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...continued 5.
Massive Expulsion, proceeding of expulsion 1. Can any determined
group of immigrant workers and their family members be expelled as a group from
your country? 2.
What is the competent authority to determine whether an immigrant worker
and members of his family can be expelled from your country?
Is it the same authority for both regular and irregular immigrant
workers?
a) Can an immigrant worker and
his family members who are expelled from your country go to a country other than
his country of origin? b) What is the administrative
or court procedure to expel an immigrant worker and his family members from your
country? Are there different
procedures for regular immigrant workers and irregular immigrant workers? c) Do both regular and
irregular immigrant workers have court remedies to apply for or seek a review of
the measure? If so, could you
indicate what these actions are and describe them? d) When such a review is
pending, is the immigrant worker expelled or can he remain in your country until
the review is finally resolved? e) In what language are
immigrant workers informed of the decisions of administrative or court
authorities? 3. If an immigrant
worker and his family members are expelled under the terms of a resolution from
an administrative authority and the resolution is later nullified, does that
person have a right to any compensation? If
so, can you describe the procedure followed to obtain such compensation? 4. After an expulsion
resolution is issued, how much time is given to the immigrant worker and his
family members to leave the country? What
information is taken into account to determine how much time they have before
they must leave your country? 5. If an immigrant
worker is expelled or deported, whether he is regular or irregular, what happens
to any pending matters related to him, an example being any wages owed to him? Brazil 1.
To determine the expulsion of an alien who is lawfully or unlawfully in
the country. It is applied to an alien who in any manner poses a threat to
national security, political or social order, public morals or the national
economy, or whose actions are contrary to the national interest. It is also
applied to those who used fraud to enter or remain in Brazil, or who entered the
national territory in violation of the law, if they have not left within the
prescribed time and their deportation is not desirable; and to those who are
engaged in vagrancy or begging or disregard the prohibition established
expressly in the Law Governing Foreigners (Article 66 of Law No. 6,815/80, as
amended by Law No. 6,965 of December 1981). a.
Yes. Expulsion is the compulsory removal to the country of origin or
another country of the alien’s choice that will admit him or her.
Three separate instruments involve the forced removal of aliens from
national territory: deportation, expulsion, and extradition. The sole paragraph
of Article 58 of Law No. 6,815/80, concerning deportation, provides that
“deportation shall be to the country of which the alien is a citizen or from
which he or she has come, or to another country that agrees to admit him or
her.” b.
Expulsion is an act to defend the state, involving the removal of an
alien considered detrimental to the national interest.
Normally, and almost invariably, it is applied to an alien who is
convicted of a crime. He or she is
deported after serving the sentence. The
proceeding begins with a hearing, at which the alien has full right to counsel.
The expelled alien may not reenter Brazil.
Return is a crime under Article 338 of the Penal Code.
It should be noted that aliens are not expelled if they have a Brazilian
child in their custody, who is financially dependent upon them, or if they have
had a Brazilian spouse for more than five years. c.
The law contemplates the possibility of canceling the expulsion process
if it is incorrectly applied or if there is new evidence to warrant
reconsideration of the case. It is always an administrative proceeding. The
alien, like a Brazilian, is entitled to a full defense and to make counter
motions. He or she may file suit to overturn or reverse the proceeding. The
principle of counter motions is an integral part of the expulsion investigation.
Article 95 of Law Nº 6,815/80 provides that “aliens resident in Brazil are
entitled to all the rights afforded to Brazilians under the Constitution and
applicable law.” e.
In Portuguese, presuming that the person has a basic understanding of the
language. If not, there is an attempt to communicate in Spanish or English, the
most common foreign languages in Brazil. If
it is necessary, voluntary interpreters from the respective diplomatic or
consular mission may be used. If
they are not available, the person must rely on the good will of third parties,
such as nongovernmental organizations that aid immigrants. 2.
As mentioned in item 34-c, the right of all persons to have access to the
courts is guaranteed. If the alien believes that the order for expulsion was
unjust or arbitrary, after the expulsion was cancelled he or she may sue for
material and moral damages. The final decision is up to the courts. 3.
There is no set time. As soon as the case is decided by the court, the
alien is expelled, by presidential decree.
When the decree is published in the Official Gazette, the Federal Police
Department of the Ministry of Justice sends to the Ministry of Foreign Affairs
(Directorate of Consular and Legal Affairs and Assistance for Brazilians Abroad)
the detailed expulsion order. The Federal Police then takes the necessary steps
to carry out the deportation as rapidly as possible and takes the alien to the
airport or border post. 4.
