THE RIGHT TO MIGRATE: A HUMAN RIGHTS RESPONSE TO IMMIGRATION RESTRICTIONISM IN ARGENTINA.

• Author: Baluarte, David C.

1. INTRODUCTION 296 II. THE EVOLUTION of IMMIGRANT RIGHTS IN ARGENTINA 301 A. A brief history of Argentine immigration law 301 B. The rights protective framework of the 2004 Law 307 1. An immigrant bill of rights 308 2. Procedural and judicial protections 315 III. RESTRICTIONIST REFORM AND THE ATTACK ON MIGRANTS' RIGHTS 319 A. 2017 Decree limitations on immigrant rights 321 1. Expanded criminal grounds for expulsion 322 2. The procedure for summary expulsion 326 B. Litigation to challenge the 2017 Decree 329 IV. HUMAN RIGHTS REINFORCEMENT OF THE RIGHT TO MIGRATE 335 A. Defending the right to family reunification 337 B. Restoring due process and judicial protection 342 V. CONCLUSION 348 I. INTRODUCTION

   In early 2017, President Mauricio Marci of Argentina issued a Decree to toughen immigration regulation in response to what his administration articulated as an urgent problem of criminality among immigrants. (1) This action was instantly compared to the executive orders issued just days earlier by United States President Donald J. Trump. (2) The similarity in the rhetoric each President used to justify his actions drew the attention of the Argentine public and officials throughout Latin America. (3) This is in part because Argentina had made great strides over more than a decade to forge a reputation as a model for progressive immigration policy, in stark contrast to the United States, which has responded to immigration with increasingly harsh deportation and detention practices during the same period. (4) Indeed, the Argentine legislature enacted a progressive immigration law in 2004, and in it established a "right to migrate," which many have suggested lays the conceptual foundation for understanding migration as a human right. (5)

   Argentina's cutting-edge Law 25.871 of 2004 ("the 2004 Law") was enacted against the backdrop of a troubled history of immigration regulation. The law in effect prior to the enactment of the 2004 Law was a dictate of the military junta that ruled Argentina from 1976-83. (6) The Videla Law, as it was known, provided the National Department of Migration (in Spanish, "DNM") with largely unreviewable powers to manage the task of immigration enforcement as it deemed appropriate. (7) A decade later, in unmistakable reaction to the authoritarian government that had taken nearly thirty thousand civilian lives in the name of public order, Argentina had passed the 1994 Constitution, which placed core international human rights treaties on par with the constitution itself. (8) While that same constitution established that non-citizens have the same civil rights as citizens, (9) human rights did not permeate the sphere of immigration law until the legislature promulgated Law 25.871. (10) The 2004 Law, passed with the overwhelming support of lawmakers at the time, (11) established a right to migrate, and included a range of legal protections and policy objectives in furtherance of immigrant rights and the human dignity of migrants. (12)

   In order to advance immigrant rights, the 2004 Law established robust substantive and procedural protections for migrants seeking lawful status to remain in Argentina. First, it includes a bill of rights that reinforces the notion of equal rights between non-citizens and citizens established under the 1994 Constitution, provides expansive social and economic rights guarantees, and promotes family unity through a variety of provisions. (13) The bill of rights further includes the novel concept of a right to migrate, puts the burden on the State to provide irregular migrants with public assistance to regularize their situation, and mandates the development of regularization programs. (14) Second, the law codified robust procedural guarantees, which included multiple levels of appeal of adverse decisions, free legal assistance for immigrants in expulsion proceedings at the expense of the State, and a presumption against detention during those proceedings. (15)

   The 2004 Law is not only about migrants' rights, however, and it includes more traditional immigration priorities related to public security and economic development. One evident limitation on the right to migrate appears in a set of provisions that prevent persons who have committed certain crimes from entering or remaining in the country. (16) In essence, the right to migrate is tempered by certain expectations that a migrant comply with the laws in his home country as well as the laws of Argentina, and a failure to meet such expectations can lead to the State's refusal to grant entry or the termination of legal residency. (17) Notably, only serious crimes prevented migration under the 2004 Law, and these legal impediments were clearly balanced against fundamental human rights considerations such as family unity.

