s staff also received information to the effect that the food was scarce and of poor quality. They have no access to a source of drinking water. The funds for buying food come from private agencies that are asked to provide economic assistance. At the same time, the Ombudsman Office determined that some police officers had been selling illegal drugs to detainees in the hostels. [394]

388.        The Rapporteurship notes that on March 8, 2002, the DGM had three hostels in operation, and that these are not the same as the ones that were running prior to February 2002. According to DGM officials, the two hostels that were not open during the visit by the Rapporteurship are managed and funded by the embassy of the United States, even though there is no formal agreement to that effect between the two countries. According to the Attorney for Human Rights, officials from the US embassy stated that they provided the hostels with advisory and oversight services and met their food costs. The Ombudsman’s office declared that the migrants’ right to security, dignity, integrity, and equality were violated by the DGM, and it demanded that the Director of DGM comply with the terms of the law and international treaties. [395]

389.        The Ombudsman has stated that the conditions of the migrants’ detention in the hostels constitute a violation of their human dignity, particularly their personal integrity and security. [396] The infrastructure is inadequate and the inmates are overcrowded; there are not enough beds, there is no ventilation, the water supply is irregular, and the bathrooms are in appalling conditions.

390.        On a related issue, those individuals who attempt to enter the country by air and are not admitted must remain in detention at La Aurora airport while the necessary arrangements are made and the airlines can return them to their points of origin. During the visit, the Director of Migration told the Rapporteurship  that two Indian citizens in that situation were being held at the airport. Similarly, the Ombudsman Office reported that a person from Sierra Leone in that situation was held for a month. [397]

Particularly Vulnerable Groups

391.        The Rapporteurship believes it should address the conditions in which vulnerable migrants are detained in Guatemala. On account of their personal situations or the way in which they travel, some people are more vulnerable and require special attention. The Rapporteurship also thinks that it should refer to these individuals and underscore the state’s duty of attending to their special needs.

Minors

392.        During migration control operations, the authorities sometimes come across children; they may be either accompanied by their families or traveling alone. [398] The authorities must adopt the measures necessary to protect these minors in light of their particular vulnerabilities, as stipulated by Article 19 of the American Convention and Article VII of the American Declaration.

393.        In early April 2002 an incident occurred in which a group of migrant smugglers–and the migrants they were transporting, including adults and 52 children–was caught by authorities in Santa Rosa. On that occasion, migration authorities decided that the minors could not be taken to the hostels because they were not appropriate for underage children. [399] The children were therefore housed in other facilities and, three days later, were picked up by authorities from El Salvador and Honduras. With incidents like this, it becomes clear that in addition to fighting these crimes, steps must be taken to protect the victims of traffickers and smugglers, particularly when they are particularly vulnerable individuals like children.

394.        Among the series of incidents involving the group of Indians that took place over 2001 and 2002, at least one of the men in the first group to be detained was underage but was held along with the adults. When a habeas corpus filing was lodged in his favor, the DGM realized that he was legally a minor and ordered him to be transferred to the Elisa Martínez Temporary Protection and Shelter Home, from which he subsequently escaped. [400]

Women

395.        The conditions in which women are detained vary from one hostel or detention center to the next. In general, women-only dormitories are provided. In some cases, however, the doors are removed–this is allegedly done in the interests of security, but it violates the privacy of the detainees. Neither are they supplied with personal toilet items. [401]

Migrants Arrested During Operations to Combat Smuggling and Trafficking

396.        The Rapporteurship notes that after carrying out operations to combat migrant traffickers and smugglers, the authorities then detain the migrants until they can be deported or expelled from the country. It is important that the authorities attend to these people’s needs: housing them in clean, hygienic conditions, and meeting their needs for medical care and food. In connection with this, the Rapporteurship  notes the cooperation of the US government in attending to a group of 249 citizens from the People’s Republic of China who arrived in Guatemala on a ship that had been intercepted by the US Coastguard. [402]

397.        Advice and support are essential for detained migrants awaiting expulsion. The Defense Office for Uprooted and Migrant Populations plays a fundamental role in this regard. The Rapporteurship is concerned at the refusal to grant the Office access to the 199-strong group detained at a hostel in Ciudad San Cristóbal, Zone 8, Mixco. [403] Finally, the conditions needed for these people to communicate with their families and secure access to legal representation for their appearances before the migration authorities must be provided.

