Fighting the good fight
On Thursday August 06th, 2020, we received a call from a Costa Rican woman seeking help. Her husband, a US national with Permanent Residency as Parent of a Costa Rican national, flew in from the
On Thursday August 06th, 2020, we received a call from a Costa Rican woman seeking help. Her husband, a US national with Permanent Residency as Parent of a Costa Rican national, flew in from the US on a repatriation flight (flight UA2448) coming from Houston. This US national had departed Costa Rica in June/July and was trying to come back to his family. This man, whom we shall name Joe, was relying on the new measures established by Decree 42513-MGP-S that specifically state:
ARTICLE 10.- Reforms article 2, last paragraph to add a new exception and article 5 of Executive Decree number 42256-MGP-S of March 25th, 2020, as such:
“ARTICLE 2 ° .-(…) Foreigners who have legal status authorized under the immigration categories of Permanent and Temporary Residency who left the country after March 25th, 2020 and that need to return to the country via air as of August 01st, 2020 are exempt of the entry restrictions […]”.
Seems simple right? However, nothing that involves Immigration ever is. This Decree 42513-MGP-S is plagued with contradictions. It does not establish a clear guideline and it is impossible to understand. I have held calls with at least 4 other attorneys to discuss what this Decree is trying to say and there is no consensus. On top of that, Immigration published certain guidelines on their website (https://www.migracion.go.cr/Paginas/Cierre-de-Fronteras.aspx) that again are full of contradictions. However, guidelines published on a website carry no legal weight whatsoever. They reveal what Immigration is thinking, but it is not tantamount to a properly published Decree, Resolution, etc.
So, back to our story. When this woman, whom we shall call Karla, called, my colleague Mario Rodriguez and I jumped to the opportunity. We had to fight for this Resident. Immigration was applying the Decree in an unfair and prejudicial manner and we had to do something. We spoke to Mrs. Karla, sent her the Decree, told her to instruct Joe to demand an explanation as to why he was not allowed in, have him show the Immigration Officers the Decree, and told her to wait for us. Mario and I decided to head straight to the airport.
Off we went, Decree in hand and feisty attitudes ready. We parked and met Karla at the Malinche restaurant. There she explained what had happened in full detail. Her husband had boarded the repatriation flight in Houston which was full. On board were Costa Rican nationals, tourists, spouses, and parents of Costa Rican nationals, Residents, etc. Her husband, a Permanent Resident as mentioned, came prepared. He had his valid DIMEX card, his CAJA was up to date, he was ready to quarantine and, to make things even better, he had a COVID19 test that complied with the requirements established for tourists. When they landed, Mr. Joe and 4 others were separated from the group. This means that from a flight of approximately 240 people, 5 were singled out. Mr. Joe had been told that he had an entry ban in the system as he had departed the country after March 25th, 2020. He insisted that the Decree stated that the entry bans no longer applied but Immigration was asking him to sign a statement of refusal of entry. They told him that he was not allowed to exit the airport and was escorted, along with the other 4 passengers, to a new gate as his flight back to the US was scheduled for Friday, August 07th, 2020 at 1PM.
We told Joe not to sign anything and headed into the airport. We spoke to the security guard, were allowed in, and headed straight to the head of the Immigration Police’s office. Mr. Walter Hernandez kindly allowed us in his office. We explained what was going on, Mario and I made our case, presented the facts and the law but Mr. Hernandez was equally confused and proceeded to call the Immigration Department. Once we had them on the phone, Mr. Hernandez allowed me to speak directly to the attorney. We went back and forth, read the Decree, I insisted that this was an ill application of the law, she insisted entry bans had been extended… this went on for at least 10 minutes until the dreaded words were spoken: “we are only following orders and this person cannot enter the country, if you do not agree, you can file the applicable complaints.”
Thanking Mr. Hernandez for his kindness, Mario and I ran back to the Malinche. We had no choice but to file an Habeas Corpus. It was now around 3PM and we had very little time to act. We went back downstairs to the Malinche were we met another attorney who was fighting the same fight for one or two of his clients. We spoke about the tremendous injustice that we believe had occurred. We sat for a few minutes with Mr. Joe’s wife and told her that we were running back to the office to conclude the Habeas Corpus to stop Mr. Joe’s expulsion from the country. We told her we would file the document and send her a copy so that Mr. Joe could show it to Immigration inside the airport and thus, stop this madness.
Off we went, from Alajuela to Escazu trying our best not to drive over the speed limit. Mario was drafting the Habeas Corpus on the way. We discussed the arguments we were going to present, the logistics of how we were going to do this in less than 2 hours, etc. As soon as we arrived, Mario continued preparing the Habeas Corpus and I printed all of the documents Mr. Joe’s wife, Karla, had shared: his DIMEX, his CAJA information, a copy of the refusal of entry statement, etc. We also called the Constitutional Authority where the Habeas had to be filed to confirm their hours and planned, along with legal assistant Jorge Cervantes, at what time he had to go to make it on time. Mario finished the Habeas, I checked it, we corrected a few things, handed the document over to Jorge, and sent him to file the document before 4:30PM as they were closing the office closer to us where we could file the Habeas.
As soon as it was filed, Jorge shared a copy of the application filing receipt and we sent a complete copy of the document to Mrs. Karla. It was now past 5PM and I told Karla that now we had to wait. We chatted for a bit, I told her to rest and told her that Habeas are generally treated as emergencies so that we expected news soon.
I shared the story with my colleagues of the Commission of Immigration Attorneys of the Professional Board of Attorneys. All of them sent their best wishes and urged me to keep them updated.
It was close to midnight when Karla sent me a message, Joe was allowed to enter the country!!! I almost cried of happiness. Apparently, Joe and two others had been released. It made sense, three Habeas had been filed, three people had been allowed to enter the country.
When we were at el Malinche restaurant, Karla had informed me of another Resident who was in a situation similar to Joe’s. She, however, was not married to a Costa Rican national nor had Costa Rican children but she was a Permanent Resident. I spoke to her via email but when I checked her CAJA, she was not up to date. Unfortunately, we could not help her and she was sent back to the US.
Around 11AM on Friday I received a response from the Constitutional Authority: Considering the facts of the case, since Mr. Joe had felt discriminated against due to the “odious application of the rules”, Immigration could not send him back to the US. They granted Immigration a term of 3 natural days to respond.
However, this was the second breath of fresh air. Mr. Joe had already been allowed in and now we had the response to the Habeas Corpus supporting us. Sweet success!
Joe and Karla were happy, we were happy, our colleagues from the Commission of Immigration Attorneys of the Professional Board of Attorneys were happy. By late morning one of our clients, a US national married to a Costa Rican national who was also on this flight reached out to let us know that he and his family had successfully entered the country so between Joe’s story and our client’s it was a wonderful Friday.
Next week we will publish an article with the questions we presented before Immigration last week. We believe these questions summarize the frustration we are all feeling. The new Decrees they have issued are complicated, contradictory, they are too harsh, and we cannot simply sit back and watch. We have decided to, once again, fight the good fight.
What we published here still stands (nonetheless, we believe changes are soon to be announced) so we would advice anyone in a similar situation to be careful and mindful of what you may face.
This is a copy of the Habeas Corpus.