F.       Trafficking, smuggling and conveyance of migrants

255.        As indicated, Mexico is one of the leading sending and transit countries for migrants internationally.  Therefore it is not surprising that the industry that involves the trafficking, smuggling, and conveyance of migrants is significant and well-developed in Mexico.[143] In Mexico both borders, north and south, are epicenters of this illicit activity. Several factors contribute to the existence of this flourishing industry. Mexico’s strategic geographic position, characterized by extensive borders with the United States to the north and Guatemala and Belize to the south (Mexico is necessarily part of the route for persons headed to the United States and Canada overland) and the fact that it has extensive coastlines on both the Atlantic and the Pacific make Mexico especially susceptible to this problem. Moreover, the knowledge and experience of persons in Mexico who have crossed the border irregularly or who have assisted others to do so is a service in high demand.  In the more than 100-year-old history of migration between Mexico and the United States, people have always paid for or sought assistance to cross the border.[144]

256.        While the trafficking, smuggling, and conveyance of migrants is especially pronounced in Mexico, in its promotional work the Rapporteurship has highlighted that this issue is a worldwide phenomenon that affects any number of persons on all continents.[145] Indeed, this industry has become so important that in Mexico as in the rest of the world, it competes with narcotics trafficking. In view of its characteristics, Mexico has become one of the main centers of operation for the trafficking and smuggling of persons to the United States.[146] Given its clandestine nature, it is very difficult to quantify the actual scale of this business.  Nonetheless, there are clear indicators that the trafficking and smuggling of migrants have increased considerably in the last decade. A study by the International Organization for Migration (IOM) indicates that in 1997 this business generated from US$5 billion to US$7 billion annually worldwide.[147]

257.        Some studies on the Mexican case estimate that approximately three-fourths of Mexican migrants who attempt to enter U.S. territory for the first time and two-thirds of those who try to enter subsequently recur to the services of smugglers or traffickers.[148] As indicated in the previous sections, in Mexico and elsewhere the business has prospered in tandem with measures to reinforce border control efforts.[149] In the Mexican case, whereas in 1993 migrants paid a smuggler US$20 to US$30 for assistance in crossing the border, today the price ranges from US$1,500 to US$2,000, depending on the particular part of the border.[150] According to the INM, there are more than 100 organizations devoted to the trafficking and smuggling of migrants in Mexico. In addition to helping Mexican citizens cross into the United States, the organizations dedicated to this business commonly engage in smuggling, conveyance, or trafficking of nationals of other countries who pass through Mexico on their journey, including Central Americans, South Americans, Asians, Africans, and persons from Central and Eastern Europe and the Balkans. This problem is especially important in Mexico given the repeated deaths of Mexican nationals who hire the services of persons engaged in the trafficking, smuggling, and conveyance of persons.[151]

258.        In order to explain the characteristics of this problem in detail, following is a modified version of the chapter on trafficking, smuggling, and conveyance of migrants from the Third Progress Report of the Rapporteurship, which makes reference to these activities in Mexico.  This section describes and explains the phenomenon along the northern border. While certain circumstances have changed since this report was written, given the fluid nature of migration – in this connection mention was made of the diversion of crossings from populated to uninhabited parts of the border – many of the characteristics described persist and help explain the complexity of the phenomenon. In addition, although the borders present different characteristics, some important features are common to both borders.

259.        Based on a study carried out by David Spener, Professor of Sociology at Trinity University, San Antonio, Texas, who has explored the behavior and characteristics of trafficking organizations in South Texas, the Rapporteurship presents some of the most significant elements characteristic of this activity.[152] Through this exercise, we try to explain succinctly how the smuggling, conveyance, and trafficking of persons along the northern border of Mexico operates. The study was based on a comprehensive review of the academic literature and journalistic sources, as well as interviews with coyotes, and authorities, including immigration officers, in both Mexico and the United States, and people who have used the services of traffickers to cross the border.

260.        Spener agrees with other studies in saying that the people_smuggling, guiding, and trafficking business in Mexico is very complex and involves diverse players, both individuals and organizations.  The aim of the business, he explains, is to help take people from Mexico to a safe place in the United States in exchange for money.  As mentioned in this report, the people smuggling, guiding, and trafficking industry in Mexico includes an enormous variety of services with different prices, both in Mexico and in the United States.  In Mexico these services include: (a) contact with people in communities inside Mexico who want to cross the border; (b) arrangement of transportation from places of origin to the border; (c) lodging at hotels or houses in border towns before crossing the border; (d) sale or rental of bogus documents; (e) crossing the Rio Grande. In the United States, meanwhile, the services for sale include: (a) purchase of airline tickets from points of entry near the border, such as Harlingen and Laredo; (b) guides who accompany people across southern Texas to their destinations, such as San Antonio, Houston, Dallas, Austin, evading the surveillance of the Border Patrol and gangs of criminals who operate on the border; (c) lodging at safe houses in border communities; (d) transport by vehicle or train to San Antonio, Dallas or Houston from border areas on the U.S. side; (f) lodging at safe houses in San Antonio, Dallas, or Houston; (g)  arrangement of transportation to other points in the United States once inside Texas and safe from the surveillance of the Border Patrol; and (h) delivery to an employer in the United States. To the extent that irregular migration has moved to other areas of the border due to the implementation of new security measures at the airports, it should be noted that the services have likely shifted. At present they include: crossing the desert, and overland instead of air transportation.

