J.       Labor rights and economic, social and cultural rights

231.        The protection and guarantee of labor rights and of the economic, social, and cultural rights of migrant workers and their families is an important area of interest for the Rapporteurship.  One of the fundamental reasons why a person or family migrates is to seek improved working and living conditions.  Nonetheless, the Rapporteurship’s team has observed during its visits and study of migration that it is an area in which migrant workers are most vulnerable. This section of the report describes the existing legal regime and the information gathered by the IACR’s. Emphasis is placed on existing law and practice.

232.        The Costa Rican Constitution establishes equal rights for nationals and foreigners, with some exceptions set forth in the Constitution itself and in statutes, and notes that work is an individual right and an obligation to society.  It is a duty of the State to seek fairly-paid full employment, and to impede the establishment of working conditions that undermine the liberty or dignity of workers.  The Constitution also prohibits discrimination in wages or working conditions as between Costa Ricans and foreigners, but it indicates that all else being equal, preference should be given to Costa Rican workers. [235]

233.        In developing these constitutional principles, the immigration law establishes that permanent residents and persons temporarily living in the country shall enjoy the protection of the applicable labor laws and social laws. Permanent residents can perform any paid activity, in keeping with their category upon entering the country.  Persons living temporarily in the country can work in the activities authorized by the DGME, after informing the Ministry of Labor and Social Security.  Persons who enter the country as non-residents cannot perform remunerated activities, unless they are artists, athletes, or migrant workers, for which the authorization of the DGME is also received, once they have received the approved of the Ministry of Labor and Social Security. Those who are living in Costa Rica without authorization to do so cannot perform remunerated tasks. [236]   Accordingly, there is a prohibition on hiring foreigners who do not have regular immigration status or are not authorized to work. In addition, the hotel industry is barred from providing lodging to foreigners who have entered or are in the country in violation of the immigration laws.  Employers and hotel establishments are ordered to send a weekly report to the DGME on foreign persons who work or are lodged in their companies and establishments. [237]

Discrimination in the Labor Market

234.        Despite the normative framework described above, according to the information provided by researchers, members of civil society organizations, and the Office of the Ombudsman, in Costa Rica migrant workers, in particular those of Nicaraguan origin, are victims of discrimination in the labor market.  The information collected on the working conditions of the Nicaraguan workers reflects a treatment that is considerably worse than that received by Costa Rican workers.  Indeed, in the report that Costa Rica submitted to the Committee on the Elimination of Racial Discrimination of the United Nations, in March 2001, the Government makes reference to the efforts that were being carried out at that time to protect the labor rights of migrant workers.   That report indicates, in particular, the weaknesses of the Labor Inspection Office of the Ministry of Labor, and state efforts to carry out campaigns through the mass media to inform migrant workers of their rights. [238]   In its reply to this report, the government indicated that during 2002, the Labor Inspection Office carried out 11,916 inspections. It adds that a considerable percentage of those inspections were related to foreign born workers. Discrimination is observed in several sectors including agriculture, industry, and services, particularly in commerce and domestic service, where most workers of Nicaraguan origin are concentrated. [239]   In this respect, the non-governmental organizations expressed their concern over the fact that migrant workers are forced to accept working conditions inferior to those established by law, and that this, in turn, tends to worsen working conditions for all workers in Costa Rica.

Agricultural Work

235.        In agriculture, the status of undocumented migrant workers impacts on the conditions under which they are hired and on the possibility of seeking protection from the appropriate authorities when certain rights are violated by employers. This situation has been acknowledged by the Ministry of Labor and Social Security. [240]   Migrant workers who work in agriculture are particularly vulnerable. [241]   Several studies and testimonies indicate that migrant workers employed in agriculture in Costa Rica suffer discrimination.  These conditions are found both in the north and in the Atlantic region. [242]   Several non-governmental organizations cited as one example of labor discrimination against Nicaraguan workers, the situation in the province of Limón, in the Atlantic coast region. [243] Agriculture, particularly citrus and banana crops, is the main source of employment in that area, and attracts a large flow of Nicaraguan agricultural workers. The workers arrive in Limón on their own, many of them after having crossed the border by irregular means. The non-governmental organizations and the Office of the Ombudsman reported problems such as long work days, lack of labor protections, salaries below the legal minimum, and discrimination based on sex and nationality, among others.  In addition, the organizations interviewed reported another pattern of violation of labor rights that consists of entering into labor contracts with migrant workers for less than three months, so as to avoid the duty of registering them into social security system. These sources also indicated that collective dismissals are common and that the salaries of migrant workers are less than one-third the salary received by a Costa Rican worker for the same work.  Another way to avoid the labor legislation and leave migrant workers without protection, these persons explained, is subcontracting.  An agricultural enterprise contracts certain work to a third person, usually the harvesting or packing of the fruit, who in turn subcontracts a group of Nicaraguan workers. This cuts the link between the agricultural enterprise and the workers. [244]   Those familiar with Costa Rican agriculture stated their concern over the existence of various mechanisms for obviating the labor laws, to the detriment of the rights of migrant workers. [245]   These conditions are corroborated by several studies. [246]

236.        Non-governmental organizations also denounced several incidents of corruption that impact on labor conditions in Limón and in other areas of the country.  The Rapporteurship received credible information regarding alleged collusion between employers and immigration authorities to expel the migrant workers prior to pay day, or days before the contracts with these persons expire.  According to these sources, unscrupulous employers pay members of the Special Migration Police to carry out round-ups in the work place, apprehend the migrant workers, and then deport them. This keeps the migrant workers from receiving pay for the work rendered.  Through these operations, state agents also facilitate the termination of migrant workers’ labor contracts. The Office of the Ombudsman acknowledged that it had received reports of such cases.

237.        In addition, it was noted that the Ministry of Labor and Social Security has difficulties monitoring labor conditions in rural areas and fining unscrupulous employers who try to get around the labor laws.  On this point, the report that Costa Rica provided to the Committee on the Elimination of Racial Discrimination (para. 383) cites a report from the Office of the Ombudsman notes that:

238.        unscrupulous employers who take advantage of cheap manpower, workers who cannot make claims because they are in an illegal situation, are fortified in their violation of labour rights by the timidity and insufficiency of the intervention by the Ministry of Labour and Social Security. The lack of resources, the absence of mechanisms for effective interagency co-ordination and the need for a national employment policy are factors enhancing the vulnerability of that population.” [247]

Remunerated domestic work

239.        As indicated above, the main source of employment for women migrant workers of Nicaraguan origin is remunerated domestic service. [248]   The participation of Nicaraguan women in domestic work extends to the hotel industry and cleaning services, in which the working conditions are relatively similar.  Domestic service is the way many young Nicaraguan women enter the labor market in Costa Rica. This trend has reduced the supply of Costa Rican women domestic workers. At the same time, the increase in the number of professional women in Costa Rica has generated a larger demand for domestic workers. [249]

240.        Remunerated domestic work is governed by the following special rules: They receive a salary paid in cash which cannot be less than the minimum wage; room and board constitute in-kind salary; the maximum work day is 12 hours, with at least one hour of rest; the work day can be split and an extra four-hour shift can be added, which must also be remunerated; minors may only work 12_hour days; they have the right to one-half day of rest per week; on holidays they have the right to rest half a day or to be compensated for that additional work; they have the right to 15 days of annual paid vacation; children under 14 years have the right to have the work day adjusted so they can attend primary school. [250] Several non-governmental organizations have made public their concern over the lack of protection of labor rights to which domestic workers, both Costa Ricans and foreigners, are exposed.  In terms of duration of the work day and remuneration received, the working conditions of domestic employees are much more onerous than those of the rest of the work force in Costa Rica. [251]   In 1994, the Constitutional Chamber of the Supreme Court of Justice determined that Article 104(c), (d), and (e) of the Labor Code, on duration of the work day, rest, and work on holidays is constitutional, as it does not entail discrimination, but rather an exception to the right to work allowed by the provisions of the Constitution. The Court considered that domestic work is an exceptional situation that cannot be equated to work in agriculture or industry, as the conditions are not the same. [252]   Even though ASTRADOMES, the organization of domestic workers, presented proposed reforms to the Labor Code, as of this writing the old law continues in force.

241.        In the view of the Rapporteurship, the differentiated working conditions in terms of duration of the work day and type of work performed by domestic service workers reflect discrimination against domestic workers, since these persons are subjected to working conditions at once more exigent and worse paid than the rest of the work force.  The fact that a very large share of domestic workers are Nicaraguan means that these persons are victims of policies which, while not discriminatory per se, have a clear discriminatory impact because they disproportionately affect persons from a given country and a given gender, in this case Nicaraguan women. It must be noted that Nicaraguan women accept to work as domestic employees as a way of gaining access to the labor market, as they are irregular or undocumented immigrants, and in view of their low level of education. Changing the labor legislation in this area would have a major impact on migrant workers.

242.        The Costa Rican government replied to this section of the report indicating that it is carrying out important efforts aiming at correcting irregular situations. It indicates that the personnel of the Ministry of Labor have been instructed to provide assistance to migrant workers. In the department of labor relations, 45% of the persons requesting assistance are foreigners, mostly from Nicaragua. As mentioned before, the Ministry of Labor and Social Security signed an agreement with the labor authorities in Nicaragua in order to administer migrant workers flows. The Ministry insists that there are many appropriate instances to submit complaints or petitions such as the Ombudsman’s Office. Finally, it adds that the new migration bill includes sanctions to employers who breach migration and labor regulations.

