How Dominican Republic resolved Birthright Citizenship

Birthright citizenship in the United States is perhaps the most perplexing immigration related problem. Many countries have either abandoned a fiat citizenship by place of birth provision; yet this is still universally accepted within the United States. Many cultures now have targeted the US on behalf of their own citizens who see advantages of having a child born on US soil. The US territory of Saipan, inundated with Chinese mothers who traveled there on 45 day excursion packages in order to have a US citizen child, had to enact tough measures to prevent women from coming there expressly for that purpose.

The Carribbean nation, Dominican Republic, on the island of Hispaniola, also has a constitutional provision bestowing citizenship on persons born on their soil. The Republic has also had a large influx of Haitian emigres, leaving Haiti for work or status in the DR.
In 2013 the Constitutional Court of the DR ruled that the birthright citizenship provision did not apply to persons "in transit" through the country. I can see how this would have made sense even in the USA, throughout our history, since in past times it could take a long while for even travelers to get through the country. One could imagine various delays occurring, or visitors stopping to see relatives and taking thus a long journey. In all reality the children of such visitors would have returned with their parents eventually.

So the question of how birthright citizenship applies to those born to parents "in transit" is a very valid question. Here are some articles about the Dominican Republic ruling.
http://www.reuters.com/article/us-do...99B01Z20131012

WORLD NEWS | Sat Oct 12, 2013 | 10:43am EDT
Dominican court ruling renders hundreds of thousands statelessBy Ricardo Rojas| LA ROMANA, DOMINICAN REPUBLIC

For four generations Banesa Blemi's family, descendants of Haitian immigrants, put down roots as low-wage sugar cane cutters in their adopted homeland, and came to consider themselves Dominicans.
Then, last month the country's Constitutional Court issued a decision effectively denationalizing Blemi and her family, along with an estimated 250,000 fellow immigrants born after 1929.
"I have no country. What will become of me?" said Blemi, 27, standing with relatives outside the family's wooden shack near La Romana, the heart of the Dominican Republic's sugar cane industry and one of the Caribbean's top tourist resorts.
"We are Dominicans - we have never been to Haiti. We were born and raised here. We don't even speak Creole," she said, referring to Haiti's native tongue.
The September 23 court ruling retroactively denies Dominican nationality to anyone born after 1929 who does not have at least one parent of Dominican blood, under a constitutional clause declaring all others to be either in the country illegally or "in transit."
The judgment is final, but human rights groups plan to challenge it before the Inter-American Court of Human Rights, where it could in theory still be overuled.
Dominican President Danilo Medina appeared to distance himself from the ruling this week after he met with human rights groups. "I don't know if legally an injustice has been committed, but there's a human problem we have to solve," he said.
An immigrant census released earlier this year estimated there were 245,000 Dominican-born, first-generation children of immigrants living in the country. But the number affected by the ruling is likely to be exponentially higher, activists said, because it applies to other generations as well, such as Blemi and her children.
The vast majority of immigrant children - 210,000 - were of Haitian descent. It's estimated there are another 460,000 non-native Haitian migrants living in the country.
Mu-Kien Adriana Sang Ben, a noted Dominican historian and author, said the court sought to normalize a complicated migratory system but had only created an even more "serious and grave situation," with unintended consequences.
"This affects the sons and daughter of immigrants of not just Haitians, but Jews, Europeans, Chinese - the entire country," she told Reuters.
Sang's father was a Chinese immigrant who arrived in 1936 and became a legal resident before starting his family.
National Human Rights Commission President Manuel Maria Mercedes said the court clearly targeted the descendants of Haitians with the ruling: "This is racism and xenophobia."
The ruling touches a centuries-old nerve in the Dominican Republic, stemming from the country's occupation by neighboring Haiti in the early 19th century.
After Haiti won its independence in 1804 from France in a bloody revolution led by former slaves, Haitian troops occupied the Dominican Republic, then ruled by Spain, for 22 years, from 1822 to 1844, when the country won its own independence. Dominican school textbooks recount atrocities committed by Haitian troops during the occupation.
Many poor Haitians continued to find work in the Dominican sugar cane fields though deep mistrust persisted. In 1937 Dominican dictator Rafael Trujillo sought to drive out the Haitians, resulting in a slaughter estimated at anywhere between 5,000 and 30,000 men, women and children.
The country is evenly divided over the citizenship issue, according to one poll.
The Dominican Republic, which has a population of about 10 million, has long complained of illegal migration of undocumented workers from its impoverished neighbor, even as it benefits from a steady source of cheap labor.
Most of those affected are the descendants of Haitians who moved to the Dominican Republic to work in the sugar cane fields. Many used a temporary worker's card issued by the former state sugar company as proof of their residence in order to register their offspring.
For decades, the government granted citizenship to all children born on Dominican soil, except those considered in transit, such as foreign diplomats posted in the country. The children of hundreds of thousands of immigrants were automatically granted citizenship once their birth was registered.
But in 2004, the government introduced a migration law that expanded definition of "in transit" to include the children of immigrant citizens without documentation. The government formalized that distinction in 2010 when it passed a new constitution.
"How can you be in transit for 40 years? Transit means coming through the airport for a brief stay on the way to somewhere else," said Eduardo Gamarra, a Caribbean expert at Florida International University in Miami who has done government consulting work in both Haiti and the Dominican Republic.

