59.
The Court has also maintained that due process must be guaranteed to everyone,
regardless of their migratory status, because the broad scope of the intangible nature of due
process applies not only ratione materiae but also ratione personae without any
discrimination. 71 Regarding the content of the right to due process, enshrined in Article 8 of
the American Convention, the Court has established that it refers to the set of requirements
that must be observed in the procedural instances so that individuals are in a position to
adequately defend their rights before any act of the State, adopted by any public authority,
be it administrative, legislative or judicial, that may impair them. 72 It has further indicated
that the set of minimum guarantees of due process applies in the determination of rights and
obligations of a “civil, labor, fiscal, or any other nature.” 73 In other words, “due process of law
must be respected in any act or omission on the part of State bodies in any proceeding,
whether of an administrative, punitive or jurisdictional nature.” 74
60.
Therefore, the Court has established that the State must respect the minimum
guarantees of due process in immigration proceedings that may result in the expulsion of
aliens, which are the same as those established in paragraph 2 of Article 8 of the American
Convention. 75 It has further held that such proceedings must not be discriminatory, and the
persons subject to them must also enjoy the following minimum guarantees: a) to be informed
expressly and formally of the charges against them and the reasons for the expulsion or
deportation. This notice must include information on their rights, such as: i) the possibility of
explaining their reasons and contesting the charges against them, and ii) the possibility of
requesting and receiving consular assistance, legal advice and, if appropriate, translation or
interpretation services; b) if an unfavorable decision is taken, the right to request a review of
their case before the competent authority and to appear before that authority in that regard,
and c) to receive formal legal notice of the eventual expulsion decision, which must be duly
reasoned pursuant to the law. 76
A.2.2. Right to personal liberty in immigration expulsion proceedings
61.
Furthermore, the Court has established the incompatibility with the American
Convention of the punitive deprivation of liberty in order to control migratory flows, in
Cf. Advisory Opinion OC-18/03, supra, para. 163, and Case of expelled Dominicans and Haitians v. Dominican
Republic, supra, para. 351.
71
72
Cf. Case of the Constitutional Court v. Peru. Merits, reparations and costs. Judgment of January 31, 2001.
Series C No. 71, para. 69, and Case of Cuya Lavy et al. v. Peru. Preliminary objections, merits, reparations and costs.
Judgment of September 28, 2021. Series C No. 438, para. 133.
73
Case of the Constitutional Court v. Peru, supra, para. 70, and Case of the National Federation of Maritime
and Port Workers (FEMAPOR) v. Peru. Preliminary objections, merits and reparations. Judgment of February 1, 2022.
Series C No. 448, para. 80.
Case of Baena-Ricardo et al. v. Panama. Merits, reparations and costs. Judgment of February 2, 2001. Series
C No. 72, para. 124, and Case of the former employees of the Judiciary v. Guatemala. Preliminary objections, merits
and reparations. Judgment of November 17, 2021. Series C No. 445, para. 63.
74
Cf. Case of Vélez Loor v. Panama. Preliminary objections, merits, reparations and costs. Judgment of
November 23, 2010. Series C No. 218, para. 142, and Case of the Pacheco Tineo Family v. Bolivia. Preliminary
objections, merits, reparations and costs. Judgment of November 25, 2013. Series C No. 272, para. 132.
75
Cf. Case of Nadege Dorzema et al. v. Dominican Republic. Merits, reparations and costs. Judgment of October
24, 2012. Series C No. 251, para. 175, and Case of expelled Dominicans and Haitians v. Dominican Republic, supra,
para. 356.
76
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