Freedom of Association

243.        The Constitution of Costa Rica establishes the right of employers and workers to unionize, and prohibits foreign persons from exercising positions of direction or authority in such organizations.  Workers of Nicaraguan origin participate in trade union organizations on some Costa Rican agricultural properties. After a strike at a plantation of the company Geest Caribbean, in the Atlantic region, for example, Nicaraguan banana workers created the Association of United Nicaraguan Workers (ATNU, Asociación de Trabajadores Nicaragüenses Unidos) in 1994. Similarly, the Coordinating Body of Banana Unions (COSIBA) engages in promotion, advisory services, and support for banana workers to help them organize.  Despite this trend, studies indicate that violations of the right to form and join trade unions have occurred.  It is estimated that an indeterminate, yet large number of Nicaraguan agricultural workers are not able to participate as members of unions, given the refusal of employers to guarantee that right. [253]

244.        The Rapporteurship’s team discussed labor problems with government authorities. These persons recognized that some practices mentioned take place and stressed the need to enter into labor contracts so that agricultural workers can demand their rights and better conditions and to eliminate subcontracting.  They added that even though an Agreement is in place between the DGME and the Ministry of Labor and Social Security, with a view to obtaining the cooperation of the labor inspectors, the situation has not changed. Officials, however, said they had no information on the alleged collusion between migration police agents and unscrupulous employers. Mr. Ovidio Pacheco Salazar, Minister of Labor and Social Security, indicated that the Ministry has taken measures to prevent abusive practices. These include studies to evaluate the problem and public awareness campaigns in areas where there are large numbers of migrant workers to make known workers’ rights and to explain which employer practices are illegal.  The Ministry of Labor and Social Security also provides attention and advice to persons or groups to come to the Inspector of Work and Labor Relations to obtain information or to present complaints.  In addition, the Ministry has tried to develop information systems.

Economic, Social and Cultural Rights

245.        The protection of the economic, social, and cultural rights of migrant workers is a complex issue in all countries of the region.  Following are brief descriptions of the situation with respect to the rights to housing, health, and education in Costa Rica. Finally, reference is made to a state program aimed at ensuring the economic, social, and cultural rights of the immigrant population.

Right to housing

246.        In the report submitted to the Committee on the Elimination of Racial Discrimination in 2001, the government presented a study by the Ministry of Housing and Human Settlements that found that foreign families live in 42.29% of the precarious settlements identified in Costa Rica. [254]   As indicated, the Law on the National Financial System for Housing establishes that a foreigner may be assigned low-cost housing, so long as he or she shows reasonable prospects of residing legally and permanently in the country. Nonetheless, the Law on Family Assignments that is applied by the Mixed Social Assistance Institute (IMAS) provides that the beneficiaries of the funds should be Costa Rican. What is happening in practice is that the IMAS serves foreigners with its own funds, pursuant to its by-laws, which include foreigners who have residency cards and are in poverty. [255]

Right to health

247.        The Costa Rican Social Security Fund (CCSS) offers health services to all inhabitants of Costa Rica, independent of nationality or immigration status, pursuant to its constitutional mandate. Nonetheless, the State recognizes that in many cases undocumented migrant workers do not seek health services for fear of being deported. The government has a policy of not refusing health services to any person seeking them.  Documented migrant workers may be affiliated with health services through their employer, indirectly through their relationship with the insured, or on a voluntary basis, paying dues.  The 2000 Household Survey indicates that 57.2% of Nicaraguan immigrants surveyed are insured, either directly or as family members. Self-employed workers can affiliate.  Emergency medical care is provided to any person, regardless of his or her immigration status or affiliation. [256]

Right to education

248.        The Constitution of Costa Rica makes preschool and primary education compulsory and free.  Accordingly, the legislation establishes the duty to provide education to all children, with no distinction whatsoever.  In those cases in which the minors do not have identification documents or documents showing their level of schooling, the schools accept sworn statements or offer admissions tests.

249.        In 1999, the figures of the Ministry of Public Education indicated that 2.8% of all students enrolled in the regular education system were of Nicaraguan nationality. [257] In addition, Executive Decree No. 21989-MEP-MTSS, issued in 1993, which regulated a subsidy known as a bono escolar (school allowance), did not authorize foreigners to benefit from it.  The Constitutional Chamber of the Supreme Court of Justice, however, held the law unconstitutional. [258]   At this time, the distribution of the bono escolar is regulated by Decree 27592-MEP-MTSS, which eliminated the nationality requirement to be eligible to receive the benefit.  When the Ministry of Public Education intervened in the action on grounds of unconstitutionality, the executive argued that even though the law was still in force, it had not been enforced as of the previous Administration. In addition, it adduced that as resources were limited, the Executive decided to earmark them to Costa Ricans with fewer economic opportunities. Law 7711 ordered that the principles of assuring equal opportunity and eliminating prejudice, stigmatization, and any act that promotes segregation of any type, be included in study programs and plans; in addition, the contributions of the various ethnic groups and cultures of Costa Rican society should be taught, so as to reinforce the values of diversity and pluralism.

Program for Improving the Quality of Life and Insertion of Immigrants in Costa Rica

250.        This initiative arose in the context of the Consultative Group for the Reconstruction and Transformation of Central America, where the Costa Rican government raised the need to include the immigration issue within the impacts of Hurricane Mitch in the region. The program has the support of the international community, and is aimed at improving the living conditions of immigrants and communities where they settle, fostering their insertion into Costa Rican society. The program aims to work in the areas of education, employment, health, and housing. This program includes the participation of the Office of the Second Vice-President, the Ministry of Foreign Affairs, the International Organization for Migration, agencies of the U.N. system, and NGOs that play the role of implementing agencies.

K.       Observations and recommendations

251.        The Rapporteurship begins by recognizing the spirit of cooperation of the Government of Costa Rica and the fundamental importance of highly positive practices that benefit migrant workers and their families. Among these are the 1998 immigration amnesty and the recent agreements the Government of Costa Rica signed with Nicaragua and which are aimed not only at regularizing migratory flows, but also seek mechanisms to address the vulnerability of these persons.  The Rapporteurship also wishes to highlight the policy and practice of the Costa Rican State in terms of making available a series of services and benefits to migrant workers and their families, irrespective of their immigration status.  The Rapporteurship considers that these practices are very positive and that they should be continued and expanded in Costa Rica, and emulated in other States.

252.        In addition, the Rapporteur wishes to highlight the importance of the decisions in the Constitutional Chamber of the Supreme Court of Justice for the effective protection of the guarantees of due process and personal liberty.  The constitutional case law has helped protect the rights of migrant workers and their families in Costa Rica. The case law has also been useful for indicating the practices that should be changed; the Court has declared the unconstitutionality of general laws that applied to all migrants. The Rapporteurship considers that the case law of the Constitutional Chamber of the Supreme Court of Justice has contributed to strengthening the rule of law in Costa Rica. Accordingly, it urges the Office of the Ombudsman, the consular representatives in Costa Rica, and non-governmental organizations to use the writs of amparo and habeas corpus as necessary.  In addition, it makes an appeal to ensure that the necessary support is provided to the Supreme Court so that it can perform its functions with an adequate budget, and independent of the other branches of government.

253.        In light of the investigation carried out by the Rapporteur, however, it has been determined that situations detrimental to the human rights of migrant workers exist in Costa Rica. Discrimination in various spheres, especially in the enforcement of the labor laws against migrant workers, and violations of due process guarantees are worrisome problems.

254.        The Rapporteurship appeals to the State and civil society to become more aware of discrimination against migrant workers, and urges them to take steps to eradicate discrimination. In particular, it suggests that educational campaigns be organized in primary and secondary courses, along with popular education initiatives, to inculcate tolerance and a sense of the value of immigrants’ contributions to Costa Rican society.

255.        The Rapporteur urges the Government of Costa Rica to take all measures it considers adequate to impede labor-related abuses and to punish unscrupulous employers who profit from the vulnerability of migrant workers. In particular, it is necessary to stop subcontracting and other ways of avoiding employers’ duties to migrant workers.  Accordingly, an appeal is made to the competent state organs to adopt the pertinent measures in order to guarantee the labor rights of migrant workers, in particular to inspect labor conditions nationwide.

256.        The lack of protection of migrant workers engaged in paid domestic service is also of concern to the Rapporteurship.  Accordingly, the Rapporteur urges the state organs to study ways of guaranteeing labor protection for domestic service workers in Costa Rica, so that the enforcement of laws not have a discriminatory impact on female migrant workers.

257.        The Rapporteur makes an appeal to carry out international commitments on the duty of non-return, or non-refoulement. Carrying out actions to guarantee security and fight terrorism should not impact on the special protection to be afforded refugees and torture victims.

258.        The Rapporteur urges Costa Rica to revise the immigration legislation to ensure that it not discriminate among migrant workers based on their social status, in classifying them either as persons temporarily living in the country or migrant workers within the category of non-residents.  As has been explained, this distinction in practice is a difference in treatment based on differences in education and social strata, which in the view of the Rapporteurship constitutes a violation of the principle of non-discrimination enshrined in Article 1 of the American Convention on Human Rights.

259.        The Rapporteurship calls on the Government of Costa Rica to adopt the necessary corrective measures to guarantee the principle of legality for migrant workers who are in the country irregularly. The authorities should apply the corresponding procedure to each person, based on the distinctions drawn in the national legislation among rejection, deportation, and expulsion.  Along the same lines, the Rapporteurship urges the Government to adopt individual deportation procedures, even though a group of immigrants may be collectively apprehended by the authorities or at the same moment.  The Rapporteurship insists on the importance of distinguishing those cases in which rejection is called for from those in which the deportation procedure must be applied.

260.        The Rapporteurship makes an appeal to the Government of Costa Rica to take the pertinent measures to ensure that each immigration proceeding has an accountable and impartial adjudicator as an element of the right to due process.  The decisions to expel foreign persons must thus emanate from the competent authority.

261.        Each immigration proceeding must guarantee people the right to be heard, which includes the possibility of presenting proof on his or her immigration status.  The Rapporteurship urges the Costa Rican authorities to set in motion the necessary measures for guaranteeing foreign persons the right to be heard as an element of the right to due process.

262.        The right to information, translation, and interpretation are elements of the right to due process. To that extent, the Rapporteurship underscores the importance that the authorities take appropriate measures aimed at effectively guaranteeing this right for all foreigners in immigration proceedings.