Nothing prevents an alien from executing a power of attorney to have
someone follow the proceedings in Brazil. The
Law guarantees payment of wages for legal work. There is no way to guarantee
payment of wages from illegal exercise of a profession. 5.
Item 32 enumerates the causes that give rise to deportation or expulsion
of aliens. In Brazil, access to legal aid is free and a constitutional principle
regulated by law. Legal aid is provided to persons who lack the financial
resources to pay court costs and lawyer’s fees, determined on the basis of a
socio-economic profile of the individual. In theory, the public defender is
available to persons who earn less than five times the minimum wage and lack
substantial assets. Canada
1.
No.
2. At
ports of entry and inland offices, senior immigration officers are authorized to
issue departure orders and exclusion orders of most persons in violation of the Immigration
Act.
Other persons whose cases have not been resolved by a senior immigration
officer, or who are not allowed to enter Canada or who, after entering Canada,
are alleged to be in violation of the Immigration
Act or Regulations, have the right to be heard at an immigration inquiry.
Adjudicators from the Adjudication Division of the Immigration and
Refugee Board preside over these inquiries.
These adjudicators are individuals specially trained in immigration law
and related elements of civil, criminal and administrative law.
Adjudicators have the powers of a Commissioner under Part 1 of the Inquiries Act.
Those facing an immigration inquiry have the right to be represented by
the counsel of their choice at their own expense and the right to be heard in
their own language, through an interpreter, at no expense. The right to counsel
is dealt in section 30 of the Immigration
Act and in sections 27 to 39 of the Immigration
Regulations. a.
This may depend on circumstances such as documentation, country of last
permanent residence, willingness of country of origin to take back the concerned
individual(s).
Subsections 52(1), (2) and (3) of the Immigration
Act provide as follows: 52
(1) Voluntary Departure - Unless otherwise directed by the Minister, a person
against whom an exclusion order or a deportation order is made may be allowed to
leave Canada voluntarily and to select the country for which that person wishes
to depart. 52
(2) Place to Which Removed - Where a person is not allowed to leave Canada
voluntarily and to select the country for which he wishes to depart pursuant to
subsection (1), that person shall, subject to subsection (3), be removed from
Canada to: (a)
the country from which that person came to Canada; (b)
the country in which that person last permanently resided before he came
to Canada; (c)
the country of which that person is a national or citizen; or (d)
the country of that person's birth. 52
(3) Idem - Where a person is to be removed from Canada and no country referred
to in subsection (2) is willing to receive him, the person, with the approval of
the Minister, or the Minister, may select any other country that is willing to
receive that person within a reasonable time as the country to which that person
shall be removed.
b. Canada
does not expel immigrants or temporary workers legally in the country (in
regular status). The procedure for persons illegally in Canada (not in regular
status) are as follows:
The Adjudication Division of the Immigration and Refugee Board, conducts
immigration inquiries and detention reviews initiated by senior immigration
officers for certain persons believed to be inadmissible to, or removable from,
Canada in the Immigration Act. Adjudicator's power include the following: -
Departure order - A removal order made against a person who has violated
the Immigration Act or Regulations.
It requires that the individual obtain a Certificate of Departure and to leave
Canada within a period of time specified in the Immigration
Regulations. If the person does not leave the country within that time, the
departure order automatically becomes a deportation order. -
Deportation order - Directs the removal of a person from Canada who
either inadmissible or has violated the Immigration
Act and Regulations. A person who is the subject of a deportation order will
be removed from the country and may not return without the consent of the
Minister of Citizenship and Immigration. -
Exclusion order - Requires a person to be removed from Canada. After an
exclusion order has been carried out, the person cannot return to the country
for at least one year after the departure date without the consent of the
Minister. If the person wishes to return to Canada during this period, he or she
must initiate a request for the Minister's consent at a visa office abroad. -
Inclusion of family members - After each dependant has been heard at an
inquiry, an adjudicator may include dependent family members in a removal order
unless they are Canadian Citizens or permanent residents aged 19 or over.
Dependent family members included in a removal order do not require the
Minister's consent to return to Canada.
As indicated earlier, Section 30 of the Immigration Act recognizes that
persons facing an immigration inquiry are entitled to be represented by counsel
if they desire, but that shall be at the person’s own expense. However,
representation by counsel may be funded through legal aid.
c.
