IOM

Comparative Matrix:

RCM Member State Legislation relating to

 Migrant Smuggling

 

Presentation:

 

The comparative matrix of legislation relating to trafficking in persons in RCM member countries is a result of an analysis of information collected through ongoing monitoring of electronic data bases and reports from our local offices in the region.  The offices, in turn, receive updates from relevant institutions in each RCM member country.

 

The topics and sub-topics included in the matrix were selected based on concerns expressed by several representatives regarding the importance of an instrument which reflects all aspects of criminal activities relating to trafficking in persons and migrant smuggling in each country’s regulations and at a regional level.  The information was summarized by experts on the topics in question, recording only the most relevant data for the individual and collective analysis of the legal expressions of criminal, immigration, and executive provisions, among others, which guide actions to combat the above mentioned crimes in our countries.

 

Links with multiple web pages are also included in order to further facilitate the analysis of each topic.  The web pages include additional information which complements the data from the matrix.  The links enable users to access the RCM Information Center and comprehensive regulatory documents.

 

We hope that the information that has been analyzed, organized, and summarized is useful to lawyers, authorities, researchers, judges, fiscals, police officers, heads of institutions, strategic authorities, and a wide array of experts or persons interested in gaining further knowledge about this crime and facilitating key decision-making processes when facing situations relating to migrant smuggling.

 

 

 

ACRONYMS

 

AGO                Attorney General’s Office

CCP                Code of Criminal Procedure

DF                   Federal District

GDI                 General Directorate of Immigration

IL                    Immigration Law

LOC                Law Against Organized Crime

MS                  Migrant Smuggling

MSP                Migrant Smuggling Protocol

OC                  Organized Crime

CC                   Criminal Code

Rat.                Ratified

UAP                Under-Age Persons

UNCTOC         United Nations Convention Against Transnational Organized Crime

V.                    Victims

V&W               Victims and Witnesses

 

 

PREVENTION

 

 

CANADA

UNITED STATES

MEXICO

GUATEMALA

EL SALVADOR

NICARAGUA

PROGRAMS

Special programs to detect migrant smuggling at the borders.

Special programs to detect migrant smuggling at the borders.

Blue Heart Campaign (an UNODC initiative) (taken from www.adital.com.br)

Migra corridos”, a private radio campaign (elheraldo.hn).

CONAMIGUA, in coordination with the Human Rights Ombudsman’s Office,

Defensoría del Migrante: Municipal Councils to Support Migrants, Week of the Migrant;    inter-institutional coordination actions to promote and disseminate the rights of migrant populations.

“Movilidad humana” (Human Mobility)

Pastoral Outreach: awareness-raising actions.

Centro de Recursos Centroamericanos (CARECEN INTERNAC):

Migration and Rights Program.

Migraciones: Mirando al Sur  (Migrations: Looking Southward) promoted by the Ministry of Education and the Jesuit Service for Migrants.  Buscando vida” (Searching for Life) Program;

Nicaraguan civil society network for migration;

network of families of migrants.

Governing Body

 

Minister of Citizenship and Immigration, Canada

CIC.

Coordination among agencies: the National Security Council’s Migrant Smuggling and Trafficking Interagency Working Group.

Human Smuggling and Trafficking Center.

An Inter-Ministerial Commission To Prevent and Combat Migrant Smuggling.

Decree 46-07, Article2. Consejo Nacional de Asistencia al Migrante –CONAMIGUA (National Council for Assistance to Migrants).

 

 

Means of Dissemination

 

 

In process, adhering to the campaign, mid-September 2009.

Workshops, meetings, disseminating the documentary “Emigrantes” (Emigrants).

 

Movies and documentaries: Migraciones, Mirando al Sur. Radio program  (Buscando vida), forums, discussions.

Training

 

Training program for police officers by ICE (Immigration Customer Enforcement).

The Secretariat of Public Security and the National Institute for Migration implement training programs for police officers and for immigration officers.

Defensoría del Migrante, the non-formal education department trains organizations and leaders on human rights in general and migrants’ rights in particular; Municipal Councils to assist migrants.

Human Rights Ombudsman’s Office: general training on human rights.

Human Rights Ombudsman’s Office and Nicaraguan Network of Civil Society for Migration; Nicaraguan Human Rights Center.

 

 

PROTECTION

 

 

CANADA

UNITED STATES

MEXICO

GUATEMALA

EL SALVADOR

NICARAGUA

Legislation, Protection of Victims and Witnesses

Shared responsibility for the protection of victims and witnesses by the Federal Government, provinces, and territories.  The General Program for the Protection of Victims applies to victims of trafficking.

Witness Protection Program, US Code 7105:

A general federal program to protect witnesses in general.

U.S. Code Title 18 Part II, Chapter 224, Protection of Witnesses:

Mentions relocation and protection of victims.  Establishes provisions by the Attorney General for the protection of victims.

 

(56US)

Legislation for the protection of victims exists in the majority of states of the Republic, but a federal law does not exist.  Federal law against organized crime, Article 34:  Protection shall be granted to subjects of legal processes, including victims and witnesses of organized crime.

