Before getting to Mexico, how many times a migrant has thought of the possibility of being deported? The term deportation or removal is one of the most well-known words when talking about migration. People have a clear idea of what being deported from a country means. However, as a legal concept, the term has its own characteristics and differs from other important concepts.
In this article, we will define the following concepts:
By defining the concepts, we can additionally explain how each process develops, the differences between terms, and the juridic ways to solve them; that is to say, the possibilities a migrant has defend from them.
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Deportation is a legal act by which Mexico’s National Institute of Immigration (INM, by its initials in Spanish) determines, unilaterally, if a foreigner is removed to its country of origin or residence when he or she defaults migration regulations after a detention process before a detention facility, or when any of situations on Article 144 of Mexico’s Migratory Act rise.
These situations are:
A foreigner who is detained for the following will be deported from Mexico:
I. For entering Mexico without the required documentation or by means of a place that is not authorized for international human transit;
II. If, once deported, a foreigner reenters Mexico without having obtained readmission consent, even when he or she has obtained a migratory status;
III. If a foreigner claims to be Mexican before the Institute without being Mexican;
IV. If a foreigner is subject to a criminal proceeding or sentenced for serious crimes pursuant to national criminal laws or the provisions of the international treaties and conventions to which Mexico is a party, or if he or she could compromise national security or public safety as a result of his or her background in Mexico or abroad;
V. If a foreigner provides to the Institute false information or exhibits fake, altered, or legitimate official documents that have been illegally obtained; and
VI. If a foreigner has not complied with an order issued by the Institute to depart from Mexico.
Any of the previous sections trigger deportation. In my definition, I put in the first place the detention process, as it is only through the detention of foreigners that the legal consequence of deportation can be reached. Without detention, there cannot be deportation without violating human rights or the main characteristics of any legal process, also known as a resolution, such as legal grounding, reasoning, publicity… Therefore, when a foreigner goes through any of the aforementioned cases, he or she must be taken to the detention facility to determine whether to deport him or her.
There are special cases where the Federal Executive can state if someone is a persona non grata and request Mexico’s INM to deport a foreigner.
In all deportation processes foreigner rights must be respected:
I. To be served notice of the commencement of such administrative migratory procedure;
II. To receive the protection of their consular representatives and communicate with them, unless a foreigner has requested political asylum or refugee status; In the event in which a foreigner wishes to receive the protection of his or her consular representative, he or she will be provided with the means of communicating with this representative as quickly as possible;
III. To notify his or her family members or a person in which he or she confides in Mexico or abroad. For such purpose, he or she will be provided with the means of communicating with this person as quickly as possible;
IV. To receive information regarding the deportation procedure, as well as the right to file an effective appeal against the Institute’s rulings;
V. To have access to a translator or interpreter to aid communication in the event in which the foreigner does not speak or understand Spanish; and
VI. To receive legal counsel.
We will see that these rights are also applicable in cases of refoulement, refusal letter, and detention.
DETENTION OF FOREIGNERS BEFORE A DETENTION FACILITY
As we said before, at this point, we can define detention of foreigners as the process by which we go from a legal condition to a relevant legal consequence. A - B, where A is any of the aforementioned events, (-) is the detention process, and B is the deportation and its consequences. Certainly, the deportation process must be understood as an administrative penalty or a monetary penalty.
To understand the detention of foreigners, it is vital to go through some of the articles of Mexico’s Migratory Act:
Article 99: The detention of foreigners in detention facilities or places outfitted for this purpose until their migratory status in Mexico is determined is of public interest. Detention of foreigners is the measure ruled by the Institute through which the temporary stay of a foreigner who does not provide evidence for his or her migratory status is agreed upon in order to regularize his or her stay or return assistance.
When a detention process arises, the only three possible consequences are 1) deportation, 2) possibility of regularization, or 3) assisted return.
Article 109: All detainees have the following rights as of admission into the detention facility, as the case may be: I. to know the location of the detention facility in which they are detained, as well as the applicable rules and the services to which they will have access; II. to be informed of the reason for their admission into the detention facility; of the migratory procedure; of their right to request refugee status or approval as stateless; of their right to regularize their stay in the terms of Articles 132, 133, and 134 of this Law, as the case may be; of the possibility of voluntarily requesting assisted return to their countries of origin; and of the right to bring an effective appeal against the Institute’s rulings; III. to be protected by their consular representative and communicate with him or her. In the event in which a foreigner wishes to receive the protection of his or her consular representative, he or she will be provided with the means of communicating with this representative as quickly as possible; IV. to receive their rights and obligations in writing, as well as the instances in which they may file complaints and charges; V. to the procedure being carried out by a competent authority, as well as the right to receive legal counsel, to provide evidence, and to allege what is in their best interest. In addition, they will have access to the administrative migratory file records; VI. to have access to a translator or interpreter to aid communication in the event in which they do not speak or understand Spanish; VII. to have access to communication by telephone; VIII. to receive food, basic furnishings for personal hygiene, and medical care, if necessary; IX. to be visited by their family members and legal representatives; X. to participate in the recreational, educational, and cultural activities organized within the facilities; XI. to not be discriminated against by authorities on the grounds of ethnic or national origin, gender, age, disability, social or economic status, state of health, pregnancy, language, religion, opinion, sexual orientation, civil status, or any other circumstance for the purpose of hindering or nullifying the recognition or exercise of individual rights and true equal opportunities; XII. to receive humane treatment throughout their stay in the detention facility; XIII. to detention facilities being equipped with separate detention areas for men and women, at all times guaranteeing the right to family preservation, except in the cases in which separation is considered to be in the best interests of children or adolescents; XIV. to detention facilities having separate detention areas for unaccompanied migrant children and adolescents while they are being channeled to the institutions in which they will be provided adequate care; and XV. to the other rights established in the general provisions issued by the Department.