261.        Diverse individuals, groups, or organizations provide the aforementioned plethora of services.  While most migrants who use these services are Mexican, increasingly persons of other nationalities have begun to use them as well.  Spener divides them into four categories, which reinforce the thrust of this analysis in the sense of making a distinction between guiders, smugglers, and traffickers:

Pateros (name given to certain traffickers on the border between Tamaulipas and Texas).  These individuals engage exclusively in getting people over the border.  However, should their client need a guide to cross Texas to reach a given destination, they can recommend people who provide that service.  To recruit clients pateros linger at hotels and bars frequented by people who come to border towns with the intention of crossing the border.  They also wait at bus stations where these people arrive.  The possibilities of success of the undertaking are relatively slim when pateros are used.  Barring a few exceptions, people who hire this service are normally caught by the Border Patrol and lose their money, or else are robbed by gangs of criminals that operate on the border.  Spener reports that witnesses very often say that it was the pateros themselves who robbed them.

Coyotes from the interior.  This term refers to experienced guides who have been taking people to the United States from communities inside Mexico for many years.  These people are typically natives of communities in the center of Mexico, in states such as Zacatecas, Guanajuato, Jalisco, Michoacán, San Luis Potosí, and others.  Coyotes from the interior usually recruit groups of people and help them to make the journey from their communities of origin before delivering them into the hands of relatives or employers at their destination.  These individuals almost always accompany the group on the whole journey and use their experience, contacts, and knowledge of the terrain to evade the authorities and gangs of robbers.  The advantage of hiring a smuggler/guide of this type is that the individual is normally a member of the community of origin and, therefore, is known and trusted by the people who choose to hire his services.  Unlike pateros, these individuals do not require payment in advance, but only after the client reaches their destination.  Despite the coyote’s intentions, the border crossing may fail, particularly because they do not live in border areas and lack up_to_date information on the movements and new methods of the Border Patrol or criminal organizations that rob migrants who try to cross the frontier.  This can lead them to make mistakes and to the arrest of the group they are guiding.  To avoid this problem, coyotes from the interior typically work with contacts on the border that tell them about the latest developments in the area and advise them on routes and strategies.

Friends and relatives. Many Mexican migrants use the help of friends or families to make the journey to their final destination in the United States.  Very often, relatives or friends of the people who want to migrate go to Mexico to find them and accompany them on the journey.  These people often hire a patero to help them cross the border.  Then they arrange with relatives to be picked up at strategic places.  Relatives or friends, who are very often U.S. residents or citizens, collect these people and help them to evade the controls of the Border Patrol, which are particularly tight for the first 75 kilometers of the territory of Texas in the United States.  In order to evade the surveillance set up by the Border Patrol, these people normally transport their relatives in vehicles along side roads that lead to the north of the state toward cities like San Antonio, Dallas, and Austin.  Due to the increased surveillance and the stiff penalties imposed on U.S. citizens or permanent residents who aid to smuggle migrants, the percentage of people who cross using only the contacts of family and friends has diminished considerably.

Commercial Border Operators:[153] Organizations of this type are the most advanced and, according to Spener, probably move the greatest number of migrants across the border.  These organizations vary enormously in size and complexity.  Depending on their capacities, sophistication, and reputation, they provide a large quantity of services at different prices.  Market conditions, that is, changes in the strategies of the immigration authorities, also determine prices.   More than their huge variety and level of sophistication, what distinguishes these organizations from the categories of smugglers mentioned above is their high degree of professionalism.  In the more sophisticated organizations there is usually division of labor: some people find clients, operate as guides, or study the movements of the Border Guard, while others organize the logistics, such as securing transportation and safe houses, or obtain false documents.  In other words, these organizations are vertically integrated but have a central command that directs the operation.  Spener says that these organizations are normally family_run businesses and are not, generally speaking, connected with organized crime.  However, such organizations may subcontract the services of criminals to carry out certain tasks, such as demand payment from clients who refuse to pay, or obtain false documents.  Migrants who are not Mexican nationals and who arrive via smuggling or trafficking rings also tend to subcontract the services of such organizations.

262.        Typically, these organizations recruit their clients at bars, hotels, or bus stations.  Once contact is made they explain their modus operandi and the services that the organization can provide.  Clients who decide to contract the services of these guiders or smugglers are taken across the border, either through border checkpoints using false documents, or at unauthorized places such by crossing the Rio Grande.  Once inside the United States, the problem is to move north and get past the Border Patrol checkpoints set up on the main roads, and to evade roundups and surveillance by agents of that division.  As mentioned, the Border Patrol has strong controls in place across an area that stretches at least 75 kilometers northward from the border.  In other words, crossing the border does not guarantee that a person will be able to reach their destination.  Traffickers sometimes take their clients on foot to places beyond the area monitored by the Border Patrol, where vehicles collect and take them to a city of destination.  Once there, the migrants may be taken to a safe house or introduced to their employers at the final destination, at which point payment is made, either in part or in full.  Indeed, it has recently been reported that the migrants are held in the United States until their relatives pay for the service rendered. Traffickers also have several safe houses in the border area where migrants may hide for hours, days or weeks.  Conditions at these houses vary from acceptable to considerably bad.  Spener explains that many of the places where migrants are hidden are overcrowded and lack sanitary facilities or beds, and offer very little food.  Very often the people who hide in these places receive no food, only water.  As regards accusations of mistreatment and abuse of migrants, Spener says that these incidents occur, but that their magnitude and frequency is not known.  In that connection, he explains, since part of the payment is made at the end of the journey, organizations have an incentive to bring their clients safe and sound to their destination.  However, cases are known in which smugglers/guiders abandon their clients if the authorities are closing in, but generally that is more common in the case of pateros.  It would seem that robberies and abuses are more the work of criminals, who pass themselves off as traffickers and rob or kill migrants at isolated spots.[154]

