and development of the child, appears unreasonable or excessive in relation to the advantages
obtained by forcing the parent to leave the territory because of an administrative offense. 105
72.
The Court has held that any administrative or judicial organ that must decide on family
separation owing to expulsion based on the migratory status of one or both parents must,
when weighing all the factors, consider the particular circumstances of the specific case, and
guarantee an individual decision in keeping with the parameters already described, evaluating
and determining the child’s best interest. 106 In this regard, the Court has found it to be
essential that, when making this assessment, States ensure the right of children to have the
opportunity to be heard based on their age and maturity, and that their views are duly taken
into account in those administrative or judicial proceedings in which a decision may be
adopted that entails the expulsion of their parents. If the child is a national of the receiving
country, but one or neither of her or his parents is, it is necessary to hear the child in order
to understand the impact that the expulsion of the parent(s) may have on her or him. Also,
granting the child the right to be heard is fundamental in order to determine whether there is
an alternative that is more appropriate to her or his best interest. 107
A.2.4. Analysis of the specific case
73.
Firstly, the Court recalls that the Federal Judge granted Ms. Habbal Argentine
nationality on April 4, 1992. Likewise, that on May 11, 1992, the National Population and
Immigration Department ordered Ms. Habbal’s expulsion, after she had obtained Argentine
nationality, and before her citizenship was revoked. In this regard, the Court notes that Article
22(5) of the American Convention prohibits the expulsion of individuals from the territory of
which they are nationals in the following terms: “no one can be expelled from the territory of
the State of which he is a national.” The Court also recalls that the State is obligated to respect
the minimum guarantees of due process in expulsion proceedings, including those set forth
in Article 8(2) of the Convention (supra, paras. 58 to 60). The Court notes that the National
Population and Immigration Department issued Resolution 1088 on its own initiative, without
notifying Ms. Habbal at any time during the proceedings. This failure to notify Ms. Habbal
meant that the alleged victim was unaware of the existence of the proceedings to expel her
and the reasons for the action taken, and was denied the possibility of receiving legal
assistance, being heard during the proceedings, and submitting her case for review by a
competent authority.
74.
Secondly, the Court confirms that Monnawar Al Kassar, Hifaa Al Kassar and Natasha Al
Kassar were children at the time when their expulsion was ordered, and that - unlike Ms.
Habbal - they were not Argentine citizens, but permanent residents. In this regard, the Court
recalls that Article 22(6) of the Convention provides that “an alien lawfully in the territory of
a State party to this Convention may be expelled from it only pursuant to a decision reached
in accordance with the law.” As already noted, while States may establish immigration policies,
any immigration proceedings used to expel individuals, such as the one in which the alleged
victims found themselves, must respect the minimum guarantees of due process (supra,
paras. 58 to 60), taking into account the special circumstances in which children find
themselves (supra, paras. 65 to 72).
105
Cf. Advisory Opinion OC-21/14, supra, para. 280.
106
Cf. Advisory Opinion OC-21/14, supra, para. 281.
107
Cf. Advisory Opinion OC-21/14, supra, para. 282.
25