D.      Migration and Development

194.        As can be noted from the characteristics described in the preceding sections of this report, migration has social, economic, and political effects that have major repercussions on the development of Mexico.  As it is a major country of origin of migrant workers (approximately 10% of the Mexican population resides abroad), remittances (money sent back by nationals of a country who reside outside of their country of origin) naturally become very important for the country. The departure of millions of Mexicans, moreover, has an economic impact, especially on the labor market, but also socially, as the exodus of persons, especially youths, has a major impact on social relations and on the development and well-being of many families and communities. Similarly, the fact of being one of the leading countries worldwide in sending migrants abroad and for the transit of migrants from third countries, moreover, has a pronounced impact on the country’s development. The massive presence of migrants along both borders generates special dynamics in these areas. This section of the report succinctly reviews the impact of migration on Mexico’s development. The section focuses on three points: the impact of remittances and how they tie in to the labor market, the repercussions of migration in some communities of origin, the situation of the border regions and crime that affects thousands of migrants, and finally, regional development programs to create alternatives to migration.

          Remittances

195.        Several studies highlight the economic importance of remittances for migrants’ countries of origin. Remittances generally represent a very important source of foreign exchange for the economy of their countries of origin.  Studies on remittances indicate that they are generally used by individuals or families that receive them to buy numerous products and/or services. These include consumer goods, health services, food, housing, infrastructure, education, and training, to name just a few. Remittances stimulate consumption and generally help contribute to economic growth. That is why they are a major source of foreign exchange earnings for many countries.  For certain countries, the influx of foreign exchange in the form of the remittances of their nationals abroad often constitutes an important macroeconomic policy instrument that can be used to maintain stable exchange rates or to settle balance-of-payments deficits.[94]  Remittances also help generate growth, develop trade, and improve income distribution.[95]  Other studies, however, highlight certain negative aspects of remittances. These studies indicate that remittances generate economic dependency and tend to thwart or delay the growth of the local economy, since they inhibit self-initiative and generate dependency in the persons in the communities of origin.[96] 

196.        In the case of Mexico, remittances have become increasingly important. Whereas in 1980 remittances came to US$800 million, as of 1990 they had climbed to US$2.4 billion, and came to US$6.5 billion by 2000.[97]  Some studies indicate that the volume of remittances has continued to rise sharply, reaching US$8.9 billion in 2001.[98]  In fact, some studies predicted that in 2003 the remittances sent by Mexicans in the United States could reach a record of US$10 billion.[99] Mexico is the second-leading country, after India, in the amount of money sent home in the form of remittances.[100]  In contrast to countries with smaller economies and in which remittances represent a larger share of GDP and the leading source of foreign exchange (in El Salvador, Nicaragua, and the Dominican Republic remittances account for 8% to 14% of GDP, and generate more foreign exchange than the leading exports), in a large economy such as Mexico remittances have much less impact. For example, remittances account for only 2% of GDP. Nonetheless, remittances are equivalent to approximately 10% of Mexico’s exports. In addition, the total amount of remittances in 2000 came to almost 80% of foreign investment in Mexico and is comparable to income generated by tourism, which is one of Mexico’s leading industries. Nonetheless, in terms of generating foreign exchange, the oil industry and the maquila industry bring in more hard currency than do remittances.[101]

197.        One important problem related to remittances has to do with the costs of intermediation, i.e. the cost of sending money.  Traditionally, migrant workers had to pay commissions of 10% to 25% to send money to their country of origin. These commissions are too high. According to the U.S. Department of Treasury, in 2002 Mexicans residing in the United States paid about US$1 billion in commissions for sending their remittances to Mexico. The gradual implementation of electronic money transfers and the opening of this service to competition have notably diminished the costs of sending remittances. According to ECLAC, the cost of sending dollars home fell from 11% of the amount sent in 1999 to 4.1% in 2001. Recently Citigroup announced that it will collect a US$5 fee for any money transfer to Banamex, its Mexican subsidiary.[102]  The Rapporteurship considers that this is a very positive development that makes it possible for a larger part of the earnings of migrant workers to reach their families.

198.        As for the effect of remittances on the Mexican economy, there are quite a few discrepancies.  Numerous studies on the subject argue that the shipments of money from the United States cause economic dependency and inhibit autonomous local development. A survey of these studies found that most of the researchers considered the remittances as merely a palliative, since they are generally used to acquire consumer goods, health care, food, or housing, but are rarely transformed into capital goods (tools, investment) that could generate development and increase production.[103]  Another highly influential study, however, argues the opposite, and indicates that remittances are a major source of economic growth and that they have a positive effect on the economy in macroeconomic terms.  The study argues that the annual influx of approximately US$2 billion to Mexico generates economic activity close to 3% of GDP.[104]