          Punitive treatment: Investigation and punishment

263.        The General Population Law also criminalizes conduct related to the trafficking of persons, and the smuggling and conveyance of migrants as follows: “One who directly or through a third person, ‘for purposes of trafficking,’ intends to take persons to another country without the proper documentation will be punished by six to 12 years imprisonment and a fine of 100 to 10,000 days of minimum salary. The same penalty will be imposed on one who directly or through a third person brings foreigners into Mexico without the proper documentation, and who, ‘for purposes of trafficking,’ houses or transports them within the national territory for the purpose of evading immigration controls.  The persons who provide the means, lend themselves to or are used to carry out the conduct described above will face sanctions of one to five years in prison and a fine of up to 5,000 days’ minimum salary.” As an aggravating factor, the provision includes that this conduct be with respect to minors, in conditions that endanger the health, integrity, or life of persons, or when the perpetrator of the crime is a public servant. In those cases the penalty will be compounded by one-half (Article 138 GPL).

264.        The filing of a criminal action by the Federal Public Ministry is subject to the Interior Ministry filing a complaint (Articles 140 and 143 GPL). When the infraction entails the commission of a crime, the immigration authorities must prepare a written record setting forth the facts and evidence. That record should be sent to the Public Ministry for the respective action (Article 222 GPL Regulations). As explained above, the complaint does not require special formality.[155]

265.        The case-law of the Mexican Supreme Court of Justice has established that Article 138 criminalizes not only the illicit conduct consummated, but also “trying” to take someone to work irregularly to foreign territory, i.e. the attempt. In other words, it is a type of crime with a “truncated” or “anticipated” result, and it is not necessary to have obtained the aim of the conduct, in this case that the person enter foreign territory.[156]

266.        The Mexican criminal law does not clearly establish what type of conduct is sanctioned.  It is not possible to distinguish whether the provision penalizes the trafficking of persons, the smuggling of migrants, or the conveyance of migrants, which are three different types of conduct.  The subjective element “purposes or purpose of traffic” would appear to be fundamental. Hence the importance of the thesis of the Tribunal Colegiado de Circuito that determined that “trafficking” refers to “transportation.”[157] In other words, if the thesis of that Tribunal is accepted, in Mexico the same sanction is applied to conveyance, smuggling, and trafficking in persons.

267.        Nonetheless, that is not the only position with respect to this point. During the Rapporteurship’s visit, the officials of the Office of the Attorney General (PGR: Procuraduría General de la República) explained their work in relation to the crime defined at Article 138 of the GPL.  Specifically, the officials indicated that they understood the subjective element “purposes or purpose of trafficking” to mean for-profit motivation. Once there was such motivation, they indicated, they didn’t see any difference between facilitating the movement or trafficking in persons. They added that they emphasize their work fighting organized crime, against which they have 12 investigations under way as of July 2002.  The officials from the PGR told the Rapporteurship that in July 2002 there were 14 criminal cases opened into acts related to the smuggling of persons, in which 47 persons are being prosecuted. The officials explained to the Rapporteurship that there is a witness protection program which the victims of these crimes could voluntarily join, but in no case do they have the power to require them to stay in Mexico. With respect to the complaint that the INM is to present for violations of Article 138 GPL, they said that there are executive orders that make the complaint automatic.

268.        As indicated above, the Rapporteurship also met with the Coordinator of Intelligence of the PFP, who presented his understanding of the smuggling of persons in Mexico based on his investigative work.  The Coordinator of Intelligence explained that sometimes migrants feel swindled by the polleros who are guiding them, and therefore are willing to collaborate with the Mexican authorities, but that in general the migrants don’t have much information. He also expressed his concern over the use of increasingly dangerous means of transporting migrants, such as freight containers.

269.        During its visit to Chiapas, the Rapporteurship had an opportunity to meet with the Chiapas state delegation of the PGR to discuss the smuggling of migrants. The officials explained to the Rapporteurship that they intervene when the INM informs them that it has found a group of undocumented migrants with a person guiding them. In such cases, the PGR holds or detains the person who they call the trafficker. The migrants are at the disposition of the INM, which proceeds to expel them. According to the PGR, the migrants mention having been deceived and are of a low socioeconomic level with very little education; they estimate that 70% are men and 30% women. The PGR officials explained to the Rapporteurship that they do not differentiate between smuggling of migrants and trafficking in persons; for them it’s the same thing.  In their experience, a person against whom a criminal proceeding is initiated is usually of Mexican origin and works for someone else, who provides the vehicle for transporting the persons. From January to July 2002, the Chiapas delegation of the PGR had detained 40 persons and had held 33 of them for trial.  In addition, during its visit to Ciudad Juárez the Rapporteurship also met with PFP agents. The agents explained that they work in coordination with the U.S. Border Patrol, with which they share information. They explained that they find very few cases of trafficking; in their view it needs to be detected in flagrante delicto.