Judicial review of decisions under the Immigration Act is available,
with leave, before the Federal Court Trial Division pursuant to s. 82.1 of the
Immigration Act. In the immigration
context, the Court's stated test for granting leave i snot rigorous --an
applicant need only show that there is a "fairly arguable case" or a
"serious question to be determined" for leave to be granted.
d.
The person can remain in Canada pending review.
e.
Please refer to beginning of this question.
3.
Section 52.1 of the Immigration
Act provides as follows: Return to Canada - Where a removal order, other
than a removal order that may be appealed to the Appeal Division, has been made
against a person and the person is removed from or otherwise leaves Canada, the
person may, at the expense of the Minister, return to Canada, if the person is
subsequently successful in having the removal order set aside.
4.
In general, the Immigration Act,
stipulated that removal orders must be executed "as soon as reasonably
practicable". However, the Immigration
Act also provides that "no removal order becomes invalid by reason of
any lapse of time between its making and execution". Generally,
a removal order will be executed within few weeks of its making and persons will
normally be allowed a reasonable period of time to arrange their affairs in
Canada before execution of the order.
5. The
reference to "any pending matters relating to him" is too vague for a
response. If it is intended to
refer to legal actions, there is nothing to preclude an individual from
continuing or bringing a civil action in a Canadian court.
Colombia 1.
Immigrant workers could be expelled if they are illegal or if they commit
acts which contravene national laws. Expulsion in Colombia is ordered on
a case by case basis according to facts previously established, and these facts
can be classified as acts that put the security of the State in danger or as an
accessory punishment to a crime which is ordered through a final sentence; it is
not applied in a collective manner. Article 22(1) of the International
Convention on the Protection of the Rights of All Migrant Workers and the
Members of Their Families provides that: "Migrant workers and members of
their families shall not be subject to measures of collective expulsion. Each
case of expulsion shall be examined and decided individually."
Paragraph 2 states: "Migrant workers and members of their families
may be expelled from the territory of a State Party only in pursuance of a
decision taken by the competent authority in accordance with law." 2.
The only competent authority to order an expulsion in Colombia is the
Administrative Department of Security [Departamento
Administrativo de Seguridad], on its own initiative or in conformity with an
order from a judge of the Republic, within a final sentence, as an accessory
punishment. a.
Article 22(7) of the Convention previously mentioned states that:
"Without prejudice to the execution of a decision of expulsion, a migrant
worker or a member of his or her family who is subject to such a decision may
seek entry into a State other than his or her State of origin."
In the same respect, article 23 provides that: "Migrant workers and
members of their families shall have the right to have recourse to the
protection and assistance of the consular or diplomatic authorities of their
State of origin or of a State representing the interests of that State whenever
the rights recognized in the present Convention are impaired. In particular, in
case of expulsion, the person concerned shall be informed of this right without
delay and the authorities of the expelling State shall facilitate the exercise
of such right."
In conformity with the currently existing norms, whoever shall be the
subject of deportation or expulsion can seek entry into the State of their last
place of residence or to a State where they are welcomed.
b. The
expulsion is imposed by means of a resolution with reasoning against which
proceed that remedies of reinstatement and appeal established in the
Administrative Law Code. There is
one exception which is the expulsion as an accessory punishment imposed in a
final sentence, fulfilled through an interlocutory order.
Article 197 of Decree Law 2371, dated 1996, "through which orders
are issued concerning expedited visas, the control of foreigners, and other
issues concerning immigration matters," established the procedure
which is to be followed for the expulsion of foreigners. The
Directorate of Foreigners of the Administrative Department of Security [Dirección
de Extranjería del Departamento Administrativo de Seguridad], DAS, without
detriment to the sanctions that are applicable, could order, by means of a
resolution, the expulsion from the national territory of the foreigner that has
committed any of the acts mentioned below. Having
been sentenced to prison, a sentence which did not contemplate the accessory
punishment of expulsion from the national territory. Intervene
in or carry out acts committed against the existence and security of the State
which disturb public order. Having
committed conduct that, in the opinion of the migrant authorities, qualifies the
foreigner as dangerous to national security or social order. Dedicate
themselves to the selling or trafficking of illegal drugs, pandering and, in
general, participating in antisocial behavior. Illegally
traffic in arms, or elements that are of private use for the Armed Forces. Return
to the country prior to the time decided in the deportation resolution.
