whether administrative, legislative or judicial, that may affect them. 384 Thus, in its
consistent case law, the Court has reiterated that “although Article 8 of the American
Convention is entitled “Right to a Fair Trial” [Note: Right to judicial guarantees in the
Spanish version], its application is not limited strictly to judicial remedies.” 385 Rather, the
“series of basic guarantees of due process of law” are applicable in the determination of
rights and obligations of a “civil, labor, fiscal or any other nature.” 386 In other words, “any
act or omission of the State’s organs in the course of proceedings, whether these are
administrative, punitive, or jurisdictional, must respect due process of law.” 387
B.1.2. Standards for expulsion proceedings
350. In relation to immigration matters, the Court has indicated that, in the exercise of its
authority to establish immigration policies, 388 States may establish mechanisms to control
the entry into and departure from its territory of non-nationals, provided that these
policies are compatible with the norms for the protection of the human rights established
in the American Convention. In other words, although States have a margin of discretion
when determining their immigration policies, the objectives of such policies must respect
the human rights of migrants. 389
351. In this regard, the Court has affirmed 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,” 390 and in order that “migrants may assert their
384
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 the Pacheco Tineo Family v. Bolivia, para. 130.
385
Cf. Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and 8 American Convention on Human
Rights). Advisory Opinion OC-9/87 of October 6, 1987. Series A No. 9, para. 27, and Case of the Constitutional
Tribunal (Camba Campos et al.) v. Ecuador. Preliminary objections, merits, reparations and costs. Judgment of
August 28, 2013. Series C No. 268, para. 166.
386
Cf. Case of the Constitutional Court v. Peru. Merits, reparations and costs, para. 70, and Case of the
Pacheco Tineo Family v. Bolivia, para. 130.
387
Cf. 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 Pacheco Tineo Family v. Bolivia, para. 130.
388
A State’s immigration policy is composed of any institutional act, measure or omission (laws, decrees,
resolutions, directives, administrative acts, etc.) that relates to the entry into, departure from, or permanence in
its territory of the national or foreign population. Cf. Juridical Status and Rights of Undocumented Migrants. OC18/03, para. 163, and Case of Vélez Loor v. Panama, para. 97.
389
Cf. Juridical Status and Rights of Undocumented Migrants. Advisory Opinion OC-18/03 of September 17,
2003. Series A No. 18, para. 168; Case of Vélez Loor v. Panama, para. 97, and Rights and Guarantees of
Children in the Context of Migration and/or in Need of International Protection. OC-21/14, para. 39. See also:
Expert opinion of Pablo Ceriani Cernadas provided before the Court, in which, among other matters, he stated
that “[r]egardless of the different immigration categories that a State devises (wherein, in principle, there is a
margin of discretion to grant a residence permit when implementing these categories), this definition of
categories and the way in which they are implemented differs significantly from the de facto reality of migratory
flows, which results in – and this is the experience not only of the countries of the region, not only of Latin
America, but it is the situation in the United States, in many countries of the European Union, and of Asia – a
significant number of people in an irregular migratory situation, which, without doubt, will have a negative impact
as regards the human rights of these persons, in addition to the impact that it may have for policies, for
example, of human development and other kinds of social integration policies that a country wishes to
implement” (expert opinion of Pablo Ceriani Cernadas before the Court during the public hearing held on October
7 and 8, 2013).
390
Cf. Juridical Status and Rights of Undocumented Migrants. OC-18/03, para. 122, and Case of Nadege
Dorzema et al. v. Dominican Republic, para. 159.
113
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