Article 111. The Institute will rule on the regular status of detained foreigners within a maximum period of 15 business days counted from the date of their detention. Foreigners may only be held in detention facilities for more than the 15 business days indicated in the previous paragraph in any of the following situations:
I. When there is no verifiable information regarding their identity and/or nationality, or it is difficult to obtain identification and trip documents;
II. When the consulates or embassies of the country of origin require more time to issue identification and trip documents;
III. When their transit is impeded by other countries or there is an obstacle to establishing the final destination trip itinerary;
IV. When there is a medically proven mental or physical handicap or illness that makes it impossible for the detained migrant to travel; and
V. When an administrative-law action or judiciary action has been filed in which issues inherent to the foreigner’s migratory status in Mexico are claimed, or when an amparo5 action is filed and a competent authority expressly prohibits the foreigner from being transferred or leaving Mexico. Foreigners may not be held in detention facilities for more than 60 business days in the situations indicated in sections I, II, III, and IV of this Article. After such period has elapsed, the Institute will grant them the stay condition of visitor with permission to receive remuneration in Mexico while the situation for which they were granted such stay condition persists. Once this period has transpired, the Institute must determine the foreigner’s migratory status.
From such provisions, we can understand that detention is also a procedure with a 15 business days limit where a migrant has rights and where essential formalities of any process must be fulfilled, as in a deportation event.
Regularization is possible provided that mentioned requirements are fulfilled, according to each event.
If foreigner wishes, he or she can apply for an assisted return to his or her country as settled on Title Eight of Mexico’s Migratory Act Regulations, Chapter II, Article 193. The assisted return, unlike deportation, is the legal act by which a migratory authority, upon a foreigner’s request, leads to return the foreigner to his or her country. Thus, it is a voluntary act. On the other hand, deportation is an act against a foreigner’s willingness, meaning a mandatory act implying, additionally, in all cases, a sanction imposition, also known as immigration alert, by the authority. In other words, a temporal or definitive restriction for a foreigner to enter Mexico.
WARRANT FOR ARREST OR ORDER TO DEPART FROM MEXICO BY MEXICO’S INM
In any other case, if a migrant is subject to an arrest warrant or an order to depart from the country by the INM, and if he or she has a justified reason to stay in Mexico, as well as a particular reason by the law for its regularization and/or permission to stay in Mexico, then, resolution can be revoked through a revision against administrative acts or through a writ of amparo.
We can then conclude that detention, deportation, and assisted return terms are connected. In short, detention is the process to determine a deportation, or an assisted return.
All three previous terms arise in the practice as processes when a foreigner is in Mexico, unlike the following terms: refoulement and refusal letter, which arise when a foreigner is at Mexico’s points of entry.
ENTRY TO MEXICO DEFINITION
Let us start from scratch. First, it is important to understand that entry to Mexico is also a legal act. Indeed, just like buying a car, getting married, or signing an agreement. It is a legal act with specific forms and terms, and legal consequences. All kinds of entry are a legal-administrative act, meaning that it is regulated by the Migratory Act, its Regulations, Formalities Guidelines and Migratory Procedures, General Guidelines to issue a Visa issued by the Secretariat of the Interior, the Secretariat of Foreign Affairs, and, in a more general sense, by Federal Law of Administrative Procedure.
When entering with a Visa, different from a Tourist Visa, you have the express authorization by the Secretariat of Foreign Affairs to enter Mexico because of your type of Visa: Student, Business, by Family Unit, Economic Solvency, Investor, etc. Visa types and their requirements are established in the General Guidelines of Visa application issued by Secretariats of the Interior and Secretariats of Foreign Affairs. If you already have a temporary or permanent resident card, you can enter Mexico per se as you already have a regular stay condition which allows you multiple departures and entries to the country. Nonetheless, in both cases (with a residence or authorized Visa) a migratory review is carried out. When you enter as a tourist, whether you are from a country to whom Mexico asks for a (tourist) Visa, you also go through this legal-administrative proceeding of migratory review.