270.        The Rapporteurship has insisted on the importance of differentiating these forms of conduct since they are different social phenomena. In any event, the Rapporteurship is aware of the complexities of these criminal phenomena, especially because of the participation of organized criminal networks.  As indicated, often the smugglers recur to methods that endanger the lives of migrants, such as transporting them in unsafe vehicles, in freight containers, or by very physically demanding routes, at times resulting in the death of the migrants. Moreover, on some occasions the smugglers hold the persons in the country of destination until they or their family members pay for the service rendered.  The Rapporteurship is concerned by these factors, which victimize the migrants and which in general constitute autonomous crimes.

271.        The Rapporteurship has learned that on June 5, 2003, members of Congress from the PRI and PAN introduced a bill to increase the penalties for smugglers of persons from six to 12 years, as it is now, to 10 to 25 years of prison. The legislation also proposes the establishment of specialized units within the police.  This bill is a response to recent events in which Mexican migrants have died after entering the United States hidden in freight containers.  In its response to this report the Mexican government indicated that the PGR is working with the INM on a preliminary bill to amend the GPL. This initiative includes among its objectives separating criminal from administrative sanctions, as well as eliminating the requirement that a complaint be filed in order for criminal charges to be pressed.  The Rapporteurship hopes that this bill as well as the preliminary bill that the PGR and INM are working on will help get the debate started on Article 138 of the GPL, mindful of the comments made here. The government also highlighted international cooperation initiatives in which Mexico is participating aimed at sharing intelligence information on the smuggling of persons and at training officials to detect counterfeit documents.

          G.      Due process guarantees

272.        The following analysis addresses anew the migration policy and practice described above and considers the practical application of the limits imposed by international human rights law and due process guarantees. The Rapporteurship makes reference, for this section, to the elements presented in its Second Progress Report.[158] This section does not focus exclusively on the legal framework, but also addresses issues related to the practice or the development of rules in specific cases and experiences. To this end, the Rapporteurship prepares its analysis based on interviews and information compiled during its visit to Mexico, and supplements it with other materials sent to the Rapporteurship for this report by government officials and civil society organizations.

          Limitations imposed by human rights law on migratory policies

273.        In the exercise of their sovereign powers, the states may determine their migration policy and legislation, and, accordingly, decide on the entry to, stay in, and expulsion of foreigners from their territory.  Nonetheless, international human rights law establishes certain limits. This part analyzes the application of those limitations to Mexico’s migration policies and practices.[159]

Prohibition on the State impeding its citizens’ exit, entry or stay in the national territory

274.        The legal provisions discussed below guarantee the right of nationals to exit, enter, and stay in the national territory. The GPL establishes some requirements for the exit of nationals and foreigners from Mexican territory having to do with the documents that show their identity, and with fulfilling the requirements for entering the country of destination.  In the case of Mexican workers, the legislation requires that they show that they are traveling with an employment contract and that they will receive a salary sufficient to support themselves (Articles 78 and 79 GPL).  The GPL Regulation provides that it is a function of the Interior Ministry to direct persons who are considering migrating to the competent authorities to obtain information on demand for labor abroad and to ensure that these persons are legally contracted. The agencies for contracting Mexican labor can only operate if so authorized by the Interior Ministry (Articles 213(I) and 214 GPL Regulation).

275.        Nationals and foreigners in any of the following situations are disqualified from leaving the country: (1) a subpoena, arrest warrant, or formal order of imprisonment has been issued against the person; (2) the person is subject to criminal proceedings, unless authorized by the court hearing the matter; (3) the person has been convicted criminally and is on probation or parole, unless authorized by the competent judicial authority; and (4) the person is subject to house arrest (Article 109 GPL Regulation).  Nonetheless, house arrests of foreign persons ordered by judicial or administrative authorities do not stand in the way of executing expulsion orders against those same persons (Article 129 GPL).

276.        Mexican nationals who enter Mexican territory can show their nationality using any of several documents, or, if not in possession of any of these, by making a sworn statement (Article 103 GPL).  As indicated, foreign persons who seek to enter Mexico must show their immigration status and must abide by the requirements of their entry permits.  In those cases determined by the Interior Ministry, foreigners who seek to leave Mexico must present their migration papers.

277.        Mexican legislation considers as repatriates nationals who return to the country after having resided abroad for at least two years. The Interior Ministry has the function of encouraging the return of nationals and promoting their placement where they can make a contribution drawing on their knowledge and skills (Articles 81 and 82 GPL).  The immigration laws provide that it is a duty of the Foreign Ministry to promote agreements for the safe and orderly repatriation of Mexicans who are returned to the national territory. In addition, the Interior Ministry must endeavor to offer support to Mexicans who repatriate to help them move to their places of origin (Articles 216 to 218 GPL Regulation).