263.        The Rapporteurship makes an appeal to the state authorities and to civil society to take measures aimed at benefiting organizations and individuals who provide legal assistance to migrant workers. It is important that migrant workers be informed and trained on the current legislation, as well as their opportunities for regularizing their status, and their right to defend themselves if they are going to be deported. Non-governmental organizations and inter-governmental organizations such as UNHCR should have permanent access to the centers of detention for migrant workers and other migrants to be able to provide legal counsel to the persons held in such facilities.

264.        The Government of Costa Rica is urged to provide human rights training to the officials in charge of interacting with migrant workers. In particular, all pertinent measures should be taken to ensure that members of the Police follow Circular No. 48 from the Director General of Government Forces, regarding the conditions in which a person may be asked to show identification papers, and under what circumstances a person can be deprived of liberty.

265.        The Rapporteurship calls on the Government of Costa Rica to take all necessary measures to improve the conditions of administrative detention of migrant workers and their families.  The State is responsible for guaranteeing the minimum conditions of detention that ensure the safety, health, and dignity of the persons deprived of liberty.

266.        The Rapporteurship reminds the States whose nationals arrive in Costa Rica of the importance of guaranteeing consular assistance to migrant workers whenever required.  In particular, it urges the States to contribute by issuing documents for irregular migrant workers who seek to regularize their immigration status.  In addition, it calls on the States to expedite the processes of documenting their nationals when they face expulsion proceedings.  The Rapporteurship calls upon consular representatives to focus their attention on those persons who are deprived of liberty when the decision as to whether a detained person will be released or deported promptly depends on their action.

267.        Finally, the Rapporteur makes an appeal to the executive, the legislature, civil society, and the academic sector to continue improving their understanding of the complexity of migration, and to study its impact on economic and social policy.  In this regard, the State is urged to head up a campaign to build a cohesive society in which the human rights of all inhabitants of Costa Rica, including migrant workers, are respected and guaranteed.


VI.      ON-SITE VISIT TO GUATEMALA

A.      Introduction

268.        As part of its mandate, the office of the Special Rapporteur on Migrant Workers and their Families of the Inter-American Commission on Human Rights (IACHR) has established contacts with several governments in order to observe, in the field, the human rights conditions faced by migrant workers and their families in the OAS member states. At the kind invitation of the government of Guatemala and with the goal of gathering information on the situation faced by migrant workers in that country, a delegation from the IACHR visited Guatemala between March 19 and 24, 2002. The delegation was led by Juan E. Méndez, Special Rapporteur on Migrant Workers and their Families, and also integrated by María Claudia Pulido, a lawyer with the IACHR Executive Secretariat, Helena Olea and Andreas Feldmann, members of the Rapporteur’s staff.

269.        The Rapporteurship decided to visit Guatemala for several reasons. Each year, thousands of migrant workers cross Guatemalan territory on their way to Mexico and, most prominently, to the United States and Canada. In addition, a significant number of Guatemalans have migrated abroad in search of work, especially to the United States and Canada. Likewise, a large percentage of Guatemalan workers undertake seasonal migrations to southern Mexico to do farm work. Because of the high percentage of migrant workers in the country’s workforce, migration is a phenomenon of major importance within Guatemala’s economic and social development.

270.        During their time in Guatemala, members of the Rapporteurship visited Guatemala City, Tecún Umán, El Carmen, and La Mesilla. They also traveled around a number of locations in San Marcos department on Guatemala’s border with Mexico. This area was visited because much of the migration between the two countries takes place there. The IACHR delegation held meetings with a wide range of government officials and intergovernmental organizations; it also met with members of civil society organizations and representatives of the Catholic Church.

271.        The government officials whom the IACHR delegation met included the following: Víctor Hugo Godoy, Minister of Labor and Social Prevision; Adolfo Reyes Calderón, Vice-Minister of the Interior; Alfonso Fuentes Soria, President of the National Human Rights Commission (COPREDEH); Ramiro Ordóñez, Vice-Minister of Foreign Affairs; Herbert Bech and  Arturo Duarte, Director of Consular Affairs and Director General of Multilateral and Economic International Relations of the Guatemalan Foreign Ministry, respectively; Leonel Véliz, Director General of the Penitentiary System; Óscar Contreras, Director-Inspector of the General Migration Directorate; Miguel Ángel Calderón, Presidential Interinstitutional Security Coordinator; Luis Arturo Paniagua, Director of the National Civil Police; Yessica Lozano and Giovanni Martínez of the Unit for Uprooted and Migrant Populations at the office of the Attorney for Human Rights, Guatemala’s Ombudsman; and Irma Cárdenas Díaz, Assistant Attorney General. The IACHR delegation also met with officials from intergovernmental organizations, including Anne-Birgitte Krum Hansen, Protection Officer with the office of the United Nations High Commissioner for Refugees (UNHCR), and Guenther Müssig, Head of Mission of the International Organization for Migration (IOM). Scholars devoted to study migration and affairs and members of civil society with whom the IACHR delegation met included Arturo Echeverría, the National Director of Casa Alianza; Irene Palma and Carol Girón, researchers at the Latin American Faculty of Social Sciences (FLACSO-Guatemala); Álvaro Ramassini, Bishop of the diocese of San Marcos and in charge of the Guatemalan Episcopal Conference’s Human Mobility Pastoral Program; Fr. Mauro Verzeletti and Fr. Ademar Barilli, in charge of the Migrants’ Houses in Guatemala City and Tecún Umán, respectively, and members of the human rights team at the Tecún Umán Migrants’ House; Fabienne Venet, Director of Sin Fronteras; and Manuel Ángel Castillo, a researcher and lecturer at El Colegio de México. The IACHR delegation also met with Frank La Rue, the Director of the Human Rights Legal Action Center (CALDH), and with a number of representatives of the National Roundtable for Migration in Guatemala (MENAMIG). [259]

272.        The Rapporteurship wishes to underline the high level of cooperation it received from all the Guatemalan authorities. Not only did they provide kind assistance in organizing the visit, they were also willing to entertain open and frank conversations about the situation faced by migrant workers and their families in the country. Representatives of intergovernmental organizations, researchers, and members of civil society were also very willing to help the IACHR team. The Rapporteurship appreciates the cooperative spirit shown by these people and thanks them for it. Information supplied by all these interviewees has been used in preparing this report.

273.        On December 20, 2002, the Commission sent to the Guatemalan Government its report and gave it 30 days to present observations and comments. Thus far, however, the Government has not responded to the communication sent by the Commission.

274.        The report on the Rapporteur’s visit to Guatemala is divided into ten sections. It starts with a introduction, followed by a brief description of the working methodology used by the Rapporteurship. The third section contextualizes the conditions faced by migrant workers in Guatemala and by Guatemalan citizens abroad by examining the general background of migration in the country. The report then analyzes the impact that migration has on Guatemala’s economic, social, and demographic development. The fifth section studies migration policies and practices, migratory legislation, and how the state’s institutions are organized to respond to the needs of migrant populations. Subsequently, the document addresses problems arising from the guiding, smuggling, and trafficking of migrant workers in Guatemala. Section seven examines the guarantees of due process and how they are applied in migration cases. The eighth section describes the situation encountered by individuals who are arrested on migration-related charges, and the conditions prevailing in the detention centers used for migrant workers and other migrants in Guatemala. Section nine offers an overview of what the state does to protect its migrant workers and other migrants abroad. The report’s final section summarizes the mission’s observations, underscoring best practices and commenting on areas in which it detected shortcomings in the treatment afforded to migrant workers. This section also contains some recommendations for the government and the intergovernmental and nongovernmental organizations involved.

B.       Methodology

275.        As its guideline for this report, the Rapporteurship  used the working method that the IACHR normally follows on its on-site visits. This is a standardized procedure that has informed IACHR’s work over several decades. The methodology used by the IACHR is shared by many of the intergovernmental organizations monitoring human rights situations in the world. [260] For a number of reasons, including the duration of its visits and the limited human resources it has available, the IACHR’s reports on its on-site visits and on the visits made by its special rapporteurs (such as the one at hand) do not attempt to offer an exhaustive view of human rights violations in a country, but rather to draw attention to specific aspects related to how human rights are protected and guaranteed in the nations visited. At the same time, it illustrates and reports best practices in order to encourage other OAS member states to emulate them.

276.        The opinions contained in this report derive from two main elements. First, testimonies from migrant workers and members of their families and from individuals with ties to the institutions involved in migration issues, such as the government, state agencies responsible for overseeing or upholding human rights, academics, and members of intergovernmental agencies and nongovernmental organizations. In order to ensure balance and impartiality in its reports, the IACHR always strives to meet with the broadest possible array of individuals and organizations. The aim of this is to secure the most representative, reliable, and complete perspective possible. Additionally, in drafting its reports, the IACHR ensures that all the interviewees are included. However, on occasions the source of a quote is not given, if the speaker expressly requested it. Second, its reports are also based on secondary sources, such as academic papers, reports, and documents. As with the primary sources, the practice of the IACHR and its Rapporteurs is to take extreme care to ensure that those sources are truthful and reliable.

277.        It should be noted that this report has been drawn up from a wide range of information and that the Rapporteur’s team conducted a great deal of research prior to their visit. Both during the visit and afterwards, the report’s drafters and researchers corroborated and added to the information they had obtained. Its contents and remarks are the result of a lengthy research effort, painstakingly studied and discussed by the Rapporteur and his staff and then placed before the seven Commissioners who make up the IACHR’s plenary and who approved the final version of the document.

C.      The phenomenon of migration in Guatemala

278.        Political, social, economic, and geographical conditions have made Guatemala a country that receives, sends, and witnesses the passage of migrant workers. In terms of its migratory flows, however, Guatemala is essentially a country of origin of migrant workers. International migration by Guatemalans obeys to structural considerations, and as a result significant numbers from among the urban and rural populations alike have taken the decision to migrate, either temporarily or on a permanent basis. Their main destinations include the USA, Mexico, and, to a lesser extent, Canada.

