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Back to Index of Laws Concerning Children of Undocumented Migrants

Summary

Foreign children and adolescents under eighteen years of age who are found in Mexico without the company of a family member or a legal guardian may be granted a temporary immigration status while authorities determine the most appropriate course of action applicable to them based on the specifics of their respective cases.  Alternatives include granting them refugee status, returning them to their countries of origin, if appropriate, or regularizing their status, as explained below.  Migrants in general may have access to education and health services pursuant to applicable requirements, regardless of their immigration status.  Mexico’s Constitution provides that those born in the Mexican territory are Mexicans by birth, regardless of the nationality of their parents.

I. Treatment of Certain Minors under the Migration Law

Although Mexico’s Law on Migration does not appear to provide for a status with eligibility requirements similar to those provided by the US DACA program, the Law does provide for a status applicable to unaccompanied children and adolescents.  Specifically, unaccompanied children and adolescents may be granted a temporary immigration status (Visitor on Humanitarian Grounds) while immigration authorities determine the most appropriate course of action applicable to them based on the specifics of their respective cases (including granting them refugee status, returning them to their countries of origin, if appropriate, or granting them regularization of their status provided that applicable requirements are met, as explained below).[1]  Foreign children and adolescents under eighteen years of age who are in Mexico without the company of a family member or a legal guardian are eligible for this status.[2]

Procedures applicable to the treatment and determination of the status of these children may include

  • placing the child in an institution qualified to provide adequate care for children;
  • interviewing the child in order to obtain pertinent information, such as his/her identity, country of origin, migration status, family whereabouts, and particular needs as to medical and psychological care; or
  • notifying the consulate of the child’s country of origin of the pertinent proceedings in order to request assistance in locating the parents of the child and collaborate in returning the child to his/her country, if applicable.[3]   

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II.  Regularization

As stated above, unaccompanied children and adolescents may be eligible to benefit from the general rules governing regularization of foreigners if it is determined that they qualify for this option.[4]  Such rules provide that foreigners whose migration status is irregular may apply to regularize their status provided that applicable requirements are met.[5]  More specifically, these foreigners residing in Mexico are eligible to apply for regularization of their status if they

  • prove that they are married to a Mexican national or legal resident in Mexico;
  • prove that they have Mexican children or parents (or that these relatives are legal residents in Mexico), or are guardians of Mexican nationals or legal residents in Mexico;
  • are identified by Mexican authorities as victims of or witnesses to a serious crime committed in Mexico;
  • have a level of vulnerability that makes it difficult or impossible for them to be deported; or
  • are children and adolescents subject to international abduction and restitution procedures.[6]

In addition, foreigners who have overstayed their immigration permits, have engaged in activities different from those authorized, or simply lack the necessary documentation to prove regular status may apply to regularize their status provided that applicable requirements are met.[7]  Generally, foreigners who wish to apply for regularization of their status must

  • submit a statement to Mexico’s National Institute of Migration requesting regularization of status and explaining the irregularities incurred by the applicant;
  • present an official identification document;
  • provide documentation of a relationship with a Mexican national or legal resident in Mexico if the application is based on such a relationship;
  • in the case of foreigners who overstay their immigration permits, present their expired documentation and apply for status within sixty days after such expiration occurred;
  • pay a fine; and
  • fulfill the requirements applicable to the particular status that the foreigner wishes to obtain[8] (a number of which include permission to work in Mexico temporarily).[9]

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III.  Benefits for Migrants in General

The Law on Migration provides a number of rights applicable to migrants in general, including the right to receive any urgent medical service necessary to preserve their lives at no cost and without restriction, regardless of their immigration status.[10]  Also, the Law allows migrants to have access to education and health services provided by the public and private sectors pursuant to applicable requirements, regardless of their immigration status.[11] 

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IV.  Refugees

Applicants for refugee status may obtain a temporary visitor status in Mexico while their applications are processed.[12]  If refugee status is granted, the applicant obtains permanent residency, which includes a permit to work in Mexico.[13]  

