About exequatur in Colombia

For Colombian citizens who are not familiar with these types of legal terms and who live abroad or plan to settle outside their country, this information may be useful. 

The exequatur is a legal institution or jurisdictional procedure that arises from private international law so that judgments rendered abroad have effects within the national or local territory. In other words, it is a process of homologation of court judgments and/or arbitral awards produced in a foreign country to be effective in Colombia, once the competent judge determines that they meet the substantive and formal requirements that Colombian law provides in Articles 606 and 607 of the General Code of Procedure.

This process is important for Colombians living abroad because they can certainly be immersed in legal proceedings that may alter their civil status and define rights and obligations due to kinship, the effects of which should be extended to Colombia, for example. However, in order for such judicial decisions to transcend locally, they must undergo the process of homologation or exequatur within the national territory, and the Civil and Agrarian Chamber of the Supreme Court of Justice is competent to hear this matter.

It is a process of homologation of court judgments and/or arbitral awards produced in a foreign country to be effective in Colombia.

Unfortunately, it is a complex proceedings because its requirements are quite rigid, and the differences in the judicial systems of the foreign country with the national one, as well as the differences in the language, sometimes are an obstacle to obtaining the result of homologation. 

In the undergraduate thesis of the Universidad San Buenaventura, on the causes for refusal of exequatur, jurisprudential analysis of Noreña and Lopera (2015), the students identified that there is a high percentage of refusal of exequatur due to the lack of compliance with some of the formal requirements enshrined in Article 606 of the General Code of Procedure; such as, for example: “Failure to submit authentic and duly legalized copy coming from the foreign court” .

It has also been denied for substantive requirements, such as not proving the lack of diplomatic reciprocity on the recognition of foreign judgments and/or arbitral awards in its territory through an international treaty or domestic legislation that regulates it. Other grounds for refusal found by the students in their thesis were: violation of public order rules; the existence of a judgment on the same matter; or failure to prove that it was a judgment. 

In turn, another formal requirement that can be complex to meet is to demonstrate that the foreign judgment is duly executed or has a definitive nature, that is, that the appeals have not been filed in the opportunities provided by law or having been filed, have already been resolved. Since, in many legislations, this proof does not exist or is not necessary, since the mere existence of the judgment is sufficient to demonstrate its definitive nature. 

Upon verifying the jurisprudence and the judgments on exequatur matters, it has become evident that a great number of them correspond to divorces.

The recommendation of J Kelley Law Group is that before proceeding with a procedure that has to do with a Colombian national or assets in Colombia (The Civil Code establishes a personal and territorial statute regarding the civil status of nationals and assets located in Colombia, that is to say, that the Colombian national where he/she is located is also subject to Colombian law, As well as the assets located in the country) seek advice from a Colombian lawyer to verify which would be the most convenient procedure, taking advantage of the fact that currently there are international agreements that regulate certain procedures that may affect the civil status or rights and obligations in favor of Colombians, such as international adoption and alimony.

Regarding divorce proceedings, it is recommended to analyze with a lawyer the convenience or not of proceeding abroad, taking into account the obstacles that may represent its homologation in Colombia. Likewise, in case a divorce proceeding has already been carried out, it is recommended to get proper advice from an expert legal professional who can carry out these proceedings and/or verify the need to repeat the actions in Colombia.

One story and a thousand reasons: special young immigrants

The Special Immigrant Juvenile (SIJ) category is a humanitarian nonimmigrant visa-like classification under U.S. Immigration Law. Its main objective is to grant immigration benefits to immigrant children and youth who are in the United States due to abuse, abandonment, or neglect by their parents and have sought protection from the juvenile courts. It seeks that these children or adolescents enjoy the protection and institutional guarantees since in their country of origin they are nonexistent or precarious due to the absence of judicial and police authorities that can protect them from their victimizers, delinquency, or acts of violence; also due to the lack of education and absence of opportunities to have access to a dignified life.

What are the requirements?