199.        Given the amount of money involved, taking in remittances has a major impact on the Mexican economy and therefore contributes to economic and social development. On an even larger scale, remittances affect the patterns of family and personal consumption, investment, and the savings of millions of Mexican families.  Of course, the flow of money from abroad is not always constant, as it tends to replicate the cyclical fluctuations of the economy. While the amount left over from remittances is rather limited, as these are used for survival, in some cases families invest the money to establish microenterprises. Remittances have also been used to spawn community development projects for production, either educational or for developing infrastructure (roads, sanitary facilities, recreation). Some communities of Mexicans in the United States have formed associations and through them have sent money or goods in kind jointly to their communities of origin.  These associations cooperate in charitable activities or humanitarian assistance in disaster situations.  Of most interest is that money be sent to finance productive projects, and to develop human capital and infrastructure in their communities of origin.[105]

200.        In Mexico the federal government, the state governments, and some local governments have embraced these initiatives and have complemented remittance monies from migrants abroad to finance infrastructure projects. One example is the so-called Tres por Uno project, implemented in the state of Zacatecas, under which for every three dollars sent by Mexicans from the United States, the federal government, the state of Zacatecas, and the respective municipal governments supplement by one dollar (one-third) the effort of the associations of migrant workers abroad to finance development projects.  Since the creation of such initiatives, hundreds of similar programs have been initiated in other parts of Mexico.[106] Moreover, the Program of Mexican Communities Resident Abroad and the recently-established Instituto de los Mexicanos en el Exterior (during the Fox administration), under the Foreign Ministry, have collaborated with the communities and associations of Mexicans to facilitate sending remittances.[107] Civil society sources and some academics, however, indicate that the state’s efforts to regulate the sending of remittances and in general to support the associations of migrants and Mexican communities abroad should be redoubled.[108]

          Labor market

201.        Migration also has a major impact on the local labor market. In this regard, the exodus of workers from Mexico generates a contraction in the local labor market, especially youth, since those who migrate abroad are generally young and enterprising persons. In rural communities, for example, the exodus of youths means that the field work, generally very demanding, ends up in the hands of the elderly, women, or children.  In addition, the exodus of male workers has social consequences. In any number of communities of origin, women, older adults, and minors are alone and forced to watch out for their own well-being. The lack of a father figure has required many women to become heads of their families, and to assume a dual role and, bearing the responsibility for raising the children while also forced to work to earn some income. In some cases in which men and women migrate the children are left with older adults, which often implies a major burden and a great responsibility.  In many communities of origin, the older persons have remained alone with the departure of their children, grandchildren, and other family members. In summary, the exodus of a significant number of young people has modified long-established social patterns and has forced those who remain to adapt to new and oftentimes demanding social and economic conditions.[109]

          Border problems and crime

202.        In the course of its work, the Rapporteurship has observed a very worrisome phenomenon: Increasingly, border areas, especially cities with large floating populations (both persons who arrive to cross the border and others who are deported and do not have the means to return to their communities of origin or decide to remain to attempt to cross again) have become extremely dangerous.  These places also attract persons who seek opportunities for work generated by the informal industry of services for migrants, and draw criminals who come intending to victimize migrants and profit from their presence. The lack of capacity or decision, or the open collusion of the authorities with criminal elements, help increase the dangerousness of these areas, since the crimes are committed with absolute impunity. At the same time, the presence of migrants attracts individuals and organizations dedicated to the conveyance, smuggling, and trafficking of persons. Many of the individuals or gangs dedicated to this business commit serious abuses against migrants in these areas (the problem of the trafficking, smuggling, and conveyance of persons is developed in section V of this report).  A related problem has to do with the additional burden on basic government services created by the presence of a large floating population, which often lives in poverty and marginality.[110] This phenomenon has been described as the increasing criminalization of border areas.[111]

203.        Given the massive presence of migrants, both Mexicans who seek to cross the border with the United States and foreigners who enter Mexico for the purpose of crossing over to the United States, this increase in crime is a widespread problem. Migrants who enter Mexico not only suffer the rigors of the demanding trip to the U.S. border, but also they are often victimized by common criminals and some unscrupulous authorities on their way to the northern border.[112] While the victimization of migrants at the hands of criminals and unscrupulous officials occurs throughout Mexico, the problems tend to be concentrated in the border areas where there are most migrants, and where they are more noticed.  In this sense, numerous points of the border with high traffic, both in the south along the border with Guatemala and Belize, and along the lengthy border with the United States, are affected by such situations. In these areas, criminal elements and gangs operate with a high degree of impunity. This situation is aggravated by the attitude of certain state agents who extort migrants, or other agents who fail to take adequate measures to prevent, investigate, and punish crimes against migrants.[113]

