Addressing Discretion and Discrimination in the Mexican National Migration Institute

Abstract

Mexican immigration authorities regularly illegally detain, disappear, and/or deport indigenous Mexicans and Afro-Mexicans after mistaking them for non-citizens in irregular migratory situations. This Note addresses one factor contributing to the illegal behavior of the Mexican National Migration Institute (the “INM”): the legal framework governing human rights and immigration in Mexico. This framework, which is widely dispersed across a number of legal sources, contradictory, and vague, provides the INM with vast discretion and little guidance to enforce migration control. This discretion in turn leads INM agents to rely on discriminatory, subjective characteristics to determine an individual’s nationality, such as skin color, facial features, language, accent, clothing, and even — in the words of an INM official — “smell.”

While the Mexican government has acknowledged and made some effort to address the INM’s illegal conduct, this Note asserts that these measures do not guarantee the end of systemic discrimination against Afro-Mexicans and indigenous Mexicans. Consequently, this Note recommends the design and implementation of reforms to the legal framework that are grounded in the four principles of evolutionary learning: contextualization, collaboration, accountability and transparency, and continuous improvement. These principles have been used to address similar problems of discretion and discrimination in the United States juvenile justice system. By applying them to the legal framework governing immigration and human rights, Mexican lawmakers can reform the inequities in the INM’s current processes.

This Note advocates for measures that, even if not adopted by the Mexican legislature or judiciary, can still be incorporated into reforms led by the INM itself, other governmental agencies, and/or international and domestic NGOs and nonprofits. In addition to drawing attention to a longstanding human rights crisis in Mexico, this Note also joins the lively debate on the problem of the street-level bureaucrat, in which scholars and experts address the ways that on-the-ground actors shape policy through their day-to-day interactions with the public.