Libro II Título II. Procedimientos

Unaccompanied migrant children separated from their families are considered to be boys, girls and adolescents who are separated from their mother, father or both, or from other relatives and are not in the care of a person of legal age who, by law or custom, assumes such responsibility.

The procedure for the care and protection of unaccompanied boys, girls and adolescents is governed by the following principles:

1.Best interests of the child. Decisions must guarantee strict compliance with this principle. It is necessary for the authority to carry out a best-interests determination for the boy, girl or adolescent, which requires a clear and thorough assessment of the identity of the unaccompanied migrant boy, girl or adolescent or one separated from his or her family, in particular of his or her nationality, upbringing, ethnic, cultural and linguistic background and that effectively determines vulnerabilities and special protection needs. In case of impossibility of establishing minority of age or where reasonable doubt exists as to his or her age or as to the veracity of his or her documents, minority of age shall be presumed.

2.Non-discrimination. Unaccompanied boys, girls and adolescents or those separated from their families shall not be discriminated against by reason of their situation as unaccompanied or separated from their family, by reason of their refugee status, applicants for refugee status, political asylee or migratory status, their nationality, their membership in an ethnic group or sexual condition. This principle includes differentiation based on the diversity of protection needs, such as that associated with age, sexual diversity and gender.

3.Family unity and right to family reunification. The authorities shall endeavor by all means to ensure that the unaccompanied migrant boy, girl or adolescent or one separated from his or her family is reunited with his or her mother or father, both parents, or guardian or whoever exercises guardianship and custody, whether in the receiving country, the country of origin or provenance, except when best interests require prolonging the separation. Under this principle, non-separation of siblings or relatives is favored.

4.Communication and preservation of personal relations and direct contacts between children and parents. Boys, girls and adolescents have the right to know the whereabouts of their relatives, especially of the mother, father and siblings. This principle includes the right to locate the father, mother or relatives and to facilitate their communication, in the country of origin or in the receiving country.

5.Non-violence and dignified treatment. The dignity of migrant boys, girls and adolescents, especially unaccompanied ones, shall be protected, ensuring that they are not subjected to conditions contrary to their personal integrity such as torture, cruel, inhuman or degrading treatment.

6.Protection and security. No administrative decision, nor any order of the authority may jeopardize the safety of boys, girls and adolescents. To that effect, their protection shall be sought through the various mechanisms deemed appropriate, as well as coordination with authorities of other States for a dignified and safe repatriation of migrant children and adolescents. The places where they are placed for their care and shelter must be pleasant, safe and friendly environments.

7.Legality and due process. Any decision taken on the status of boys, girls and adolescents, especially unaccompanied and separated ones, shall be in full respect of the right of defense and due process.

8.Confidentiality of records and protection of private life. Care shall be taken not to endanger sensitive information and the identity of the boy, girl or adolescent, nor that of his or her family. Its dissemination by the media is restricted, except when the best interests of the boy, girl or adolescent prevail in order to find his or her relatives and to seek family reunification. The authorities shall protect the confidential nature of the information of unaccompanied girls, boys and adolescents and their families. It shall be guaranteed that information collected and exchanged for the purpose of child protection shall not be used for other purposes.

9.Specialization of personnel and public officials in charge of migration management, protection, repatriation, handover and family and social reunification of unaccompanied migrant children. Professionals assigned to these procedures and to the care of boys, girls and adolescents must have specialized training in human rights of children and adolescents, enabling multidisciplinary care in the fields of psychology, social work, health and law.

10.Principle of non-refoulement when personal integrity is at risk. No boy, girl or adolescent shall be transferred to another country if there exists a risk of suffering grave violations of his or her human rights, in particular violation of the right to life, to liberty and to physical integrity.

11.Right to life, survival and development. Boys, girls and adolescents, especially separated or unaccompanied ones, must be protected against violence and exploitation.