Having
been convicted for common crimes abroad and not being able to be tried before a
court in the country. Facilitate
the entry of foreigners with false promises of obtaining contracts, being
supplied with visas or entry documents, or being granted permanent residence. Paragraph.
One can appeal the administrative act, which imposed the expulsion, by
means of the remedies available at the governmental level, which would grant a
temporary stay unless there are important security reasons that would oppose
such an act. Article
199. The foreigner affected by
means of expulsion can only return to the country with a visa authorized by the
Ministry of Foreign Relations, having passed a period of no less than five (5)
years, designated in the administrative act that enforces or executes it.
c.
As a guarantee, once the remedies brought against the resolution
concerning expulsion have been resolved, the governmental remedies exhausted, an
administrative act can be filed within the jurisdiction of the Administrative
Courts [Contencioso Administrativo]. Article 22, paragraph 4, of the
Convention provides that: "Except where a final decision is pronounced by a
judicial authority, the person concerned shall have the right to submit the
reason he or she should not be expelled and to have his or her case reviewed by
the competent authority, unless compelling reasons of national security require
otherwise. Pending such review, the person concerned shall have the right to
seek a stay of the decision of expulsion." In that respect, the sited Decree Law 2371 of 1996, in
paragraph 191, provides the following: "One can appeal the administrative
act, which imposed the measure of expulsion, by means of the remedies available
at the governmental level, which would grant a temporary stay unless there are
important security reasons that would oppose such an act." Article 198 states that: "When
the expulsion is decided as an accessory punishment by means of a final
sentence, the Director of Foreigners [Director
de Extranjería], the Directors of Sections [Directores Seccionales] and the Chiefs of Operative Posts of the
Administrative Department of Security [Jefes
de Puestos Operativos del Departamento Administrativo de Seguridad], DAS, by
means of an interlocutory order, would comply with the expulsion of the
foreigner and would make the respective notifications to the Minister of Foreign
Relations and to the judicial office which ruled on the order." d.
The remedies that proceed the deportation resolution and appeal are
considered in effect suspended for the purpose of permitting the foreigner to
wait for the final decision within the country. e.
The principal language used is Spanish.
The foreigner is notified of all administrative or judicial acts in the
language mentioned, unless the help of an interpreter is necessary, in which
case assistance is requested from the diplomatic mission of the country from
which the individual is a national. 3.
No. There do not exist any mechanisms for compensation. 4.
The average period is 30 days from the date of the
final decision. 5.
The DAS has explained that if the migrant authorities are aware of the
situation, the established period can be extended until the administrative
situation is resolved, granting them a document which permits them to remain in
the country without risk. In spite of that, in the case of
the deportation of legal workers, the rights they have acquired are respected
and the employer is responsible for answering for those rights.
Dominica 1.
No. 2.
a. We
regret that we are not able to answer your question.
b.
No. 3.
We regret that we are not able to answer your question. 4.
We regret that we are not able to answer your question. 5.
We regret that we are not able to answer your question.
Ecuador 1.
Yes, they can be expelled if they are illegal or if they incurred in a
deportation cause. 2.
The “Intendente de Policia” is the only authority who knows about
deportation. a.
Yes they can do it to the place where they came from or of the last
embarkation. b.
There is a unique procedure and the competent authority to resolve is the
“Señor Intendente de Policia”. c.
Yes they have, everybody is entitled to the right of to defend themselves
and prove their statements during and in the same procedure that is known by the
“Intendente” d.
Yes, he stays in the country. e.
It is communicated in Spanish, and in their own language, for most of the
times the embassies and diplomatic missions are asked for help. 3.
There is no such right recognized in the law. 4.
The custom obliges them to leave the country immediately, there is no
time established by law. 5.
In accordance to the Labor Law, they are acquired rights and must be
recognized, although there is some lack of legislation.
Grenada
1. No.
2. Departament
of Imigrations (ii) Yes. a.
Yes.
b. Civil
Court Action (ii) No.
c. Yes
(ii) judicial system.
d. Yes.
e. English.
3. Yes
(ii) determined by the Court.
4. Determined
by the Court.
5. Treated
previous to the expulsion.
Guatemala 1.
In Guatemala there do not exist criminal penalties against the collective
deportation of "migrant workers."
What does occur with a certain frequency are cases of the deportation of
groups of illegal immigrants which have been detained by the national
authorities upon request by the migrant authorities, almost always at the moment
upon entry to the country. In these
cases, even though the law orders that they receive individual treatment through
coordination among the competent Guatemalan authorities, the diplomatic
representatives of a group of illegals, and international organizations within
the country, they continue to deport these individuals collectively. 2.
