+52 (984) 803 44 55 info@chfmexico.com

Protests around the globe are spreading rapidly, the Internet and the Social Networks in particular are playing a special role in these public demonstrations, from the Occupy in New York to the Indignant of Madrid, protests seem to be closer and closer to home, claiming for democracy in Middle East, for more jobs in Greece, for better youth opportunities in Chile, but in the end they all seem to have a similarity, all of them are born from a collective conscience where people have realized that things must change, in all of them, protestors are informing other people through their social network’s accounts. In some cases is not a particular petition, therefore there is not a particular solution, some people is starting to see this as a global situation and soon we are watching how the Occupy movement spread to Boston, L. A. and many other major cities across the U. S. A. and the same is happening in other countries. I can’t think of any other moment in the world like this since the 60’s.

Mexico is not an exception, the word is spreading and calls for protests are starting to appear on the Internet. In the case of the little city where the author of this article lives, Playa del Carmen, population 160,000, there is already a call to protest this Saturday 15th, 2011. The protest is not against a particular person, nor a particular problem, the call is for a pacific protest against the current world order and a demand to change, an opportunity to tell the decision makers, the governing class, and business people that people are aware that things are not right and something should be done. Being Playa del Carmen a city with a large foreign population, some of them legal and some others illegal, there is the preoccupation that their foreign status could cause them some trouble and they could be deported if attending these demonstrations, someone actually inquired at my firm about the implications of being part of one of these protests.

Mexican policy in these particular manners is very similar and obvious as in most of the world. Mexico as a sovereign country has its own rules about foreigners. Foreigners and every human in Mexican territory are protected by the Constitution (article 1) and they should have at all time the same rights as any other person in Mexican territory, we could say this is the general rule, however there are some exceptions. The exceptions for foreigners are several and they impose restrictions to foreign people under several scenarios, such as having the obligation of holding a document that accredits their legal status, not been able to purchase land on the borders and along the coasts of the country, the prohibition of participating in some industries, the prohibition of calling the assistance of their country when doing business in Mexico, the prohibition of becoming part of the armed forces of Mexico, the preference of Mexican Nationals for some government positions and the prohibition of being involved in political affairs in Mexico, just to mention some of the restrictions, which in the end, most of which sound pretty obvious.

For the purpose of this article we will center our analysis in the restriction imposed by article 11 and 33 of our Constitution. According to article 11 all the people have the right to travel across Mexican territory without the need of passport or a special document, however “the exercise of this right will be subordinated to…the authority… in regards to the limitations imposed by the Immigration laws and Health laws, in all the Republic, or in regards to Problematic Foreigners residents of the country.”  On the other hand Article 33 states that the Executive of the Union has the exclusive power to demand expulsion from national territory, immediately and without a trial, of any foreigner whose presence in Mexico is considered inconvenient and “Foreigners, can not, in any way be involved in political affairs of the country.” The constitutional articles sound pretty strong and they are very abstract and subjective. The possibility of being required to abandon the country is a discretional faculty; it all depends on the decision and the point of view of the authority. In the real world, the importance of these restrictions relies on 2 questions, on one side: Who is the empowered authority to do so? On the other hand: What is the definition of  “problematic” (pernicioso) and “political affairs of the country”?

As said before, the faculty of requiring the exit of a foreigner belongs exclusively to the “Executive of the Union”, which is the President of Mexico, whom will have in his administration several people that will assist the President in all the duties of the Federal Administration. This means that only the President, through his appropriate “arm” can perform this activity. The corresponding “arm” or Secretary is the Ministry of Interior (Secretaría de Gobernación), who has among others, the responsibility of addressing all the population matters in Mexico, and who at the same time has a specialized organization in charge of all immigration matters, which is the “Instituto Nacional de Migración – INM” (National Migratory Institute). Having said all of this, we can conclude that only the President through the INM’s personnel is empowered to require a foreigner to abandon the Country. This opinion is supported by an old resolution of the Supreme Court of Justice of Mexico from 1919 that states: “Article 33 of the Constitution – The statement of this article, in regards of the faculty granted to the President of the Republic to expel any foreigner who is considered as problematic, is so final, that it does not allows any type of interpretation”. It is also important to mention that the new Migratory Law, published on May 25th, 2011, also states that no authority, except for the INM personnel, is empowered to require any foreigner to demonstrate or to show any document proving it’s legal permanence in Mexico, the only exception to this rule is the Federal Police when aiding the INM Personnel in the exercise of their Immigration duties.

As for the definition of “Problematic” and “Political Affairs of the Country”, in this part we enter into a subjective and discretional world, actually these are the dangerous words of these articles, when is somebody considered as Problematic? And what is a Political Affair and what is not? These words makes this faculty as discretional to the President, in this case the INM, as it can get. My personal opinion and experience tells me that attending one of these pacific protests against the current world order should not be considered as intervention in a political affair, once again, this is only my personal opinion and what I’ve seen in the past, however any foreigner participating in these public demonstrations should know and understand the risks involved when participating in these massive acts.

About the author Gustavo Calderón:

Gustavo Calderón, is a Lawyer and University Professor in Playa del Carmen, Mexico, with more than 10 years of experience in Corporate Law and Real Estate Law. Mr. Calderón focuses his practice towards serving the expatriate population of the Riviera Maya.