12.Right to freely express his or her opinion. With respect to unaccompanied or separated boys, girls or adolescents, their wishes and opinions shall be sought and duly taken into account. With a view to the informed expression of such wishes and opinions, it is imperative that they be provided with all information, about their rights, existing services, especially means of communication, the procedure for requesting refugee status or asylum, family tracing and the situation in the country of origin. With regard to guardianship, custody, accommodation and legal representation, the opinions of the boy, girl or adolescent must also be taken into account. The aforementioned information shall be provided in a manner consistent with maturity and level of understanding. Since participation depends on reliable communication, interpretation shall be provided where applicable at all stages of the procedure.

The Guatemalan Migration Institute, through the Subdirectorate for Attention and Protection of Fundamental Rights of Migrants, shall create the specialized unit for attention and protection of migrant children, which shall bring together professional multidisciplinary teams in attention, assistance, protection and management of the rights of boys, girls and adolescents. The professionals of the Unit shall be called childhood protection officers.

The specialized unit for attention and protection of migrant children shall maintain close coordination with the Office of the Attorney General of the Nation within the scope of its jurisdiction, as well as with the entities that make up the National System for the Protection of Children and Adolescents.

Childhood Protection Officers act within the national territory and may be commissioned to provide assistance and support to consuls when the latter so require.

At all times they must interact and coordinate for the effective protection of Guatemalan boys, girls or adolescents abroad.

Unaccompanied migrant children and adolescents separated from their family who are in Guatemala outside their country of nationality. In accordance with the provisions of this Code, unaccompanied or family-separated foreign migrant children and adolescents have the right to be cared for by specialized personnel. The authority must provide for the taking of specific protection measures appropriate to the situation of vulnerability in which they may find themselves.

As a general rule, unaccompanied or family-separated girls, boys and adolescents shall not be deprived of liberty.

The Secretariat of Social Welfare of the Presidency of the Republic, during the migration procedure, shall implement protection programs for boys, girls or adolescents, prioritizing:

a)Placement with a relative who is in the country, regardless of his or her migration status, who guarantees his or her care;

b)Temporary family foster care; and,

c)Other forms of open accommodation aimed at the protection of children and the family; these measures may be taken in accordance with the administrative procedure to be developed in the respective regulation. Exceptionally, and for the shortest possible time, he or she may be housed under the residential shelter modality.

In the event that the Secretariat of Social Welfare of the Presidency identifies, through an initial assessment, foreign migrant girls, boys and adolescents who are susceptible to recognition as a refugee or asylee, or to another international protection measure, or to family reunification, it shall immediately notify the Sub-Directorate for Attention and Protection of Fundamental Rights of Migrants of the Guatemalan Institute of Migration in order to follow the procedures for the taking of special protection measures.

The Sub-Directorate for Attention and Protection of Fundamental Rights of Migrants, through the specialized unit for attention and protection of migrant children, is competent and must, for that purpose, follow the following procedure:

a)Immediately inform the Director General of the case for the granting of temporary residence status, to guarantee the protection of their fundamental rights and to establish non-return to the country of origin until their situation is determined.

b)Carry out the identification and information procedures regarding their rights, ensuring that they are in their language and in accordance with their maturity and age.

c)Notify the Attorney General's Office of cases in which the need for special protection measures for children and adolescents is detected, which shall initiate the procedure in accordance with its regulations.

d)Maintain close relations with the Secretariat of Social Welfare of the Presidency and with the Ministry of Foreign Affairs through its consular network.

Throughout the procedure, family contact or communication must be guaranteed in accordance with the best interests of the child. Likewise, if the boy, girl or adolescent requests assistance to return to his or her country of origin, it must be ensured that he or she does not run risks of impairment of his or her fundamental rights. In the case of family reunification, the Guatemalan Institute of Migration shall ensure that the boy, girl, adolescent and his or her family have a migration status that facilitates their migration regularization in Guatemala.

Such situation and the actions taken may be reported to the United Nations High Commissioner for Refugees or other International Organizations whose mandate is oriented to assistance and protection.

It is of national interest to attend to and protect the fundamental rights of unaccompanied Guatemalan migrant boys, girls and adolescents who are in foreign countries.