The administration of the records, control and documentation of the
movement of migrants corresponds to the Ministry of Governance [Ministerio de Gobernación], in accordance with that established in
article 36, letter K, of the "Ley del
Organismo Ejecutivo." According
to article 2 of the Law of Migration and Foreigners [Ley de Migración y Extranjería], the General Directorate of
Migration [Dirección General de Migración]
is responsible for complying with the law, as well as all the dispositions
related to matters concerning migrants and the control of foreigners.
The General Directorate of Migration [Dirección
General de Migración] is a branch of the Ministry of Governance [Ministerio
de Gobernación]. a.
Article 88 of the Law of Migration and Foreigners [Ley
de Migración y Extranjería] establishes the following with respect to the
destination of those expelled: "The
expelled foreigner will leave with his destination being the country from which
he came from, his country of origin, or whichever country the foreigner chooses
and that authorizes his entry." b.
If the Inspection of Workers [Inspección
de Trabajo] proves the undocumented status of a migrant worker, the case
will be sent to the General Directorate of Migration [Dirección General de Migración] so that they may proceed to
initiate the expulsion process. The procedures that must be
followed are the following: The General Directorate of
Migration [Dirección General de Migración]
requests the consulate of the country from which the undocumented migrant worker
is a national to grant a temporary identification document for the purpose of
travel. Subsequently, the General
Directorate of Migration [Dirección
General de Migración] grants safe-conduct to leave the national territory. In the case of Central Americans,
the General Directorate of Migration [Dirección
General de Migración] proceeds to take them by land to the border with a
Central American country. In cases
involving other countries in which the above mechanism can not be utilized, they
coordinate with international organizations so that they cover the cost of an
airplane ticket to the country from where the migrant worker is a national. In the case of documented migrant
workers, they can only be expelled if they commit a violation of certain
articles of the Law of Migration and Foreigners [Ley de Migración y Extranjería].
Nevertheless, their expulsion should be carried out according to the
procedure established en article 89 of the Law of Migration and Foreigners [Ley
de Migración y Extranjería], which states: "The order of expulsion
should be notified to the person effected, within twenty-four hours following
their release, who will have a period of no more than eight days, beginning from
the moment he was properly notified, to leave the national territory." c.
The applicable legal provisions are cited bellow: The Political Constitution of the
Republic of Guatemala, article 29, establishes that: "Free access to courts
and State institutions: Every person has free access to the courts, institutions
and offices of the State, for the purpose of exercising their legal actions and
to have their rights respected in conformity with the Law.
Foreigners can only turn to diplomatic channels in the case of a denial
of justice." Article 41 of the Law of Migration
and Foreigners [Ley de Migración y
Extranjería]: "Foreigners are granted the right to liberty, equality
and personal security, their honor and possessions, in accordance with
constitutional principles, subject to the exceptions established by law." Article 42 of the Law of Migration
and Foreigners [Ley de Migración y
Extranjería]: "Every foreigner has the duty to obey and respect the
laws, institutions and authorities of the Republic, and should be subject to the
decisions and sentences made by the courts, without making use of other remedies
granted by those same laws to Guatemalans." Article 51 of the Law of Migration and Foreigners [Ley
de Migración y Extranjería]: "Only in the case of the denial of
justice or voluntary delay of the same can foreigners resort to the diplomatic
route if they have exhausted the common remedies established by law.
Appeal to the diplomatic route will only serve to ensure compliance with
the law." Article 52 of the Law of Migration
and Foreigners [Ley de Migración y
Extranjería]: "It is understood that there is a denial of justice when
the judicial authority does not make a formal declaration concerning the
principal issue or any other part of the legal action which is currently before
him or presented to him." The mere fact that a judge has made
an interlocutory order or declared a sentence, regardless of the ruling, does
not permit one to allege a denial of justice, even when it is argued that the
resolution on the merits is contrary to that established by law. d.
They can remain in the country if they have properly registered with the
Foreign Department of the General Directorate of Migration [Departamento de Extranjería de la Dirección General de Migración]. e.
Article 143 of the Political Constitution of the Republic of Guatemala
provides, Official Language: "The official language of Guatemala is
Spanish. The dialects form part of
the cultural possessions [patrimonio
cultural] of the Nation." Notwithstanding
the above, the migrant authorities coordinate with the Guatemalan Ministry of
Foreign Affairs so that they, at the same time, contact the respective embassies
in the country of the immigrants that are involved in the case in order to
facilitate interpretation for the purpose of providing adequate communication. 3.