279.        Political, economic, and social factors have induced Guatemalans to migrate. Like most other nations of Latin America, Guatemala is characterized by historic migratory flows from its rural areas to its cities and, most particularly, to the municipality of Guatemala, where the capital, Guatemala City, is located. Poverty, lack of job opportunities and social services, discrimination, and political violence are among the main factors that have driven the exodus of Guatemalan migrant workers. [261]

280.        Guatemala is characterized by significant levels of poverty: according to the Economic Commission for Latin America and the Caribbean (ECLAC), 60.4% of the population lives below the poverty line and, of these, 34.4% are indigent (defined as lacking the money needed to cover the cost of a basic shopping-basket of products). [262] This poverty is disproportionately concentrated among the indigenous population of Maya origin, which account for almost 50% of the total population. [263] Guatemala has the second worst income distribution in the Americas: the richest 20% of the population consume 63% of the goods and services produced in the country; the poorest 20%, in contrast, consume only 2.1%. [264] With respect to land ownership, Guatemala has the worst distribution in Central America. [265] The country is also marked by structural discrimination, particularly against its indigenous population. [266] In addition, the Guatemalan economy shows signs of structural weaknesses which, in recent years, have been exacerbated by the progressive deterioration of the international prices commanded by the country’s main exports, such as coffee and other agricultural products. It should be noted that agricultural activities employ half of Guatemala’s labor force, generate two-thirds of its exports, and account for a third of its gross domestic product (GDP). ECLAC reports that in recent years, the crisis in Guatemala’s coffee industry has led to the loss of 77,000 jobs, equal to 15% of total work force in the sector. [267] Although the country has enjoyed positive rates of growth over the past decade, the job market still suffers from structural problems: scant training for local workers, high rates of underemployment, and the presence of a large informal job market. [268] One Guatemalan government study indicates that the labor market is characterized by a range of negative factors: these include few incentives for creating more jobs in the productive sector, inadequate levels of job training, rigidity in the job market, companies with low levels of competitiveness, and minimal investment in job training. [269] To this must be added low wage levels.

281.        Inadequate social services in the fields of education, health, pensions, and housing, particularly in rural areas, also encourage people to leave the country. Guatemala is characterized by one of the lowest human development indexes in the Americas. This entails low literacy and life expectancy rates, and high levels of infant mortality. [270] Thus, much of the population–especially the traditionally neglected sectors, such as indigenous people in rural areas–lack access to health (shortage of basic services), housing (extremely precarious conditions, particularly in rural areas and marginalized urban sectors), and education (high dropout rates and low educational standards). [271] Likewise, community conflicts–many of which involve disputes over land ownership, water resources, and farming rights–shortages of capital, and disputes between workers and employers have forced thousands of Guatemalan workers to seek work outside the country. [272]

282.        Guatemalan migration into Mexico has a long history. The communities of Maya origin that inhabit the border region between the two countries–as well as other areas of Meso-America–regularly move from one zone of the borderland to another, since this has been, and continues to be, their ancestral territory. These flows are of particular significance in the border regions of the departments of El Quiché, San Marcos, Izabal, Huehuetenango, and El Petén, which are adjacent to Mexico. [273] The 19th century saw the onset of incipient migratory flows, normally temporary in nature, of Guatemalan farm workers, crossing the border to work on banana and coffee plantations located in the Soconusco region of southeast Mexico. The migration of temporary agricultural workers continues today. Conservative calculations indicate that between 80,000 and 150,000 Guatemalan temporary workers cross into Mexico year to work on banana, coffee, soybeans, sugarcane, and other fruit crops in the border state of Chiapas. Another 15,000 travel to other neighboring Mexican states, such as Tabasco, Quintana Roo, Campeche, and Yucatán. [274] While a large percentage enter Mexico on a legal basis with Agricultural Visitor Migratory Forms (FMVA visas), many others do so on irregularly along paths and other routes where there are no border checks. They go to Mexico because there they receive better pay and better working conditions. One research paper calculated that in 2000, wages for identical farm work were 25% higher in Mexico than in Guatemala. In addition, workers in Mexico generally receive two meals per day, paid for by their employers, in addition to their wages; in Guatemala, meal costs are discounted from workers’ pay packets. [275] With the exodus of Mexican workers to the USA or to other states in Mexico (many go to Mexico City or to maquiladora plants in the cities of the north), Guatemalan workers make up the shortfall in the local workforce.

283.        Many temporary workers take their families with them when they enter Mexico. These people come mostly from rural areas in departments such as Escuintla, Huehuetenango, Jalapa, El Petén, San Marcos, Quetzaltenango, El Quiché, Suchitepéquez, and Totonicapán. Recently, a significant number of Guatemalan women have begun to migrate to cities on the Mexican border, such as Ciudad Hidalgo and Tapachula, to take up positions in domestic service or in the hotel industry. Many of these women are young and migrate on a temporary basis. The men, meanwhile, work on construction sites or earn their living as craftsmen. In addition, many Guatemalan merchants regularly cross the border to sell their goods in Mexican towns. Many of these people enter Mexico with Local Visitor Migratory Forms (FMVL visas), which allow them access to the first 30 km of Mexican territory for a maximum period of 72 hours. Their sales are not normally declared to the customs authorities, and these economic activities are essentially informal. [276]

284.        Political reasons also underlie some of the Guatemalan migration into Mexico. During the country’s long civil war, many Guatemalans fled from violence. These flows were particularly pronounced during the 1980s and early 1990s, when thousands of Guatemalan refugees left their homes. According to UNHCR figures, between 150,000 and 200,000 sought refuge outside the country, mostly in Mexico, but also in the USA, Canada, Australia, and Sweden. Of these, some 46,000 settled in refugee camps along the Mexican-Guatemalan border in such states as Chiapas, Campeche, and Quintana Roo. During the 1990s, and particularly after the Peace Accords were signed in 1996, most of these returned to Guatemala or, alternatively, settled in the countries that had offered them asylum. [277] There are no reliable figures regarding the number of Guatemalans in Mexico. According to studies by the Latin American Demography Center (CELADE), in 1990 there were 46,000 Guatemalan residents in Mexico, excluding temporary workers and undocumented migrants. [278] That number has probably risen significantly over the past decade.

285.        While Guatemalan migration to Mexico has been a historical phenomenon, during the 1960s and 1970s large numbers of Guatemalans began emigrating to the United States. Today, the majority of Guatemalans living abroad are to be found in the USA. As with the migrants who come from Mexico; some of these have migrated on a temporary basis, while others have decided to settle in the United States. The main destinations of Guatemalans in the USA are the states of California, Illinois, New York, and Texas. [279] There are no precise figures for the numbers of Guatemalans currently resident in the United States. According to US authorities, there are some 372,000 Guatemalans living in the United States (including undocumented migrants). Guatemalans account for 1.1% of the USA’s Hispanic population. [280] In contrast, the Guatemalan government calculated that in 1999 the number of Guatemalans in the USA, including documented and undocumented migrants alike, could be as high as 1.2 million. [281] After Mexicans and the Salvadorans, Guatemalans represent the third largest group of undocumented Latin Americans in the United States. A significant proportion of the Guatemalans in the USA are people of indigenous origin. [282] Over the years, a large number of Guatemalans have benefited from the migrant regularization programs for migrants offered by the US authorities. Under the 1986 Immigration Reform and Control Act (IRCA), 63,000 Guatemalan migrants took advantage of regularization programs between 1989 and 1996. [283] In addition, a significant number of Guatemalans live in Canada, many of whom arrived as refugees over the past two decades. [284]

286.        The migration of Guatemalan citizens to the USA and other countries is facilitated by the presence of networks of migrants, who help their relatives reach the destination country and to integrate themselves into the receiving society. Guatemalan communities assist the new arrivals in finding work and a place to live, obtaining documents, and securing social services for them and their families.

287.        As noted above, in recent years Guatemala has become a country of transit for people seeking to migrate to the United States and Canada. Because of its geographical location, numerous Central American migrant workers–particularly Hondurans, Salvadorans, Nicaraguans, and Panamanians–cross Guatemala on their way to North America. In addition, the past decade has seen a major increase in the number of migrants from outside the region arriving in Guatemala en route to the United States. These people come from nations in Africa, Asia, Eastern Europe, and the Middle East. Some remain in Guatemala for a short before continuing their journeys; others rest or try to save enough money for continuing on to the USA. [285] Statements and reports indicate that people from such diverse countries as the Sudan, Pakistan, China, India, Bangladesh, Peru, South Korea, Colombia, Ecuador, and others have crossed through Guatemala, and that some of them request asylum. [286]

288.        Guatemala also receives migrant workers and other migrants, particularly from Honduras and El Salvador. Guatemala is Central America’s largest economy and, as a result, it attracts a certain number of workers from neighboring countries. Although there are no exact figures for the number of foreigners currently living in Guatemala, it is generally acknowledged that the total is not high. [287] As noted in the previous section, in spite of having the region’s largest economy, Guatemala is characterized by appreciable levels of poverty and a weak, structurally flawed labor market. Given the limited ability of the Guatemalan market to absorb workers, the low wage levels prevailing in the country, [288] and the difficult conditions that characterize the labor market, [289] the number of migrant workers arriving in Guatemala is relatively low. In general, these people migrate to work on coffee plantations, mostly during the harvesting season (between November and May). Others come to work on fruit crops (melon and watermelon) and cut-flower plantations in the departments of Izabal, Zacapa, and Santa Rosa, in the east of the country. Meanwhile, in the south of the country, in the departments of Escuintla, San Marcos, Retalhuleu, and Suchitepéquez, Nicaraguans and Salvadorans come to help with the coffee, sugarcane, maize, banana, and sesame-seed crops. Additionally, some Central Americans are hired as construction workers; others work as craftsmen or prostitutes, while others find work in the informal sector. [290]

289.        With respect to the Guatemalan government’s position on migration issues and their relation to human rights, the Rapporteurship  detected that officials were concerned, particularly regarding the conditions facing Guatemalan migrant workers abroad. Officials expressed interest in strengthening multilateral processes that exist to regulate migratory flows in the region, such as the Regional Conference on Migration (CRM) (also known as the Puebla Process) and the Central American Commission of Migration Directors (OCAM). They also expressed concern about the impact that the September 2001 terrorist attacks in New York and Washington would have on the region. For example, Miguel Ángel Calderón, the Presidential Interinstitutional Security Coordinator, said that Guatemala thought it was necessary to step up migration controls in order to prevent possible terrorist attacks.

