International migration is not a phenomenon that occurs only in developed countries. On the contrary, there are a large number of immigrants moving from one Latin American country to another.[i] In 2017, 4.9% of Argentina’s total population was immigrant. This rate was stable throughout the 1990-2017 period.[ii]
Migration itself is a cultural concept that was originated from the nation-state conception; human mobility is characteristic of humanity throughout history. Migration largely depends on the social, political, and economic context of each State. Occasionally, certain migration policies are taken as a result of a demagogic cause that may conflict with international human rights standards.
One concrete example of this is the response to Argentina’s recent Migratory Executive Order. In December 2016, a child in Argentina was shot in the head and killed. The killer was an underage boy from a Peruvian family that had settled in Argentina many years before. Since the offender was a minor, he was therefore immune from prosecution. In response, a series of street demonstrations occurred and protestors asked for his deportation as he was son of Peruvian people and had the Peruvian citizenship.[iii] The Argentinian government expelled him to Peru, where he was destined to stay with his grandfather. One month later, Argentine President Macri issued an Executive Order[iv] modifying the existing citizenship and migration laws, with the aim of accelerating deportation proceedings based on ‘recent forms of organized crime.’ The forms of organized crime covered by the new law were not specified. The decree pointed out that whereas immigrants represent the 4.5% of the total population, ‘21,38% of prison inmates are immigrants’ and that ‘33% of those incarcerated for drug trafficking are immigrants.’[v]
Based on these reasons, the Executive Order modified the National Migratory Act (Ley N° 25.871) and established a special summary trial to expel immigrants with criminal records or even those not registering criminal records, but who illegally entered the country. Similarly, it introduced significant reforms to the principle of family reunification, reducing the cases in which it could be invoked and restricting the scope of judicial review on this regard. These changes are an example of political measures that reflect the bias toward immigrants as responsible for what are in fact serious structural social problems, such as rising crime rates. In addition, as remarked previously, the decree had an impact on the whole immigrant community and was not limited only to those with criminal records.
In this context, it is vital to analyze these kinds of political decisions from a human rights perspective. Although States are enabled to determine their own migratory policies, the international human rights system sets limits to protect the fundamental rights that are at stake.[vi] For that purpose, I will address criticisms to two main parts of Argentina’s Migratory Executive Order, namely the reforms regarding the proceedings to challenge deportation and those related to the principle of family reunification. Following this analysis, I will suggest a specific measure to assess the impact that the new regulation has on immigrants’ rights of access to justice and family life.
II. The Decree’s Effect on Due Process Rights
Prior to the issuance of the Executive Order, Argentina’s immigration law permitted immigrants subject to deportation to ask for an administrative review within ten to fifteen days of notified the deportation order, depending on the administrative appeal available in each case. Once the administrative appeal was denied, they were able to seek a judicial review within a period of thirty days. Based on Inter-American Human Rights standards, the Federal Chamber of Appeals of Buenos Aires’ case law demanded that the National Department of Migration ensured a due notification, including information about the available appeal means and its deadlines, the right to be provided with free legal advice, and a free interpreter. To support this requirement, the Argentinian courts also put emphasis on the guarantee to effective judicial protection,[vii] which requires that States take positive actions to ensure an adequate defense against any decision that may affect the rights of disadvantaged groups.
The Executive Order created a summary trial, as well as enabled the National Department of Migration to judicially ask for preventive incarcerations[viii] and to decide whether the immigrant should be provided with a free immigration attorney. In order to qualify for a free attorney, the new Decree created a requirement that the immigrant proves his or her economic shortcomings before the Department of Migration, which is simultaneously entitled to decide on the legitimacy of the request. In addition, the Executive Order repealed the right to a special administrative review that allowed immigrants to ask the National Department of Migration to reconsider its expelling decision based on supervening facts or even on a violation to due process of law.