The Political Constitution of the Republic establishes, in article 155,
that: "Responsibility for Breach of the Law.
When a dignitary, official or employee of the State, during the course of
their employment, breaches the law causing damage to individuals, the State or
the State institution, of which the person is an agent, will be held responsible
for the injuries and damages caused." The Civil Code [Código
Civil] article 1665: "The State and municipalities are responsible for
the injuries or damages caused by their officials or employees, during the
course of their employment." This responsibility is a subsidiary
one that can only be effective when the official or employee does not have
assets or, if they do have assets, does not have sufficient assets to answer for
the injury or damage caused. In order for the above concepts to
be carried out, it is necessary to follow a process before the courts of civil
order [tribunales del orden civil].
4.
The Law of Migration and Foreigners [Ley
de Migración y Extranjería] establishes, in article 89, that: "The
order of expulsion should be notified to the person effected, within twenty-four
hours following their release, who will have a period of no more than eight
days, beginning from the moment he was properly notified, to leave the national
territory." Normally, the General Directorate
of Migration [Dirección General de
Migración] grants deported individuals a minimum of 72 hours to leave the
country. Nonetheless, an
extension to remain in the country can be authorized in special or extraordinary
cases, in which it is necessary to
prolong the period established by law. 5.
In these cases it is the Inspection of Labor of the Ministry of Labor and
Social Security [Inspección de Trabajo
del Ministerio de Trabajo y Previsión Social] who should be concerned with
the payment of the corresponding salary owed.
Some cases have been resolved through signing a Payment Agreement [Convenio
de Pago] between the parties.
Honduras
1. a.
It could be the case, when it involves a group of family members under
the responsibility of the mother or father.
b. When
the group of workers is collectively responsible for violating the Laws of the
Republic, regulations or other pre-established rules.
2. The
Executive branch, acting through the Ministry of the Interior [Secretaría
de Gobernación] (Articles 43 and 44 of the on Population and Migration
Policy Law), applied to all foreigners without regard to their migratory status
they enjoy during their stay in the country.
a. Usually
they are expelled back to their country of origin; in case they can go to
another country, they shall fulfill the requisites for entry and acceptance
established by the immigration authorities of the country they have chosen.
b. The
administrative and legal immigration processes vary according to the status the
immigrant holds at that moment; the normal processes are the notification to the
foreigner regarding his situation and later the travel to their country of
origin, with respect to human rights as provided for in the Universal Convention
on Human Rights.
c. As
is the case in every country under the rule of law, the immigrant is guaranteed
the right to defense, under the norms provided for in the Constitution of the
Republic and other legislation.
d. He
remains in our country while the competent authorities review his case and issue
a final decision on it.
e. Usually
they are notified in Spanish; if that is not the immigrant’s language, a
translator is provided to him.
3. A
resolution may be nullified after the immigrant or immigrants have left the
country, under a request for a second review, which shall be made at the request
of those affected, through the Honduran Consulate closer to their residence, in
accordance with rules of international law; if this second resolution nullifies
the first one, the immigrants may again enter the country as compensation by the
Honduran State.
4. Article
44 of the Population and Migration Policy Law mentions a period of 24 hours for
the expulsion of foreigners, after this decision has been made.
More than 24 hours may be granted in case of illness, or for arrangements
involving real estate, home and family utensils, salaries, etc., which shall be
carried out under the responsibility of a legal representative. Mexico 1.
No. An act under
administrative authority which imposes the sanction of the expulsion of
foreigners should be issued individually, not collectively.
Frequently, transporting foreigners to their countries of origin, which
in this case would be migrants and their families, is carried out in a
collective manner, which in and of itself does not suggest that the expulsions
are done in the same manner since each of these individuals are issued an
expulsion order [oficio de salida]. On the other hand, having ratified
the American Convention on Human Rights, Mexico has incorporated within its
domestic law the prohibition of the collective expulsion of foreigners, provided
for in article 22(9) of said international instrument. 2.
The National Institute of Migration [Instituto
Nacional de Migración] (INM), as an independent organ of the Secretariat of
the Government [Secretaría de Gobernación],
is responsible for executing the political and administrative acts of the
Government of Mexico concerning migration matters. In the same manner, as the body responsible for the entry and
exit of foreigners from the national territory, they also have the competence to
determine which person or group of persons are qualified for expulsion from the
country in conformity with Mexican laws. a.