          Non-refoulement and the Convention Against Torture

278.        The States are under an obligation to offer a reasonable opportunity to persons to show their status as a refugee or to apply for asylum, and to present the reasons why they fear they will be tortured if sent to a given country, including their country of origin.  During its visit, the Rapporteurship observed that the Mexican legal framework complies with the limitations established by the Convention relating to the Status of Refugees and its Protocol, as well as the conventions against torture of the United Nations and the inter-American system.[160] According to the information compiled by the Rapporteurship, Mexico observes the obligation of non-refoulement and does not deport persons to a country where they have been tortured or where they may be tortured.  This procedure is carried out by the Mexican Commission for Refugee Assistance (COMAR: Comisión Mexicana de Ayuda a Refugiados) with the active participation of the UNHCR. The Rapporteurship recognizes Mexico’s tradition of asylum, and calls on Mexico to maintain this tradition (see Section III, Migration in Mexico).

          Non-discrimination

279.        In addition to the migration posts at the borders, ports, and airports, the migration authorities can undertake the following actions for the purpose of verifying and overseeing compliance with legal requirements: (1) make visits; (2) require that a foreign person appear before the authorities; (3) receive complaints and testimony; (4) request reports; (5) carry out operations for verification of immigration status along provisional routes or at provisional spots; and (6) obtain any other evidence for enforcing the laws (Article 151 GPL). An official note that orders a verification operation along provisional routes or at provisional spots should indicate the person responsible, its duration, and the area where it is to be carried out. The official responsible for the operation is under an obligation to render a daily report of activities (Article 156 GPL).

280.        During its visit to Chiapas, the Rapporteurship had an opportunity to meet with officials of the Federal Preventive Police (PFP), who explained that their functions are related to immigration in the areas of intelligence and regional security along roads and highways, shoring up the functions of the Interior Ministry. The PFP officials indicated that they have the legal authority to request the documents of any person, and given that unauthorized entry is a crime, undocumented migrants are in flagrante delicto at all times.  When they find persons without documents, they are turned over to the Interior Ministry; until they can be turned over to the INM, they are kept in cells. The PFP told the Rapporteurship that they do not use any special criterion for reviewing vehicles or asking individuals to show their documents; in their own words, they do so “when it occurs to us to ask someone” (“cuando nos nace preguntarle a alguien.”  In Ciudad Juárez the Rapporteurship also met with the PFP. The PFP agents indicated to the Rapporteurship that they recognize migrants based on how they speak.[161]

281.        The reasons why a foreigner might be denied entry, stay, return, or change in migratory status or characteristic were described above (see Section V, Migration Policy and Practice).  In general, the reasons listed in Article 106 of the Regulation of the GPL are specific. The Rapporteurship is concerned about the last three: (6) they violate the conditions of their entry and stay with respect to the activities to which they dedicate themselves or place of residence (Article 34 of the GPL); (7) granting such a petition is considered harmful to the economic interests of nationals; and (8) the health authority indicates that the person petitioning for status suffers from an infectious disease that poses a risk to public health or that the person is not in good physical or psychological health. These three reasons can be interpreted broadly and discretionally, resulting in discrimination against foreigners.

282.        The limitation on the place of residence of foreigners imposes a more burdensome and discriminatory situation since this person finds their freedom of movement and residence limited; such restrictions are not imposed on nationals.  The Mexican government, in its answer to this report, reiterated that foreigners must indicate those places in the national territory they intend to visit in their immigration papers. The government considers that this does not constitute a limitation on freedom of movement. Foreigners can only circulate and reside in those parts of the national territory for which their entry and stay in the country have been authorized.  This restriction does not apply to nationals, which in the view of the Rapporteurship represents discriminatory treatment of foreigners. The second limitation, about the presence of a foreigner being harmful to the economic interests of nationals, would appear to be very open-ended. Article 106(7) of the Regulation can be interpreted in several ways and result in a person being arbitrarily denied entry, stay, return, or change in migration status or characteristic. It is very difficult for an official to make such an economic valuation. Finally, the last characteristic of this provision may result in a person being denied entry, stay, return, or change in migration status or characteristic to persons rendered vulnerable and needing assistance and protection because of their poor health or disability.[162]

283.        Article 107 of the GPL Regulation includes three additional reasons why petitions to stay, return to the country, or change migration status or characteristic may be denied to a person: lack of international reciprocity, if required for national demographic balance, or if not allowed by the quotas for admitting foreigners.  These three reasons are also very general, and have the potential to redound in discriminatory situations, since they provide a broad margin of discretion. The Rapporteurship is not aware of whether they have ever been applied, but it is concerned that the existence of open-ended provisions may result in discriminatory or arbitrary practices.

          Principle of Legality

284.        Entry or change in migratory status may be denied for any of the following reasons: there is no international reciprocity; reasons of demographic balance; reasons of migration policy; it is considered harmful to the national economic interest; having violated Mexican law or having a record of violating the law abroad; having violated migration laws or failing to meet the requirements established therein; not being in good physical or psychological health; and any other reason established by law (Article 37 GPL).

285.        Similarly, the Rapporteurship considers that this provision grants broad discretion to the officials responsible for authorizing the entry or change in migration status. In this sense, this provision represents a departure from the principle of legality insofar as it authorizes officials to apply criteria additional to the requirements and conditions of the migration categories.