In Vélez Loor v. Panama, the Inter-American Court of Human Rights stated that immigration proceedings must be conducted in accordance with fair trial guarantees, regardless of whether the status of the migrants concerned is regular or irregular.[ix]Vélez Loor, the Panamanian police arrested an Ecuadorian man for violating their immigration laws. The Court considered that the Panamanian State had not guaranteed the rights covered by Article 8.1 and 8.2 of the Inter-American Convention, as he had not been immediately brought before a judge and had not been provided with an attorney.
Article 8.2 of the American Convention incorporates the minimum guarantees that every criminal proceeding must comply with, namely the right of the accused to be assisted without charge by a translator or interpreter, to be notified of the charges against him, to have adequate time and means for the preparation of his defense, to be assisted by legal council provided by the State, not to be compelled to plead guilty and to appeal the judgment to a higher court. According to the Inter-American Court’s interpretation,[x] the specific guarantees established in Article 8.2 apply to variety of matters that concern the determination of a person’s rights and obligations of a civil, labor, fiscal, or any other nature, particularly those of a punitive character, ‘a category into which proceedings to establish a person’s migratory status clearly fall.’[xi]
According to the Court, States must treat the migrant at all times as a true party to the proceeding, in the broadest sense of this concept, and not simply as an object thereof.[xii] In Pacheo Tineo v. Bolivia[xiii] and Dorzema v. Dominican Republic,[xiv] the Inter American Commission on Human Rights (IACHR) argued that every deportation proceeding must provide immigrants with a free legal representation, and must “take into account the particular characteristics of the person’s situation so that he or she has effective access to justice on equal terms.”[xv] Similarly, the Commission has stated that ‘summary deportation proceedings or so called direct-back policies run counter to the guarantees of due process as they deprive migrants […] the right to a hearing, to defend their rights adequately, and to challenge their expulsion.’[xvi]
Following the Inter-American standards it is possible to state that: (i) deportation proceedings must comply with the guarantee to a fair trial irrespectively of the individual’s migratory status; (ii) the judicial guarantees established in the Article 8.2 of the American Convention may be applicable to deportation proceedings because of its punitive nature; (iii) an effective administrative and judicial protection must attend to de facto inequalities. Hence, deportation proceedings require specific guarantees attending to the difficulties that usually surround immigrants, namely the lack of knowledge of the national legal system and the national language, as well as the economic, social and cultural obstacles they usually confront.
From this perspective, immigrants should be provided with the right to be assisted without charge by a translator or interpreter and the right to access to the services of an attorney free of charge.[xvii] This means that States must ensure that the immigrants are able to understand the proceedings they are involved in and the rights they are entitled to. Similarly, the State must provide immigrants legal advice to guarantee a proper legal defense against deportation free of charge. Additionally, the state must duly notify all immigrants of these rights in advance. Ultimately, immigrants are entitled to a real legal defense -not a fictitious one- in which they are able to understand the proceeding, be aware of their rights and present all the arguments and proof they consider relevant to support their position. Equally important, authorities should be fully aware of all the peculiarities and specific circumstances of each case, as deportation must be an exceptional measure and the last alternative.
Viewed in these terms, Argentina’s Executive Order represents a setback in the guarantee of an adequate defense and effective administrative and judicial protection in several ways. First, the Decree created a summary deportation proceeding thereby dramatically reducing administrative and judicial review from a minimum of ten days—and allowing up to thirty days depending on the nature and disposition of proceeding—to three working days in all cases.[xviii] This short three-day period does not allow for preparation of an adequate defense, particularly when the immigrant may be in a vulnerable situation caused by language difficulties, lack of knowledge of the legal system, and obstacles accessing to a counsel. Considering the rights at stake—such as the right to a family life—and the disadvantageous situations that immigrants often face, migration proceedings should reinforce the guarantee of access to justice instead of minimizing it.[xix]
Second, before the Executive Order was issued, the Department of Migration was obliged to inform the immigrants of their right to a free attorney and had no competency to analyze the immigrant’s financial situation in order to determine whether the immigrant would be entitled to for free representation. According to the Executive Order, a free attorney can only be provided by the National Department of Migration after evaluating whether the immigrant is in a poor condition to afford a private one. This is a further significant point of criticism, as the same authority in charge of initiating the expelling proceeding is empowered to prohibit the immigrant’s access to a free attorney, leaving the immigrant defenseless.