Not in principle. When
Mexico expels someone or carries out the act of repatriation, the destination
should be the migrant's country of origin, as a result of the fact that our
countries can not promise third counties to be responsible for these
individuals. Nevertheless, if
migrant workers and their families choose to go to a third State after having
been turned in by Mexico to the authorities of their country, they can do so
under their own responsibility. b.
In order to answer this question, it is necessary to establish various
grounds. That which establishes the
difference between the holding [aseguramiento]
and the detention or apprehension
of a foreigner, who could be a migrant worker or one of their family members, is
the reason for which such an act is being carried out. The holding of a foreigner is
carried out when one fails to respect an administrative order, for example not
to carry the documentation that proves their legal status to remain in the
national territory, which is regulated in article 152 of the General Population
Law [Ley General de Población] (LGP)
and 143 of its Regulations, which establishes: "the Secretariat [Secretaría
de Gobernación] will evaluate whether a violation of the LGP and its
regulations and other applicable norms has occurred, and in this case, they
would consider the nature and seriousness of the breach in order to determine
the sanction which corresponds to each individual, always taking into
consideration the circumstance which occurred, the evidence supplied by the one
who breached and their arguments with respect to the same." "When all the mentioned
elements have been put together, the Secretariat will decide the case with the
corresponding motivated and grounded resolution, of which the interested party
… should be personally notified." On the other hand, an order of
detention or apprehension must come from a judge, in accordance with article 16
of the Constitution, second paragraph: “An order for detention can not be
issued other than through judicial authority and without there being a report,
accusation or complaint of a determined act which the law defines as a crime,
sanctioning at least through the punishment of the deprivation of liberty and
there being facts which prove the elements which incorporate the crime and the
likely responsibility indicated.” The manner in which both an
administrative proceeding and a judicial process are conducted is similar, in
that they respect procedural and legal guarantees, which all individuals benefit
from. The difference between the
two proceedings consists principally in the type of authority that issues the
resolutions and the legal reasoning on which the resolutions are based.
An administrative procedure
concerning migration would be issued by the INM and would be based on the
Political Constitution of Mexico, the Federal Law of Administrative Procedure,
the General Population Law [Ley General de
Población] and its Regulations, among other legal ordinances. A criminal process would be tried
by the jurisdictional authority and it would be based on the Political
Constitution of Mexico, the Criminal Code of the Federal District, and the
Federal Criminal Code, the Federal Code of Criminal Procedure, and the General
Population Law [Ley General de Población],
among other legal provisions. In relation to criminal matters,
the status of a documented or undocumented migrant worker is not relevant, that
is to say, the crimes and punishments are issued and applied equally to
nationals and foreigners. With regard to administrative
breaches, the status of a documented or undocumented migrant worker is relevant,
based on the fact that once an undocumented migrant worker is detected, he is
susceptible to being expelled from the national territory, while a documented
migrant worker would not confront any form of administrative proceeding as long
as they do not breach Mexican migrant laws.
c)
Yes. When a documented or
undocumented migrant worker is the subject of an expulsion (administrative act)
they legally have two manners through which to appeal such an act. The first manner is the remedy of
review, which is regulated by the law of Federal Administrative Procedure, the
General Population Law [Ley General de
Población] and its Regulations. The
remedy of review should be presented before the authority that issued the
resolution; such a remedy should be presented by the interested party or their
legal representative after receiving notification of the resolution they are
challenging; additionally, it should be done in writing; the relevant evidence
will be considered, and the review will be resolved by the corresponding
authority within a period of 30 days from the date on which it was presented. The resolution issued in the remedy
of review could consist in the confirmation, revocation, modification of the
appealed act or the reinstatement of the proceeding. The second manner is the
presentation of an "amparo" (an action for the protection of
fundamental rights), which is grounded in the Mexican Constitution and the Law
of Amparo [Ley de Amparo].
It is important to note that an amparo
action is only brought against acts committed or resolutions issued by the
authorities of a final character, that is to say, in order to be able to present
an amparo action the ordinary remedies established by the applicable
law must first be exhausted. The amparo
demand is to be presented before a Distract Judge (Federal Judge). In accordance with article 1 of the
Law of Amparo [Ley de Amparo] “the trial of amparo serves the purpose of
resolving all controversies about: l.