I.        Steps taken by the Guatemalan government to protect migrant workers abroad

398.        Given the large number of Guatemalan citizens residing abroad, on either a temporary or permanent basis, the Guatemalan authorities have adopted a series of measures intended to protect their nationals in other countries. The authorities’ aim is to defend their citizens who reside abroad and those who are in transit on their way to their final destinations. The actions undertaken by the authorities are numerous and include the following: keeping a register of all migrants, particularly temporary workers; creating consular protection mechanisms for implementation abroad; conducting public information and guidance programs to alert citizens about the precautions they should take if they decide to migrate in order to reduce their vulnerability; and pursuing bilateral initiatives and agreements.

399.        As stated above, every year a considerable number of Guatemalan temporary workers (estimated at between 80,000 and 150,000) cross the border into Mexico in search of work on rural estates in Chiapas and other border states. These people migrate in pursuit of better conditions, or simply in search of work in order earn a living. A number of studies have pointed out that the conditions these individuals must endure in Mexico are extremely harsh. Guatemalan officials and civil society organizations have denounced their mistreatment at the hands of employers and the Mexican authorities alike. The most notorious abuses include exhausting working days, payment below the legally established minimum wage, mass sackings, the refusal of employers to pay wages or to provide the workers with minimal infrastructure (Guatemalan farm workers generally live and eat on the estates where they work), and, in general, a lack of protection in the workplace. These abuses are frequently also felt by the migrant workers’ families, who travel along with the workers and are often employed on the same farms and, consequently, also endure very difficult conditions. Another practice that affects temporary workers is the existence of hiring agents (also known as “labor advisors”); these individuals travel to Guatemala to act as intermediaries between the Mexican employers and the Guatemalan workers, and they frequently charge inflated fees for their services. [404] The Guatemalan authorities also seek to protect their nationals in Mexico en route to the United States.

400.        The Guatemalan government has taken concrete steps to protect these people. The Ministry of Labor and Social Prevision has carried out an publicity campaign in the mass media (radio), and using posters and information cards, to inform migrants about their rights and the dangers associated with migration, and to recommend that temporary workers obtain proper documents and report abuses committed by their employers or officials in Mexico to the Guatemalan authorities. These campaigns have been carried out in Spanish and in several indigenous languages. The government has also launched a registration campaign for temporary workers. As part of this effort, it has set up labor inspection offices in El Carmen and Tecún Umán, charged with registering all the agricultural workers. The government has also invested in computer systems for keeping detailed records of the numbers of temporary workers recruited to work on estates in Chiapas. Even so, the authorities recognize that they have only been able to register some 70,000 people, equal to some 40% of the total number of temporary workers who cross into Mexico each year. [405] In order to prevent abuses and to get a fuller idea of who is crossing the border to work in Mexico, the authorities have tried to register and control the individuals who recruit workers for farms in Mexico, who have been encouraged to hand over lists with the names of the workers they hire. The initiative has had uneven results: the authorities themselves recognize that the controls have not been effective and that the recruiters generally do not hand over the lists.

401.        In the diplomatic arena, Guatemala has launched a campaign to try and create more effective control mechanisms and make its migrants less vulnerable. Thus, in February 2002, an Ad Hoc Group on Temporary Migrant Agricultural Workers was set up with Mexico. [406] This agreement aims to create coordination mechanisms to regularize the flow of farm workers. Furthermore, in May 2001 Guatemala and the International Organization for Migration (IOM) signed a Memorandum of Understanding on technical cooperation in the field of temporary labor migrations. Guatemala has also set up a number of consulates in areas close to the border, such as Comitán, Tapachula, Ciudad Hidalgo, and Chetumal. Their mission is to attend to the needs of the Guatemalan population, particularly in connection with allegations of abuses by employers and/or officials. [407] In addition, officials stated that the government has explored the idea of setting up a joint consulate with other Central American governments in the city of Veracruz, in order to attend to migrants’ needs. The significance of that city is that it is a waypoint along a strategic route used by many migrants on their way to the United States.