286.        After its visit to Mexico, the Rapporteurship received some examples of rulings issued by the INM regarding migration procedures. Having reviewed them, the Rapporteurship notes that they cite the legal basis of the powers or authority of the official who issues the ruling to do so, the fit of the infraction to the immigration laws, as well as the legal basis for the sanction imposed or the benefit granted.  The Rapporteurship considers that all of this is entailed in the adequate application of the principle of legality. Nonetheless, this principle requires not only that public actions be grounded in a law, but that the law be adapted to the facts or to a specific situation.  Hence the Rapporteurship is concerned to find cases in which the persons affected and apprehended or expelled say they do not know why they ended up in such situations. Accordingly, it is important that in their oral and written proceedings the authorities describe the facts and cite the provisions being applied to those facts.

          Prohibition on collective expulsions

287.        Mexico’s immigration laws make no express mention of the prohibition on collective expulsions, but the law is clear in calling for individualized proceedings that should be carried out in all cases. Nonetheless, in southern Mexico, the migration authorities have established a program they call “Safe and Orderly Repatriation of Central American Migrants.”[163] The southern border and this program are important because it is estimated that 48% of undocumented foreign migrants who enter do so through the state of Chiapas.[164] Indeed, from January to July 2002, 36,653 undocumented foreigners had been detained in Chiapas.[165] As explained, the program consists of persons of Central American origin who have no authorization to enter or who have violated the conditions of their authorization to enter Mexico who are apprehended by the authorities being taken to the south and returned, on busses, to their countries of origin. In July 2002, according to the INM, 400 to 500 persons were expelled daily through the border post at Talismán, another 10 persons who were not Central American nationals were transported to the INM detention facility in Iztapalapa to continue their migration procedure. From January to July 2002, 33,619 Guatemalans, 21,805 Hondurans, 604 Nicaraguans, and 10,690 Salvadorans had been expelled from Mexico through the safe and orderly repatriation program.[166] In its answer to this report, the Mexican government indicated that the Beta Groups have reinforced surveillance of the points of expulsion, where the expulsions are verified, and provide information to persons as to their rights and the potential risks of the trip to discourage them from attempting to make the trip again.

288.        The Rapporteurship had an opportunity to visit the INM detention facility at Tapachula and to observe how the expulsions take place through the border post at Talismán. The persons apprehended by the authorities are not subject to an individualized proceeding. Briefly, the procedure is as follows: when the authorities perform control and verification actions, they ask for the identification papers of persons who seem to be foreigners or migrants; if the persons do not have their documents in order, they are apprehended and taken to the Tapachula detention facility, from which they are expelled from Mexico. No resolutions are handed down for each person, nor is any record made of the persons’ answers to the questions they are asked.

289.        In Tapachula, the INM merely asks the name of the person, with which they draw up exit lists, which are used to organize the people to be transported in busses that take them to the border. The INM Delegate in Chiapas explained to the Rapporteurship that these persons entered without authorization, and that they would be punished by a fine, but that since they do not have the money to pay it, they are held for up to 36 hours. The Rapporteurship observed that there is no resolution in which each person is sanctioned for his or her unauthorized entry.  In the view of the Rapporteurship, this procedure does not include or respect the minimal guarantees of due process described below. In several cases this situation has led to Mexican nationals being confused with foreigners and being expelled for not carrying their identification papers.[167]

290.        The Program for the Safe and Orderly Repatriation of Central American migrants is financed in part by the United States immigration service. From Tapachula, migrants go out in busses to their country of origin. The expulsions take place from 7 a.m. to 9 p.m. on busses accompanied by an INM agent.  The persons who say they are Guatemalans or who have the CA4 document (document authorizing free movement within the Central American countries) are expelled and transported to the border post at El Carmen. All other persons travel in other busses that take them to their country of origin. The nationals of El Salvador, Honduras, and Nicaragua go through El Carmen, where the INM agents gets off and agents of a private security company get on, who have custody over them up to the border posts of their respective countries. Nonetheless, the Rapporteurship had an opportunity to speak with migration authorities from El Salvador, Honduras, and Nicaragua, who said that those persons are not received at the immigration posts of each country, and even though the lists of persons are received from the Mexican authorities, they are not able to state that those persons arrived at their border posts and entered their countries of origin.

          Quantum of due process

291.        Article 1(1) of the American Convention on Human Rights establishes the obligation to ensure and protect the rights and freedoms recognized in it. By ratifying the Convention, the Mexican State has assumed that obligation, and cannot, under any circumstance, try to impose limits on the rights guaranteed in it, shielding themselves behind an assertion of its sovereignty. Articles 8 and 25 of the American Convention are part of the legal framework on judicial guarantees and the judicial protection of human rights. “These two articles cover any situation in which it becomes necessary to determine the content and scope of the rights of a person under the jurisdiction of a state party, be it in a criminal, administrative, tax, labor, family, contractual or any other kind of matter. These rules establish a baseline of due process to which all immigrants, whatever their situation, have a right.”[168]

292.        The Rapporteurship has insisted that in every administrative or judicial procedure in which the rights or interests of a migrant worker are at stake, there must be a quantum of due process.  This quantum of due process must be in keeping with the interests or rights at stake in the respective proceeding. Within the proceedings applicable to migrant workers, no doubt those on immigration status are the most important, as they determine, for migrant workers and their families, whether it is possible to remain in a country other than the country of origin. Therefore, the Rapporteurship now turns to the elements of due process applicable to immigration proceedings both for the entry and stay of foreigners and in relation to their expulsion and deportation from Mexico.
 