Laws or acts of the authorities that violate individual
guarantees….” The requirements for the amparo
action to proceed can be summarized in the following form: The amparo should be presented by the complainant (the effected party,
which in this case would be the migrant worker), that is to say, by the person
who was directly effected by the expulsion. As established previously, the
ordinary remedies establish by law should be exhausted (in this case, fist they
should seek the remedy of review established in the LGP and against the
resolution of that remedy they could bring an action of amparo). The ruling from an amparo
action will only benefit the worker that solicited the protection of the federal
courts, that is to say, that even though other migrant workers find themselves
in the same situation, the ruling only benefits the one who brought the action.
The ruling will have the effect of resolving the situation so that the
migrant is put in the position he was before his rights were violated. d.
When a migrant worker has initiated the remedy of review or an action of amparo
against the resolution that ordered their expulsion and requests the suspension
of the expulsion, the worker should not leave Mexican territory until the
remedies concerning the expulsion are resolved. Article 159 of the LGP Regulations
establish the requirements for the suspension of the expulsion: Filing
this remedy suspends the execution of the resolution or the challenged sanction
if the complainant requested such suspension, in accordance with the following
rules: II.
In administrative resolutions, unlike those mentioned in the prior
paragraph, [resolutions that only concern economic punishment] if the following
requirements are fulfilled: a)
That the case be admitted; b)
That executing the resolution which is being appealed would cause damages
or injuries to the complainant that would not be able to be repaired in the
future (which is the case of the expulsion of a migrant worker); c)
That the suspension does not result in damages to social interests.
With respect to the suspension of the act being appealed in an amparo
action (the expulsion of a migrant worker), article 124 of the Law of Amparo
establishes the requirements so that the suspension may be granted:
…the suspension will be granted when the following requirements are
complied with:
I.
That the injured party solicits the legal action (the migratn worker); II.
That the suspension would not cause injury to social interests, and that
public order is not breached; III.
That it is difficult to repair the damages or injuries caused by the
expulsion which effect the complainant
e. The
migrant workers are notified of the administrative or judicial resolutions of
the Mexican authorities in Spanish because that is the official language of our
country. Nevertheless, the Mexican authorities try to have the
consulate of the migrant worker's home country present when that migrant worker
is notified of any resolution(s) in order to facilitate any situation related to
their native language. Additionally,
it is important to note that the majority of migrant workers speak Spanish
because they are from Central and South American countries. 3.
Yes. When a migrant worker and their family are expelled based on a
resolution from an administrative authority, and later this resolution is
voided, they can demand payment for the damages and injuries caused by that
resolution. The procedure is that of a
jurisdictional nature and would be adjusted in accordance with that established
in the Federal Law of Administrative Procedure and the Federal Code of Civil
Procedure. 4.
The period granted to a migrant worker to leave Mexico, issued through a
resolution that orders his expulsion, varies depending on the discretion of the
Secretariat of Government [Secretaría de
Gobernación]. Article 64 of the Regulations of
the LGP indicates: "The Secretariat could, in his own opinion, grant a
period of time to leave the country or to fully comply with the requirements of
the law. The employer or the
persons that the migrant worker depends on have the same obligations." There exists a practice or custom
among the migrant authorities that establishes a period of time between 30 and
60 days, depending on the special circumstances of each case. 5.
When a documented or undocumented migrant worker is expelled from Mexican
territory and, even after the expulsion, the employer owes the worker his
salary, the employer has the obligation to pay him.
In these circumstances the consular authorities of the country from which
the migrant is a national play a very important role because they serve as a
link between the Mexican authorities and the migrant worker. In the case where the employer
fails to pay the salary that they owe the documented or undocumented migrant
worker, an action can be brought against the employer according to labor law
before a Arbitration and Conciliation Panel, which the worker would have access
to, in spite of his migrant status, in order for the employer to pay the salary
due. Saint Lucia
1. Yes.
2. Chief
Immigration officer (Immigration Department) or the Court.
a. No. b.
Same procedure, ( arrest, charge, brought before the Court and deported). c.
They can appeal within 7 days, by using a Notice Appeal Form. d.
They remain in police Custody or the Chief Immigration Officer can
authorize for their stay to be extended. e.
In English and by Interpreter. 3.
No. 4.
At the earliest possible time/immediately regular checks are made;
concerning household effects. But sometimes persons leave the country and their
household effects. 5.
In some instances monies are not retrievable but in others if proper
documents are prepared they can be duly paid. continued... [ Table of Contents | Previous | Next ]
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