          Southern Border

204.        Along the 962-kilometer southern border that separates Mexico from Guatemala and Belize, migrants suffer abuses at the hands of common criminals or unscrupulous authorities.  The problems are common in the states of Chiapas, Tabasco, and Campeche, and tend to be less recurrent along the border between Belize and Mexico, and along the border between Guatemala and the state of Quintana Roo.  The largest number of incidents occur in the Isthmus of Tehuantepec.  Taking advantage of migrants’ vulnerability, several groups of criminals assault, rob, extort, and deceive migrants. On some occasions, these persons beat or assassinate those who resist.  Many women become victims of grave cases of sexual violence. The gangs of criminals along the southern border generally operate in certain unpopulated areas that migrants use to evade the authorities.  They also prowl about roadways, railways, or freight trains that migrants use to head north through Mexico.  Many of these gangs are made up of Mexican and Guatemalan nationals. Numerous reports, however, indicate that several of the most dangerous groups are the so-called Maras Salvatruchas, extremely dangerous criminal gangs made up of Salvadoran nationals.  Many of the members of these gangs are persons who were deported to El Salvador from Los Angeles and other U.S. cities.  These gangs, made up of criminal elements, some former guerrillas or former members of the Salvadoran Army, tend to operate on both sides of the border between Guatemala and Mexico. In the case of Mexico, accusations have been leveled against officers of the various police corps and members of the INM. Although to a much lesser extent, there are also complaints against members of the Mexican Army who patrol certain border areas to fight drug-trafficking.[114]

205.        As indicated above, the Rapporteurship delegation visited Tapachula and several points along the border between Mexico and Guatemala in the western part of the state of Chiapas, including Ciudad Hidalgo, el Manguito, and Talismán. In the course of the visit, the Rapporteurship collected the testimony of several persons reflecting the trends described in the preceding paragraph. The staff of the Casa del Migrante in Tapachula, a hostel that provides assistance to migrants run by Father Flor María Rigoni, and operated by the Scalabrini Order, said that the attacks on migrants by common criminals have risen sharply.  Migrants of various nationalities with money who do not know the area well, and who fear drawing the authorities’ attention to themselves, become easy targets for gangs of common criminals and unscrupulous authorities alike.  Staff from the Casa del Migrante in Tapachula told the Rapporteurship delegation that they had received reports from a certain percentage of the migrants who come to the hostel describing assaults, mistreatment, robberies, rape, and murder. Many of them arrive with no clothes and in a state of shock.[115] In this regards, the considerable floating population in Tecún Umán, where many persons arrive or stay intending to attempt to cross the border, helps generate crime in the Mexican sector. In 2002, and as part of the Orderly and Safe Repatriation Program signed by Mexico and Guatemala, the INM deported more than 99,000 persons to Guatemala, mainly nationals of Guatemala (49.2%), Honduras (30.2%), El Salvador (15%), and Nicaragua (1%).[116] In 2001 the INM deported 140,493 persons to Guatemala.[117] Given the dynamic described above, the problem is binational, and therefore needs to be addressed jointly by the Mexican and Guatemalan authorities.

206.        The violence, however, is not limited to migrants, but has also affected authorities who have reported abuses or corruption. One major case was the assassination of José Angel Martínez Rodríguez, the coordinator of the Beta Group in Tabasco, who during the visit to Mexico by Mary Robinson, former UN High Commissioner for Human Rights, denounced the dangers faced by the Beta Group when it seeks to protect migrants. Martínez Rodríguez implicated members of the Cartel of Sayaxché, which allegedly has ties to powerful businessmen in Tenosique and Palenque. Four days after their reports, an officer of the PFP, Anarcarasis Peralta Moo, indicated that the shooting was an accident. Despite the investigations by the authorities, to date the case has not been solved and Peralta Moo is still free.[118]

207.        During the visit to Tapachula, members of the Beta Group, the Casa del Migrante, and the Centro Fray Matías de Córdoba expressed concern over the large number of accidents that happen to many people who, after crossing the border, tried to board moving trains to continue northward. The accounts indicated that quite often persons who tried to board such trains had very serious accidents resulting in the loss of limbs or death. This situation is to be found in many other parts of the country.[119]
 

          Northern Border

208.        While the massive presence of criminal gangs described above appears to be more widespread along the southern border, it is also to be found along the northern border. Abuses committed against migrants by gangs of common criminals occur along the extensive Mexico-U.S. border. Many migrants are assaulted and extorted in areas near the border or in border cities where migrants go to try to cross. The presence of numerous groups dedicated to drug-trafficking and to the trafficking, smuggling, and conveyance of persons and the existence of structural violence characterized by high rates of criminal conduct and impunity naturally combine to exacerbate migrants’ vulnerability.[120] In contrast to the southern border, however, most of the abuses are committed against Mexican migrants.  As along the southern border, migrants are not only victimized by criminal gangs, but also, in many cases, by corrupt and unscrupulous authorities who rob, abuse, and extort them.[121] The presence of a large floating population helps aggravate the problem.  According to INM figures, in 2002, there were 570,453 repatriations of Mexicans from the United States.[122] Many of the persons deported from the United States remain in the border cities or regions, trying to pull together money to try once again to cross the border. The municipal authorities of Ciudad Juárez also indicated that the existence of a large floating population was a serious problem in terms of both public order and the overburden on public services.

209.        During its stay in Ciudad Juárez, the Rapporteurship delegation received several complaints regarding the dangers migrants face. Staff from the Casa del Migrante in Ciudad Juárez, another hostel that provides care and assistance to migrants, of the Scalabrini religious community, explained in detail that they receive allegations of mistreatment, violence, and abuse by both the U.S. and Mexican authorities.[123] As for the Mexican authorities, there are frequent allegations of the excessive use of force, extortion, abuse of authority, and arbitrary detention.  According to certain sources, many of the accusations are against members of the police, civil registry, and immigration authorities.[124] Staff of the Casa del Migrante in Ciudad Juárez said that the complaints of mistreatment and violence by common criminals are also quite common. Many of the victims of robberies and deceit or harassment are Mexicans who have been deported from the United States.