The consulates are the authorities responsible for exercising the necessary actions to attend to and protect the fundamental rights of Guatemalan boys, girls and adolescents abroad. The consul may request the support of child protection officers or of the representative of the National Council for the Attention of Migrants of Guatemala.

The institutions that make up the Attention and Protection Council shall design and administer the databases of unaccompanied foreign or national migrant girls, boys and adolescents, whose data shall be restricted and may only be used to develop migration policies protective of rights.

The Care and Protection Council, in defining the respective procedures, shall observe the following guidelines for the reception of boys, girls or adolescents who are repatriated, returned or deported to the country:

a)The reception of the boy, girl or adolescent is in charge of the Subdirectorate for Care and Protection of Fundamental Rights of Migrants of the Guatemalan Institute for Migration.

b)In the reception process, the institutions that form the Care and Protection Council shall participate gradually.

c)At all times the representative of the Attorney General shall be present, for follow-up to the family reunification process or the judicialization of the cases.

d)The boy, girl or adolescent is received and immediately placed in temporary shelter and care.

e)A spokesperson of the Guatemalan Institute for Migration may inform and give details about the return of the boys, girls or adolescents, but at no time shall they be exhibited before the media during the reception. Nor may the name or identity be disclosed.

f)It may be made known to the media after a period of time in which it has been determined that such mechanism may help in locating family members.

g)Family reunification proceeds after determining that there are no threats or violation of the human rights of the child by his or her family, tutor, or responsible person.

h)The social care process shall establish a support program for social insertion, which shall provide follow-up in education, technical education, labor insertion in accordance with national legislation and other specific situations. The objective of the follow-up programs is to guarantee permanent family reunification.

With the information shared by the consuls or psychosocial teams, the authority in Guatemala shall provide for the adoption of particular protection measures, appropriate to the situation of vulnerability in which the unaccompanied migrant girl, boy or adolescent may be, to that effect the authority shall promote programs aimed at the protection of children and the family, as well as social protection programs, which it shall coordinate with other State institutions and civil society. While the investigation that allows family reunification is concluded, the boy, girl or adolescent, for the shortest possible time, may be temporarily housed.

In accordance with the best interests of the child, if there is a threat to or violation of the rights of the boy, girl or adolescent that prevents family reunification, the Procurator General of the Nation must initiate judicial protection proceedings before the justice system for children and adolescents.

The National Migration Authority shall be competent to decide all applications for refugee status.

The National Migration Authority shall create the National Commission for Refugees, which shall be composed of a technical representative from the Ministries of Foreign Affairs, of Labor and Social Welfare, of the Interior and from the Guatemalan Institute of Migration.

The National Commission for Refugees serves as the advisory entity and its principal functions shall be to examine the grounds for applications for refugee status, to issue recommendations, opinions and suggestions.

The United Nations High Commissioner for Refugees or its representative, in accordance with its mandate and functions, may participate as an adviser in said Commission.

The application to obtain refugee status may be made in writing or orally before the Guatemalan Institute of Migration, or at the country's border migration control posts, in accordance with the procedures established in the regulation of this Code.

The foreigner who is legally present in Guatemalan territory may also request recognition of refugee status before the Guatemalan Migration Institute, when causes motivating such request subsequently arise in his or her country of origin.

The right of applicant persons to have due legal assistance and assistance of an interpreter or translator in all phases of the procedure for the determination of refugee status is recognized.

The confidentiality of the application, the proceedings and personal information of the applicant for recognition of refugee status is guaranteed, in order to avoid any risk to the life, integrity, liberty, or any other right of the applicant.

The applicant for recognition of refugee status may file, within the time limit of ten days counted from the day following the notification of the denial decision, the motion for reconsideration before the National Migration Authority, which must decide within a time limit of no more than five days, becoming final with this decision.

Upon the decision denying the request for recognition of refugee status becoming final, the Office of the United Nations High Commissioner for Refugees may request, if it considers it appropriate in accordance with its mandate, a reasonable time limit for stay in the national territory for the applicant, while the applicant obtains admission in another country.