402.        The civil society organizations told the Rapporteurship  that, in their opinion, the measures adopted by the authorities had been ineffective and had not led to any substantial improvements in the vulnerability of the agricultural workers. The criticisms highlight the authorities’ reluctance to receive complaints alleging abuses and to pressure the Mexican authorities into pursuing the relevant investigations. They also accuse the government of not having allocated sufficient funds to this problem and of being ineffective and slow in investigating accusations of corruption and abuses on the part of state employees. [408]

403.        The Guatemalan authorities have also adopted measures to step up the protection afforded their nationals in the United States. Abuses are frequently perpetrated by US employers or authorities against Guatemalans and workers of other nationalities. [409] In this regard, one very interesting initiative taken by the Guatemalan government has been the creation of mobile consulates that travel around the USA’s main cities and cater for the needs of Guatemalan citizens living there. These mobile units supplement the work of regular consulates in areas with high levels of Guatemalan nationals, such as Los Angeles, San Francisco, Miami, Washington, D.C., Houston, and New York.

J.       Observations and recommendations

1.                 The Rapporteurship would like to begin by acknowledging the Guatemalan government’s excellent disposition to cooperate with the IACHR. Likewise, it recognizes the importance of very positive practices that benefit migrant workers and their families. These include the efforts being made by the government of Guatemala to protect its citizens abroad through mass publicity campaigns dealing with the dangers of migration and the rights of migrant workers, and through the deployment of consular protection mechanisms in other countries. In addition, the Rapporteurship  holds the work of the Defense Office for Uprooted and Migrant Populations in great esteem. The Rapporteurship  believes these to be very positive practices that should be continued and expanded in Guatemala and adopted by other states.

2.                 The Rapporteurship  would also like to underscore the positive aspects of the program for the safe and ordered repatriation of Central American migrants from Mexico. This program guarantees Central American migrants safer expulsions. It therefore urges the Mexican and Guatemalan authorities to take all the steps necessary to reinstate the program.

3.                 In light of the information gathered by the Rapporteur’s team on its visit and through its investigations, however, it can be seen that there are situations in Guatemala that undermine migrant workers’ human rights, particularly violations of due process in incidents involving corruption or negligence on the part of the state. Also of concern is the increasing presence of trafficking and smuggling networks that victimize migrant workers and other migrants, including children.

4.                 The deportation from Mexico to Guatemala of migrants from outside the region is not provided for in law. The Rapporteurship  therefore urges the two countries to take the steps necessary to ensure that this practice does nor reoccur and to investigate and punish those individuals who have deported and received  extra-regional migrants on an irregular basis in Guatemala.

5.                 The Rapporteurship urges the Guatemalan authorities to adopt all necessary measures to ensure special protection for the victims of those who traffic in human lives. The authorities must ensure that these people receive a decent standard of treatment that ensures their security and observes the minimum guarantees of due process.

6.                 The crimes of concealing and hiring illegals are defined in very broad terms. If the terms of the law are applied strictly, organizations that assist irregular migrants are committing crimes. The Rapporteurship is very preoccupied with this situation and invites Guatemala to redefine those crimes to ensure that the organizations that provide a needy segment of the population with emergency assistance can continue to do so.

7.                 The incidents of corruption detected in migration control activities is a cause of concern for the Rapporteurship. It consequently calls on Guatemala to take all the steps necessary to address that problem. Criminal and disciplinary investigations must be pursued when such incidents occur, and the officials responsible must be punished.

8.                 The Rapporteurship also urges the Guatemalan authorities to take the steps it deems necessary to combat the organized criminals who profit from the presence of a large number of migrants, particularly in locations along the border between Guatemala and Mexico. The authorities must study ways to combat burgeoning crime in the borderland in order to prevent innocent people from being attacked and robbed and to fight the impunity enjoyed by a number of groups that conduct illegal activities.

9.                 The Rapporteurship notes with concern the increase in migrant deaths and missing persons. The deaths are due both to increased controls at the border and to common crime. Similarly, it is very important that efforts be made to locate missing persons and to repatriate the mortal remains of those migrants who die while en route.