Third, the Executive Order enables the National Department of Migration to judicially ask for the immigrant’s preventive incarceration during the appeals proceeding of the deportation order. The threat of incarceration during the appeals process will likely have a negative consequence for the immigrant and ultimately will result in a disincentive to the exercise of the right to defense.
Finally, the Executive Order repealed the right to a special administrative review that allowed immigrants to ask the National Department of Migration to reconsider its expelling decision based on supervening facts or even on a violation to due process of law. This special review process is a critical element of deportation proceedings because important events—such as the birth of a child or the outbreak of a disease—can dramatically impact the circumstances taken into consideration in a deportation case.
III. The Decree’s Effect on Family Reunification
Deportations may affect the right to a family life and the best interests of the child.[xx] Before the Decree entered into effect, the Migratory Act Num. 25.871 established that the National Department of Migration could revoke a deportation order when the immigrant could prove he or she had an Argentinian family. Indeed, in several cases the Federal Court of Appeals of Buenos Aires demanded that the National Department of Migration considered and adequately motivated the deportation orders when the principle of family reunification was invoked. Nevertheless, the Argentina’s issuance of the Migratory Executive Order reduced the circumstances under which the principle of family reunification can be invoked to only cases of deportation based on minor crimes or irregular entry.[xxi]
Even though the Inter American Court of Human Rights has stated that “the child’s right to family life does not transcend per se the sovereign authority of the States Parties to implement their own immigration policies in conformity with human rights,”[xxii] the Court has also expressed that during deportation proceedings that involve children, States must offer specific guarantees aimed at protecting the interests of the children. Particularly, they must safeguard the right to enjoyment of family life, as a result of which the individual decision must be appropriate, necessary and proportionate.[xxiii]
It might happen that an immigrant, who could have lived for several years in certain country, had formed a family and had children. As a consequence, his or her deportation would have an impact on the family—for instance, the family could economically depend on the deported immigrant—or on the best interests of the children involved—who might be forced to grow up without their parents or move to another country.[xxiv] This tension between sovereign powers to decide about the residency of non-nationals and the right to a family life led the Inter American Court of Human Rights to the conclusion that States should decide on the basis of a balancing exercise. In Expelled Dominicans and Haitians v. Dominican Republic, the Court explained that ‘states should analyze the particular circumstances in each case, concerning: (a) the immigration history, the duration of the stay, and the extent of the ties of the parent and/or the family to the host country; (b) consideration of the nationality, custody and residence of the children of the person to be expelled; (c) scope of the harm caused by the rupture of the family owing to the expulsion, including the persons with whom the child lives, as well as the time that the child has been living in this family unit, and (d) scope of the disruption of the daily life of the child if her or his family situation changes owing to a measure of expulsion of a person in charge of the child, so as to weigh all these circumstances rigorously in light of the best interest of the child in relation to the essential public interest that should be protected.’[xxv] Similarly, the Inter-American Commission of Human Rights has emphasized that the deportation should be the last resort when there are children involved and that, depending on the peculiarities of each case, it should be an exceptional measure to be taken.[xxvi]
Argentina’s Migratory Executive Order did not incorporate the features, which according to the Inter American human right standards, should be assessed within the order of deportation when the principle of family reunification is invoked. More seriously, the Executive Order restricted the situations in which an immigrant could use the principle of family reunification to defend against deportation. Thus, in many cases, the National Department of Migration will be exempt from performing the “balancing exercise” to consider the particular circumstances in which the immigrant and his or her family are involved. This, in turn, could lead to the violation of human rights law standards such as prioritizing the best interest of the child.