The time limit for stay shall be agreed, in each case, by the National Migration Authority and shall be communicated to the Office of the United Nations High Commissioner for Refugees (ACNUR) and to the Guatemalan Migration Institute.

The National Migratory Authority shall declare the cessation of refugee status, if the person is in any of the following situations:

a)If he/she voluntarily renounces his/her condition of refugee status;

b)If he/she has voluntarily re-availed himself/herself of the protection of the country of his/her nationality;

c)If, having lost his/her nationality, he/she voluntarily recovers it;

d)If he/she has acquired a new nationality or a new refugee status and enjoys the protection of the country of his/her new nationality or of the new refugee status;

e)If he/she has voluntarily re-established himself/herself in the country which he/she had left or outside of which he/she had remained for fear of being persecuted; and,

f)If, because the circumstances by virtue of which he/she was recognized as a refugee have disappeared, he/she cannot continue to refuse to avail himself/herself of the protection of the country of his/her nationality. In the case of subparagraph (f) of this article, the National Commission for Refugees, prior to issuing the decision, shall grant a hearing for ten days to the interested person, in order that he/she may exercise his/her right to defense in the assessment of the prevalence of the grounds warranting continued reliance on international protection as refugees. With or without his/her answer, the Commission shall decide on whether or not cessation of refugee status is appropriate, which shall be considered a final decision. The State shall bear the burden of proof to demonstrate that a valid ground for cessation of refugee status exists.

The National Migratory Authority shall have the power to decide situations or cases not provided for in this article, for the cessation of refugee status.

The person referred to in subparagraph d) of Article 78 of this Code may request permanent residence in accordance with the provisions established for such purpose. Refugee status is not lost by obtaining temporary or permanent residence, nor the international protection to which the person may be subject.

The National Commission for Refugees, in response to very special circumstances, such as those of boys, girls, adolescents, persons who are victims of sexual violence, among others, may take administrative measures aimed at expediting the procedure for the issuance of the decision granting refugee status.

The corresponding regulation governing the procedures regarding Refugee Status shall be issued.

The regularization process shall begin with the filing of the application before the Guatemalan Migration Institute, with the exception of the provisions of Articles 181 and 182 of this Code, complying with the requirements and attaching the documents established in each case.

The regularization procedure shall provide for a maximum duration of ninety days from the filing of the application.

If there are prior issues, the Guatemalan Migration Institute shall set a time limit of thirty days for the correction thereof at any time within the ordinary ninety days. The correction may be extended by thirty days.

Against the decisions issued in this matter, the applicant may file the motion for reconsideration indicated in Article 182 of this Code.

When the regularization plan is issued pursuant to the provisions of this Code, a specific regulation shall be issued that shall be consistent with the special provisions governing the particular case for which said plan has been issued.

The Guatemalan Migration Institute has the power to impose sanctions as regulated in this chapter and within the exclusive scope of its jurisdiction.

a)Failure to present to the Guatemalan authority his or her international travel identity document. The principle of no sanction of applicants for recognition of refugee status or political asylum for not carrying a personal identity document must be observed.

b)Remaining in the country for longer than authorized without having a pending extension decision.

c)Failure to report changes of residence address or domicile where applicable.

d)In cases of temporary residence, failure to submit the certification of tax solvency to the Guatemalan Institute of Migration.

e)Being caught engaging in commercial activities without being authorized for that purpose in accordance with national legislation.

f)Entering the country through unauthorized posts or places or not having evidence that he or she entered regularly.

The following pecuniary sanctions are applicable to the regulated violations:

1.For failure to present their international identity and travel document, a fine of two hundred quetzales.

2.For remaining longer than has been authorized to them, without having a pending extension proceeding, a fine of fifteen quetzales per day of excess stay.

3.In cases of failure to present the certification of tax solvency, a fine of two thousand quetzales.

4.Being caught engaging in commercial activities without being authorized, a fine of five thousand quetzales and an order to cease activities.

All fines may be paid in dollars of the United States of America, using the reference exchange rate in effect on the day of payment calculated by the Bank of Guatemala.