10.             The Rapporteurship is also concerned about the physical and psychological abuse that migrants suffer. The authorities are urged to take steps to prevent and punish such occurrences. They should therefore train their officials, develop complaint procedures, and pursue investigations to punish the perpetrators of such abuses.

11.             The Rapporteurship notes that Guatemalan law proscribes the crimes of trafficking in and smuggling migrants. This is a first step that should be supplemented by actions to control and punish those crimes. The Rapporteurship thus calls for the adoption of the measures needed to protect migrants who fall victims to these crimes. States must attend to the housing, food, health, and protection needs of the victims who are also taken into custody when suspected smugglers and traffickers are intercepted.

12.             Among the good practices observed in Guatemala, the Rapporteurship  would like to point to the work of the Migrants’ Homes and the Migrants’ Attention Center in Guatemala City and Tecún Umán. The work of these facilities must be supported by the government and copied by other nongovernmental and state organizations. The Migrants’ Houses show how minimal resources can be used to house, feed, and protect migrants.

13.             Similarly, the Rapporteurship believes that the efforts of the Human Rights Office at the Tecún Umán Migrants’ House, where promoters work on matters related to guiding, smuggling, and trafficking in human lives, is a good practice that should be supported by the government and copied by nongovernmental organizations and state agencies involved with migrants and their human rights. Information is a vital tool in tackling migrant smuggling and trafficking.

14.             The Rapporteurship applauds the establishment of procedures for granting refugee status. It would also like to underscore the importance of upholding the principle of nonrefoulement in all migration proceedings.

15.             The Rapporteurship expresses its concern at the duration of proceedings to expel migrants from outside the region, most particularly in light of the conditions in which they must wait for formalities to be completed. It therefore believes it should urge the US and Guatemalan governments to reconsider the practice of intercepting ocean-going vessels carrying migrants. The Rapporteurship holds that initiatives of this kind must be reevaluated when the migrants are subjected to conditions that neither protect nor guarantee their human rights.

16.             The Rapporteurship finds that Guatemala’s expulsion proceedings do not offer guarantees of due process. There are no responsible arbitrators; the right to be heard is not respected; no information, translation, or interpreting is offered; the means to secure or receive legal assistance are not guaranteed. The Rapporteurship urges the Guatemalan authorities to take the steps necessary to ensure an adequate amount of due process in all migration proceedings leading to expulsion.

17.             The Rapporteurship believes that under current Guatemalan law, the detention of migrants represents an arbitrary action that is expressly prohibited by international human rights law. It therefore urges the Guatemalan state to take the necessary steps to remedy that situation. In contrast, the Rapporteurship underscores the importance of habeas corpus as a mechanism to determine whether an arrest is legal or not, and it calls for it to be used whenever necessary.

18.             The Rapporteurship observes that the conditions in which migrants are held in Guatemala are inadequate. Since the Guatemalan state carries out migration control operations that entail the detention of migrants, it must create the infrastructure necessary to ensure those detainees decent accommodation and to cover their health, food, and legal assistance needs.

19.             The right to be heard and to receive information, translation, and interpreting in proceedings involving migrants is severely restricted in Guatemala. The Rapporteurship  respectfully suggests that the General Migration Directorate take all steps necessary to guarantee migrants’ right of defense. To achieve this, it should train its staff, investigate and punish abuses, and hire interpreters.

20.             The Rapporteurship would like to draw attention to the work of the Defense Office for Uprooted and Migrant Populations in Guatemala. The legal assistance it has provided through habeas corpus filings and investigations into abuses by the migration authorities has helped protect migrants’ right of due process.

21.             The duration of migrants’ deportation proceedings is partially explained by the time consulates take to issue travel documents. The Rapporteurship calls upon all states to discharge their consular assistance functions conscientiously. Migrants require legal advice and social assistance.

22.             While acknowledging and applauding Guatemala’s efforts in protecting its citizens abroad, the Rapporteurship believes that the country must intensify its efforts to promote their well-being. The authorities must conduct scrupulous investigations of alleged abuses committed against their citizens. They must also step up their diplomatic efforts with the authorities of other countries in which Guatemalan migrant workers or members of migrant families have been victim to crimes or human rights violations.

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