290.        Guatemala has ratified a series of international human rights treaties and agreements that bestow general guarantees on all individuals and also apply to people who relocate as migrant workers. [291] It has also ratified a number of regional human rights instruments, such as the American Convention on Human Rights, the Charter of the Organization of American States, the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, and the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women. Guatemala has also ratified some instruments designed specifically to protect migrant workers. These include the International Labour Organization (ILO) Convention 97 on migrant workers, ILO Convention 87 on freedom of association and protection of the right to organize, ILO Convention 29 on forced or compulsory labor, and ILO Convention 111 on discrimination in employment. However, Guatemala has not ratified other specific instruments for protecting migrant workers, such as the International Convention on the Protection of the Rights of All Migrant Workers and Their Families, or the Convention against Transnational Organized Crime and its Protocols to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children, and Against the Smuggling of Migrants by Land, Air and Sea.

291.        Guatemala is also involved in a number of multilateral initiatives toward establishing a coordinated approach to migration. As indicated earlier, these include the RCM and OCAM. Under the aegis of OCAM, in 1998 Guatemala signed a framework agreement–Agreement No. 4, “Migratory and Free-Movement Issues,” generally known as CA-4–with Nicaragua, El Salvador, and Honduras, allowing the free movement of and temporary stays by nationals of those countries under temporary visas. Under this agreement, citizens of the four countries can enter any of the others with only identity papers: no passports or visas are required.

292.        One phenomenon that is indirectly linked to migration issues but worthy of mention is that of adoptions. After China, Russia, and South Korea, Guatemala ranks fourth in the world in terms of its number of adoptions. [292] According to figures from the office of Guatemala’s Attorney General, the number of adoptions rose from 1,265 in 1997 to 2,322 in 2001. United States, Canada, France, and Spain are the main recipients of these adopted children. However, according to several sources, including Casa Alianza, the adoption figure is actually much higher, on account of the absence of appropriate regulations and oversight applicable to the process. This situation was acknowledged by Assistant Attorney General Irma Cárdenas Díaz, who underscored the Guatemalan government’s concern about this situation.

D.      Migration and development

293.        Guatemala’s experiences with migration have social and political repercussions that affect the country’s development. These have to do with Guatemala’s characteristics. As a country of origin of migrants, with a relatively high percentage of its nationals working abroad (almost 10% of the resident population), Guatemala receives significant amounts of foreign exchange through remittances of money sent back by nationals residing abroad. In addition, the exodus of citizens has a major impact on the country’s society and job market. Its status as a country of transit also has a social impact, particularly in the border areas.

Remittances

294.        As regards the first point, a number of studies have underscored the economic importance of remittances for sender nations. Money sent home by nationals living abroad represent a source of foreign exchange earnings for the domestic economy. Remittances are generally used by recipients to pay for any number of products and services, such as consumer goods, health services, food, housing, infrastructure development, education, entertainment, among others. Remittances help boosting consumption and stimulate the economy. Some studies, however, have pointed out that remittances fuel economic dependency and curtail local initiative and growth. [293]

295.        In Guatemala’s case, remittances represent a considerable source of income. Studies indicate that in the year 2000, Guatemala received remittances worth USD $2 billion. [294] This is equal to around 5% of the country’s gross domestic product (GDP) or about 18% of the country’s total export earnings. [295] One 1997 study revealed that, on average, Guatemalans sent their relatives and friends back in Guatemala USD $1,630 a year (in 1998, per capita GDP in Guatemala amounted to USD $3,674). [296]

296.        The arrival of such amounts of money has far-reaching macroeconomic repercussions in the country and encourages economic and social development. Remittances also affect the consumption patterns of individual Guatemalan families. In order to avoid discouraging the flow of money entering the country, the Guatemalan government has decided to place no restrictions or controls (for example, tax levies) on these remittances, thus allowing the remittance market to regulate itself alone. [297]

Job Market

297.        Migration also has a major impact on the local employment market. The mass migration of Guatemalan workers has meant a reduction in the local workforce, especially as regards young people. Consequently, the exodus of workers, particularly the men, has social repercussions. In many communities, the only people who remain are the women, the children, and the elderly. The absence of paternal figures has forced women to assume dual roles and to take full responsibility for raising children. Likewise, in many of these communities, the elderly have been left alone, after their children, grandchildren, and other relatives have departed. To summarize, the departure of a large number of young people has modified the established social patterns and forced those left behind to adapt to new and often demanding social and economic conditions.

Crime in the Border Areas

298.        Guatemala’s position as a transit country for migrants also has economic and social repercussions. The massive presence of migrants who cross the country, trying to get into Mexico and from there continue on to the USA, has led to the emergence of countless groups and gangs involved in the smuggling and trafficking of people. Aware of the vulnerability of these persons, these gangs rob, attack, extort, deceive, and, on occasions, murder migrants who resist being abused. Attacks normally take place in the remote areas that migrants use to cross the border, far from the authorities. The massive presence of people attempting to get across the border and into Mexico has also helped encourage corruption within state agencies, such as the National Civil Police and, on occasions, the General Migration Directorate (DGM).

299.        The dynamic created by the mass presence of would-be migrants has fueled a disturbing phenomenon: burgeoning crime in the borderlands. Increasingly, areas near borders, particularly those that see massive flows of people, are becoming extremely dangerous. Such cities generally have large floating populations – both people arriving to cross the border and individuals who have been deported and either do not have the means to return home or who decide to stay in order to try to cross the border anew. These places also act as magnets for people attracted by the job opportunities offered by the presence of the migrant population, and for criminals who come with the intention of attacking and taking advantage of the migrants. The dangers of these places are often heightened by the presence of corrupt officials who also rob, mistreat, and extort migrant workers. Frequently, the criminals in these areas can operate with absolute impunity because they are in collusion with and receive protection from government employees. [298]

300.        In Guatemala this phenomenon is increasingly common in a number of cities and sections of the border. [299] As stated above, the IACHR delegation visited Tecún Umán, El Carmen, and La Mesilla, where it collected a number of statements describing this trend. Staff from the Migrants’ House, a shelter for migrants set up by the Scalabrini religious order, reported a major upswing in crime. The presence of Guatemalans, Central Americans, and migrants of other nationalities–with money in their pockets, no knowledge of the area, and fearful of attracting the authorities’ attention–makes them easy targets for common criminals. The increase in the floating population caused by deportees who remain in the border cities and surrounding areas while they raise the money needed for another crossing attempt is also partially responsible for higher crime rates. During 2001, Mexico’s National Migration Institute deported 140,493 people to Guatemala. [300]

301.        Staff from the Migrants’ House in Tecún Umán reported that criminal gangs, including some migrant smugglers and traffickers, together with corrupt government officials, have taken advantage of migrants who arrived in the locality. They told the IACHR delegation about migrants arriving at the shelter denouncing several abuses including holdups, mistreatment, robberies, rapes, and assassinations. In 2001 the Tecún Umán Migrants’ House received 7,544 migrants, of whom 2,899 reported having been robbed, swindled, or attacked by common criminals or having suffered abuses of authority, bribery, mistreatment, or arbitrary arrest at the hands of Guatemalan and Mexican officials. In addition, the same sources claimed to have reliable information about allegations of collusion between officials and gangs of smugglers and thieves. These complaints were confirmed by the Attorney for Human Rights, Guatemala’s Ombudsman, in several reports. [301]

E.       Migration policies and practices

302.        The Migration Law, Decree 95-98, was adopted by the Guatemalan Congress to regulate the country’s migratory flows. It came into force in December 1998. In July 1999, the Interior Ministry issued Governmental Agreement 529-99, containing the regulations for the Migration Law. In September of that year, Governmental Agreement 732-99 was issued, modifying some of the articles of Agreement 529-99. The preamble to the law refers to Guatemala’s aim of regulating its ties with other countries in accordance with international principles, rules, and practices; the need to standardize and modernize migratory procedures to guarantee freedom of movement to the “inhabitants of the world”; and the need to update the existing legislation in order to regulate “all aspects relating to migratory movements and controls within the country” and to determine “requirements, misdemeanors, and crimes, as well as the penalties and punishments” applicable for breaking the rules.

How the State’s Institutions are Organized

303.        The Migration Law states that the supreme authority on migratory issues is the Interior Ministry. This authority is exercised through one of its agencies: the General Migration Directorate (DGM). The law states that the DGM is to have the following functions: (1) overseeing compliance with the migration rules; (2) designing and implementing migration policies; (3) ensuring that nationals and foreigners alike enter, remain, and depart from Guatemalan territory in compliance with the law; (4) keeping the records necessary for proper migratory controls; (5) suggesting to the Interior Ministry appropriate sites within Guatemala for creating, abolishing, or relocating migration checkpoints; (6) setting up the National Migration Council; (7) applying relevant penalties to violators of migratory law; (8) reporting potential criminal violations of migratory rules to the competent authorities; (9) adopting the measures needed to enforce Migration Law; (10) issuing identification, travel, and residency documents to refugees, asylum seekers, and stateless persons in Guatemala; (11) authorizing and controlling the issuing of Guatemalan passports; (12) extending entry visas; and (13) all other duties contained in the relevant laws and regulations. The Governmental Agreement gave the DGM the following additional duties: (14) updating and publishing information about international instruments and domestic rules applicable to migration; (15) assisting other state agencies and bodies when so requested; and (16) all other duties contained in the relevant laws and regulations. [302]

304.        The Director General of Migration is the head of the DGM and is appointed by the Interior Minister. The Director’s functions are: (1) overseeing compliance with the migration rules; (2) resolving matters in which he has competence; (3) serving as the executive secretariat for the National Migration Council; and (4) all other duties set forth in law. [303]