210.        The seriousness of the situation along both borders was highlighted by the members of civil society with whom the Rapporteurship delegation met in Mexico City, Tapachula, and Ciudad Juárez. The authorities with whom the delegation met shared their concern over this problem. Several officials, including Moctezuma Barragán and former INM Commissioner Felipe de Jesús Preciado said that the Fox administration was fully aware of the seriousness of the situation.

211.        Given the extent of the crime, the Mexican government has taken several actions to address the problem.  These include certain measures within Plan Sur to attack the violence and impunity with which the criminal gangs operate, as well as greater control over the actions of state agents who interact with migrants. The government also increased the number of members of the Beta Group from 47 to 130 personnel in the southern zone, from Tapachula to Comitán. In addition, during the administration of Felipe de Preciado, efforts were made to fight corruption within the INM. Accordingly, a large number of supervisors and regional delegates (94%) were replaced and 800 staff were fired; a similar effort was made to step up controls to prevent abuses by creating the Office of the Special Prosecutor for Migration Matters. In addition, representatives of the PGR informed the Rapporteurship of their efforts to fight the actions of criminal gangs operating in southern Mexico.

212.        Members of civil society with whom the delegation met indicate that the measures promoted by the government have been superficial and that evidence of this is to be found in the attacks on migrants and the apparent climate of violence and impunity that continues to reign in the country’s border areas. In addition, they indicated that despite the measures, incidents of corruption persist in the services entrusted with interacting with migrants.

          Plan Puebla-Panama

213.        In 2001 the Fox administration launched an initiative to promote regional development in southern Mexico and Central America called Plan Puebla Panamá (or Puebla-Panama Plan, PPP). This initiative is aimed at fostering development and regional integration in historically neglected areas. The plan seeks to contribute to development by generating employment, and, in general, increasing the standard of living.  With this aim, the PPP seeks to develop industrial capacity and infrastructure (ports, roads, oil pipelines, gas pipelines, power plants) to facilitate the region’s export capacity; to open the doors to private capital, and also to generate economic alternatives to agriculture such as the assembly industries (maquiladoras) and manufacturing. To date the plan has been very well received by all the Central American governments. Similarly, many intergovernmental bodies, such as the Central American Bank for Economic Integration (CABEI) and the Inter-American Development Bank (IDB), whose president, Enrique Iglesias, chairs the committee on financing the PPP, have supported the initiative.

214.        Although to date support for the PPP has been rather slow in coming and difficult to garner, in part due to the uncertain world economic outlook and the lack of resources of the governments involved, there have been contributions for financing infrastructure projects such as roads, tourism, industry, and ports.  The CABEI, for example, made a loan of US$149 million for road and port projects in El Salvador, Costa Rica, Nicaragua, and Honduras. Mexico’s Banco Mexicano Nacional de Comercio Exterior (BANCOMEXT) also announced an investment of US$300 million in the region for developing tourism projects and textile and assembly industries.   Some Asian, South American, European, and North American investors have expressed interest in the Plan as well.  While the PPP has drawn the interest of governments, the private sector, and intergovernmental organizations, the program has sparked the concern and resistance of a series of civil society organizations, members of the Church such as the Central American bishops, and many residents of the very areas where the project is being carried out.  Many of these persons criticize the neoliberal bias of the project and its emphasis on infrastructure and energy to the detriment of human development and efforts to address poverty.  The resistance of farmers’ organizations has been especially strong due to the expanding crisis of Mexican agriculture.[125]

          E.       Immigration policy and practice

215.        Mexico’s legal regime governing migration is based on articles 11 and 33 of the Mexican Constitution. Article 11 establishes the right of every person to enter, exit, and travel within the Republic.[126] Article 33 defines foreigners as those who are not Mexican by birth or adoption and provides that foreigners are covered by the guarantees of Chapter I, Title 1.[127] That article also authorizes the executive to have foreign persons abandon the national territory expeditiously and without any procedure when it is determined that their presence is “inadvisable” (“inconveniente”). Foreigners may not participate in internal political affairs.[128]

216.        On ratifying the International Covenant on Civil and Political Rights, Mexico included a reservation with respect to the application of its Article 13, on the expulsion of foreigners, based on Article 33 of its Constitution.  Similarly, on ratifying the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Mexico also included a reservation with respect to Article 22(4) to the extent that it refers to the application of Article 33 of the Constitution and the General Population Law (Article 125). Article 22(4) of that Convention establishes the right of every migrant worker and the members of their families to have a country’s decision to expel them reviewed or appealed, and to request that the expulsion order be suspended until the decision has been reviewed. On the other hand, on ratifying the American Convention on Human Rights, Mexico did not include any reservation related to Article 33 of its Constitution. Nonetheless, when Mexico deposited its declaration recognizing the contentious jurisdiction of the Inter-American Court of Human Rights in December 1998, it expressly excluded the cases derived from the application of Article 33 of its Constitution.  In its response to this report, the Mexican government informed the Rapporteurship that it is undertaking a careful study of the reservations to the above-mentioned international instruments.  In view of all the foregoing, it should be noted that this report assumes that for Mexico the American Convention is compatible with its domestic legal order and therefore the Rapporteurship will use the obligations set forth in the Convention as a standard for evaluating migration policies and practices in Mexico and to determine whether they are in line with its international commitments.[129]

