Being a foreigner in any country, can cause a certain degree of uneasiness if a legal problem is faced, a conflict with national citizens occurs or any altercation with authorities and/or legal processes occur, so this article's purpose is to provide the basic information a foreigner should know about his rights while being in México and what to expect, in legal terms, regarding his status as a foreigner.
Established in the Immigration Law (to be hereafter called, the “Law”), Article 2 that, the immigration policy of Mexican State is to secure … “Full respect for human rights of migrants, domestic and foreign, whatever their origin, nationality, gender, ethnicity, age and immigration status, with special attention to vulnerable groups such as children, women, indigenous, teenagers and people seniors, as well as, victims of crime. In any case, should a foreigner be accused of or be found guilty of committing an offense or the commission of any unlawful act, his/her undocumented immigration status, in no way shall create prejudice.” Specifically I underline the last part, because it is very important to have in mind that, irregularities in immigration status requires only that they be corrected and does not constitute any felony under criminal law, it only obligates the person to correct his/her immigration status per the law, but, by itself does not allows any authority to deport the foreigner unless he refuses to legalize his immigration status.
Moreover, the same article in the Constitution, requires, as an obligation of Mexican State, to guarantee, “Equal treatment whether nationals and foreigners, as indicated by the Constitution of the Mexican United States, especially in regard to the full observance of individual rights, both to nationals and foreigners.” So, by law and by Mexican Constitution, all human rights of foreigners are guaranteed and protected, and authorities must ensure equal treatment of foreigners and nationals.
And for those that have an interest in the Mexican nation, whether it be a business, an investment, such as real estate. or family in the country, it is established that the State must also guarantee the “Recognition of Acquired Rights of Immigrants". While foreigners with roots or family, work or business in Mexico ties have generated a series of rights and commitments from their everyday living in the country, even though they may have incurred irregular immigration status for administrative issues and provided that the alien has complied with applicable laws.” This paragraph also include real estate investments and partial residency.
Free transit all over the country is guaranteed (Article 7 of Law) equal to any national, access to education services, public medical services (free in case of emergency), and all other public services, independent of their immigration status, which must be granted and guaranteed (Article 8th of Law).
Civil actions cannot be denied by any authority, even if there are irregularities in the immigration status of the foreigner, with regards to the recognition of children, marriages, granting of wills, etc. These are also a right of foreigners (Art. 9th of Law)
Article 11 of Law establishes that: “In any case, regardless of their immigration status, migrants are entitled to the administration and enforcement of justice, always respecting the right to due process and to file complaints on human rights, in accordance with the provisions the Constitution and other applicable laws.” So access to public justice, with equal status and rights to a national, is also a foreigner’s right.
One right of a foreigner that is not very well known by Mexican authorities, but it is clearly established on Law (Article 14th) is that: “When immigrants, regardless of their immigration status, do not speak or understand Spanish, a translator or interpreter who has knowledge of their language, must be provided to facilitate communication.” And if there is a legal judicial process against a foreigner, for criminal charges, with an adverse legal resolution, judicial authorities are obliged to inform you of treaties and international agreements signed by the Mexican State for transfer of prisoners, as well as, any other that may benefit him (Article 14th of the Law).
The main obligations (as opposed to a right) of foreigners while in México are contained in Article 16th of the Law, which establishes that: “Immigrants must comply with the following obligations:
a) In the case of foreigners with legally documents Immigration status, they must protect and guard the documents establishing identity and status.
b) Show their documentation proving their identity or their legal immigration status when they are required by the immigration authorities;
c) Provide information and personal data they are requested by the competent authorities within the scope of their powers, the foregoing is without prejudice to the provisions of the Federal Law of Transparency and Access to Public Government Information and other applicable provisions in the matter, and
d) Other obligations under the Constitution, this Act, its Regulations and other applicable provisions.”
The above means that foreigners have to keep at all times their migratory documents, but those CAN ONLY BE REQUESTED BY IMMIGRATION AUTHORITIES, not by ANY other authority or individual. Despite the above legal restrictions, we all know that banks, even though they don’t have the right to do so, require such immigration documents to open accounts.
Of course, all foreigners are also obligated to comply with all domestic applicable laws just as any national is required to do so.