305.        The National Migration Council is a consultative body that advises the Interior Ministry on migration policy. The Council is composed of the Interior Minister, the Minister of Foreign Affairs, the Director General of Migration, the Director General of the Guatemalan Tourism Institute (INGUAT), and the nation’s Attorney General. The Council must meet at least once every month and more frequently whenever necessary. All the members of the Council are allowed to be heard and to cast their votes, with the exception of the Director General of Migration. In discharging its duties, the Council can request the opinions or assistance of public or private agencies, be they national or international. [304]

306.        Governmental Agreement 732-99 stipulates that enforcing migration law abroad is the responsibility of the Ministry of Foreign Affairs. This ministry, on behalf of the state and acting in coordination with the National Migration Council, is authorized to enter into agreements and conventions dealing with migration issues. In addition, the Foreign Ministry can promote initiatives to facilitate and improve migration, and it is to keep close ties with the Interior Ministry through the Directorate of Consular Affairs and the DGM. [305]

307.        The agreement also requires the country’s career consuls to perform certain migration-related consular functions. These consuls are to provide the following services: (1) offering information and answering questions about migration issues in foreign countries; (2) issuing passports and special travel permits; (3) extending visas and temporary residence permits; (4) sending the DGM weekly reports on the passports and visas they issue; and (5) all other functions set down in the migration regulations. [306]

308.        Finally, mention should be made of the role played by the Defense Office for Uprooted and Migrant Populations, an agency of the Guatemalan Ombudsman’s office, which can take a range of actions either on its own initiative or in response to complaints lodged with it. [307] The Defense Office opened a Migrant Service Office in El Carmen in January 2002 and one in El Naranjo in May 2002. [308]

Civil Society Organizations

309.        A group of non-governmental organizations active in migration matters make up the National Roundtable for Migration in Guatemala (MENAMIG). MENAMIG’s aims are the following: to promote, defend, and publicize the rights of migrants and their families; to raise public awareness about the importance of migration in Guatemala and about the causes prompting it, in an attempt to generate solidarity with migrants; to help strengthen its constituent organizations; to bolster the institutional capacity for providing the migrant population with services; to participate in and influence the design of migration policies; to promote migration-related programs; and to promote and facilitate coordination and communication among its members. The members of MENAMIG are listed in section I of this report. Its members include both civil society organizations and state agencies that perform duties related to the migrant population.

310.        The church also undertakes some very important work through its Human Mobility Pastoral Program. Particular mention should be made to the work carried out by the Scalabrini religious order through its Migrants’ Houses in Guatemala City and Tecún Umán and its Migrant Attention Center, also in the capital. In addition, some human rights organizations active in Guatemala have done work with the migrant population. Finally, the Human Rights Legal Action Center (CALDH) and Casa Alianza are also active in this field.

Intergovernmental Organizations

311.        Intergovernmental organizations’ work in Guatemala is significant in a wide variety of issues including migration.  The United Nations kept a major presence in Guatemala during the armed conflict and after the peace accords were signed. Although the United Nations Verification Mission in Guatemala (MINUGUA) enjoys a very broad sphere of competence, of most relevance to this report are its endeavors in the realms of justice and government, which have an impact on administrative and legal decisions relating to migration procedures and migrants themselves. The United Nations High Commissioner for Refugees (UNHCR) plays a major role in the areas covered by the Rapporteurship . [309] Finally, the International Organization for Migration (IOM) also carries out a wide range of activities in Guatemala.

The Legal Regime Governing Migration

312.        Migration rules are state sanctioned and obligatorily and apply to nationals and foreigners alike, with the exception of diplomatic and consular officials from other states and the officers of duly accredited international organizations, who are subject to the international instruments to which Guatemala is a party. The following paragraphs describe the different migratory categories, together with the conditions and requirements set for them and their status and effects.

Entering and Remaining in Guatemala

313.        Foreigners entering Guatemala can do so as residents or as nonresidents. Nonresidents are further divided into persons in transit and tourists and visitors. Residents are subdivided into: temporary residents and permanent residents. [310]

314.        The important characteristics of nonresidents are the following. Persons in transit are those foreigners who enter the country at any authorized migration point and remain in Guatemalan territory for less than 72 hours. In theory, persons in transit must have a visa, unless otherwise stipulated in an international instrument signed by Guatemala. In special cases, the DGM can be asked to authorize a person a longer stay with tourist or visitor status. [311] Tourists and visitors are foreigners who enter the country for a legal purpose but without intending to immigrate or set up residence, who do not receive remuneration for the activities they pursue, and who remain in the country for less than 90 days. This stay can be extended on one single occasion. Tourists may not work or conduct commercial activity in the country. Tourists or visitors must have a visa or tourist/visitor card, unless otherwise stipulated in an international instrument entered into by Guatemala. [312]

315.        Temporary residents are foreigners who are authorized to remain in the country for a period of two years in order to pursue some legal activity. Temporary residency can also be extended for similar periods of time. Temporary residents may work or invest in the country. Temporary residency must be requested before arrival in Guatemala. For migration purposes, asylum seekers, refugees, and stateless persons are considered temporary residents. [313] Under Guatemala’s migration legislation, granting this status is dependent on the applicable international instruments that the country has signed. [314]

316.        Permanent residents are those foreigners who have met the established requirements and have set up home in Guatemala. Foreigners in any of the following situations may request permanent residency: retirees or rentiers; investors; spouses and minor/unmarried children of the aforesaid persons; spouses, [315] children, or parents of a Guatemalan national; temporary residents; and individuals with a distinguished record in the fields of science, technology, art, or sports. [316]

317.        Temporary or permanent residents who wish to work must pursue only legal activities and obtain authorization from the Ministry of Labor and Social Welfare. Residency can be lost by reason of any of the following: failure to pay taxes; falsification or alteration of documents submitted to the migration authorities; ruling by a competent judge; and unexplained or unauthorized absence from the country for a period longer than one year. Residents are required to inform the Migration Directorate of any changes in their identification documents, and failure to do so may result in the forfeiture of their migratory status.

318.        Permanent residents, in turn, are divided into the following groups: resident retirees or rentiers and spouses of Guatemalan citizens. Resident retirees or rentiers must meet a series of requirements related to the source of their income.

319.        Resident retiree or rentier status brings additional benefits. Such individuals are exempt from paying annual residency charges and other fees relating to their migratory status; customs duties on the importation of their furniture and belongings; income tax on income earned abroad; and customs duty on one imported vehicle every five years. Resident retirees or rentiers can also acquire Guatemalan nationality. Finally, these persons are required to inform the DGM about their departures from and return to Guatemalan territory when absent for periods in excess of six months. [317]

320.        Temporary and permanent residents may not remain outside the country for more than one year and, in order to work, must first obtain a permit from the Ministry of Labor and Social Prevision. [318] Resident status can be lost through tax evasion; falsifying or altering the documents submitted to obtain that status; a decision by a competent judge; unexplained or unauthorized absence for a period in excess of one year; and failing to meet the obligation of informing the DGM about any changes in personal details or identification documents. [319]

321.        The country’s Migration Law provides for the creation of a register of foreigners, to be kept by the DGM. Temporary and permanent residents must be documented and entered into that register, which must be kept up-to-date. In addition, individuals acquiring permanent resident status must have their names included on the civil register. The DGM is required to issue a migratory status certificate to temporary and permanent residents. [320]

Migration Controls

322.        The Migration Law defines migration controls as “the organization and coordination of services relating to the entry and departure of nationals and foreigners” from Guatemalan territory by “examining their documents and studying the problems that these movements provoke.” As regards foreigners, migration controls must also ensure their compliance with the rules governing their presence and activities in Guatemala. The DGM is responsible for oversight of all persons entering and leaving the country. It is illegal for a foreigner in any of the following situations to remain in the country: having entered through a place not intended for entry; having entered without passing through migration controls; failing to meet the rules governing the entry and presence of foreigners in the country; and remaining in the country for longer than authorized. [321] The DGM receives support from the National Civil Police in carrying out migration controls and special operations and in guarding detention centers for migrants, which are known as hostels.

323.        Guatemalan territory may only be entered by means of its migration control posts. All persons entering the country must go through migration control so the authorities can check that they are in compliance with the relevant rules and requirements. The DGM may prohibit entry or revoke the permits of foreigners for reasons of public order, national interest, or state security. The suspension of a foreigner’s permission to be in the country must be carried out through a justified resolution issued by the DGM. In such cases, the DGM may grant a period no longer than ten days for the foreigner to legalize his/her presence in the country, or it may order the foreigner’s immediate expulsion. [322]

324.        As with entries into the country, departures from Guatemalan territory can only take place at authorized locations. People wishing to leave the country must be in possession of the necessary documents and go through migration controls. The migration authorities are required to prevent the departure of individuals without the requisite documents or with respect to whom an arrest warrant or confinement order has been issued by a competent court. [323] The DGM can issue special exit passes for foreigners lacking valid travel documents. These passes are only valid for leaving Guatemala. [324]

325.        The Migration Law defines the following crimes: illegal entry, illegal transit, transporting illegals, concealing illegals, and hiring illegals. [325] These crimes and the effects thereof are analyzed under migration policies in this section of this report, and in the section dealing with the guiding, smuggling, and trafficking of migrants.