   On January 27, 2017, President Macri issued a Decree of Necessity and Urgency (in Spanish, "DNU"), a novel feature of the 1994 Constitution that permits a sitting President to pass a law, if both houses of Congress do not oppose the law. (18) The DNU set forth statistics, claiming that immigrants were disproportionately represented in the prison population, and that a substantial proportion of them were imprisoned for drug crimes. (19) These statistics, together with President Macri's observation that expulsion proceedings "may last" as long as seven years, were used to justify the establishment of a summary expulsion procedure for persons with criminal history, as well as other irregular migrants, and greater authority to detain migrants in expulsion proceedings. (20) Shortly after the DNU was issued, civil society organizations argued that the President had overrepresented the actual proportion of immigrants in prison, and that the modifications to the existing law were not justified by a situation of necessity or urgency. (21) At that point, however, the DNU was law and there was insufficient political will for both houses of Congress to nullify the Decree, as required by the constitution. (22)

   The DNU drastically expanded the types of criminal activity that will provide a basis for the denial of admission or the cancelation of residency. Under current law, if there is a reason to believe that a non-citizen has committed a crime that could be punished with imprisonment, the non-citizen is inadmissible, and if the immigrant has lawful residency, that status is automatically canceled. (23) For many, there is no defense, and no opportunity to argue equitable considerations such as family unity. Such non-citizens are funneled into a summary expulsion procedure that provides only three days to respond to the charges, and another three days to appeal an adverse decision. (24) Moreover, the law increases the likelihood of detention during the pendency of those proceedings. (25)

   At the time of this writing, the DNU is embroiled in litigation with an appeal pending before the Argentine Supreme Court that will decide the fate of the Decree. First, a federal judge largely rejected a collective legal challenge to the DNU brought by civil society organizations, suggesting that individuals must challenge the law to defend their individual rights. (26) Then, an appeals court ruled that the DNU is unconstitutional, with two judges finding that the President had failed to establish the requisite "necessity and urgency," and a third judge finding that the Decree violated various rights guarantees under Argentine law. (27) The case is now pending before the Argentine Supreme Court, which granted the government's petition for extraordinary review, leaving the fate of the 2017 Decree uncertain. (28) The pending appeal suspends the judgment of the appeals court, and permits the government to continue to apply the DNU, (29) such that individual immigrants are now compelled to formulate their own challenges to the law to defend against expulsion.

   This Article argues that the persistence of the right to migrate under Argentine law, together with international human rights norms embedded in the 2004 Law and the Argentine Constitution, may provide an important safeguard against the most deleterious effects of the DNU. The discussion will proceed in three parts. The first part will examine the evolution of immigrant rights in Argentina. It will begin with a brief historical account of immigration regulation in Argentina, and describe the forces that brought about the seismic shift in the 2004 Law. It will then summarize the main provisions of the 2004 immigration law and the 2010 regulations that accompany that law, with a particular focus on the law's substantive rights and procedural guarantees.

   The second part of this Article will present the DNU, its rationale, and its main provisions, and will highlight the ways in which the DNU modifies the 2004 Law. In particular, this section will examine those ways in which the DNU serves to undermine the progressive provisions of the 2004 Law summarized in the first section. It will emphasize in particular the predictable effects of the summary expulsion procedure, as compared to the robust procedures that existed under the prior law, and the likely strain on the fundamental right to family unity. This section will then examine the early results of a collective action that challenged the constitutionality of the DNU, denouncing various provisions of the law as inconsistent with international human rights law and the Argentine Constitution.

   The third part of the Article will argue that international human rights law, applied directly though Argentine law, may be used to uphold some key aspects of the right to migrate in Argentina. In particular, this section will present relevant human rights norms that protect the substantive rights of migrants, most notably to family unity, as well as procedural protections that should be accorded to them. There is potential, through individual litigation, if not the collective litigation still pending on appeal, to assert core...