          Migration authorities and policies

217.        The General Population Law of January 7, 1974 (hereinafter “GPL”) and its regulation (hereinafter “GPL Regulation”) issued in April 2000 establish the legal regime governing migration in Mexico for the purpose of regulating the volume, structure, and distribution of the population in the national territory. Following is a description of the most important characteristics of that legal framework.

218.        The determination of migration policy is entrusted to the Interior Ministry (Secretaría de Gobernación). Under the GPL, decisions authorizing the entry and stay of foreign persons should take into account factors such as the activities they will be performing and where they will reside, when weighing “their possibilities of contributing to national progress.”  The Interior Ministry has the authority to set conditions for the entry and stay of foreigners in Mexico. Accordingly, the GPL establishes that entry permits should be granted with preference to scientists and technical personnel, persons engaged in research or teaching disciplines not sufficiently covered by Mexicans, and investors.  Persons who have been subjected to persecution in their country should be admitted provisionally while their situation is resolved.  In addition, tourism is to be promoted (Articles 32 to 36 GPL).[130]

219.        The executive branch establishes migration policy through the National Population Council (Consejo Nacional de Población). The Council has a General Secretariat and a Consultative Commission for Liaison with the States and the Federal District.[131] The National Population Registry is responsible for coordinating the methods of identifying and registering people.  The Interior Ministry organizes and coordinates migration-related services.  These services are divided into internal and external, depending on whether staff perform their functions in Mexican territory or as part of the consular services.  The Interior Ministry is vested with the power to create groups to protect migrants who are in the national territory for the purpose of protecting and defending their human rights (Article 137 GPL Regulation). The creation of the Beta Groups and the Programa Paisano result from this prerogative.[132]

220.        The Instituto Nacional de Migración (INM), which is under the Interior Ministry, was created to carry out migration policy. The INM is to seek to ensure that migratory movements are favorable to Mexico’s economic, social, and cultural development. The INM’s objectives are: to promote migratory flows that benefit the country, applying a broad humanitarianism and performing migratory control and verification functions in keeping with the existing laws (Articles 133 to 136 of the GPL Regulation). The staff of the INM and the Federal Preventive Police (PFP) are authorized to inspect the exit and entry of persons who travel in means of transportation or who are at ports, airports, or border areas (Article 16 GPL).

221.        The authorities in charge of federal, state, or municipal public forces should collaborate with the immigration authorities when asked to do so.  The request may be verbal, when the urgency of the situation so merits, but it must be confirmed in writing (Articles 73 of the GPL and 98 of the GPL Regulation).[133]

222.        The GPL establishes the powers and authorities under the Interior Ministry, but by subsequent provisions these functions have been delegated to the INM. Therefore, it should be understood that on making mention of or reference to the Interior Ministry, in practice it means the INM.

Civil society organizations

223.        In Mexico, a group of civil society organizations and individuals who work on migration from different perspectives came together to constitute the Foro Migraciones.[134] As indicated, the Foro Migraciones was created in March 2001, and its objectives are: to strengthen the communication and work of organizations and academics, furthering an understanding of the issues, and identifying priority actions.  The Rapporteurship considers it important to value the effort in Foro Migraciones to further dialogue and cohesion, as well as the work of its individual members.  Dialogue among academics and activists helps enrich the understanding of migration and work on behalf of migrants.

224.        The Rapporteurship would also like to highlight the work of the Casas del Migrante run by the Scalabrini religious community, which at different points along the northern and southern borders of Mexico provide assistance to migrants and are engaged in promotion, legal assistance, and social work to support human rights through the Centros de Derechos Humanos del Migrante. The first house opened in Tijuana in 1985. The first human rights center has been operating in Ciudad Juárez since November 2001. At present there are houses in Tijuana, Ciudad Juárez, Tapachula, and Agua Prieta; each house branches of the Centro de Derechos Humanos del Migrante.

          Intergovernmental organizations

225.        The Office of the United Nations Human Commissioner for Refugees (UNHCR) has a regional office in Mexico. Recently, a headquarters agreement entered into effect establishing a local office of the Office of the United Nations High Commissioner for Human Rights.  Finally, the International Organization for Migration (IOM) has been carrying out activities in Mexico since it joined the organization in 2002.