 

(14 MX)

Decree No. 70-76 Law to protect subjects of legal processes:  Article 2: Victims and Witnesses.

 

(22Gte)

Decree No. 1029: Special Law for the Protection of Victims and Witnesses.  Article2. Protection of Victims and Witnesses.

 

(34ElS)

No specific law for protection of any type of victims exists. Code of Criminal Procedure, Article 110 establishes the possibility of protecting and assisting victims of crimes through the Department for the Assistance of Victims of the Attorney General’s Office.

 

(03NIC)

 

ASSISTANCE/AID

 

 

CANADA

UNITED STATES

MEXICO

GUATEMALA

EL SALVADOR

NICARAGUA

PROGRAMS

National Victims Assistance Fund.

A center for matters relating to policies of federal, province, or territorial programs, including:  health care, emergency shelter, social services including emergency financial assistance and legal assistance free of charge.  Civil Society Organizations also provide social services for victims.

 

GRUPOS BETA DE PROTECCIÓN AL MIGRANTE (Beta Groups for the Protection of Migrants).  The Secretariat of Public Security has developed a program to assist victims of crime through virtual assistance; the Government of Chiapas has developed a program for comprehensive assistance and protection of victims; “El Buen Pastor” Shelter, Forum on Migration between many others in various regions in Mexico.

Casa del Migrante Scalabrini” Network; “Movilidad Humana” Pastoral Outreach provides humanitarian aid and spiritual assistance.

 

Guatemala - Red Casas del Migrante Scalabrini

“Bienvenido a casa”  (Welcome Home) developed by the  Ministry of Foreign Affairs for returning Salvadoran migrants.

 

Movilidad Humana” Pastoral Outreach = Center to Assist Migrants, especially repatriated or deported Nicaraguan migrants.

Actions to Assist Victims of Migrant Smuggling

 

 

Bylaws to the Population Law, Articles 137 and 138. Establishing groups for defense of human rights and protection of documented and undocumented migrants= established in response to the Beta Groups and the Inter-Institutional Network to assist Under-Age Persons in Border Regions and the Network of Temporary Shelters for Under-Age Persons.  Provide comprehensive assistance and information about rights.   Casa del Migrante” Network in some States.

 

(13Mx)

Casa del Migrante” Network; assistance on matters relating to human rights, health care, psychological counseling (together with the Conferencia de Iglesias Evangélicas – Conference of Evangelic Churches), paperwork to obtain identity documents and work permits.

Are not considered victims but rather illegal = “Albergue del Migrante” (Migrant’s Shelter) = Repatriation Office of the General Directorate of Immigration and Red Cross, health care, social and psychological assistance, the possibility to communicate with members of their families in their country of origin.

Centro Nacional de Retención de Migrantes” (National Center for Retention of Migrants), provides required humanitarian aid.

 

Criminal/Administrative PENALTIES

 

Country

CANADA

UNITED STATES[1]

MEXICO

GUATEMALA

EL SALVADOR

NICARAGUA

Criteria

Penal Type, Migrant Smuggling

 

Section 117 (1) establishes that “no person shall knowingly organize, induce, or assist entry to Canada of one or more persons with no visa, passport or other document required by this law".

 

Organizing, inducing, assisting, and instigating smuggling of 10 migrants or less is penalized with a fine of up to Ca $500,000 and/or 10 years imprisonment.  Recurrence of this crime:  Up to Ca$1 million and/or 14 years imprisonment.

 

Smuggling of more than 10 migrants: up to Ca$1 million and/or life imprisonment.

 

 

 

INA Sec. 274 (a)

[8U.S.C. 1324 (a)]

 

A fine and/or up to 5 years imprisonment for each smuggled migrant [10 years if financial gain is involved].

 

In case of injury or endangering lives, a fine and/or up to 20 years of imprisonment.

 

For killing, a fine and/or up to life imprisonment or death penalty.

 

The penalty may be increased up to 10 years if: (1) the crime was part of an operating organization or commercial enterprise; (2) aliens were transported in groups of 10 or more persons; and (3) aliens were transported in a manner which endangered their lives, or aliens posed a threat of a lifetime health risk for persons living in the US.

 

(56US)

General Population Law, Article 138: 

6-12 years imprisonment and a fine equivalent to 100-10,000 days of general current minimum wage in the Federal District at the moment of perpetrating the crime, for persons acting on their own behalf or interposita persona attempting to take or taking Mexicans or aliens to another country for migrant smuggling purposes, without the required documents.  The same penalty shall apply for persons, acting on their own behalf or through others, who introduce one or more aliens into Mexican territory without the required documents issued by relevant authorities, or shelters or transports them through national territory for migrant smuggling purposes,

with the aim of hiding them to avoid immigration controls.  The sentence for those who knowingly provide the means or carry out the above mentioned actions is 1-5 years imprisonment and a fine equivalent to  5,000 days of current minimum wage in the Federal District.

The above mentioned penalties shall be increased by half when the described behaviors are carried out with under-age persons; or under circumstances or through means endangering the health, integrity, or life of undocumented persons; or when the perpetrator of the crime is a civil servant.