To know more about which countries need a Tourist Visa to enter Mexico, click on the following link:
WHAT IS A REFUSAL LETTER? (INADMISSIBILITY AT MEXICO’S AIRPORTS OR AT POINTS OF ENTRY)
In any case, if you are admitted to the country, you can enter by an ADMISSION. On the contrary, if you are admitted, the legal act by which you are rejected is known as REFUSAL LETTER, which is different from a deportation. A refusal letter is a document issued by the National Institute of Immigration in which a refusal to enter the country is stated for a foreigner who requested to entry the country’s places intended for international human transit. Firstly, this refusal letter is not a deportation. It is a legal act by the authority that must be duly grounded in law and fact. This means that person’s general information, way of executing the act, date, hour, entry circumstances of a foreigner, documents presented by a foreigner, the information provided, the way in which migration authority performed the revision, and the reasons for which he or she decided to file a refusal letter must be stated. So, a refusal letter is different from deportation.
A refusal letter is not irrevocable because it can and must be reviewed twice, or it can be addressed by a writ of amparo by which the refusal letter effects, meaning a REFOULEMENT, are requested to be suspended. In this sense, refoulement is a legal act by which a migratory authority determines if a foreigner is returned to his or her country, or the country from which he or she traveled; depending on the circumstances to obtain a flight return because of the refusal letter.
The admission and refusal are defined in the Migratory Act Policies, on the following article:
Article 3. For the purposes of this Policy, in addition to the definitions set forth in Article 3 of the Law, it shall be understood: I. Admission record: as the document in which the administrative act issued by migratory authority is evidenced, derived from a second review, and whereby the admission to Mexico for a person who requested its admission in the intended places for the international human transit is authorized; II Act of denial: as the document in which the administrative act issued by a migratory authority, and whereby the inadmissibility to Mexico for a foreign who requested its admission in the intended places for the international human transit is pronounced;
People who enter Mexico must fulfill requests of Article 60 of Migratory Act Policies:
Article 60. To authorize a foreigner’s admission, in case of doubt, the migratory authority in the review filter can corroborate the following requests: I. Passport or identification and trip document that is valid according to current international law, and, in your case, a visa or migratory document; II. The required information and personal data; III. The reason you are traveling; IV. Primary place of residence or country of origin; V. Address and duration of stay in Mexico; VI. In your case, name, corporate or registered name, and individuals or legal entity’s address who shall employ or invite you; VII. Activities carried out in his or her country and the one that he or she will carry out in Mexico; VIII. MEDIOS DE SUBSISTENCIA during his or her stay in Mexico, except for foreigners with a Mexican Visa; and IX. Transportation used for his or her departure.
So, we have requirements established by Law to let a tourist enter Mexico, the review proceedings, and the legal consequences: refoulement, understood as a concept and portrayed, legally, as a refusal letter.
Additionally, the process to conduct such migratory review in such structuring is determined. If the migratory authority considers that a foreigner does not fulfill such requirements, he or she will issue a refusal letter before the second review. In this second review, we must verify that refusal letter is duly grounded in law and fact. We must also consider the reasons provided by the foreigner or by his or her lawyer to allow foreigner’s entry. Such determination must be duly grounded in law and fact to be a lawful act of authority to define concretely why a person cannot be admitted.
We have finally defined and marked the difference between detention, assisted return, refoulement, and refusal letter. So, we must mention what an order to depart is.
WHAT IS AN ORDER TO DEPART FROM MEXICO ISSUED BY THE INM?
An order to depart can be defined as the legal-administrative act of authority by which the departure of a foreigner is determined. An order to depart is accessory to a negative resolution after a proceeding made before the National Institute of Migration, which determines its main difference between an order to depart and a deportation process. Additionally, a time frame is given to foreigners to comply voluntarily without going through a detention process before a detention facility.
Like the previous ones, an order to depart is an administrative penalty. And, if we understand that all penalty is a legal proceeding that must comply with relevant formalities, it must be duly grounded in law and fact, be public, consistent, and complete according to what is requested. So, to fight them back and defend migrant’s rights, we must acknowledge that there are two main mechanisms that I consider are the most useful in these cases: an appeal for review and a writ of amparo.
An appeal for review is filed against any administrative ruling before an immediate superior official who issues a resolution. And, according to the Federal Law of Administrative Procedure, it must be done 15 business days after being notified or after becoming aware of the resolution. The authority has 90 days to solve it.
Because of this resolution term, I would recommend to my clients a strategy that starts not with an appeal of review but with a writ of amparo established on Article 15 of the Law of Amparo as it can work in all events. Maybe, according to federal judge discretion, except against a departure order because, as I said before, it is accessory to a main resolution and rejection of a procedure before the National Migration Institute. The first paragraph of the aforementioned article states:
Article 15. In case of acts that involve a danger of deprivation of life, attacks on personal liberty out of the procedure, isolation, deportation or removal, exile or banishment, extradition, enforced disappearance of persons, or any of those prohibited by Article 22 of the Political Constitution of the United Mexican States, as well as the forced incorporation of the National Army, Navy, or Air Force, and the injured party is unable to file the amparo, any other person may do so on your behalf, even if he or she is a minor.
This provision grants us a legal instrument that can be immediately promoted and can prevent that any of the acts described so far are established. Of course, it is worth mentioning that this type of proceedings must be addressed by a specialist on this matter to achieve an appropriate defense of human and migration rights of the person.
Lic. Ernesto Rizo
DIAM S.C. Legal Director