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V.  Nationality

Mexico’s Nationality Law provides that a foreigner who wants to apply for naturalization must demonstrate that he/she has resided legally in Mexico for at least five years immediately preceding the filing of the application.[14]  This period of residency in Mexico may be reduced to two years if the applicant

  • is a direct descendant of a Mexican national by birth;
  • has children who are Mexican nationals by birth;
  • is a native of a Latin American country or the Iberian Peninsula;
  • has been married to a Mexican national and has lived in Mexico with his/her Mexican spouse for two years; or
  • has provided a service that is beneficial to Mexico in the fields of culture, society, science, art, sports, or business, subject to the discretion of Mexico’s Department of Foreign Affairs.[15]

The five-year period of residency in Mexico may be reduced to one year if the applicant for naturalization is adopted by a Mexican national.[16]  In addition to the period of residency, applicants for naturalization are required to speak Spanish, demonstrate knowledge of the history of Mexico and integration into its culture, take an oath of allegiance to Mexico, renounce any other nationality, and submit a naturalization application to Mexico’s Department of Foreign Affairs.[17]  An application for nationality may be denied if the applicant is in prison for committing an intentional crime in Mexico or abroad.[18]

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VI.  Status of Children Born in Mexico

Mexico’s Constitution provides that those born in Mexican territory are Mexicans by birth, regardless of the nationality of the parents.[19]  According to Mexico’s National Commission for Human Rights, this right is also applicable to children born in Mexico to foreign parents regardless of the parents’ legal status.[20]

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Prepared by Gustavo Guerra
Senior Foreign Law Specialist
September 2017


[1] Ley de Migración [Law on Migration] arts. 52 (V-b), 74, 112, Diario Oficial de la Federación [D.O.], May 25, 2011, available as amended through May 2017 on the website of Mexico’s House of Representatives, at http://www.diputados.gob.mx/LeyesBiblio/pdf/LMigra_190517.pdf, archived at https://perma.cc/8NJJ-EN8N.  Immigration and nationality are regulated in Mexico by a number of statutes and a wide variety of regulations whose applicability depends upon the specifics of a given case.  This report provides a brief summary of key provisions of Mexican law, but other rules may be pertinent depending on the specifics of the case in question.

[2] Id. art. 3 (XVIII).

[3] Id. art. 112.

[4] Id. art. 112 (V).

[5] Id. arts. 3 (XXVIII), 132, 133. 

[6] Id. art. 133.

[7] Id. arts. 132, 134.

[8] Id. arts. 134, 135.

[9] Id. art. 52.

[10] Id. art. 8.

[11] Id.

[12] Id. art. 52(V-c).

[13] Id. arts. 52(V-c), 54.

[14] Ley de Nacionalidad [Law on Nationality], as amended through 2012, art. 20, D.O., May 25, 2011, http://www.diputados.gob.mx/LeyesBiblio/pdf/53.pdf, archived at https://perma.cc/839P-V3BB.  See also Reglamento de la Ley de Nacionalidad [Regulation of the Law of Nationality], as amended through 2013, art. 14, D.O., June 17, 2009, http://www.diputados.gob.mx/LeyesBiblio/regley/Reg_LNac.pdf, archived at https://perma.cc/L9H7-GGJD.  

[15] Ley de Nacionalidad art. 20.

[16] Id.

[17] Id. art. 19.

[18] Id. art. 25.

[19] Constitución Política de los Estados Unidos Mexicanos [Political Constitution of the Mexican United States], as amended through 2017, art. 30(A)–(I), D.O., Feb. 5, 1917, http://www.diputados.gob.mx/ LeyesBiblio/pdf/1_240217.pdf, archived at https://perma.cc/BH76-5QAZ.

[20] Derechos de las Personas Migrantes: Derecho a la Nacionalidad, Comisión Nacional de los Derechos Humanos, http://www.cndh.org.mx/Derecho_Migrantes (last visited Sept. 28, 2017), archived at https://perma.cc/AZS4-ESKF.