33
2001, the expulsion was carried out by means of the transfer and handover of the Pacheco Tineo family
on the border with the State of Peru, specifically in the locality known as El Desaguadero.
147.
Bearing in mind the peculiarities of the case and the applicable standards on due process
in immigration matters (see above, pars. 113 – 120) and on due process in refugee determination
proceedings (see above, pars. 132 – 145), the Commission will address, first, the conduct of the
SENAMIG and, second, the conduct of the CONARE.
4.1
Conduct of the National Immigration Service (SENAMIG)
148.
The Commission notes that almost as soon as the Pacheco Tineo family set foot in the
offices of the SENAMIG on February 20, 2001, that agency set in motion proceedings for the family’s
deportation, which culminated with resolution 136/2001 and the expulsion on February 24, 2001. The
petitioners say that they were afforded neither a hearing nor the possibility to defend themselves. There is
no documentary evidence whatsoever to suggest that the Pacheco family were notified of the opening of
an administrative proceeding against them; that they were formally apprised of the administrative
offenses with which they were charged under the Legal Regime on Migration; that they were given any
opportunity to defend themselves against those charges, or that the state provided them with the
assistance of counsel.
149.
On the contrary, the circumstances in which the events occurred and the evidence in the
record suggest that the determination to expel them under article 48 of the Legal Regime on Migration
was a summary decision made in an unreasonably short time, which precluded satisfaction of the
minimum fair trial guarantees to which the Pacheco Tineo were entitled. Furthermore, there are no
documents to suggest that the Pacheco Tineo family were notified of resolution 136/2001 once it was
issued so that they might know the grounds for their expulsion and invoke the applicable administrative
and/or judicial remedies.
150.
In light of these facts, the Commission finds that the conduct of the SENAMIG in the
proceeding that culminated in the expulsion of the Pacheco Tineo family engaged the international
responsibility of the State of Bolivia, specifically for violation of the rights to a hearing with due
guarantees, to be informed of the administrative charges against them, to defend themselves, to the
possibility of review, and to judicial protection recognized in articles 8(1), 8(2), and 25 of the American
Convention, taken in conjunction with article 1(1) of that instrument, to the detriment of Rumaldo Juan
Pacheco Osco; Fredesvinda Tineo Godos; and Frida Edith, Juana Guadalupe, and Juan Ricardo
Pacheco Tineo.
151.
Finally, the Commission also notes that resolution 136/2001 makes no assessment as to
which country it was appropriate to transfer them to, in spite of evidence that the immigration authorities
were aware that the child Juan Ricardo Pacheco Tineo was a Chilean national and that there was at least
the suggestion that all the other members of the Pacheco Tineo family had refugee status in Chile. The
Commission considers that, regardless of the unfavorable decision on the asylum application in Bolivia—
which matter is examined in the next section—the immigration authority that ordered the expulsion of the
family had the obligation to take into consideration all the information available and make a reasoned
determination not only with respect to the propriety of the grounds for expulsion, but also as regards the
country to which the family should be taken given the particular circumstances of the case.
152.
The Commission considers that it is not appropriate to comment on whether or not the life
or freedom of the Pacheco family would be threatened in the Peruvian States on account of their race,
religion, nationality, membership of a particular social group or political opinion. For the purposes of the
instant case, the expulsion of a family to their country of origin in violation of minimum fair trial guarantees
and in the knowledge that said family might enjoy protection as refugees in a third country is incompatible
with the principle of non-return (non-refoulement) recognized in article 22(8) of the American Convention
in conjunction with article 1(1) of that instrument.
4.2
Conduct of the National Committee on Refugees (CONARE)