(11MX)

 

Decree 94-98, Immigration Law, Article 103.  The crime of illegal entry of aliens is committed when a person promotes or facilitates entry into the country of one or more aliens without complying with legal requirements for entering and staying in the country.

Perpetrators of this crime shall be sentenced to 5-8 years incommutable imprisonment.  Article 104.  The crime of migrant smuggling is committed when a person promotes or facilitates entry and transit of one or more persons without complying with legal requirements for entering and staying in the country, with the aim of transferring them to another country.  Perpetrators of this crime shall be sentenced to 5-8 years incommutable imprisonment.

 Article 106. The crime of concealment of undocumented persons is committed by those who allow hiding aliens who have entered or are staying on Guatemalan territory without complying with legal requirements, in any movable or immovable property, with the purpose of hiding them while in transit  to another country or to facilitate their stay in the country.

 

(20GTE)

 

Criminal Code, Article 367-A.  A person who – on his/her own behalf or through others – attempts to introduce or introduces aliens into national territory in an illegal manner, shelters or transports or guides them with the purpose of avoiding immigration controls of the country or other countries, shall be sentenced to 4-8 years imprisonment.

The same penalty shall apply for a person who shelters, transports, or guides nationals with the purpose of avoiding immigration controls of the country or of other countries.

The same penalty shall apply to a person attempting to or succeeding in helping Salvadorans or nationals from any other country to exit the country with false or fraudulent documents; or persons using legitimate documents belonging to another person.

(30ELS)

CRIMINAL CODE, Article 318. Smuggling of Illegal Migrants.  A person who – for purposes of smuggling persons – introduces, facilitates the exit or stay, transfers, hires, or shelters illegal migrants knowing their illegal status shall be sentenced to 5-8 years imprisonment and a fine equivalent to 500-1000 days.  If the crime is perpetrated by imprudence, the sentence is 3-5 years imprisonment.  Law No. 240-96, Law to Control Illegal Migrant Smuggling, Chapter IV.  On the crime of migrant smuggling:

Law No. 240-96, Chapter II.  Establishes generalities relating to migrant smuggling:


Article 7.  is Entering aliens into national territory and transferring aliens through national territory without complying with legal  requirements is  considered smuggling of illegal migrants.


Article 8.  A person introducing illegal aliens into national territory can be doing this with the purpose of transferring them to another country to live there.

Article 9.  When a person responsible for the entry of aliens into the country does this through use of false documents, this is also defined as smuggling illegal aliens.

 

(01NIC)

(05NIC)


Aggravating Circumstances

Section 121.  The Law for Immigration and Protection of Refugees (LIPR) establishes that: “The Court determining the sentence to be applied under Section 117 should consider aggravating circumstances, including bodily harm or death, whether the crime has been perpetrated in self-benefit or to benefit or under the guidance of a criminal  organization.”

 

In case of injury or if the life is endangered, a fine and/or up to 20 years imprisonment.

 

In case of killing, a fine and/or up to life imprisonment or death sentence.

 

The penalty can be increased by up to 10 years if: (1) the crime was committed by an operating organization or commercial enterprise; (2) aliens were transported in groups of 10 or more persons; and (3) aliens were transported in a manner which endangered their lives, or aliens posed a threat of a lifetime health risk for persons living in the US.

 

General Population Law, Article 138.  If the undocumented persons are under-age persons, if means are used which endanger the health, integrity, or life of the undocumented person, or if the perpetrator of the crime is a civil servant.

 

(11MX)

 

Decree 94-98, Immigration Law, Article 108.  When criminal behaviors affect under-age persons; under circumstances or through means which endanger the health, integrity, or lives of persons; or when the crime is perpetrated by civil servants.

 

(20Gte)

Criminal Code, Article 367-A.  If, as a result of this crime, passive subjects are deprived of their freedom while abroad, are victims of crimes of any type, or die due to violence or deeds of a guilty nature, the penalty shall be increased by two thirds.

(30ELS)

 

Criminal Code, Article 318. If the perpetrator is a public authority or officer or civil servant, the minimum and maximum above mentioned penalties shall be increased by one third.  Article 36, Aggravating circumstances of crimes in general.

 

(01NIC)

Penalties

Smuggling 10 or more migrants is penalized with a fine of up to Ca $500,000 and/or 10 years imprisonment.  Recurrence of crime: up to Ca$1 million and/or 14 years imprisonment.

 

Smuggling more than 10 migrants: up to Ca$1 million and/or life imprisonment.

 

Basic penalty:

5-10 years imprisonment or a fine.

Aggravating circumstances:

10-20 years and/or fines.

General Population Law, Article 138.

6-12 years imprisonment and a fine equivalent to 100-10,000 days of current minimum wage in the Federal District for the perpetrator.

1-5 years imprisonment and a fine of up to 5,000 days of current minimum wage in the Federal District for the accomplice.

An increase by half for aggravated circumstances in smuggling.

 

(11MX)

 

Decree 94-98, Immigration Law,

Article 103.  

5-8 years imprisonment, incommutable.

 

Article 104.  

5-8 years imprisonment.

 

Article 105.  

