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01 — MIGRATION & CITIZENSHIP

Unconstitutionality of DNU 366/2025: constitutional defense of immigration rights

Emergency Decree No. 366/2025, in force since May 29, 2025, profoundly amended Immigration Law No. 25.871, tightening categories, restricting consolidated rights and transferring powers from the Judiciary to the administration. Since its enactment, numerous amparo actions have challenged its constitutional validity, and a favorable body of case law has consolidated in Chambers I and II of the National Court of Appeals in Federal Civil and Commercial Matters — the rulings in Gasparian, Khudozhilova, Ilina, Lysenko and Savvin, among others.

Tchestnykh & Asociados is one of the firms with the greatest litigation output in this field. We have litigated and obtained favorable rulings that now make up the dominant case-law line in the Federal Court of Appeals.

Why DNU 366/2025 is being challenged

DNU 366/2025 faces multiple constitutional objections. The most serious are: (i) violation of art. 99 sec. 3 of the Constitution — which prohibits the Executive from issuing emergency decrees on matters involving fundamental rights that the Constitution reserves to Congress; (ii) violation of the constitutional block on human rights (arts. 14, 20, 75 sec. 22 of the Constitution), by restricting civil rights guaranteed equally to foreigners and Argentines; (iii) violation of the non-regression principle in human rights (Pact of San José de Costa Rica, ICESCR); and (iv) violation of the proportionality principle by establishing requirements disproportionate to the stated aim.

The Federal Court of Appeals case law line

Gasparian case

The Court declared unconstitutional the transfer of citizenship jurisdiction to the DNM, holding that Law 346 expressly reserves this matter to the Judiciary.

Khudozhilova case

Confirmed the case-law line on the impossibility of retroactively applying DNU 366 requirements to consolidated legal situations.

Ilina and Lysenko cases

Deepened proportionality review of DNU 366 restrictions, especially regarding continuity of residence and rootedness.

Savvin case

Upheld the operative force of the non-regression clause in immigration matters as a limit on the Executive's regulatory power.

Available procedural avenues

Declaratory action of unconstitutionality

Used to obtain a judicial declaration of invalidity of the DNU or specific articles thereof, with effects for the particular case.

Amparo under art. 43 of the Constitution

Fast-track remedy against imminent violation of fundamental rights. Particularly useful when there are administrative acts based on the DNU that directly affect the migrant.

Incidental constitutional defense

Raising unconstitutionality within an ordinary proceeding (residence denial, expulsion) — without need for a separate action.

Federal Extraordinary Appeal

To reach the Supreme Court when the case raises a sufficient federal question. We apply the requirements of CSJN Acordada 4/2007.

Types of violations we litigate

  • Retroactive application of the DNU to residences and applications filed before May 29, 2025
  • Disproportionate tightening of family reunification requirements
  • Restrictions on public healthcare for precarious residents and their families
  • Restrictions on access to public university education for foreigners
  • Regressive modification of deportation grounds
  • Transfer of judicial powers to the DNM

Why choose Tchestnykh & Asociados

  • Firm with its own case law in the Gasparian–Khudozhilova–Ilina–Lysenko–Savvin line
  • Specialization in constitutional review and constitutional block
  • Comprehensive strategy: administrative defense + judicial action + constitutional appeal
  • Access to real-time updated doctrine and case law
  • Appeals against DNM
  • Argentine citizenship by naturalization
  • Family reunification