It is of the most importance to have in mind that, according to Article 17, “Only immigration authorities may retain documentation proving identity or immigration status of migrants, when there are elements to presume that they are apocryphal (false), in which case, they shall immediately inform the competent authorities in order that the resolution of the irregularity may proceed.” So no authority, in no event, may take away immigration documents unless there is clear evidence that they are false. Retention of any immigration documents, by any particular or authority, other than immigration represents a felony under criminal law and there are specific provision in the law for applicable sanctions against authorities that do so.
Now there are two questions that always arise: 1) In which cases can access to Mexico be denied? And 2) in which cases can a foreigner be deported? Let’s tackle those questions:
Of course if the foreigner does not present the original of their immigration documents to enter Mexico, access would be denied. But should the foreigner have such documents which legal and in force, then according to Article 38 of Law, The Foreign Affairs Ministry, for public interest reasons and when the foreigner cannot produce such documents, may suspend or prohibit the admission of foreigners by issuing general administrative provisions, which is then published in the Official Journal of the Federation. As it can be seen, it is not just an administrative resolution, it is something can only be done by the Foreign Ministry, a Federal agency (and not even by judicial authorities) and it requires publishing in the Official Journal.To do so, is not an easy process.
The second question is not so easy to answer and it has many paths, but let´s just say that, for the purposes of this informative article, the causes for deportation may be summarized as follows (Article 114 of Law):
a) "If foreigner has entered into the country without proper documentation or through an unauthorized place for the international movement of people". It is important to consider the contents of this infraction, as this is the one that is commonly claimed by authorities. Whenever a foreigner displays activities beyond what is authorized for him in his immigration document. This represents entering into the country without the proper documents to do such activities. For example, working without authorization to do so.
b) After having been deported, re-entering into the country without obtaining the readmission agreement, even if you have obtained a condition of stay;
A foreigner is considered as a Mexican to the immigration authorities without being a citizen;
a) If foreigner is subject to criminal prosecution or conviction for felony under national laws in criminal matters or the provisions of international agreements and conventions to which Mexico is part, or to those foreigners that have a history in Mexico or abroad that could compromise national security or public safety;
b) If foreigner provides false information or holds and uses false, altered or legitimate immigration documentation, obtained fraudulently and
If foreigner has failed to comply with an order to leave national territory issued by immigration.
a) In all these cases, immigration shall determine the period during which the deported alien shall not reenter the country, as set out in the Immigration Regulations. During this period, the deported alien may be readmitted only by express agreement of immigration.
b) In the event that, the offender’s history in Mexico or abroad, could compromise national sovereignty, national security or public safety, deportation is final and permanent.
Bear in mind, that not complying with the authorized activities on the visa (immigration document), as it was established in Point I above, does not generate the authorities right for immediate or automatic deportation.
As all know, there are several types of Visas, and each one allows or not certain activities to be performed in Mexico by the foreigner, some of them referring to economic activities and, whenever a violation to what is authorized on an immigration document happens, immigration authorities have to start a legal procedure, that usually ends up just with a fine and the request of correction of the immigration status of the foreigner, but of course, under certain circumstances may end up with deportation.
Keep in mind that only immigration authorities can judge this violations and deport, and it is our experience that it does not usually happen to first offenders. It is important to stress that according to Article 114 of the Law, the President is the only authority that can sign the expulsion of a foreigner and it has be in compliance with what is established on Article 33 of Mexican Constitution.
Political participation or intervention by foreigners in any way or form has historically been considered a very delicate issue and the participation of foreigners in any political act is forbidden and this prohibition is always contained in all visas other than those granted to diplomats.
In the permits granted for participation of foreigners in Mexican corporations as shareholders, so as in the permits for holding rights for residential purposes over real estate in restricted zone and in the agreements foreigners must sign to own fee-simple property of land outside of restricted zone, there is always contained what is domestically called “the Calvo Clause”, also called the Long Arm Statue, establishes that all foreigners must consider themselves as Mexicans within Mexico and submit to Mexican authorities to solve their disputes, avoiding claiming the protection of a foreigner country (their country of origin), with the penalty of losing their assets for the benefit of Mexican Nation.
A foreigner that has an irregular immigration situation can request to correct it under legal process and a fine may be applied as sanction (whenever applicable), but not immediate deportation.
We hope the concepts above shown are found helpful and clarify must of the common doubts, and consider that for any particular case or specific questions that may arose, consulting an expert on immigration or even the Mexican immigration authorities is the right path.