The person responsible for this crime shall be sentenced to 3-6 years, incommutable.

 

Article 106.  

For persons hiding other persons, 3-6 years imprisonment.

 

Article 108, Aggravating circumstances.  The penalty shall be increased by one third.

 

(20Gte)

 

Criminal Code, Article 367-A.  Perpetrators:  4-8 years imprisonment. Aggravating circumstances:  The penalty shall be increased by two thirds.

 

(30ELS)

Criminal Code, Article 318.  Establishes 5-8 years imprisonment and a fine equivalent to 500-1,000 days.

Shall be increased by one third for aggravating circumstances.

 

(01NIC)

Attempt

Section 131 of the Immigration Law:  To induce, help, attempt.  Criminal Code of Canada, Part XIII:  Attempt.

 

INA § 274 (a) (2), punishes “attempts” to illegally introduce a person into US territory.

 

General Population Law, Article 138.  “Upon consummating the behavior”.  Therefore, apparently attempts are not penalized.

Criminal Code, Article 14.  Attempts in general, when execution of a crime is initiated through external suitable actions with the aim of perpetrating the crime, and the crime is not consummated due to causes beyond the control of the perpetrator.

 

(17Gte)

Criminal Code, Article 24.  Attempt in general:  Imperfect or attempted crime:  When the subject intending to commit a crime initiates or implements all the actions tending toward execution to consummate the crime but does not succeed due to external causes.

 

(30ELS)

Criminal Code, Article 28, Paragraph c). Attempt in general: When the subject intending to commit a crime initiates execution directly through external actions but only carries out a part of the actions which objectively can lead to consummation of the crime, due to any cause other than his or her own voluntary abandonment of the attempted crime.

 

(01NIC)

Complicity

Article 117 (1), LIPR: “No person shall knowingly help or instigate entry into Canada of one or more persons.”

 

Penalty of 10 years imprisonment and/or a fine of up to Ca$500.000 for less than 10 persons and for the first time the crime is committed.  Subsequent crimes shall be penalized with 14 years imprisonment and/or a fine of up to Ca$1, 000,000. For more than 10 persons, the penalty is a fine of up to Ca$1,000,000 and/or life imprisonment.

Bill C-57: Reforma IRPA Canada

 

 

 

INA Sec. 274 (a)

[8 U.S.C. 1324 (a)]

 

A fine and/or up to 5 years imprisonment for each migrant introduced illegally into the territory (10 years imprisonment if financial gain is involved).

 

(Help and instigation are included as criminal actions under the same section that includes migrant smuggling).

INA Sec. 274 (a); [8 U.S.C. 1324 (a)] (Shelter)

From 5 years imprisonment to life imprisonment or death penalty if somebody dies.

(Same as in the case of transportation)

INA Sec. 275, 276; [8 U.S.C. 1325, 1326]  (Illegal Entry)

 

6 months-20 years imprisonment (for re-entry of a dangerous criminal)

 

(56US)

General Population Law, Article 138.  Every person providing the means, participating, or helping to commit an illegal action is penalized.

 

(11MX)

Criminal Code, Article 35.  Legally liable for the crime:  perpetrators and accomplices.

 

(17Gte)

Criminal Code, Article 36.  Complicity in general:  Persons engaging in cooperation with the perpetrator(s) in such manner that the crime would not have been committed without this cooperation, and persons cooperating in any other way, including a promise to help after the crime has been consummated.

 

(30ELS)

Criminal Code, Articles 42 and 43.  Complicity in general.

 

(01NIC)

Connected or Related Crimes

C 279.1 USCC.  Trafficking in persons, Article 127 of the LIPR establishes that it is illegal to provide –directly or indirectly, through any means – false or deceptive information with the aim of inducing or preventing migration to Canada.  The penalty is up to 5 years imprisonment and/or a fine of up to Ca$100,000.  A summary proceeding penalty of up to 2 years imprisonment and/or a fine of up to Ca$50,000.

 

US Criminal Code, Title 18, trafficking in persons.

Sheltering or hiding immigrants to avoid that they are detected.  INA § 274 (a) (1) (A) (iii)

Promoting illegal immigration.

 

 

Criminal Code, Article 366, Ter.  Smuggling of migrants under 16 years of age: Delivering under-age persons in an illegal manner outside national territory. Article 215, Abuse of Authority.  Article 222, Subornation. Articles 243 and 244, Document forgery in general.  Article 390, Extortion.

 

(09Mx)

Criminal Code, Articles 12, 28, 418,  Abuse of Authority.  Articles 214 and 215, Coercion and Threats.  Articles 429, 440, 442, and 443, Subornation. Articles 321-325 establish document forgery in general and carrying or using false documents.

 

(17Gte)

Criminal Code, Article 153, Coercion.  Article 154, Threats.  Article 214 Extortion.  Article 244, Violation of Labor or Social Security Conditions,  Forging in General. Article 286, Suppression, Concealment, or Destruction of Documents.  Article 288, False Use of Identity Documents = Passports.  Article 320, Arbitrary Acts (Abuse of Authority).  Articles 330, 331, and 335, Subornation.