326.        The Migration Law defines the following migratory misdemeanors: entering or remaining in the country without authorization, or without having met the requirements set forth in the migration regulations. These offenses are punishable by fines, deportation, and expulsion. When the DGM detects an unauthorized foreigner entering or remaining in the country, it must launch an investigation in order to determine the person’s identity, nationality, and origin. While the investigation takes place, the DGM may detain foreigners in centers intended specifically for this purpose and in conditions that respect and guarantee their human dignity. It should be pointed out that the rules do not use the terms “detain” or “arrest,” but instead speak of “hosteling.” However, these persons may not leave the places where they are housed, which is tantamount to detention. The DGM may create or authorize lodging centers it deemed necessary, and it may seek the support of nonprofit organizations that work with migrants in transit. The DGM must keep a special register of deported and expelled foreigners. [326]

327.        The following offenses are punishable by fines: entering at unauthorized points; reentering at unauthorized points after deportation or expulsion; failing to submit to migration controls; repeated evasion of migration controls; overstays; transporting undocumented persons; and housing undocumented persons. [327]

328.        Foreigners incurring in any of the following are to be punished with deportation: entering or remaining in Guatemalan territory by avoiding migration controls; entering or remaining in the country by means of false documents; reentering the country after expulsion; and conviction with a prison sentence of two years or longer. [328] For a deportation to proceed, the law’s regulations also require a prior court order, with the DGM’s functions limited to executing that order. [329] The law lays down the following procedure for deportations. The DGM must grant the person in question a hearing within ten days, be given the evidence within five days of its being proposed, and rule on his or her situation within 72 hours after the hearing has concluded or the evidence has been received. Deportees who do not leave the country within the time indicated on the deportation order will be expelled. [330]

329.        Expulsion shall apply to foreigners who: fail to leave the country within 60 days after their authorized stay in the country has expired; enter the country in violation of the migration rules; commit a crime while in the country; and when their presence in the country goes against the national interest, as determined by the DGM. The expulsion procedure is as follows: the DGM draws up the expulsion order and asks the National Civil Police to take the person into custody and either to transport him to the border where he entered Guatemala or to transfer him in the way they see fit for transportation to his country of origin. The DGM may request the diplomatic mission of the person’s country of origin for assistance in documenting him, or it may extend him an exit pass on the basis of the identification documents in his possession. [331]

330.        In Guatemala Central Americans are expelled by land. Extra regional migrants (i.e., South Americans, Asians, Africans), in turn, are expelled by aircraft. The Director of Migration informed the Rapporteurship that the cost of air transportation was met by the Immigration and Naturalization Service of United States of America. The nongovernmental organizations said that on occasions, expulsions can take a few days longer because tickets are not purchased promptly.

331.        Decisions handed down in migration matters are subject to the provisions of administrative dispute law. [332] These decisions admit the remedies of appeal and reversal, which are the only ordinary methods for challenging an administrative resolution. [333] As a result of such filings, the DGM can determine that a mistake was made, annul the resolution, and issue a new decision or, alternatively, uphold the first ruling. When these remedies have been ruled on, the administrative channels are exhausted and the migrant may take his case to the Administrative Disputes Court, which admits no appeals. In Guatemala, the rule of negative administrative silence applies; in other words, if after 30 days the DGM has not ruled on the remedies, the administrative channels are deemed to have been exhausted and the case may be taken to the Court. [334]

332.        Amparo constitutional relief is admissible against decisions, resolutions, orders, or laws that represent a threat to or restriction or violation of rights enshrined in the Constitution and other laws. The affected person can use amparo to demand that his/her rights be protected and upheld. In theory, to invoke amparo the ordinary judicial and administrative resources must have been exhausted, except when there is no other remedy that could suspend the administrative decision, when the administrative remedies are not resolved in time, or when applications are not admitted for processing, among others. [335] Migrants can also file for habeas corpus remedies, as described in detail in section VII, “Personal Liberty.” [336]

Migration Practices

333.        This section describes some of the practices carried out by the Guatemalan migration authorities. The practices were chosen in light of their importance vis-à-vis the protection and preservation of migrants’ human rights in Guatemala.

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[235] In 1999, the Constitutional Chamber voided Article 13 of the Labor Code, which established the duty of all employers to ensure that at least 90% of the workers they hire are Costa Rican nationals.  Constitutional Chamber of the Supreme Court of Justice, Vote Nº 616-99.

[236] See Articles 70 to 75 of the General Law on Migration and Alienage.

[237] See Articles 92 to 101 of the General Law on Migration and Alienage.

[238] Committee on the Elimination of Racial Discrimination 2001, paras. 379-392.

[239] Morales and Castro 1999, pp. 14-18.

[240] Ministry of Labor and Social Security, official note DNE-0123-2001.

[241] Report of the Special Rapporteurship on Migrant Workers 2000. See Chapter V. Discrimination, Xenophobia and Racism against Migrant Workers in the Americas.

[242] Fundación Arias, 2000, pp. 29-36; Mariano Vega 2002. Diagnóstico Social de las Condiciones de Vida de los/as Trabajadores/as Bananeros/as de la Zona Atlántica de Costa Rica (mimeo.).

[243] Fundación Arias 2000, p. 29; Foro Emaús. 2002.  “Crisis Social en las Comunidades Bananeras.” Foro 3: 8-13; Vega 2001, pp. 23-35.

[244] Article 134 of the General Law on Migration and Alienage prohibits the use of contractors.

[245] In 2000, only 130,000 agricultural workers were affiliated with the social security system. That same year, 269,000 persons were employed in agriculture.  Informe del Estado de la Nación 2000 <http://www.estadonacion.or.cr/>.

[246] Fundación Arias 2000, p. 29; Foro Emaús. 2002.  “Crisis Social en las Comunidades Bananeras.” Foro 3: 8-13; Vega 2001, pp. 23-35.

[247] Defensoría de los Habitantes, official note 407-2000, October 30, p. 16.

[248] According to the information provided by FLACSO (Costa Rica), in 1999, 42.4% of Nicaraguan women in Costa Rica are employed in domestic service, see Morales and Castro, 1999, p. 10.

[249] Morales and Castro, p. 10.

[250] See Articles 101 to 108, Labor Code of Costa Rica.

[251] ASTRADOMES indicated that the results of a survey indicated that even when domestic workers know their rights, only 78.1% received a year-end bonus, 69.9% paid vacations, 37.5% compensation for dismissal, 48.1% social security, 53.8% paid holidays, and only 54.2% received the minimum salary, in Fundación Arias 2000, p. 22.

[252] Constitutional Chamber of the Supreme Court of Justice, Decision No. 3150-94, June 28, 1994.

[253] Fundación Arias 2000, pp. 14, 26, 32, and 35; Acuna Guillermo and Edith Olivares. 1999. “Los Hilos Invisibles del Movimiento: Elementos que Caracterizan las Recientes Migraciones entre Nicaragua y Costa Rica.” Diálogo Centroamericano 40 (August): 5-7. <http://www.arias.or.cr/documentos/cpr/dialogo40-4.htm>

[254] Committee on the Elimination of Racial Discrimination 2001, paras. 448 to 459.

[255] Fundación Arias 2000, p. 16.

[256] IOM 2001, pp. 33-35.

[258] Constitutional Chamber of the Supreme Court of Justice, Decision No. 8857-98, December 15, 1998.

[259] MENAMIG is made up of the following organizations: Consultative Assembly of Uprooted Populations (ACPD); Integral Support Association (ASI); Association for the Advancement of Social Sciences (AVANCSO); Community Development and Training (CADECO); the Migrants’ House of the Guatemalan Episcopal Conference’s Human Mobility Pastoral Program; the Mi’n Npon B’aj Migrants’ House in Tecún Umán, San Marcos; Catholic Relief Services (CRS); Migrants’ Attention Center (CAM); the USAC’s Center for Urban and Regional Studies (CEUR); Council of Development Institutions (COINDE); Research Council for the Development of Central America (CIDECA); Human Rights Commission of Guatemala (CDHG); Social Consultants (CONSOC) / Members of the Tzuk-kim-pop Movement; Coordination of Cooperative NGOs (CONGCOOP); Latin American Faculty of Social Sciences (FLACSO-Guatemala / Migration Program); Federation of Independent Countryside and City Workers (FETICC); Guatemalan Social Security Institute (IGSS) / Affiliation Program for Migrant Agricultural Workers; Research Institute of the USAC’s School of History (DIGI); Guatemalan Episcopal Conference’s Human Mobility Pastoral Program (PMH/CEG); Pan American Health Organization (PAHO/WHO) – Migrant Program; Office of the Attorney for Human Rights / Defense Office for Uprooted and Migrant Populations (PHD); General Migration Directorate Workers’ Union (STM).

[260] For more information on the on-site visit methodology that the Rapporteurship  uses for its field work, see: Orentlicher, Diane F. 1990. “Bearing Witness: The Art and Science of Human Rights Fact-Finding.” Harvard Human Rights Journal, Vol. 3, pp. 83-135; and Lillich, Richard B. and Hurst Hannum. 1995. International Human Rights: Problems of Law, Policy and Practice (3rd edition). New York: Little, Brown and Company. (Chapter 6, “The Problem of Fact-Finding and Evidence.”)

[261] MENAMIG. 2001. Diagnóstico Nacional sobre Procedimientos de Intercepción, Detención, Deportación y Recepción de Migrantes en Guatemala, p. 14.

[262] ECLAC. 2000. Notas de Cepal: Número Especial: Panorama Social de América Latina. No. 12, p. 4. http://www.cepal.org/publicaciones/DesarrolloSocial/3/LCG2183P/Capitulo_I_2002.pdf.

[263] The exact percentage of indigenous people in Guatemala is a matter of great controversy. The Guatemalan government stated in 1999 that the percentage stood at 48.6%; however, researchers and other sources place the figure closer to 60%. See: Human Rights Watch. 2002. From Households to the Factory: Sex Discrimination in the Guatemalan Labor Force. New York: Human Rights Watch, p. 46.

[264] According to government sources, Guatemala’s GINI coefficient is 0.58. This coefficient serves as an indicator of income distribution in a given society: its values range from 0.0, in a situation in which everyone receives the same income, to 1.0, where one person receives all the income there is. SEGEPLAN. 2002b. Indicadores Demográficos Sociales y Económicos. http://www.segeplan.gob.gt/spanish/pobreza/dramap/cuantos.htm.

[265] Booth, John. 1991. “Socioeconomic and Political Roots of National Revolts in Central America,” Latin American Research Review 26(1), p. 43.

[266] IACHR. 2001b. Fifth Report on the Situation of Human Rights in Guatemala. OEA/Ser.LV/II.111, Document 21, pp. 187-204.

[267] ECLAC. 2002. Estudio Económico de América Latina y el Caribe 2001-2. Santiago: ECLAC, p. 188. See also: IACHR. 2001b. Ibid., p. 41.

[268] Secretariat for Planning and Programming (SEGEPLAN). 2002. Política de Desarrollo Social y Población (draft), pp. 29-30.