          Impartial and accountable adjudicator

293.        The power to impose administrative sanctions provided for in the GPL is vested in the minister and deputy-minister of Interior and the INM Commissioner. This power may be delegated (Article 219 and 220 GPL Regulation). By executive order of December 15, 1999, the INM Commissioner delegated powers to resolve immigration proceedings and to perform several functions of the Office of the Coordinator of the Regulation of Stays, the Coordinator of Immigration Control, the Legal Coordinator, and the Directors, Assistant Directors, and each of their department chiefs of each of them. In addition, the Coordinator of the Regulation of Stays of the INM is delegated the authority to resolve multiple applications and situations. This delegation of functions means that many of the functions described in this report as vesting in the Interior Minister have been transferred to the officials indicated above. The sanctions must be imposed by resolution, duly reasoned, addressing the following points: (1) actual or possible harm; (2) the intent to commit the act or omission that constitutes the breach; (3) the nature and seriousness of the facts; (4) whether it is repeated conduct by the same offender; and (5) the economic situation of the offender (Article 221 GPL Regulation).

          Right to be heard

294.        When required to appear, a person must be given written notice, indicating the reason, place, time, and date he or she must appear, the facts imputed to him or her, and his or her right to present evidence or arguments (see subsection on non-discrimination, in this section). The hearing must be held within 30 working days of the notice. Once notice is made and until the hearing is held, the interested person or his representative may present his evidence and argument. A written record must be made of the hearing. The person must be warned about the consequences of failing to appear. In case of non-appearance, the facts alleged with respect to the person are presumed to be true, and the respective sanctions are imposed (Articles 154 and 155 GPL, and Article 113 GPL Regulation).

295.        A person held in an INM detention facility (estación migratoria) must make a statement by administrative act and in the presence of two witnesses. The person is informed of the facts of which she is accused, her right to present her evidence and argument (Article 209(V) GPL Regulation and Article 22 of the Executive Order on Detention Facilities of November 26, 2001).

296.        On reviewing the resolutions by which expulsion orders are given, the Rapporteurship observes that they do not include information such as the date of entry to Mexico or the date on which the person was detained by the Mexican authorities. In addition, the information that appears in the resolution on the infraction committed is very vague.[169] The resolutions fail to mention the response of the person accused of the infractions. This would help guarantee the right to be heard, since the official would be required to include the arguments tending to refute the charges, or acknowledge the administrative violation, in the resolution.  This would also facilitate reconsideration and the recurso de amparo.  The resolution does not indicate that it is subject to a recurso de revisión, which was observed in the communications from the COMAR determining that a person does not meet the conditions for obtaining refugee status.  The Rapporteurship considers that it would be advisable to include the above-noted information in the resolution, and to specify or describe in more detail the acts that constitute the infraction of the immigration laws. In addition, the resolutions should indicate that the person has the right to be heard anew, by filing a motion for reconsideration (recurso de revisión). This would contribute to respect for the right to be heard not only by the authority that issued the resolution, but also by the authority that might hear the motion for reconsideration thereof.[170] Finally, the Rapporteurship recommends that a person who is subject to an immigration proceeding receive a copy of the record in relation to which he or she gave testimony.

          Information, translation, and interpretation

297.        The procedure described in the immigration laws provides that information and translation shall be made available to a foreigner who has been detained because of immigration status. When a statement is taken, the person is informed of the charges alleged, and his right to present evidence and arguments. If necessary, a translator is used to hold the hearing. In addition, the person is informed of his or her right to appoint a representative or person of his or her trust to provide assistance. Finally, the person detained will have the right to access to his or her file (Article 209(V) GPL Regulation).[171]

298.        During its visit to the Iztapalapa detention facility, the Rapporteurship had an opportunity to ask the detained persons about their immigration proceedings.  In general, the persons interviewed said they were unaware of their immigration status or the stage of the proceedings.  Even though the laws indicate otherwise, the persons detained did not have a copy of the statement they had made to the immigration authorities.  Other persons did not even know why they had been apprehended since their immigration papers were in order. The Rapporteurship notes that this situation is common, as it has learned of similar cases.[172]

299.        By Circular 010/99 of April 1999, the Director of the INM issued guidelines regarding the immigration procedures for persons deprived of their liberty. It is provided that a third person provide assistance for any non-Spanish-speaking foreigner. Yet Circular 010/99 does not specify who that third person is.  The INM informed the Rapporteurship that after its visit, it had hired an English interpreter and a Mandarin Chinese interpreter. The Rapporteurship urges the immigration authorities to make similar efforts to provide interpreters for several other languages. The state has the duty to provide translation and interpretation for persons in immigration proceedings.  Translation and interpretation should be incorporated as a basic element of immigration proceedings in Mexico.

300.        In the resolutions on expulsion orders that the Rapporteurship had the opportunity to examine, it observed no indication is given whether the persons addressed in them were given notice. On the other hand, the Rapporteurship found that other resolutions are duly notified, such as those granting provisional custody.

          Legal representation

301.        Those persons who show that they have a legal interest can appear directly or through a legally authorized representative in immigration proceedings. The communications (called promociones in Mexico) directed to the Interior Ministry should be signed by the interested person or his or her legal representative (Articles 147 and 148 GPL). From the notice of the hearing until it takes place, the representative of the person subpoenaed may present evidence and arguments (Article 113(II) GPL Regulation).

