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Tráfico ilícito de migrantes


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Hernandez v. Minister for Public Safety and Emergency Preparedness

Resumen de los hechos

The case of Mr Jesus Rodriguez Hernandez, who was a refugee who fled from Florida to Cuba, relates to a migrant smuggling venture in November 2003 in which he brought several family members, along with 48 other Cuban nationals, from Cuba to Florida. He was apprehended and convicted in the United States and, as a result, lost his refugee status. He then moved to Canada where further court proceedings examined his admissibility given his prior migrant smuggling conviction.

It was explicitly noted by the court that the accused acted without 'any profit motive - it was arguably a humanitarian mission'.

Comentario y aspectos destacados

The significance of the case relates to the proceedings in Canada which assessed Mr Hernandez admissibility to Canada in light of his prior conviction for 'alien smuggling' in the United States. After US authorities issued a deportation order against Mr Hernandez following his conviction, he sought to migrate to and apply for refugee status in Canada. The Immigration Division of the Immigration and Refugee Board of Canada ruled that Mr Hernandez was inadmissible because s 37(1)(b) of the Immigration and Refugee Protection Act provides that a foreign national who has engaged on 'people smuggling' is inadmissible on the grounds of organised criminality. Furthermore, s 36(1)(b) of the same Act made Mr Hernandez inadmissible on grounds of serious criminality. Consequently, Canadian authorities issued a deportation order against him.

In his appeal to the Federal Court, Mr Hernandez submitted that the Immigration Division's interpretation of the term 'people smuggling' in s 37(1)(b) of the Immigration and Refugee Protection Act was inconsistent with the UN Protocol against the Smuggling of Migrants, to which Canada is a Signatory. It was argued that smuggling of migrants, by virtue of Article 3 of the Protocol, requires proof of a financial or material benefit which motivated the offender, but that s 37(1)(b) was wrongly interpreted not to include this requirement. Because Mr Hernandez conviction in the United States recognised that he acted for humanitarian reasons rather than for the purpose of profit, his conviction would not amount to 'people smuggling'.

The Federal Court allowed Mr Hernandez' application, setting aside the Immigration Division's decision. In summary, the Court held that s 37(1)(b) of the Immigration and Refugee Protection Act required proof of a profit element and that the term had to be interpreted in light of the international framework set out in the Smuggling of Migrants Protocol and the Convention against Transnational Organised Crime. Unlike earlier judicial decisions in Canada, the Court ruled that the term 'people smuggling' used in s 37(1)(b) is not identical to the offence of 'human smuggling' under s 117 of the same Act (of which financial or material benefit is not an element).

Although the Immigration Division's decision which found Mr Hernandez inadmissible was set aside, the Court nevertheless noted that he may be inadmissible for 'serious criminality' under s 36(1)(b): 'a humanitarian smuggler convicted under s 117 would not be inadmissible by virtue of paragraph 37(1)(b); however, that individual would nonetheless be inadmissible for "serious criminality" [...]. In other words, notwithstanding paragraph 37(1)(b), the humanitarian people smuggler is already inadmissible in the same manner as others convicted of serious crimes.'

Cuestiones transversales


Responsabilidad por

• Delito consumado

Responsabilidad implica

• Delincuentes principales


Países interesados


Estados Unidos de América


Organismos interesados

• US Coast Guard

Información sobre el procedimiento

Sistema jurídico:
Derecho anglosajón
Proceder #1:
  • Fase:
    primer proceso
  • Tribunal


  • Provincia:
  • • Penal


    Mr Hernandez was charged and convicted for three counts of alien smuggling under USC § 1324(a)(2)(A).

    The official report of this case was not available at the time of writing.



  • Veredicto:
  • Condenas


    Pena de prisión:
    1 año

    As a consequence of his conviction Mr Hernandez lost his refugee status in the United States and was subject to a deportation order to Cuba.


    over 48 people

    Acusado / Demandado de primera instancia

    Número de otros acusados :
    Jesus Rodriguez Hernandez

    Mr Hernandez fled Cuba in 2001. He was persecuted and imprisoned for speaking out against the Government of Cuba and in joining other government opponent. He was granted refugee status in the United States and continued to speak out against the Cuban regime. He lost his refugee status following his conviction for this migrant smuggling venture and then sought to migrate to Canada.

    The accused was on the vessel on which he sought to smuggle several of his family members from Cuba to Florida. It appears that he may have been the person organising the vessel. It is not known what role he took during the journey itself.

    There is no information about the other people, if any, involved in the venture to smuggle Mr Hernandez's family from Cuba to Florida.


    Jesus Rodriguez Hernandez
    United States CodeSection 1324(a)(2)(A) - Bringing in and harboring certain aliens


    Hernandez v Minister for Public Safety and Emergency Preparedness (Canada) [2012] FC 1417 (4 December 2012)