The Supreme Court of Mexico ruled that random immigration controls carried out in the territory were discriminatory and against the right to free movement.
The Supreme Court of Mexico ruled on May 19 that immigration controls outside international transit areas were unconstitutional because they were discriminatory against indigenous Mexicans or Mexicans of African descent.
The immigration control procedure provided by law is contrary to the rights to free movement within the national territory, and against concepts of equality and non-discrimination because it is “over-inclusive by not distinguishing between nationals and foreigners, in addition to generating differentiated impacts of indigenous and Afro-Mexican communities”.
The Court considers immigration controls in the territory over-target Mexicans from indigenous and Afro-Mexican communities.
The decision is the result of a lawsuit filed by the Institute for Women in Migration (IMUMI) against several articles of the migration law that sets out the procedure to check for identity documents and immigration status.
In 2015, two Mexican women, one minor at the time, and one Mexican man from the Tseltal indigenous community in the southern state of Chiapas were subject to migration control during a bus journey in the north of the country. Because they “looked like migrants,” they were detained for a week and said they were harassed to sign documents to admit they were from Guatemala and be deported back to the country.
A district judge dismissed the case based on the fact that they were able to leave after their identity was verified. But the plaintiffs appealed the decision.
The commissioner of the National Institute of Migration issued a public apology about the case in 2019. And the High Court ruled that the state of Mexico is responsible for the violation of human rights against indigenous people and the victims have the right to seek compensation for the damage.
The migration law states that “anyone who is at a migration checkpoint within the national territory can be controlled, regardless of the fact the person is a Mexican or foreign national”. But the constitution of Mexico gives the right to free movement and transit which results in no obligation to carry identity documents within the country which as such contradicts the migration law provision, according to the Supreme Court.
Moreover, the immigration control procedure outside of designated international migration checkpoints is also unconstitutional because it disproportionately affects some people. With no clear targets, migration authorities carry out controls “randomly based on some aspects like ethnic origin, skin color and language” at the detriment of indigenous and Afro-Mexican communities, according to the Court statement.
For IMUMI, the decision proves random document checks cannot be carried out without “discrimination against people based on their appearance (racial profiling)”. Also, “this resolution sets an important positive precedent to guarantee the right to free movement of people across the country, for migrants or Mexicans,” IMUMI said in a statement.
The Court of Justice of the Netherlands last September considered ethnicity could be a reason for immigration control.