 

(30ELS)

Criminal Code, Article 184, Threats.  Article 187, Coercion and Movement.  Article 228, Extortion.  Article 315 Labor Exploitation.  Article 432, Abuse of Authority and Functions.  Articles 445 and 446, Subornation.  Articles 470 and 471, Covering Up.

 

(01NIC)

Organized Crime

Article 121 of the Refugee Immigration and Protection Law (LIPR) establishes, under Aggravating Circumstances, crimes committed by an organized group.  Article 37.1, Immigration Law, establishes that the presence of a person that is part of an organized group engaged in actions such as trafficking in persons is inadmissible.

 

Federal Law Against Organized Crime.  Article 2, III.  Smuggling of Undocumented Persons established in Article 138, General Population Law.

 

(14Mx)

(11MX)

Decree 21-06, Law Against Organized Crime., Article 2, Paragraph c) of those contained in the Immigration Law:  Illegal Entry and Transit of Persons, Transporting Illegal Migrants.

 

(19Gte)

A Law Against Organized Crime exists but does not specifically consider migrant smuggling as an organized crime.

Criminal Code, Article 393, Organized Crime:  Does not specifically consider migrant smuggling as an organized crime.

 

(01NIC)

The Crime of Conspiracy

 

INA § 274 (a) (1) (A) (v) (I):  Conspiracy in migrant smuggling.

No information found.

Decree 21-06, Law Against Organized Crime, Article 3, Paragraph c) of the paragraphs contained in the Immigration Law, same as in the box above.

 

(19Gte)

Criminal Code, has provisions for Conspiracy but not for the crime of migrant smuggling.

 

(30ELS)

Criminal Code, Article 393.  Conspiracy in Organized Crime is penalized.  Article 31.  Conspiracy only exists for crimes which have specific provisions for it, not for migrant smuggling.

 

(01NIC)

Penalizing Carrier Companies

A fine of Ca$ 3,200  Under the Refugee Immigration and Protection Law (Articles 278-280).

8 USC Section 1323: A fine of $3000

INA § 274 (a) (1) (A) (ii) (coded in 8 USC § 1324 (a) (1) (A) (ii)). A person who transfers or transports other persons knowing about their illegal status.

General Population Law, Article 132. Establishes a penalty of 5,000 Pesos for shipping companies or airlines transporting aliens without identity documents, and Article 138, Paragraph 2 establishes “transporting them”.

 

(11MX)

Decree 94-98, Immigration Law,  Article 105.  The crime of transporting illegal migrants is committed by any person driving or providing any means of transportation with the purpose of transporting aliens who have entered or are staying in Guatemalan territory in an illegal manner.  Perpetrators of this crime shall be penalized with 3-6 years imprisonment, incommutable.

 

(20Gte)

 

Criminal Code, Article 367-A.  The same penalty (4-8 years imprisonment) for persons transporting nationals with the aim of avoiding immigration controls.

 

Law 2772, Immigration Law, Article 65.  Establishes the obligation of carrier companies of verifying the identity documents of their passengers.  Incompliance:  Returning them on their own account.  If carrier companies do not comply with this they shall be penalized with a fine of 1,000 Colones.

 

(30ELS)

(32ELS)

Law 153-93 of the Immigration Law, Article 72.  Infringements by carrier companies shall lead to applying a fine, payable to the Treasury Department, of C$ 50,000.00 (fifty thousand Cordobas) or the equivalent in foreign currency accepted by the country.

 

(02NIC)

Penalizing Establishments

 

 

General Population Law, Article 138.  Could be derived from Paragraph 2, “sheltering them”.

 

(11MX)

Decree 94-98 of the Immigration Law,  Article 106, could apply because this is real estate property.

 

(20Gte)

Criminal Code, Article 367-A.  The same penalty (4-8 years imprisonment) shall apply for persons providing shelter to others in order to avoid immigration controls.

 

(30ELS)

 

Criminal Code, Article 318.  Establishes a penalty for persons who provide shelter to illegal migrants knowing about their illegal status.

 

(01NIC)

Penalizing Juridical Persons

 

 

 

 

 

 

Document Forging, Use, Retention, or Destruction

Article 122 of the LIPR:  Crime of possessing or using, importing, or exporting documents including passports, visas, or other documents of Canadian or foreign origin which infringe  the LIPR.  Penalties of up to 5 years imprisonment for possessing documents which infringe the LIPR  and up to 14 years imprisonment for using documents which infringe the LIPR with the purpose of entering or staying in Canada, or importing, exporting, or using such documents.

 

 

8 USC 1324c: (Fraud with Civil Documents).  Civil fines of up to $2000 per document; for recurring crimes, fines of up to $5000 per document.

 

18 USC 1015: (Fraud Relating to Procurement of Naturalization or Citizenship or Registration for Migrants).  Penal fines and/or up to 5 years imprisonment.

 

18 USC 1028: (Fraud Relating to Identity Documents and Information).  Penal fines and/or up to 25 years imprisonment.

Criminal Code, Articles 243-246.  Penalizes forging in general.  General Population Law, Article 116.  A person submitting or signing a document with a false signature to Immigration authorities: a fine equivalent to 200 days minimum wage, commutable to detention for 36 hours.

