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.
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 Court declared unconstitutional the transfer of citizenship jurisdiction to the DNM, holding that Law 346 expressly reserves this matter to the Judiciary.
Confirmed the case-law line on the impossibility of retroactively applying DNU 366 requirements to consolidated legal situations.
Deepened proportionality review of DNU 366 restrictions, especially regarding continuity of residence and rootedness.
Upheld the operative force of the non-regression clause in immigration matters as a limit on the Executive's regulatory power.
Used to obtain a judicial declaration of invalidity of the DNU or specific articles thereof, with effects for the particular case.
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.
Raising unconstitutionality within an ordinary proceeding (residence denial, expulsion) — without need for a separate action.
To reach the Supreme Court when the case raises a sufficient federal question. We apply the requirements of CSJN Acordada 4/2007.