Argentina’s Executive Order is undesirable from a human rights perspective because it could lead to proceedings in which immigrants are left defenseless or unprotected and in proceedings in which immigrants may not be able to invoke the principle of family reunification. The Executive Order presents a setback when compared to the previous regulation. Previous regulation ensured that deportation proceedings were conducted according to the principles of family reunification and effective protection, whereas the recent Migratory Executive Order reduced the scope of guarantees afforded to the immigrant and the immigrant’s family.
Beyond the theoretical analysis, a good public policy would be to measure the real impact that the migratory regulation has on the exercise of the immigrant’s rights when applied to real cases. That would provide with useful statistics to improve migratory policies from a human rights perspective.
I recommend that the Argentinian State create specific indicators to monitor the Decree’s impact on immigrants’ human rights. For instance, the Government should collect data related to how many children are de facto expelled as a consequence of their parent’s deportation; how many immigrants alleged the principle of family reunification but were not able to provide enough evidence to prove it; how many immigrants are assisted by a free attorney; how many appeals are dismissed for being submitted late.
Using statistical data it would be possible to assess whether the migratory system –involving specific regulations and the state apparatus performance– is, in practice, acting against the immigrants’ constitutional rights and the international standards that guide them.
On March 23rd, 2018, the Federal Chamber of Appeals of Buenos Aires has recently declared the Migratory Executive Order unconstitutional.[xxvii] The Chamber of Appeals stated that the Executive Order did not comply with the constitutional requirements to be issued and it implied a setback from a human rights perspective. The Court elaborated a strict test of reasonableness in relation to the right to freedom of movement and the right to judicial protection and understood that the Argentinian Government had not proved that the Executive Order was the least restrictive measure to obtain the objectives alleged. To conclude that, it emphasized that the immigrants are a vulnerable group and that the Executive Order meant an unequal treatment to immigrants. As a consequence, there is a reversion of the burden of the proof and the State must demonstrate that the Executive Order is not unconstitutional.
[i] A current example of this is the recent migratory movements that Colombia has recently received from Venezuela, CBC News, Venezuela Crisis Has Neighbours Fearing Influx of More Refugees (Feb. 8, 2018), http://www.cbc.ca/news/world/venezuela-crisis-brazil-colombia-1.4527643; Joe Parkin Daniels, In Colombia Border Town, Desperate Venezuelans Sell Hair to Survive (Feb. 17, 2018), https://www.nytimes.com/2018/02/17/world/americas/venezuela-crisis-colombia-migration.html.
[iii]Agencia DyN (Dic. 26, 2016) Murió Brian, el chico de 14 años que fue baleado en la cabeza por moto chorros en Floreshttps://www.lanacion.com.ar/1970461-murio-brian-el-chico-de-14-anos-que-fue-baleado-en-la-cabeza-por-motochorros-en-flores/; Agencia Télam (Jan. 10, 2017), Liberaron al sospechoso del crimen de Brian Aguinaco y sera enviado a Perú http://www.telam.com.ar/notas/201701/176217-libertad-sospechoso-adolescente-crimen-brian-aguinaco-barrio-flores.html.
[iv] Executive Order Number 70/17, issue date 30-01-17. Available at http://servicios.infoleg.gob.ar/infolegInternet/anexos/270000-274999/271245/norma.htm.
The Executive Order was a ‘DNU’, a kind of decree (with similar effects to a regular law) that the Argentinian Constitution enables the President to issue in order to cope with urgency when the Congress is unable to meet (art. 99, inc. 3). In this case, activists and scholars also criticized the Executive Order for being issued against the conditions established in the Constitution. However, in the article I will not focus on this aspect of the criticism.
