Modification to Migration Law

On January 30, 2017, Decree No. 70/2017 (the “Decree”) was published in the Official Gazette, introducing modifications to the Migration Law No. 25,871.

With these modifications, the National Government wishes to “hasten the administrative procedure regarding migration, duly protecting public safety and immigrants’ rights”.

The Decree modifies and incorporates the following sections:

• Precarious Residency Term and Effects: The validity term of the “precarious residency” is shortened to 90 calendar days, not being valid in order to prove entrenchment, mandatory in order to obtain permanent residence, or pursuant the acquisition of nationality by naturalization. This Section states that a precarious residence authorization will be issued when requested by the interested party, to those foreigners who, by court order, had an impediment of leaving the country, or those who the authority had manifested its interest of remaining in the country.

• Transitory Permanence: valid for 90 calendar days for those cases where administrative or judicial remedies were imposed against measures tending to declare irregularities, which can be revoked by the application authority if the reasons that were taken into account when the permit was granted have been breached.

• Migratory Exclusion Motives: Causes impeding the entry and permanence of foreigners in national territory are reinforced, including amongst others, Subsection j), which impedes entry and permanence of foreigners who have been convicted or have a criminal record, in Argentina and/or abroad, related to crimes of corruption as described in Title XI regarding crimes against the public administration of the National Criminal Code. Furthermore, it introduces a waiver that only the National Migrations Directory may grant  for humanitarian, family reunification or efficient aid to the justice reasons, in the category of temporary or permanent residents, to certain foreigners.

• Notification regarding Lack of Domicile: States that if the foreigners do not constitute domicile, or said constituted domicile did not exist, the acts issued by the National Migrations Directory will be taken as automatically duly notified in the term of two working days from the day of its issuance, and said acts are available at the reception of said Direction. The domiciles constituted in said administrative acts will be valid in the judicial process.

• Termination of Residencies: Empowers the National Migration Directory to cancel the issued residency, no matter when it was granted, category or cause of admission, and can dispose expulsion, when “b) The resident was convicted, in Argentina or abroad, even if said conviction was not final, regarding crimes of gun running, human trafficking, drug smuggling, organ and tissue trafficking, money laundering or investing in illicit activities; c) The resident had been convicted, in Argentina or abroad, even if said conviction was not final, regarding crimes different than those mentioned in Subsection b) and that, in Argentina, were granted imprisonment; f) The foreigner, no matter his residence situation, that is linked to any of the extremes foreseen in subsections e), f) g) h), i) and j) of Section 29 of this law, in Argentina or abroad”. This last Subsection refers to those causes that impede return and permanence of foreigners in the country.

The Section also incorporates that in those cases in which the foreigner had a final conviction in the country, it will automatically cancel the residency no mater its seniority, category or cause for admission, and will implicitly carry expulsion. Remedies will follow the rules set forth by the Summary Special Migratory Procedure established in the law.

It also incorporates an exceptional waiver to those cases of residency termination if the foreigner invoked family reunification regarding his or her Argentine citizen parents, children or spouse.

• Exclusive Legitimation to issue Waivers: Incorporates that the granting of the waiver of Sections 29 and 62 will be an exclusive faculty of the National Migrations Direction, and cannot be granted by a judge.

• Reentry Prohibition Term: If a foreigner has been expelled for his or her participation in the commitment of an intentional crime, the reentry ban is extended to a minimum of eight years. For those cases not previously foreseen, the ban lasts a minimum of five years.

Furthermore, the figure of the guilty plea is incorporated. If the foreigner pleads guilty to the measure of expulsion within ten working days of its notification, the administrative act will be valid and the foreigner will be banned from reentering the country for the term of one year, and the measure must be carried out within the term of seven work days. Said benefit will be granted only once and will exclusively proceed regarding those expelled by applying Subsections k) and m) of Section 29, and Subsection d) of Section 62 of this law.

• Summary Special Migrations Procedure: This special regime will be applied to those foreigners comprised by any of the impediments as foreseen by Subsections a), b), c), d), e), f), g), h), i), j) and d) of Section 29, and Subsections a), b), c) and f) of Section 62, and automatic termination of the residence, or in the remaining subsections of Section 29 and 62 that imply an institutional severity. In this sense, the new migratory regime immediately regulates “a special and summarized migratory procedure, enforceable in those cases in which foreigners were involved in crimes and had illegally entered the country, evading migration controls”.

• Precautionary Measures: Regarding precautionary measures, and as an exception, the National Migrations Directory will be able to request the judicial authority the preventive retention of the foreigner even when the expulsion order is not final. Before final expulsion measures, the retention term to perform the expulsion will be of thirty calendar days, which can be extended by judicial disposition for the same term.

• Tacit Withdrawal: In all cases the administrative or judicial track will be understood as withdrawn when it is proved that the foreigner is out of the country for a term of over sixty continuous calendar days.

• Remedies: Modifies the interposition of the hierarchic remedy against the foreigner’s expulsion, the judicial remedy against expulsion once the administrative track has been exhausted, remedies against the National Migrations Direction’s definitive decisions or that fully impede presenting the claim or pretention of the party and against those decisions that violate subjective rights or a legitimate interest and the exhausted remedies judicial track once the administrative track is exhausted, will suspend the execution of the dictated measure until it becomes final.

• Free Legal Assistance: Incorporates the foreigner’s request before the administrative legal assistance unit in those administrative and judicial procedures that may lead to the refusal of his or her legal residency or the expulsion from Argentine territory.

• Judicial Control of the Special Migratory Procedure: The applicable judicial control to the Summary Special Migratory Procedure will be limited to a legality control, due process and reasonability of the contested act.

Finally, the Decree modifies Subsection 1 of Section 2 of Law No. 346, which establishes that those foreigners over 18 years of age that can prove having resided in the country according to the current legal migration regulations, as permanent or temporary residents, continuously during two years previous to the application and that manifest their will before federal judges, will be considered naturalized Argentinines.