POSTINGS FROM THE VENEZUELAN DIASPORA A New Migration Law in Chile Threatens Venezuelans Seeking Protection

Silvina Acosta is a Venezuelan journalist, living in Argentina, who has worked for numerous media outlets, non-governmental organizations, and multilateral organizations in Venezuela, the United States, and Central America. She graduated from the University of Texas with a Master’s Degree in Journalism, after working as a reporter for the Venezuelan newspapers El Nacional, El Universal, Economia Hoy, and Reuters News Agency. For ten years, she coordinated human rights projects for Trust for the Americas, an affiliated foundation of the Organization of American States (OAS). In this capacity, she worked with vulnerable populations, including migrants. She is currently a freelance journalist and independent consultant. She will be writing a bi-monthly blog for CMS – “Postings from the Venezuelan Diaspora”– that reports on the situation of Venezuelan migrants, refugees, and expatriates throughout the world. CMS will be featuring her work on its website and in its weekly Migration Update.

Linda,* a Venezuelan former teacher in her thirties, is one of the more than 200,000 Venezuelans in Chile with irregular status. She lives in fear of deportation and of being separated from her 8-month-old daughter, a Chilean citizen by birth.

In April 2021, Chilean President Sebastán Piñera signed a new migration law that expedites deportations and makes it more difficult for migrants to adjust their status.

Linda and her partner left Venezuela on June 15, 2019. Their goal was to reach Chile  before a new requirement that all Venezuelans present a consular visa upon entry went into effect. But their trip was delayed, and they had to pay a human smuggler, or “coyote,” to enter Chile.

“We are good people. We come to work and help my other children and parents in Venezuela,” Linda said. “We are scared. We don’t know what will happen to us.”

It is nearly impossible for Venezuelan nationals to obtain the travel documents required to enter neighboring countries because Venezuelan embassies have limited consular services due to a lack of resources and the political crisis. The situation has been worsened by the COVID-19 pandemic.

Linda and her partner spent seven days camping in front of the Venezuelan consulate in Tacna, Peru trying to obtain the visa they needed to enter Chile legally. Together with  28 other co-nationals and enduring low temperatures, they confronted the indifference of the authorities. “The fruitless wait only ended with the death of one person’s baby,” Linda said.

Without any other option, they paid coyotes and walked for eight hours through train tracks to arrive at Arica, a border town in Chile. Then, they traveled north to meet family and friends.

Since then, Linda and her partner have been living in the shadows. Working without papers, they are increasingly desperate and anxious. They worry about the future of their 8-month-old daughter and being separated from her as a result of deportation. 

Controversial Migration Law Reform 

Chile’s new migration law (Ley 21325 / ley de Migración y Extranjería), which took effect April 20, 2021, poses a new threat to recent immigrants who entered through irregular paths. 

The new legislation offers the possibility to regularize one’s migration status, but only to those who entered Chile through authorized checkpoints before March 18, 2020, when the Chilean government first closed its borders in response to the COVID-19 pandemic.

Those who entered without authorization have a period of 180 days to leave the country or they could be arrested and deported. Under the new law, Chilean authorities do not need to have a criminal complaint against a foreign national to deport them. Anyone who entered without inspection can be deported en masse – without a review of their case or an asylum screening.

Guillermo Silva, President of the Chilean Supreme Court, said the deportation provisions in Law 21325 are “prohibited by international human rights law in general and by Article 22.1 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families in particular.” 

Article 22.1 requires that deportation cases be “examined and decided individually.”  Chile’s new law also contravenes other international agreements such as the American Convention On Human Rights “Pact Of San Jose, Costa Rica” (B-32) and the Cartagena Declaration on Refugees. 

These agreements guarantee all foreign nationals the right to free movement, due process and non-discrimination, as well as to request asylum. They also forbid the detention of immigrants incommunicado or in shelters. 

Notably, the Cartagena Declaration defines “refugee” more expansively than the United Nations 1951 and 1967 protocols. It includes “persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violations of human rights or other circumstance which have seriously disturbed public order.” 

The vast majority of Venezuelans would meet this definition. However, under Chile’s new law, people seeking protection can be deported without an opportunity to pursue an asylum claim.

“Migrants are confused. They do not understand. [No one] who has entered through irregular paths can apply for regularization,” said Benigna Zambrano, President of the Asociación Intercultural Miranda, a Venezuelan migrants’ organization.

Mass Expulsions

In February 2021, Chile’s Interior Secretary announced monthly deportation flights and a contract with Chilean Sky Airlines for $1.5 million to facilitate mass deportations.  In the past, Chile has deported foreign-born persons who were convicted of crimes, but the new unprecedented migration law allows people seeking protection to be deported solely on administrative grounds.

Chile has already begun administration expulsions. On June 6, 2021, Chile deported more than 50 Venezuelans.  The majority were never charged with a crime. Because of the new law, they were deported solely on the basis of how they entered the country and without an examination of their case or an opportunity to contest the deportation.

Between January 2018 and January 2021, Chile executed 1,401 expulsions, according to data provided by the Jesuit Migrant Service (SJM).  By comparison, the Chilean government intends to expel 1,800 persons by the end of this year and has already scheduled 15 flights to do so, said Diego Persico, director of Migra Chile, a legal advice organization for migrants.

Carlos Figueroa, Director of Public Advocacy and Studies at SJM argued that “the gigantic error in all these administrative expulsions is that the government [has] been indifferent to the law, and ignore[s] its obligation to investigate each case.”  

From Acceptance to Deportation

Before the pandemic, migration policies in some South American countries started changing, particularly in response to the unprecedented exodus of Venezuelan citizens.

In 2010, 305,000 foreign-born persons resided in Chile, and they comprised 1.8 percent of Chile’s population. By 2020, nearly 1,500,000 foreign-born persons resided in Chile and made up 7.5 percent Chile’s population.

After almost eight years of processing in the Chilean Parliament, this new legislation passed at a moment when Chile’s foreign-born population is growing. Before the pandemic, Andean countries set new migration restrictions to Venezuelan nationals, mostly requiring visas for entry. 

In 2020, the Coronavirus outbreak triggered an unusual “double-flow” of migrants with people both in-migrating and out-migrating simultaneously. Walkers who fled Venezuela in 2018 returned temporarily to their country due to the COVID-19 economic repercussions, crowding immigration checkpoints and border towns. At the same time, people continued to flee Venezuela.

According to Eduardo Stein, Joint UNHCR-IOM Special Representative for Venezuelan Refugees and Migrants in the Region, between 1,600 and 2,000 people are leaving Venezuela every day, fleeing the persistent humanitarian, economic, and political crises through irregular channels.

In the context of the COVID-19 pandemic, the UN Special Rapporteur on the human rights of migrants, Felipe González Morales and the UN Committee on Migrant Workers called on states to consider a temporary suspension of deportations and/or forced returns as a health and safety precaution.

Linda has requested legal assistance to understand what will happen with her baby if she and her partner are deported. As a Chilean citizen, Linda’s daughter cannot be deported, but she’s afraid she will be forced to surrender the custody of her baby to the Chilean state. 

“Our dream was to have a life in Chile… But it seems impossible,” Linda said. “My daughter deserves to live here.”

August 3, 2021

*Name has been changed to protect the safety of the interviewee and her family.