          Characteristics and categories of migration

226.        This section provides a succinct description of the characteristics and categories of migration in Mexico. Foreigners can enter Mexico under two migratory characteristics: non-immigrant and immigrant.  (a) A non-immigrant is a person who enters Mexico temporarily under one of the following categories: tourist, migrants in transit, visitor, religious minister or associate, political asylee, refugee, student, distinguished visitor, local visitor, provisional visitor, and correspondent (Articles 41-42 of the GPL, and Articles 160 to 173 of the GPL Regulation).[135] (b) Immigrants can enter Mexico under any of these categories: pensioner, investor, professional, worker in trust positions, scientist, technician, relative, artist, athlete, and asimilado, i.e. one who has assimilated.[136] The immigrant is admitted for five years and is under a duty to prove to the Interior Ministry that he or she is complying with the conditions that attach to his or her immigration status and category, so as to have the immigration papers renewed annually (Articles 44 to 46 and 48 to 51 GPL, Articles 171 to 189 of the GPL Regulation). The quality of immigrant is acquired after residing legally in Mexico for five years and complying with the requirements established by the laws, and having been “honest and positive for the community.”  The quality of immigrant is lost if, after the five-year term has elapsed, the person did not apply for immigrant status or it was denied.  In that case, the person must leave the country, and may request authorization to enter under another immigration status (Articles 52 to 53 GPL and 190 to 194 GPL Regulation). Immigrant status is obtained by a declaration of the Interior Ministry, and is lost if the person remains outside Mexico for three years consecutively.
 

          Entry of foreigners to Mexico

227.        Foreigners who seek to enter Mexico must show their immigration status and must meet the requirements of their entry permits.  In those cases determined by the Interior Ministry, foreigners who seek to leave Mexico must present their immigration papers (Articles 104 and 105 of the GPL Regulation). In Mexico, foreigners can only dedicate themselves to activities authorized by the Interior Ministry, and in some cases must reside where the Interior Ministry tells them.  In addition, the Interior Ministry can establish restrictions on the place of residency or transit of foreigners, as well as the activities they are involved in, for reasons of public interest (Article 139 GPL).

228.        The immigration authorities can deny a foreigner entry, stay, return, or change in immigration status or characteristic for any of the following reasons: (1) lack of immigration papers or having some impediment to being admitted; (2) having violated Mexican law, or having “bad conduct” during his or her stay in the country or having a bad record abroad; (3) having violated the immigration laws or failure to meet the requirements established therein; (4) having been expelled or failure of the term imposed by the Interior Ministry during which they cannot re-enter to run, or not having secured a decision for re-admission; (5) having restrictions imposed on entering the country; (6) violating the conditions of one’s entry and stay in terms of the activities in which they can be involved or on place of residence (Article 34 GPL); (7) if it is deemed harmful to the economic interests of nationals; and (8) the health authority indicates that the person suffers from a contagious disease that is a risk to public health, or that the person is not in good physical or mental health (Article 106 GPL Regulation, and Article 37 GPL). In addition, the Interior Ministry can deny the stay, return to the country, or change in immigration status or characteristic for a person when there is no international reciprocity, when required for national demographic equilibrium, or when the quotas on the admission of foreigners do not allow it (Article 107 GPL Regulation and Article 37 GPL) (see section on the principle of legality in Section VII, Due Process Guarantees).

          Immigration procedures

229.        The following section describes some features and general elements of immigration procedures. The immigration authority must decide, by resolution, all issues raised by the interested person and may collect whatever evidence it deems advisable. The decision should be justified and reasoned. The immigration authority has 90 days to issue the corresponding resolution based on the date on which the applicant complies with all the requirements established by law. If this period lapses without the authority issuing the respective resolution, the application will be considered rejected.  In other words, the rule of administrative silence being tantamount to denial is applied when the administration fails to act (Articles 149 and 150 GPL).

230.        Within the verification and surveillance procedures, the Interior Ministry and the Federal Preventive Police (PFP) are authorized to summons, in writing, a foreigner to appear before the immigration authority (Articles 151 II, 154 and 155, GPL). A record of the procedure must be drawn up. Later, the Interior Ministry has up to 15 working days to make a decision, which should be reported to the person in question (Article 157 GPL).

231.        In all immigration proceedings, the Interior Ministry has broad powers to request documentation on the immigration processes and demand evidence of the authenticity of data and requirements of the request, and prove it is true. The Interior Ministry may modify the immigration status or characteristic of a person based on a hearing, or at the person’s request, so long as there are reasons to justify the change.  The person in question must receive notice of a hearing. In the course of such a hearing, the interested person may present its evidence and arguments. When the conditions to which a person’s stay in Mexico is conditioned are modified, the person must report the change to the authorities, who are to give the set a deadline for that person to leave the country or regularize his or her situation.  The persons on whom such a person depends or for whom that person works are also under a duty to report any changes in those conditions to the authorities (Articles 111 to 114 GPL Regulation).

232.        When the Interior Ministry cancels a foreigner’s immigration status, that person must leave the national territory within the time period set. Failure to do so is punishable by a fine of $5,000 Mexican pesos (Article 117 GPL).

          Measures to control immigration

233.        This part describes the mechanisms provided for in the Mexican legal system for exercising controls on migration and enforcing the legislation.  Persons who enter Mexico must meet the conditions of their respective immigration category. Mexican law has established criminal offenses and administrative breaches, along with other measures for the purpose of controlling migration.

