Administrative due process to be followed to deport a foreigner. Family rights

Tirso Oriol Duarte Lescay v. Colombian Special Unit for Migration Services

Date:  11/12/2019

Judge-Rapporteur:  Alejandro Linares Cantillo

Concurrence:  Antonio José Lizarazo Ocampo

Facts.  The plaintiff is a Cuban citizen who, by virtue of his artistic career, has entered and left the country on multiple occasions with a work visa. After marrying a Colombian citizen, he settled in the country and changed his work visa for a national spouse visa.  As a result of this union, a child was born in 2015 and eventually at the end of the same year, the couple decided, by mutual agreement, to end the relationship and de facto separate.  The custody of the minor was granted to the actor because the mother is deprived of liberty in the United States, for the crime of sex trafficking. In 2016, the Colombian Special Unit for Migration Services initiated an investigation against the petitioner to verify whether he had misled the Ministry of Foreign Affairs by submitting a spurious proof of his marriage by means of which he obtained the spouse visas.  Finally, the defendant entity ordered the deportation of the petitioner and the prohibition to enter the country for a term of three years.  The claimant adduced that these actions violated his and his son’s fundamental rights, because they were carried out without regard to his family responsibilities and ties that binds him to his son.

Issue: Do family rights prevail when immigration laws have been transgressed so that deportation does not ensued?

Ruling and reasoning.  Yes.  Although the Court reiterated the duty of foreigners to comply with the Colombian legal system, however, in the scope of the right to due process, the Chamber concluded that the administrative sanctioning procedure of a migratory nature has to take into account the fundamental right of children to have a family and not be separated from it.

As a result, the Court GRANTED the amparo and a series of orders were issued to guarantee that mentioned family rights were considered by the migration authorly before making decisions on the migratory status of the plaintiff.