[v] The numbers provided in the Executive Order tries to link the phenomenon of crime to the presence of immigrants in the territory. For that reason, some explanations in regard to those percentages can be useful. The 4,5% is calculated on the basis of data that was gathered in the last National Census carried out in 2010. However, the percentages regarding immigrant inmates are taken from the last statistical data available of 2016. Plus, the 21,38% considered, refers to the number of inmates incarcerated in the Federal Service, but does not reflect the total quantity of immigrants in prison along the country. Indeed, taking into account all the immigrants who are in prison –in the federal or local services–, the percentage decreases to the 6% of the total population, which would be more representative of the proportion of immigrants over the whole population. This can be checked here: http://www.jus.gob.ar/media/3268563/Informe%20ejecutivo%20del%20Sneep%202016%20(Sistema%20Nacional%20de%20Estad%C3%ADsticas%20sobre%20Ejecuci%C3%B3n%20de%20la%20Pena).PDF. Finally, it can be objected that the Executive Order highlights statistics related to drug trafficking when the measures taken involve all immigrants and not only those prosecuted for committing severe crimes.
[vi] The Inter-American Court said that ‘[s]pecial duties arise from the general obligations to respect and to ensure rights and they can be determined based on the particular needs of protection of the subject of law, owing either to his personal situation or to the specific situation in which he finds himself. In this regard, “migrants who are undocumented or in an irregular situation have been identified as a group in a situation of vulnerability, because they are very exposed to potential or real violations of their rights and, owing to their situation, suffer a significant lack of protection for their rights […] This does not mean that no action may be filed against migrants who do not comply with the laws of the State, but that, when taking the corresponding measures, States must respect their human rights, in compliance with the obligation to ensure to all persons subject to the State’s jurisdiction, the exercise and enjoyment of these rights, without any discrimination based on their regular or irregular status, nationality, race, gender, or any other reason. This is even more relevant if it is borne in mind that, under international law, certain limits have been developed to the application of migratory policies that impose, in proceedings on the expulsion or deportation of aliens, strict observance of the guarantees of due process, judicial protection and respect for human dignity, whatsoever the legal situation or migratory status of the migrant’, I/A Court H.R., Case of the Pacheco Tineo Family v. Bolivia.
[vii] The Argentinian Constitution provides for due process (art.18). Currently, Argentinian courts have broadened the scope of the guarantee of due process to the guarantee of effective judicial and administrative protection. This was taken from the Inter American Human Rights Court case law and is based on the articles 8 and 25 of the American Convention of Human Rights.
[viii] The preventive detention enables the Administration to ask for immigrants’ incarceration from the very beginning of the administrative proceeding and is not established as an exceptional measure.
[ix] I/A Court H.R., Case of Vélez Loor v. Panama. Preliminary Objections, Merits, Reparations and Costs. Judgment of November 23, 2010. Series C No. 218, ‘The right to due legal process must be guaranteed to everyone, regardless of their migratory status.[ix] This means that the State must ensure that every foreigner, even, an immigrant in an irregular situation, has the opportunity to exercise his or her rights and defend his or her interests effectively and in full procedural equality with other individuals subject to prosecution’ (para. 143).
Similarly, in its Advisory Opinion OC-18/03 on the “Juridical Condition and Rights of the Undocumented Migrants”, the Court said that: ‘for the due process of law a defendant must be able to exercise his rights and defend his interests effectively and in full procedural equality with other defendants. To accomplish its objectives, the judicial process must recognize and correct any real disadvantages that those brought before the bar might have, thus observing the principle of equality before the law and the courts and the corollary principle prohibiting discrimination. The presence of real disadvantages necessitates countervailing measures that help to reduce or eliminate the obstacles and deficiencies that impair or diminish an effective defense of one’s interests. Absent those countervailing measures, widely recognized in various stages of the proceeding, one could hardly say that those who have the disadvantages enjoy a true opportunity for justice and the benefit of the due process of law equal to those who do not have those disadvantages.’
[x] See, i.e., Case of the Constitutional Court, supra note 110, para. 71; Case of Baena Ricardo et al., supra note 139, para. 127; Case of the Sawhoyamaxa Indigenous Community, supra note 92, para. 82 and Case of the Yakye Axa Indigenous Community, supra note 130, para. 62. See Barbani Duarte vs. Uruguay, 13/10/2011. Similarly, I/A Court H.R., Case of the Pacheco Tineo Family v. Bolivia, para. 132. See also, I/A Court H.R., Case of Nadege Dorzema et al. v. Dominican Republic. Merits, Reparations and Costs. Judgment of October 24, 2012. Series C No. 251, para. 157, and Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection. OC-21/14, para. 112; I/A Court H.R., Case of Expelled Dominicans and Haitians v. Dominican Republic. Preliminary Objections, Merits, Reparations and Costs. Judgment of August 28, 2014. Series C No. 282, para. 358.