234.        The immigration verification procedure should be done as follows. The public official who performs the verification must have been commissioned to do so by written order. At the express petition of the INM, the PFP performs surveillance in certain places. The personnel commissioned must identify themselves to the foreigner. A written record must be made of every verification procedure. If it is determined that the person must appear, he or she is sent a summons (Articles 196 and 197 GPL Regulation) (see section on right to be heard in Section VII, Due Process Guarantees).  When the authority entrusted with verifying migration finds a person engaged in one of the forms of conduct that could lead to expulsion (Article 125 GPL) it should detain that person and immediately place him or her at the disposal of the competent authority (Articles 198 and 199 GPL Regulation) (see Section VII, Due Process Guarantees, and Section VIII, Personal Liberty, for a description of the immigration procedures when a person is subject to a detention order).

235.        The Coordinator of Intelligence of the PFP indicated to the Rapporteurship that in the course of 2001, the PFP detained 17,000 undocumented foreigners which it turned over to the INM. The migrants detained at the INM detention facilities known as the Estación Migratoria de Iztapalapa and the Estancia Migratoria de Tapachula, as well as the civil society organizations with which the Rapporteurship met, asserted that the immigration authorities and the police do not identify themselves when asking persons for their documents. In the response to this report, the Mexican government indicated that there is a duty to identify oneself verbally and to show one’s badge.

236.        When the migration authority considers it advisable, it may summons a foreigner to appear before it for the purpose of verifying his or her legal status (Article 203 GPL). The immigration authority is also authorized to receive verbal or written complaints. When the verification procedure results in a complaint, the immigration authority is under a duty to inform the complainant of the results of the investigation (Articles 204 and 205 GPL Regulation).

237.        Once the requirements and procedures established in the migration laws have been completed, the Interior Ministry has up to 15 working days to make a decision. It must consider the gravity and nature of the infraction, the circumstances, the evidence, and the person’s statements. The interested person must receive personal notice of the decision, through his or her legal representative or by mail (Article 210 GPL Regulation).

238.        The administrative and judicial authorities are under a duty to provide the Interior Ministry with the reports on migration matters that it requests (Article 206 GPL Regulation). The public authorities, be they federal, state, or municipal, notaries public, and commercial brokers who come into work with foreigners are under an obligation to ask to see their papers showing their immigration status.  In those cases determined by the Regulation, they must report to the Interior Ministry within 15 days.  The judges or Civil Registry officials are under a similar duty, except for birth and death records (Articles 67 to 69 GPL) (see the section on judicial review in Section VII, Due Process Guarantees).[137]

239.        With respect to the punitive aspect of immigration control, it should be noted first that unauthorized entry is punished as a criminal offense in Mexico, in the following terms: “A foreigner who enters the country illegally” will be punished by up to two years in prison and a fine of $500 to $5,000 Mexican pesos (Article 123 GPL). This rule is the grounds for and explains that the federal, state, and municipal authorities are authorized to ask persons about their immigration status and to apprehend those who are not able to show they are in Mexico legally.  All of this is without prejudice to the authorities opting not to pursue a criminal prosecution, since it is a crime whose prosecution depends on a complaint being filed (Article 143 GPL), and the Interior Ministry prefers to treat them as persons violating administrative laws, and to sanction them with expulsion.

240.        One who “having legally obtained authorization to enter the country, due to non-observance or violation of the administrative or statutory provisions on which his or her stay was conditioned, is illegally in it” will be punished by a penalty of up to six years in prison and a fine of up to $5,000 Mexican pesos (Article 119 GPL). Furthermore, a foreigner who “intentionally makes or represents himself or herself to have an immigration status other than that which the Interior Ministry has granted him or her” will be sanctioned by a penalty of up to five years in prison and a fine of up to $5,000 Mexican pesos (Article 122 GPL).

241.        In addition, a foreigner will be sanctioned by two years’ imprisonment and up to $10,000 Mexican pesos who “due to being engaged in unlawful or dishonest activities violates the conditions on which his or her stay in the country is conditioned” (Article 121 GPL). The case-law has established that for the conduct to be criminal the person must engage in unlawful or dishonest activities repeatedly; in other words, “committing a single unlawful act is not sufficient.”[138]

242.        Mexican legislation makes it criminal for a Mexican to contract marriage with a foreigner “for the sole purpose of enabling the foreigner to live in the country, availing himself or herself of the benefits that the law establishes for such cases.”  Both the Mexican national and the foreigner are punishable by up to five years in prison and a fine of up to $5,000 Mexican pesos (Articles 54 to 56 and 127 GPL).

243.        Finally, any administrative infraction of the GPL or its regulations for which no specific sanction is provided shall be punishable by a fine of up to 1,000 days of minimum salary, or detention of up to 36 hours if the person does not pay the fine.  The Interior Ministry must impose the sanction mindful of the gravity of the conduct (Article 140 GPL).

