04/08/2026

Argentina Tightens Its Migration Policy: An Unconstitutional Decree Deepens a Populist, Xenophobic, and Discriminatory Drift

On July 30, the Argentine government approved Decree of Necessity and Urgency No. 681/2026, which introduced into the Migration Law a new ground for denial of entry, cancellation of residence, and expulsion from the country: “having issued messages of hate, orally or in writing, or having incited violence against the Argentine people as a whole, or against any Argentine citizen, motivated by the latter’s nationality; or having carried out or participated in acts of outrage against national patriotic symbols; or having incited the commission of any of these acts.”

This reform is categorically unconstitutional for multiple reasons. First, because it modifies a law through a presidential decree, bypassing the procedure established by the Constitution, namely, through the National Congress. The DNU devotes only two lines to “justify” the alleged necessity and urgency that would allow recourse to the absolutely exceptional mechanism through which the Constitution permits changing a law by decree. The decree blatantly distorts the republican and constitutional principle of separation of powers, which prevents the Executive Branch from approving or modifying laws. If it were concluded that a series of messages on Twitter, TikTok, or other digital platforms were sufficient grounds to do so, we would be facing a serious level of assault on the basic principles of the rule of law.

This formal unconstitutionality is further deepened by the content of the DNU. The reform directly restricts the right to freedom of expression, which enjoys special protection under the Constitution and under various international treaties of equal legal standing. It is important to note that the National Law Against Discriminatory Acts (No. 23.592, enacted in 1988) already establishes criminal penalties for individuals who “encourage or incite persecution or hatred against a person or groups of people on the grounds of their race, religion, nationality, or political ideas.” In other words, the State already has a legal instrument to prosecute forms of expression aimed at promoting hatred, violence, or persecution against certain social groups.

The importance of this lies in the fact that, under the Constitution, the proper avenue to investigate, judge, and sanction such conduct is the judicial system. However, the DNU illegitimately assigns these functions to the Executive Branch, through the Migration Authority. Therefore, the decree not only unconstitutionally appropriates legislative powers, but also those belonging to the Judiciary. It represents a concentration of public power in the service of stigmatizing and criminalizing migrants and restricting their freedom of expression.

Under no circumstances can the Directorate of Migration or any other executive agency have the authority to investigate, analyze, judge, and sanction opinions. We would be facing a sort of “migration Big Brother,” which would give rise to all kinds of discriminatory and arbitrary acts, seriously undermining the rule of law and basic constitutional freedoms. In operational terms, applying measures to prevent entry into the country appears practically impossible, and it is reasonable to assume that their use would serve a discretionary and selective purpose of denying entry to certain individuals based on discriminatory criteria (ethnic or racial origin, religion, political opinions). Likewise, applying these measures in cases that could lead to the cancellation of residence and the expulsion of migrants living in the country would require personnel (migration trolls?) dedicated to monitoring social networks and other spaces for the expression of ideas and opinions. In these cases, alongside the violation of freedom of expression, multiple constitutional rights could also be affected, such as the right to family life.

Although the DNU refers in a very generic manner to cases in which such sanctions would not apply, the scope and level of arbitrariness of the reform’s objective could render that supposed protection null and void, which, to mention one example, does not appear to exempt journalism. Furthermore, the decree itself constitutes a threat to freedom of expression and will operate as a form of prior censorship, which is also prohibited by the Constitution.

DNU 681/2026 continues a series of unconstitutional reforms of a populist, xenophobic, and anti-democratic nature that the government has approved in the area of migration policy, such as Decree 942/2024, which changed the Refugee Law, and DNU 366/2025, which amended numerous important articles of migration legislation. In these reforms, the government crudely justified those legislative changes, made through decrees, by relying on prejudices, nonexistent hypotheses, fallacies, and distortions of data. At the same time, their content violates multiple human rights, including the rights to health, higher education, due process guarantees, access to justice, the rights of children, and the right to family life. In this document, I analyze in detail each paragraph of DNU 366.

Finally, it is paradoxical that the Argentine government, using an alleged “anti-Argentina campaign” as an excuse, is showing interest in sanctioning “hate speech.” This is because, on the one hand, it has used the promotion of hatred as a central political tool to target opponents, legislators, journalists, leaders from other countries, students, trade unionists, teachers, the population of certain provinces, migrants, LGBT people, and others. On the other hand, it is the same government that dissolved the National Institute Against Discrimination, Racism, and Xenophobia.

Ultimately, this DNU, together with the previous ones, deepens the classic political and communication strategy of using migrants as scapegoats, that is, as a way to divert social attention away from the true causes and those responsible for the social, economic, and political problems facing the country.

Pablo Ceriani Cernadas is a jurist, researcher, and international expert in human rights and migration. He is a professor and researcher at the National University of Lanús in Argentina and promoted and co-directed the drafting of the joint general comments aimed at eradicating xenophobia, approved in December 2025 by the UN Committees on the Elimination of Racial Discrimination (CERD) and on the Rights of Migrant Workers and Members of Their Families (CMW).