[xi] InterAmerican Commission of Human Rights, Human Mobility, Inter American Standards OEA/Ser.L/V/II. Doc. 46/15 31 December 2015.
[xii] I/A Court H.R., Case of Vélez Loor v. Panama. Preliminary Objections, Merits, Reparations and Costs. Judgment of November 23, 2010. Series C No. 21.
[xiii] I/A Court H.R., Case of The Pacheco Tineo Family v. Plurinational State of Bolivia. Preliminary Objections, Merits, Reparations and Costs, Judgment of November 25, 2013, Series C. No. 272, para. 133. In that case the IACHR.
[xiv] I/A Court H.R. Case of Nadege Dorzema et al v. Dominican Republic. Merits, reparations and costs. Judgment of October 24, 2014, Series C. No. 251, para. 160-166. In that case, after afirming that “international bodies for the protection of human rights have all established the characteristics for proceedings carried out by States in order to expel or deport aliens from their territory”, the IACHR referred to the minimun guarantees that every immigrant subject to deportation is entitled to (according to different international human rights bodies): “…the alien must be empowered with the means to: (i) provide arguments against the expulsion (ii) submit his or her case before by the competent authority, and (ii) be heard and represented for such purpose before the competent authority […] (ii) to be able to provide reasons against the expulsion; (iii) consular assistance; (iv) legal advice; (v) the right to free assistance and interpretation, and (vi) the right to be notified of the expulsion decision and the right to appeal it”. Finally, the Court expressed that “in cases where the consequence of the immigration proceeding may be a punitive deprivation of liberty –as the expulsion was in this case– “free legal representation becomes an imperative for the interests of justice.”
[xv] In the Case of Velez Loor v. Panama, the Court emphasized the importance of legal aid in cases involving a foreigner who may not know the country’s legal system and who is in a particularly vulnerable situation by being deprived of liberty.
[xvi] IACHR, Report on Merits No. 49/99, Case 11.610, Loren Laroye Riebe Star, Jorge Barón Guttlein and Rodolfo Izal Elorz (Mexico). April 13, 1999, paras. 55; IACHR, Report on Admissibility No. 68/05, Case 11.495, Juan Chamorro Quiroz (Costa Rica). October 5, 2000, paras. 32-36. Also IACHR, Report on Merits No. 78/11, Caso 12.586, John Doe et al. (Canada). July 21, 2011, para. 116. IACHR, Report on Merits No. 51/96, Case 10.675, Haitian Interdiction (United States), TMarch 13, 1997, para. 180. In this respect, the claim submitted by the Civil Association CELS, pointed out that ‘sometimes the immigrant subjected to an expulsion may be already incarcerated […] which decreases the possibilities of collecting evidence, develop a defense strategy or even have timely access to a legal advisor…” The claim is available in Spanish, and the translation is of my own.
[xvii] Indeed, the Argentinian federal courts have followed that doctrine. See, for example, CNCAF, case num. 57.800/2016, judgment of March the 9 of 2017; Case num. 71.921/2016, judgment of July the 4 of 2017, among others.
[xviii] In no other administrative proceedings specified in Argentinian legislation, is the legal deadline shorter than that established in the law that regulates the general proceeding. See, for example, the tax proceeding (Ley Núm. 11.683); the public procurement proceeding (Decreto 1023/01, Decreto Num 1030/16); the Public Employment Law (Ley Núm. 25.164), among others.