244.        It should be borne in mind that for the Federal Public Ministry to press criminal charges through the Office of the Attorney General of the Republic a complaint must be filed by the Interior Ministry in each case (Articles 140 to 143 GPL). When the infraction includes the commission of a crime, the immigration authorities must draw up a written record setting forth the facts and the evidence. That record should be sent to the Public Ministry for the respective action (Article 22 GPL Regulation). Nonetheless, the circuit courts of appeal (Tribunales Colegiados de Circuito) have established that the complaint in question does not require special formality, that “the expression of will of the Interior Ministry expressed by one of is representatives [suffices] to satisfy that requirement.”[139]

          Migrant workers

245.        This part sets forth the legal framework that authorizes foreigners to work in Mexico (the section on labor rights and economic, social, and cultural rights analyzes the situation of migrant workers in Mexico).  As indicated previously, a foreigner in Mexico can only engage in those activities for which he or she is authorized.  If he or she wishes to perform other work, a permit is needed that is issued by the Interior Ministry (Articles 60 GPL and 140 GPL Regulation).  A foreigner who engages in activities for which he or she is not authorized will be fined up to $3,000 Mexican pesos and sentenced up to 18 months in prison (Article 120 GPL).

246.        One interested in hiring a foreign worker must ensure that the worker’s migratory status allows him or her to perform the activities that are the subject of the labor contract (Article 141 GPL). Employers and those who provide economic support to a foreigner are under a duty to inform the Interior Ministry of any circumstance that might modify or change their migratory status.  In addition, the Interior Ministry may require them to cover the expenses incurred in expelling that person from Mexico (Article 61 GPL and Article 145 GPL Regulation).

          National registry of foreigners

247.        Foreigners who enter Mexico as immigrants as well as non-immigrants who enter as scientists, ministers of worship or religious associates, political asylees, refugees, and students must register with the National Registry of Foreigners. Those persons have the duty to keep the information the Registry has about them up-to-date. Marriages and divorces between Mexicans and foreigners should also be entered in the National Registry of Foreigners (Articles 63 to 65 and 68 GPL, and 78 and 79 GPL Regulation).

          Regularizing migratory status

248.        When a considerable number of foreigners have entered without authorization or have remained beyond the time authorized, states face dilemmas of immigration policy. Faced with this situation, in 2000 and 2001 Mexico opted for a program to regularize the immigration status of foreigners.

249.        The 2001 regularization program was applied to all persons who had entered Mexico prior to January 1, 2000, were able to get a job or were in a position to work, and had family ties with nationals or with foreigners legally established in Mexico.[140] The program was initially planned to last for six months, but it was extended for two more months because it was so well-received.  According to information from the INM, in the 2001 regularization program 6,500 cases were processed, as compared with 7,800 in the 2000 program. In 2001, most of those who availed themselves of the program were Central American: 30.6% of the applicants were Guatemalan, 20.4% Honduran, and 13.9% Salvadoran.[141]

250.        The member organizations of Foro Migraciones explained to the Rapporteurship that the regularization program had some problems that had to be solved. First, its cost was very high for some workers, making it impossible for some to avail themselves of it. The cost of the program varied with the cost for the respective consular office of issuing the identification papers.  The program was not widely disseminated, leading civil society organizations to have to promote it among the immigrant communities. They also explained that it was difficult to convince the potential beneficiaries that they did not run risks if they came forward or provided information to the INM regarding their situation.

          The expulsion and voluntary exit of foreigners

251.        A foreigner who violates the GPL by engaging in one of the activities for which a sanction is provided (Articles 115, 117 to 124, 126, 127 and 138) has his or her migratory status cancelled and is expelled from the country, without prejudice to the penalties that may be imposed for his or her conduct.  The expulsion is definitive when the foreign person has attacked Mexico’s national sovereignty. In all other cases the Interior Ministry indicates the time period during which the person will not be readmitted to Mexico (Articles 125 and 126 GPL). In that period, the person can only be readmitted to Mexico by express decision of the minister of deputy minister of the Interior Ministry in keeping with the specific procedure and specific requirements (Article 229 GPL Regulation).

252.        The immigration authorities can replace the expulsion order by a voluntary exit order when any of the following conditions are met: (1) the person has not violated the law repeatedly; (2) the person so requests voluntarily; or (3) it is the consequence of a migration procedure. The voluntary exit order enables the foreigner to re-enter Mexico when the requirements particular to the immigration status to which he or she aspires are met (Article 212 GPL Regulation).

253.        The expulsion order must be executed immediately, upon personal notice being served. These measures include separating or detaining persons in immigration holding facilities known as estaciones migratorias (Article 225 GPL Regulation). When the expulsion cannot be carried out for reasons beyond the control of the immigration authority, it should expand the term of the deprivation of liberty (Article 211(I) GPL Regulation) (see Section VIII, Personal Liberty). The Mexican Supreme Court considers it unlawful to suspend the expulsion; accordingly, administrative and judicial remedies are of no avail to challenge such a measure.[142]

254.        A foreigner who has been expelled from Mexico and re-enters without having obtained a “decision on re-admission” (“acuerdo de readmisión”) will be sanctioned by up to 10 years of prison and a fine of up to $5,000 Mexican pesos.  The same punishment applies to a foreigner who hides the fact that he or she has been expelled and obtains authorization to enter Mexico again (Article 118 GPL).

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