According to the United States Citizenship and Immigration Services (USCIS), to qualify for this type of classification, the following requirements must be met :

1. Be under 21 years of age at the time of filing the SIJ petition.
2. Be currently living in the United States.
3. Be unmarried.
4. Have a valid order issued by a State juvenile court in the United States determining custody by a State agency, department, person, or entity designated by the court; demonstrate that you are unable to be reunited with your parent(s) as a result of any of the following:

• Abuse
• Abandonment
• Abuse
• Similar cause under state law
• Returning to the child’s home country or last habitual residence or that of his or her parents is not in the best interest of the child.

Note: Some juvenile courts will only issue the order if the person is under 18 years of age.

5. Be eligible under U.S. Citizenship and Immigration Services criteria, which means seeking the juvenile court order for assistance with respect to the situations described, not just for immigration benefits.
6. Written consent from the U.S. Department of Health and Human Services (HHS) was granted custody to HHS.

What are the immigration benefits?

Once the Special Immigrant Juvenile (SIJ) petition is approved, the adjustment of status for permanent residency, also known as a Green Card, can be processed.

Our experience in handling Special Immigrant Juvenile (SIJ) petitions and other types of humanitarian visas (Nonimmigrant Visas for Victims of Trafficking in Persons or T-Visas) is extensive.

At J Kelley Law Group we are familiar with these types of petitions. We have currently handled approximately 27 cases of children and young adults seeking this type of status and have been successful in obtaining permanent residency. Unfortunately, there are many children and adolescents who enter the United States unaccompanied, exposing themselves to all kinds of dangers. On many occasions, they have suffered abuse, abandonment, mistreatment, and negligence on the part of their parents. 

A story and a thousand reasons to work on these cases.

I remember a case that still echoes in my head.  It does so because I am a mother and I could not even imagine something like this happening to my child. A 10-year-old girl, of Central American origin, lived with a person she called her grandmother, but in reality, she was an unrelated person who took care of her.

Her father never recognized her and abandoned her at an early age. Her mother had to leave for the United States in search of asylum because she had been the victim of threats in her country when she was only 3 years old. The girl was practically alone and the lady who took care of her died.  She was passed into the hands of neighbors, who often did not give her enough food and mistreated her. She felt excluded and longed to be with her mother, who maintained communication with the child and sent money to the neighbors to take care of her. 

Faced with the painful situation, she was suffering and without consulting her mother, this little girl decided to leave the place she was in by her own means. From bus to bus and thanks to the help of people willing to feed her, at the age of 10 she crossed the border alone and entered the United States. The ending of this story was a happy one, as the protagonist was reunited with her mother. However, not all minors have the same fate and end up abused, mistreated, tortured, and extorted.

I confess that this story moved me deeply. It is hard to imagine the level of loneliness, abandonment, and suffering that the child had to endure to make her decide to take such a big risk. This is the same story of many Latino children who expose themselves daily to cross the border in search of a seemingly simple, but truly exceptional dream: to feel their mother’s warmth again. 

According to the 2021 statistics from the Office of Immigration Statistics -Homeland Security of the United States, the following statistics are available for the year 2021 . There are about 146,054 cases of unaccompanied minors that were processed by CBP- U.S. Customs And Border Protection. Recently the news reported that two children died while attempting to cross the Rio Grande River into the United States.  U.S. Customs and Border Protection has recorded 609 migrants who have died crossing the border so far in 2022 . Minors are also exposed to other types of risks or crimes such as human and migrant trafficking. Through deception, threats, use of force, kidnapping, and fraud, many take advantage of their vulnerable situation. They end up subjected to abusive labor, or are co-opted by groups dedicated to human or sex trafficking. According to data from the United Nations Office on Drugs and Crime (UNODC), half of the victims of human trafficking are under 18 years of age (UNODC 2009); and 15% to 20% of the victims are children .

Our law firm has been accompanying victims of this scourge, who have been able to apply for the humanitarian visa known as the Nonimmigrant Visa for Victims of Human Trafficking or VISA T. This type of visa seeks to grant a temporary immigration benefit to some victims of a severe form of human trafficking, either sex trafficking or labor trafficking, who remain in the United States for a maximum of 4 years and have assisted law enforcement agencies in an investigation or prosecution of their perpetrators or intellectual, material or participatory perpetrators.

In a future article, we will expand on the conditions, requirements, and immigration benefits of this type of humanitarian non-immigrant visa. No effort is superfluous for these stories to stop being written.