 

(09Mx)

(11MX)

 

 

Criminal Code, Articles 321-325.  Document forging in general.

Article 327.  Removing, concealing, or destroying documents.

 

(17Gte)

Criminal Code, Articles 283-285.  Document forging in general.  Article 286.  Removing, concealing, or  destroying documents.  Article 288. Using false identity document = passport.

 

(30ELS)

Criminal Code, Articles 284 and 285. Document forging. Article 286.  Removing, concealing, or destroying documents.

 

(01NIC)

Penalizing Employers

Article 124, LIPR: Employing foreign nationals is a crime if the LIPR does not authorize their employment.  A criminal proceeding with a fine of up to Ca$50,000 and/or up to 2 years imprisonment. 

A summary proceeding penalty   of up to Ca$10,000 and/or up to 6 months imprisonment.  See also the reference to Article 279.01 of the Criminal Code, establishing that exploiting another person is a crime.

INA Sec. 274a [8 U.S.C. 1324a]

Criminal Penalties:

6 months imprisonment and/or $3000 per migrant for the employers and the practice of knowingly employing unauthorized migrants.

Civil Penalties:

$100 - $1000 per employee if a form is not duly completed to prove the employee’s level of reading skills.

$250 - $10.000 per unauthorized migrant who is knowingly employed.

 

General Population Law, Article 140.  Every infringement of immigration norms which is not stipulated in the law can be penalized with a fine commutable for detention for 36 hours.

 

(11MX)

Article 107, Immigration Law.  The crime of hiring illegal migrants is committed when an individual or juridical person hires aliens staying in the country without complying with legal requirements by possessing the documents required by the General Directorate of Immigration to stay in the country.  Perpetrators of this crime shall be penalized with 2-5 years imprisonment.

 

(20Gte)

Law 2772, Immigration Law, Article 62.  Illegal hiring of aliens:  Employers hiring aliens who do not prove their legal stay in the country are penalized with a fine of 100-500 Colones.

 

(32ELS)

Criminal Code, Article 315, Paragraph III:  A person smuggling other persons for purposes of labor exploitation shall be penalized with a penalty of 5-8 years imprisonment and a fine equivalent to  150-300 days.

Article 318.  Penalizes persons knowingly hiring illegal migrants.

 

(01NIC)

 

 

PROCEDURAL PROVISIONS

 

 

CANADA

UNITED STATES

MEXICO

GUATEMALA

EL SALVADOR

NICARAGUA

Prosecuting Organ

Department of Justice.

 

 

Department of Justice,

US Attorneys Offices.

 

General Population Law, Article 143. Pertaining to the MPF but subject to the complaint submitted by the Secretariat of the Interior for each case.

 

(11MX)

Decree 51-92, Code of Criminal Procedure, Article 24:  The Attorney General's Office is responsible for criminal proceedings.

 

(18Gte)

Code of Criminal Procedure, Article 19. The Attorney General’s Office is responsible for criminal proceedings.

 

(31ELS)

Code of Criminal Procedure, Article 51.  The Attorney General’s Office is responsible for criminal proceedings.

 

(03NIC)

Prescription

The maximum penalty.

 

Criminal Code, Article 105.  General Prescription:  The criminal action for the crime in question prescribes within a period equivalent to the arithmetic average of the penalty of imprisonment established by the law.  Article 107 establishes a period of one year if the crime requires a complaint.  Therefore, it should be considered in terms of Article 143 of the Population Law.

Federal Law Against Organized Crime, Article 6.  Establishes that terms shall double for crimes referred to in Article 2 of this law.

 

(09Mx)

(11Mx)

(14Mx)

Criminal Code, Article 107.  Prescription in general:  For a period equivalent to the maximum duration of the established penalty of imprisonment, increased by one third but no more than 20 years nor less than 3 years.

 

(17Gte)

Code of Criminal Procedure, Article 34. Prescription in general:  Criminal action for crimes with a penalty of imprisonment prescribes within a period equivalent to the maximum established term but no more than 10 years or less than 3 years.

 

(31ELS)

Criminal Code, Article 131.  Establishes prescription in general: Paragraph b).  The action prescribes after 10 years when the maximum penalty is more than 5 and less than 10 years.

 

(01NIC)

Special Investigation Techniques

 

Applicable by mandate of a judicial authority.  ICE has developed a special process to investigate these crimes (migrant smuggling and trafficking) through use of special techniques.

Law Against Organized Crime, Article 9.  Addresses protection of the identity of infiltrated agents.  Article 15 establishes the possibility of house searching (raid), and Article 16 allows intercepting private communications.

 

(14Mx)

Decree 21-06, Law Against Organized Crime, Title II, Chapter I, Article 20.  Authorizing special investigation methods: undercover operations, controlled deliveries.  Article 24. Analyzing criminal organizations. Chapter III, Article 48.  Intercepting communications: verbal, written, telephone, radio-telephone, computer, and similar communications may be recorded, intercepted, and reproduced.

 

(19Gte)

No specific regulations for crimes relating to migrant smuggling.

No specific regulations for crimes relating to migrant smuggling.