In cases of non-compliance with the obligations of foreign persons determined in this Code, in addition to pecuniary sanctions, the order of abandonment of the country within a time limit of no more than ten days may be imposed.

This sanction of an administrative type is imposed by the Guatemalan Institute of Migration, through its competent body.

Sanctioned persons have the right to appeal the decision through the motion for reconsideration indicated in Article 182 of this Code.

Administrative sanctions are distinct from the administrative sanctions imposed by the Superintendency of Tax Administration.

The administrative sanction is distinct from the criminal sanction, which shall be applicable in cases of commission of crimes and as a result of the criminal proceedings established in the legislation of the country by the corresponding authorities.

Family members or any person who has no knowledge of the whereabouts or destination of a person who is known to have migrated to another country in a regular or irregular manner has the right to report such person as disappeared.

The disappearance report shall be filed before the Guatemalan Migration Institute, which shall bring it to the knowledge of the Care and Protection Council, so that the corresponding steps may be taken in accordance with the procedure determined for such purpose by that same Council.

The Care and Protection Council shall establish a procedure that facilitates contact and exchange of information with the authorities of the countries where the person is presumed to have been by reason of transit or destination.

This procedure shall be established to obtain information on deceased persons buried as unidentified in those countries, persons deprived of liberty and persons who may be found in health, hospital, forensic centers or in places that the State of transit or reception provides for the care and shelter of migrant persons. This function shall be coordinated through the consular missions of Guatemala.

The consular mission of Guatemala shall request support from the local authorities of the country where the disappearance of a fellow national was reported so that the search mechanisms that seek to determine the whereabouts of the allegedly missing Guatemalan are initiated. Likewise, it shall request information on the places where it is known that criminal structures dedicated to sexual exploitation and trafficking in persons operate so that the possibility that Guatemalans are being victims of said crimes or any other related one is investigated.

If necessary because the person reported as missing has been located, the Attention and Protection Council may support a consanguineous relative, preferably the mother, father or siblings, to visit the country where the person reported as missing is located.

In such cases, the necessary logistical, legal and social work support shall be made available for the situation the relative must face, in coordination with other agencies.

It is the responsibility of the Ministry of Foreign Affairs to guarantee the dignified repatriation of persons who, having been reported as disappeared or not located, are found deceased in the territory of another State.

The Care and Protection Council shall coordinate with the Public Prosecutor's Office, the National Civil Police, the Penitentiary System, the National Institute of Forensic Sciences and the Ministry of Public Health and Social Assistance, as regards public hospitals and the administration of cemeteries, so that through their functions they provide mechanisms that allow the search, identification and location of foreign persons reported as disappeared in the national territory.

Among these institutions there must exist a database that allows the exchange of information in real time and under international standards appropriate to the identification of persons reported as disappeared.

In the case of unidentified deceased persons, the National Institute of Forensic Sciences and the Ministry of Public Health and Social Assistance shall coordinate the adaptation of unified records that allow for the exact information on the place where persons have been buried in the various cemeteries, as well as the ante-mortem and post-mortem information obtained from the corresponding forensic process.

The authorities are prohibited from authorizing the cremation of the bodies of foreign migrant persons for their repatriation to the country of origin.

The Guatemalan authorities are prohibited from authorizing the cremation of the bodies of Guatemalans deceased abroad prior to their repatriation to the country.

Any person, whether Guatemalan or not, may file constitutional relief (amparo) or request habeas corpus (exhibición personal) on behalf of foreign migrant persons so that their right may be restored to them or a violation against them may cease, so that they may be exhibited by the authorities in case they are in their facilities or under their keeping, shelter, care or custody.

The Assistance and Protection Council may promote before the various State authorities the free access of the relatives of foreign migrant persons reported as missing in the national territory to State offices.

Likewise, access to sources of information and to be treated in accordance with their situation.

The Care and Protection Council shall support the Procurator General of the Nation in the national and international search, location and safekeeping of unaccompanied migrant girls, boys and adolescents separated from their family who are missing.

The Law of the Alba-Keneth Alert System shall apply as applicable.