[269] Secretariat for Planning and Programming (SEGEPLAN). 2002. Ibid., p. 29.

[270] The literacy rate stands at 68.6%; life expectancy is 64.4 years; and 24% of under-fives are malnourished: Guatemala ranks 120th on the United Nations Development Programme’s Human Development Index. UNDP. 2002. Human Development Index. Guatemala. http://hdr.undp.org/reports/global/2002/en/indicator/indicator.cfm?File=cty_f_GTM.html. In 1998, the infant mortality rate was 39.77 per thousand live births. SEGPLAN. 2002b. Ibid. http://www.segeplan.gob.gt/spanish/pobreza/dramap/cuantos.htm.

[271] High dropout rates, low levels of educational quality, and lack of access to health services prevail. SEGEPLAN. 2002.

[272] Palma, Irene. 2000. La Migración de Trabajadores en la Frontera Guatemala-México. Workshop of International Experts on Best Practices Related to Migrant Workers, Santiago, Chile, June 19-20, p. 4. Report of the Office of Human Rights, Tecún Umán Migrants’ House. 2002. Contexto del Trabajador Agrícola Guatemalteco, p. 2.

[273] Palma, Irene. 1998. “Cuando las ilusiones se dirigen al norte: Un Estudio de caso en una comunidad del altiplano occidental de Guatemala.” Document submitted to the Latin American Studies Association, XXI International Congress, Chicago, p. 5; Coordinación de ONG y Cooperativas. 2000. Bienvenidos a Soloma: Un Acercamiento a la Migración Hacia Estados Unidos de América. Guatemala City: CONGCOOP, pp. 8-9.

[274] MENAMIG. 2001. Ibid. Casillas Ramírez, Rodolfo, Martha Vicente Castro, and Claudio González Cartes. 1996. Migrantes Centroamericanos en México, Un Análisis Global. Faculty of Social Sciences / Public Policy Analysis Center, University of Chile, pp. 27-41.

[275] Palma. 1998. Ibid., p. 8.

[276] MENAMIG. 2001. Ibid., 10-11; and CONGCOOP. 2000. Ibid., pp. 8-12.

[277] The civil war in Guatemala displaced more than a million people, almost half of them internally within the country. Worby, Paula. 1999. The Lessons Learned from UNHCR’s involvement in the Guatemala Return and Reintegration Programme. UNHCR, Regional Bureau for the Americas, and Policy Analysis and Evaluation Unit, http://www.unhcr.ch/cgi-bin/texis/vtx/home?page=search; United States Committee for Refugees. 2002. Country Report Guatemala. http://www.refugees.org/world/countryrpt/amer_carib/guatemala.htm.

[278] Villa, Miguel and Jorge Martínez Pizarro. 2000. “International Migration trends and patterns in Latin America and the Caribbean,” in International Migration and Development in the Americas, edited by ECLAC, p. 47.

[279] Rincón, Alejandra, Susanne Jonas, and Néstor Rodríguez. 1999. “La Migración Guatemalteca en los EE.UU., 1980-1996.” pp. 7-32, in: Juan Alberto Fuentes K. (ed.), Población y Migración en el Área Rural. Guatemala: United Nations.

[280] The most recent census indicated that there were 32.8 million Hispanics living in the United States. US Bureau of the Census, March 2000 Current Population Survey. http://www.census.gov/prod/2001pubs/c2kbr01-3.pdf.

[281] Rincón et al. 1999. Ibid. This would be equal to around 9% of the population of Guatemala (13.3 million).

[282] See: Popin, Eric. 1999. “Guatemalan Mayan Migration to Los Angeles: Constructing Transnational Linkages in the Context of...” Ethnic & Racial Studies 22(2), pp. 267-290.

[283] Rincón et al. 1999, Ibid.

[284] According to the 1996 census, there were 273,820 people of Central and South American origin living in Canada. Around 10% of these were Guatemalans.

[285] MENAMIG. 2001. Ibid., p. 15-8.k.

[286] USCR. 2002. Ibid.

[287] According to the 1994 census, resident in Guatemala there were 14,425 Salvadorans, 5,658 US citizens, 4,634 Hondurans, and 3,621 Nicaraguans. X Censo Nacional de Población y V de Habitación, Guatemala 1994. http://ccp.ucr.ac.cr/bvp/censos/zip/guate/.

[288]   In December 2002, Guatemala’s minimum wage was increased by 16%. Thus, the minimum daily wage is now equal to USD $4.37 (31.90 quetzals) in the agricultural sector and USD $4.68 (34.20 quetzals) in the industrial and service sectors.

[289] See: Human Rights Watch. 2002. From Households to the Factory: Sex Discrimination in the Guatemala Labor Force. New York: Human Rights Watch.

[290] MENAMIG. 2002. Ibid., 18.

[291] The following are among the most important: the Charter of the United Nations; the Vienna Convention on the Law of Treaties; the Convention and Protocol relating to the Status of Refugees; the International Covenant on Civil and Political Rights; the Convention on the Rights of the Child; the International Covenant on Economic, Social, and Cultural Rights; the Convention on the Elimination of All Forms of Discrimination against Women; the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment; the Vienna Convention on Consular Relations; and the Convention relating to the Status of Stateless Persons.

[292] Elton, Catherine. 2000. “Adoption vs. Trafficking in Guatemala.” Christian Science Monitor. 92 (227), p. 1.

[293] On the effects of remittances in receiving countries, see: IACHR. 2002. Third Progress Report of the Special Rapporteurship on Migrant Workers and their Families (see Chapter IV, Economic Consequences of Migration), http://www.cidh.org/annualrep/2001eng/chap.6.htm.

[294] This figure could be much higher, since it fails to take into account remittances sent home through channels other than the banking system. See: Palma. 1998, ibid.

[295] Orozco, Manuel. 2002. Globalization and Migration: The Impact of Family Remittances in Latin America. Latin American Politics and Society. 44 (2), pp. 47-9.

[296] De la Garza, Rodolfo, Manuel Orozco, and Miguel Baraona. 1997. Binational Impact of Latino Remittances. Policy Brief (March) The Tomás Rivera Policy Institute. United Nations Development Programme. 2001. Human Development Report 2001. http://www.undp.org/hdr2001/spanish/spaindic.pdf.

[297] Orozco. 2002. Ibid., p. 57.

[298] IACHR. 2000. Second Progress Report of the Special Rapporteurship on Migrant Workers and their Families (see: Chap. IV, Migration and Human Rights). http://www.cidh.org/annualrep/2000eng/chap.6.htm.

[299] MENAMIG. 2002. Ibid., p. 31; LaFranchi, Howard. 1996. “US-Bound Migrants Find Town in Guatemala No Haven.” Christian Science Monitor. 88 (147) p. 1.

[300] Report of the Defense Office for Uprooted and Migrant Populations (Nov. 2001 - Nov. 2002), p. 26.

[301] Report of the Defense Office for Uprooted and Migrant Populations (Nov. 2001 - Nov. 2002), pp. 15, 26.

[302] Article 4 of Decree 95-98.

[303] Articles 6 to 8 of Decree 95-98.

[304] Articles 9 to 11 of Decree 95-98.

[305] Article 1 of Governmental Agreement 732-99.

[306] Article 2 of Governmental Agreement 732-99.

[307] See: Article 274 of the Guatemalan Constitution and Decree 32-87.

[308] These two offices were set up with financial support from the International Organization for Migration.

[309] Recently, the UNHCR closed down its office in Guatemala and it now covers that country’s needs through its Regional Office for Mexico, Central America, and Cuba.

[310] Articles 12 and 13 of Decree 95-98.

[311] Article 14 of Decree 95-98; Articles 27 and 28 of Governmental Agreement 529-99.

[312] Article 15 of Decree 95-98; Article 29 of Governmental Agreement 529-99.

[313] Articles 16 to 20 and 23 of Decree 95-98; Articles 30, 31, and 33 of Governmental Agreement 529-99; Article 3 of Governmental Agreement 732-99.

[314] As noted above, Guatemala signed and ratified the Convention and the Protocol relating to the Status of Refugees on September 22, 1983.

[315] This status can be obtained one year after contracting marriage.

[316] Articles 21 and 22 of Decree 95-98; Article 34 of Governmental Agreement 529-99.

[317] Articles 24 to 41 of Decree 95-98; Article 34 of Governmental Agreement 529-99.

[318] Article 113 of Governmental Agreement 529-99.

[319] Articles 43 to 45 of Decree 95-98; Article 43 of Governmental Agreement 529-99.

[320] Articles 46 to 48 of Decree 95-98; Articles 44 to 46 of Governmental Agreement 529-99.

[321] Articles 87 to 89 of Decree 95-98; Article 84 of Governmental Agreement 529-99.

[322] Articles 90 to 93 of Decree 95-98; Article 85 of Governmental Agreement 529-99.

[323] Failure to comply with this is defined as a crime in Article 419 of the Criminal Code.

[324] Articles 94 to 96 of Decree 95-98; Articles 86 and 87 of Governmental Agreement 529-99.

[326] Articles 109 to 111 and 115 of Decree 95-98; Articles 96 and 99 of Governmental Agreement 529-99.

[327] The amounts of these fines are given in Articles 94 and 95 of Governmental Agreement 529-99.

[328] Once sentence has been served or parole granted, the criminal judge is required to refer the person in question to General Migration Directorate.

[329] Article 98 of Governmental Agreement 529-99.

[330] Articles 112 and 113 of Decree 95-98.

[331] Article 114 of Decree 95-98; Article 97 of Governmental Agreement 529-99.

[332] Article 116 of Decree 95-98; Article 97 of Governmental Agreement 529-99.

[333] The remedies must be lodged within five days of notification.

[334] See Decree 119-96, the Law of Administrative Disputes.

[335] See: Article 265 of the Guatemalan Constitution, and Articles 1 to 81 of Decree 1-86.

[336] See: Articles 263 and 264 of the Guatemalan Constitution, and Articles 82 to 113 of Decree 1-86.