Victim Compensation and/or Civil Action

Victim compensation programs at a provincial level providing financial assistance for health care, among others.  Federal funds.  A National Office for victims of crime and laws oriented toward protection and assistance to victims. (Bill C-2, expansion of protection to include vulnerable witnesses).

 

General Population Law, Article 118, Paragraph f).  Penalizes aliens entering the country without the required documents with a fine.  A  contrario sensu, there is no compensation.

 

(11Mx)

The Immigration Law and Bylaws establish a penalty of expulsion of illegal or undocumented aliens and a fine.  Therefore, these persons are not considered “victims” according to the Immigration Law; Article 89 relating to Articles 112 and 114 of the Immigration Law and Article 95 of the Bylaws.

 

(20Gte)

(21Gte)

The Immigration Law and Bylaws establish that aliens are not considered victims and are penalized:

Decree 2772-58, Immigration Law, Article 60.  Aliens infringing the Immigration Law when entering the country shall be penalized with a fine of 10-100 Colones and shall be expelled from national territory.  Commutable for detention of up to 30 days.  Decree 33-59,  Bylaws to the Immigration Law, Article 39.  False declarations by the immigrant, tending to elude immigration controls, shall lead to a fine of 10-25 Colones depending on fault severity.  In special cases, assessed by the Ministry of the Interior, immigrants may be expelled from national territory.

Nonetheless,  authorities determine that some cases are victims and grant refugee status, and others are not considered to be victims and are expelled.

(32ELS)

(33ELS)

 

 

Law 240-96 and its Reform 513-04 does not consider illegal aliens to be victims.  In Article 21 the crime of illegal stay or entry is classified: Illegal entry and/or stay in the country: Persons shall be detained by relevant authorities for a period of 48 hours and up to 30 days to be repatriated, deported, or expelled.

 

(05NIC)

 

Immigration Provisions

 

 

CANADA

UNITED STATES

MEXICO

GUATEMALA

EL SALVADOR

NICARAGUA

Repatriation[2]

As established in general regulations relating to this matter.

As established in general regulations relating to this matter.

General Population Law, Article 125.  Aliens implementing actions included under Articles 118 or 138 shall be repatriated to their country of origin, if an agreement exists with this country.

Memorandum for the Dignified and Safe Return of Victims of Migrant Smuggling between Mexico, El Salvador, Guatemala, and Nicaragua, 2009-2013.

 

(11Mx)

 

Memorandum for the Dignified and Safe Return of Victims of Migrant Smuggling between Mexico, El Salvador, Guatemala, and Nicaragua, 2009-2013.

 

Memorandum for the Dignified and Safe Return of Victims of Migrant Smuggling between Mexico, El Salvador, Guatemala, and Nicaragua, 2009-2013.

Repatriation Office of the General Directorate of Immigration makes the necessary arrangements for repatriation of any alien.

Law 240-96, Article 21, Paragraph III establishes that a term of 48 hours shall be granted to the Embassy or Consulate of the country of origin of illegal aliens to initiate the repatriation process for nationals from their country.

 

 

 

(05NIC)

Deportation

Applies to permanent residents sentenced for a crime before entering Canada or within the country, illegal stay, etc., termination of legal stay without renewal, with no right to return for a determined period of time.

 

No information found.

Decree 95-98, Immigration Law, Article 112.  Migrants shall be penalized with deportation to their country of origin when:  they enter or stay in the country avoiding immigration controls; use false documents;

re-enter the country with no authorization after having been expelled.

 

(20Gte)

 

 

No applicable regulations exist.

Law 240-96, Article 21.  Establishes deportation procedures for illegal migrants within a 30-day term after arrest and detention.

 

(05NIC)

Expulsion

Authorities carry out a prior assessment of the risk of expelled persons in the country of destination, in accordance with the Geneva Convention. Expulsion can be appealed before the Immigration and Refugee Board.

Based on Sections 238, 239, 240,240A of the Immigration and Nationality Law, expulsion applies to aliens having committed a serious crime.

General Population Law, Article 125. Aliens with behaviors described in Articles 115, 116, 117, 118, and 138 shall be expelled from Mexican territory.

 

(11Mx)

Article 114, Immigration Law. Aliens shall be penalized with expulsion and return to their country of origin when they enter the country in violation of this law and its bylaws, and in the other cases contemplated in the law.

 

(20Gte)

Decree 2772, Immigration Law, Article 60.  Aliens entering in violation of the Immigration Law shall be expelled from national territory.

Article 63.  The Ministry of the Interior can order expulsion of any alien for valid discretional reasons.

 

(32ELS)

Law 240, Article 21.  Also contemplates expulsion.

 

(05NIC)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Temporary Stay of Victims

In accordance with Sections 22.1 and the sections that follow, applying for temporary stay.

Aliens may apply for temporary stay with a work permit under the Immigration and Nationality Law (Section 244.10)

General Population Law, Article 152.  Authorized officers may arrest aliens to be expelled, Bylaws to the General Population Law. Articles 207 and 208, conditions of detention and period of detention.

