Law stating that detention can only be used where authorized by judicial order
Immigration detention is limited in law and practice to rare instances during deportation procedures.
Deportation and detention are both decisions that can only be authorized by judicial order, with detention used only as a final resort after all other remedies are exhausted.
Such an order can only be issued in two cases: (i) for a specific period of time as a precautionary measure before a final immigration decision where a risk of non-compliance with a deportation order is proven; and (ii) for a maximum of 15 days to effect deportation where the judge determines that a removal order is final.
Law providing for options to regularize status before detention is authorized for deportation
Before deportation, a person must be given the opportunity to explore all options to regularise their status, within a set deadline.
In practice, migrants who have been committed to prison for criminal offences are the only immigration detainees In the event that the person claims to have family ties with an Argentinian national (where s/he is the father, son/daughter or spouse of a national), detention and removal proceedings are suspended for 48 hours, during which time the National head Office of Migrations will have to verify the existence of the relationship.
Once family ties are proven, the person must be released and a regularization process initiated. (Article 70, Immigration Law No. 25.871).
Maximum Time Limits on Detention
If the removal order cannot be effected in the time authorized by the judicial order (maximum of 15 days), immigration may request an extension of the detention for up to 30 days. Within this time immigration needs to inform the judge every 10 days of the action taken to effect the order and the continued reasons to justify such continued detention.
The same 10-day review is required from time the detention order is issued in the case of it being a precautionary measure prior to the finalization of a removal order.
Article 70, Immigration Law No. 25.871; Article 70, Regulation 616/2010
Find out more:
The Americas Regional Report is coming soon.
Over the past five years, the IDC has undertaken a program of research to identify and describe a number of positive alternatives to immigration detention (‘alternatives’) that respect fundamental rights, are less expensive and are equally or more effective than traditional border controls.
This research, entitled There are alternatives, provides readers with the guidance needed to successfully avoid unnecessary detention and to ensure community options are as effective as possible.
This text was published in September 2015.