[xix] The IACHR has emphasized that immigrants are a vulnerable group and expressed that ‘an ever-present challenge the Commission has identified in the case of persons in the context of migration are the serious obstacles to access justice and thereby avail themselves of a suitable remedy for human rights violations. This is evidenced by the considerable discretion that many authorities exercise when deciding cases involving these individuals or their family members, the failure to observe the guarantees of due process in proceedings involving these individuals, and the little or lack of judicial protection they are afforded when their human rights are violated, with the result that such violations go unpunished…” Human Mobility: InterAmerican Standards 2016 OEA/Ser.L/V/II. Doc. 46/15 31 December 2015.
[xx] The right to family life is widely recognized in the Inter-American and international system of human rights. See,i.e., Articles 11.2 and 17.1 of the American Convention as well as Articles V and VI of the American Declaration. Article 17.1 provides that “The family is the natural and fundamental group unit of society and is entitled to protection by society and the state.” Similarly, Article 23 of the International Covenant on Civil and Political Rights and Article 14 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. Article 9 of the Convention on the Rights of the Child recognizes the possibility of family separation as a result of a proceeding of deportation; however, the article demands that the States guarantee the best interest of the child and their right to be heard. Finally, the International Convention on the Protection of the Rights of All Migrant Workers, establishes as a general rule, that States are obliged to ‘take appropriate measures to ensure the protection of the unity of the families of migrant workers’ (article 44.1.) and ‘to facilitate the reunification of migrant workers with [their family]’ (article 44.2.).
[xxi] For instance, those who were convicted for offences punishable by a term of imprisonment of more than three years are not allowed to allege the right to family life to stay in the country.
[xxii] Inter American Court H.R., Case of Expelled Dominicans and Haitians v. Dominican Republic. Preliminary Objections, Merits, Reparations and Costs. Judgment of August 28, 2014. Series C No. 282, para. 417.
[xxiii] See the OC-21/14, para. 279 and Case of Expelled Dominicans and Haitians v. Dominican Republic. Preliminary Objections, Merits, Reparations and Costs. Judgment of August 28, 2014. Series C No. 282.
[xxiv] ‘The Commission has determined that in this area nor the scope of the State nor the rights of a person who is not a national are absolute. Instead […] there should be a trial weighting, under which it must balance the legitimate interest of the State to protect and promote the general welfare vis-a-vis the fundamental rights of people not national, such as the right to family life. It is recalled what was said by the Commission in relation to that “immigration policy should guarantee an individual decision with all the guarantees of due process; You must respect the right to life, to physical and mental integrity, family and the right of children to obtain special means of protection’ (Human Mobility: Inter-American Standards 2016 OEA/Ser.L/V/II. Doc. 46/15 31 December 2015, parr. 348).
[xxv] Case of Expelled Dominicans and Haitians v. Dominican Republic. Preliminary Objections, Merits, Reparations and Costs. Judgment of August 28, 2014. Series C No. 282, para. 357.
[xxvi] For instance, CIDH, Informe No. 81/10, Caso 12.562, Wayne Smith, Hugo Armendariz y otros (Estados Unidos), 12 de julio de 2010, párr. 50; en general, véase, CIDH, Informe sobre la situación de los derechos humanos de los solicitantes de asilo en el marco del sistema canadiense de determinación de la condición de refugiado.
[xxvii] The sentence is available at the Web page of the Argentinian Federal Judicial Power https://www.pjn.gov.ar/. Cámara Nacional en lo Contensioso Administrativo Federal, Sala V, “Centro de Estudios Legales y Sociales y otros c/ EN-DNM”, Expdte. N° 3061/2017, sentence of the 23/03/2018.
Olivia Minatta is a lawyer graduated from Universidad Nacional de La Plata (UNLP). Currently, Olivia works at the Attorney General of the Nation of Argentina, where she drafts opinion in several migratory cases, among other human rights cases. Furthermore, Olivia is an Editor at the Public Interest Law Journal (UNLP). Previously, Olivia has worked at the Civil Association for Equality and Justice (ACIJ)–one of the NGO’s that claimed the unconstitutionality of the Decree referred in the article and was Coordinator of the Human Rights Clinic at UNLP.