(11Mx)

(13Mx)

 

Decree 95-98, Articles 110. Upon surprising an alien entering or staying in the country without the required authorization, the General Directorate of Immigration shall initiate the relevant investigation to establish the identity, origin, and nationality of this alien.

 

Article 111.  While the investigation is carried out, the General Directorate of  Immigration may provide shelter to undocumented aliens in centers which are specifically designed for this purpose and which must provide shelter in compliance with and respect for human dignity.

 

(20Gte)

The law does not have any related provisions, they are sent to a shelter during their repatriation process or while they are applying for refugee status.  

Law 240-96, Article 21.  Only establishes that they shall stay in the country in a facility designated as a National Detention Center for illegal migrants, under management and custody of   authorities of the General Directorate of Immigration.

 

(05NIC)

Temporary/

Permanent Stay of Victims

In accordance with the IRPA, Sections 22.1 and those that follow, applying for temporary or permanent residence can be applicable, depending on the risk faced by the victim.

 

The General Population Law only grants temporary or permanent residence to asylum applicants or refugees.  Government of Chiapas, Program for Comprehensive Assistance and Protection for Migrants, Guatemalan Indigenous Migrants, migration regularization  (elorbe.com)

Decree 95-98, Article 93. Upon detecting an alien staying in the country in an illegal manner, a maximum of ten days may be granted for this person to regularize his/her stay in the country or immediate expulsion from the country may be dictated.

 

(20Gte)

 

Decree 918-02, Refugee Law, Article 4.  Grants refugee status to aliens.

Law 153-93, Article 29, Paragraphs f) and g).  Include provisions for temporary residents, refugee and asylum applicants; the other categories included in this article do not apply to illegal migrants.

 

 

(02NIC)

Actions for Dependants of the Victims

 

 

Included in the laws to protect victims.

 

(15Mx)

Decree 46-07, Article 2.  Mentions providing assistance and aid to Guatemalan migrants and their families.

 

(22Gte)

Included in the Law to Protect Victims and Witnesses.

 

(34ELS)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

COOPERATION

 

Country

CANADA

UNITED STATES

MEXICO

GUATEMALA

EL SALVADOR

NICARAGUA

National

 

 

Inter-Ministerial Commission to Prevent and Combat Migrant Smuggling.

Decree 46-07 CONAMIGUA, Article 3, Paragraph d), Article 4, Article 7 Paragraph k), o), and q) establish the obligation for inter-institutional cooperation by the central government and local governments.

 

(22Gte)

No formal regulations but cooperation between Immigration and the Red Cross and NGOs takes place.

Institutional applicable regulations do not exist, cooperation takes place through the Nicaraguan Civil Society Network.

International

Internal legislation on assistance regarding criminal matters applies (Law C 30  and Reforms about Mutual Legal Assistance in Criminal Matters) and international treaties.

 

Repatriation agreements with various countries.

Decree 46-07, CONAMIGUA, Article 7, Paragraph ñ). Requiring international cooperation, support, assistance in order to carry out their functions.

 

(22Gte)

Repatriation agreements with Mexico and other countries.

Repatriation agreements with Mexico and other countries.

Extradition

IRPA, Section 105.1 Extradition Procedure.

Extradition Law C.18 of 1999 and its reforms apply.

Agreements with Mexico, El Salvador, Nicaragua, Canada.

Individual extradition agreements with Canada, USA, El Salvador, Guatemala, and Nicaragua.

Law Article 61 refers to the Extradition Law, Proc. Extradition Law

28-2008;

Inter-American Convention on

Extradition, Montevideo 1933.

Individual extradition agreements with USA, Mexico;

Inter-American Convention on

Extradition, Montevideo 1933.

Criminal Code, Article 17.  Extradition in general terms is granted under the terms and conditions established by the Political Constitution, ratified international instruments and provisions by the Criminal Code;

Extradition Agreements with Mexico;

Inter-American Convention on

Extradition, Montevideo 1933.

 

(01NIC)

International Training

Provisions of the Convention Against Transnational Organized Crime apply.

Provisions of the Convention Against Transnational Organized Crime apply.

Memo of Understanding with El Salvador for the protection of victims of trafficking and smuggling;

training of officers.

Memo of Understanding with El Salvador for the protection of victims of trafficking and smuggling;

training of officers.

Memo of Understanding with Mexico for the protection of victims of trafficking and smuggling;

training of officers.

Verbal or written agreements between countries.

Provisions of the Convention Against Transnational Organized Crime apply.

 

 



[1] Possible approval of a new law:  H.R. 1029: “Alien Smuggling and Terrorism Prevention Act of 2009”.

Status:
2/12/2009: Introduced
2/12/2009: Referred to House Homeland Security Committee
2/12/2009: Referred to House Judiciary Committee
3/31/2009: House Passage
4/1/2009: Received in Senate
4/1/2009: Referred to Senate Judiciary Committee
9/24/2009: Provisions included as amendment to another bill.

[2] Regional Guidelines for Special Protection in Cases of Repatriation of Boys, Girls, and Adolescents Victims of Trafficking, RCM 2007. The document establishes the guidelines for repatriation of under-age persons.  Applies in all member countries.