JUDICIARY AND MIGRATION CONTROL: THE CASE OF ARGENTINA (2004- 2018) THROUGH DECISIONS FROM THE SUPREME COURT OF JUSTICE

GARCÍA, LILA

Recife

Workshop; Socio-Legal Writing Workshop; 2018

Univ. de Cardiff y Univ. Fed. de Pernambuco

Since a new law in 2004, migration policies in Argentina include a new actorto revise or directly authorize migration control measures. This actor is the Judiciary and itsrole consists on authorizing a detention for migratory reasons (?retention?), intervening inremoval orders for residents and in general, reviewing the performance of the ImmigrationBoard. This participation is unique in Latin-America since the Argentinean Law 25,871 isthe only piece of legislation within the region that establishes a mandatory interventionfrom the Judicial Branch; before that and similarly to the current situation in others LAcountries, its participation on migration control decisions was exceptional. Moreover,countries throughout the world that actually include the Judiciary as an actor in migrationcontrol only process asylum claims.On the other hand, Argentinean Migration Law incorporates another outstanding aspect,which is the recognition in respect to migrants and foreigners of a right to migrate togetherwith other rights (access to health, education, etc.) that even exceed the standards set forthat international level. However, by no means it implies that Argentine State has resignedthe power to decide who enters or remains in the country. On the contrary, together with theright to migrate and the regularization obligation of the Argentine State laid out in the law(article 17), it is also established that the Immigration Board (hereinafter ?DNM?, asDirección Nacional de Migraciones) may expel a person on the grounds, for example, that?he/she does not comply with the requisites set forth in the law? (Article 29). It is thisbalance between the rights of migrant persons and powers of the Administration which hasto be weighed by the Judicial Branch by means of the new position that have beenrecognized to it.In this framework, this paper is aimed to analyze such a novel role of the Judiciary in termsof human rights. How has Judiciary keep the balance? Analysis will be carried out byreviewing sentences from Supreme Court during the period (January) 2004-(June) 2018.This frame seeks to cover a period since the enactment of the law as well as its majormodification in January 2017. Although is a wide period of time, sentences are scarce: I?vealready collected sentences from Supreme Court for 2004-2017 and provided a quantitativeanalysis (García, 2018, forthcoming).