302.        Under the Mexican legal framework, when a person is detained at an estación migratoria he or she is allowed to communicate with the person of his or her choosing. This includes the possibility of communicating with one’s legal representative, if any. In addition, when a person is apprehended and a statement is taken, that person is informed of the right to appoint a representative or person of his or her trust for assistance during the immigration proceeding. In addition, a person who is detained has the right to be visited at the INM detention facility by that representative or person of trust, among other persons (Article 209 GPL Regulation). The executive order regarding the detention facilities establishes the duty to provide access to those facilities to the detainees’ legal representatives. The Rapporteurship has learned of instances when civil society organizations have had a hard time entering the detention facility to meet with persons they are assisting or with other persons who might be interested in receiving legal assistance.[173]

303.        The right to legal representation is upheld when there are means to obtain such legal representation. In the case of Mexico, the Rapporteurship understands that budgetary limitations make it impossible to provide public defenders. In addition, the Rapporteurship wishes to recall that the IACHR indicated that the presence of the National Human Rights Commission does not constitute the judicial representation guaranteed by the right to defense, since the officers of that entity cannot legally represent a foreigner in such proceedings, but may only be present in their capacity as observers.[174]

          Judicial review

304.        One may file a motion for reconsideration (recurso de revisión) to challenge the decisions of the immigration authorities, and, in turn, a motion for amparo (recurso de amparo) against the decision on the motion for reconsideration. The recurso de amparo constitutes judicial review of the resolutions handed down by the INM officers.

305.        The resolutions handed down by the immigration authorities are administrative acts, and, therefore, must contain the elements and requirements of administrative acts indicated in Article 3 of the Federal Administrative Procedure Act (FAPA). Motions for reconsideration against the resolutions of the immigration authorities are governed by the FAPA.[175] That law makes it possible to file a motion for reconsideration against the acts or resolutions of the authorities that put an end to an administrative proceeding or to a mechanism or that resolve a case (Article 86 FAPA and Article 227 GPL Resolution ). In addition, one can try to recur to the courts of justice when admissible (Article 83 FAPA). The motion for reconsideration may be filed within 15 days of being notified of the resolution (Article 85 FAPA) and must be resolved within 60 calendar days. Moreover, when entry or a change in status is denied for any of the reasons indicated in Article 37 of the GPL,[176] the authorities may order the reinstatement of the proceeding or that a new resolution be handed down with respect to the principle of legality and due process guarantees (Article 228 GPL Regulation).

306.        A recurso de amparo may be brought against a decision resolving the motion for reconsideration.[177] The recurso de amparo is presented before a judicial authority. The filing of a recurso de amparo does not suspend the administration determination.[178] The person harmed or his or her legal representative may file an indirect amparo at any time (Article 22(II) Ley de Amparo). The decisions of the Circuit Courts (Tribunales Colegiados de Circuito) have adopted contradictory positions with respect to whether foreigners, without prejudice to their immigration status or characteristic, enjoy standing to institute an amparo proceeding.[179] In addition, amparo proceedings may be instituted by mail.[180]

307.        The Rapporteurship is concerned on finding the possibility that a person whose immigration status is not in order might not be able to present a recurso de amparo to seek judicial review of a resolution handed down by the immigration authorities. Under the American Convention (Article 25), foreigners, independent of their immigration status, must have access to an effective judicial remedy to controvert the decisions of the immigration authorities. The Rapporteurship noted that the resolutions handing down expulsion orders provide no indication that one may file a motion of reconsideration to challenge them.[181]

          Consular access

308.        Mexican law provides that when a person is deprived of liberty at an INM detention facility his or her consular representative accredited in Mexico must be notified immediately, and if the person does not have travel and identification papers, the consular representative will be asked to issue them (Article 209(III) GPL Regulation). The respective procedure is described in a circular, in keeping with the Vienna Convention on Consular Relations and Advisory Opinion OC-16 of the Inter-American Court of Human Rights.[182] In addition, the 2001 executive order on INM detention facilities establishes the duty to provide access to such facilities to diplomatic or consular representatives.

309.        Persons deprived of liberty must be informed of their right to communicate with the consular authority of their country and to seek and receive assistance from that authority. One fundamental aspect of consular assistance is that it should proceed based solely on the decision of the person to whom the assistance is to be provided. Accordingly, that person must be consulted before the consulate is informed, and the consulate must consult with the person before providing the assistance.[183] The Rapporteurship has information on one case in particular concerning two asylum-seekers whose consulate was informed about of their presence in Mexico, even though they had not been consulted beforehand.[184]

310.        The Rapporteurship learned of many incidents in which the consular representations accredited in Mexico did not provide expeditious or effective assistance to their nationals.  In addition, the Rapporteurship learned of other cases in which the absence of a consular representative results in persons who are to be expelled being held for days and even months, awaiting the issuance of travel documents.  In this connection, the Rapporteurship observed that the Mexican officials inform the diplomatic and consular representations as to the presence of their nationals, their requests for assistance, or their need for to have their travel documents issued. Nonetheless, some states do not provide adequate or expeditious consular assistance to their nationals.

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