A network of human rights activists are drafting a letter to Secretary of State John Kerry and working to petition the Inter-American Commission on Human Rights and the U.N. Human Rights Committee based on alleged violations of international law.
Human rights groups successfully sued the Dominican government previously in the Inter-American Court on Human Rights with regard to the same issue. In 2005 the court ruled the government could not use a parent's in-transit status as a reason to deny citizenship.
The U.N. has already expressed concern that the ruling could create a human rights crisis.
The decision could have "disastrous" implications, leaving those affected "stateless and without access to basic services for which identity documents are required," Ravina Shamdasani, spokesperson for the Office of the High Commissioner for Human Rights, told reporters in Geneva.
In its decision, the Dominican Constitutional Court ordered a meticulous review of the civil registry back to 1929.
The court ruling gives the country's Electoral Board one year to draw up a list of people to be excluded from citizenship.
Blemi and others like her say the law leaves them with no future. "We don't have birth certificates that the children must have to study. We don't exist," said Blemi, a mother of three young children, the youngest only a month old.
"Please don't do this to me - I'm going to die," said her grandmother, 82-year-old Sentilia Igsema, showing her Dominican voter ID card.
"I'm asking myself what country am I from. I guess I'm from the country of the undocumented."

(Additional reporting by Manuel Jimenez and Ezra Fieser in Santo Domingo.; Editing by David Adams and Prudence Crowther)
http://www.worldpolicy.org/blog/2013...nican-republicBy Jon Anderson
Years ago, while covering the plight of Dominican cane cutters, most of whom come from Haiti, I met one who eloquently lamented the segregation, not all that different from Apartheid, which kept them in a perpetual state of limbo. These cutters work under intolerable conditions, in the direst poverty, wresting from the earth the stubbornly rooted cane that gives us one of our basic commodities: sugar. His lament ended with these succinct words: “we are equal; we all have the same blood.” The story of stateless Dominicans of Haitian descent is one of blood and soil shared in common.
A humanitarian crisis over the definition of citizenship has culminated in an equivocal ruling by the Constitutional Tribunal concerning a long-standing tenet of the Dominican Constitution. In a review of a decision rendered in a Monte Plata court against Juliana Dequis Pierre, the court denied her Dominican nationality on the grounds that she was born to “foreigners in transit.” Thus, it confirmed a narrow interpretation of the troublesome wording of Article 18, clause 3 of the Dominican Constitution, which states,

Dominicans are those persons born in national territory, with the exception of the sons and daughters of foreign members of diplomatic legations and consulates, and of foreigners who are in transit or residing illegally in Dominican territory. A person in transit is considered to be all foreigners defined as such by Dominican law.

Dominican citizenship is determined on the basis of jus soli (by right of the soil) rather than jus sanguinis (by right of blood). However, the third clause uses an ill-defined phrase to allow an exception: a child born on Dominican soil to foreigners “in transit” is ineligible for citizenship. If migrant laborers are considered “persons in transit,” their children forfeit Dominican nationality. However, the workers who came and stayed from the Twenties on up to the Eighties or Nineties cannot be termed transients.
The government, the courts, humanitarian agencies and a host of Dominicans of Haitian descent have been arguing for years over the definition of the words “in transit.” If a Haitian cutter entered Dominican territory and settled in a plantation community, (batey) run by one of the sugar companies, staying for years, and establishing a family, can he be said to have been “in transit”? Can his offspring be considered transients if they were born, raised and employed on Dominican soil? Generations of cane cutters were hired by the sugar companies, given temporary work permits, and allowed to stay, season after season. Many were peremptorily rounded up and sent back across the border, only to be rehired the following year. But many never left, and their permanent existence in the bateys was documented in song and literature.
The catch, however, is that their existence was probably not documented in the Civil Registry. Herein lies the hypocrisy of the court’s ruling. Its entire thrust depends on the content of the Civil Registry. The court has ordered the creation of a new set of registries that will normalize the status of resident foreigners. The Central Electoral Board (JCE) is to carry out a detailed audit of births recorded in the Civil Registry from June 21, 1929 forward, in order to draw up a list of all the foreigners found therein. Those foreigners whose existence in the Civil Registry is somehow “improper” will be added to a “List of Foreigners Improperly Listed in the Civil Registry of the Dominican Republic.”
The court also ordered the creation of special annual registration books for the births of foreigners from June 21, 1929 until April 18, 2007 (the years predating the JCE’s implementation of the Registration Book of Children of Non-Resident Foreign Mothers in the Dominican Republic). All births of improperly registered foreigners will be transferred to the new registration books.. Those deemed “improper” would be notified, as would their consulates, and compelled to comply with Article 151 of the Migration Law (285-04), which deals with the renewal of permanent residence status and the documentation required to procure it.
All this bureaucratic paper shuffling conveniently obscures the fact that these people are unlikely to have any valid documentation or even to have had their existence registered officially. It begs the question: What constitutes “improper” registration? The reform of the Civil Registry is a deliberate bit of casuistry. The justices know that it is in chaos, and those whose fates are ruled by this decision have been clamoring for recognition precisely because the Registry has rendered them invisible legally.
Anyone visiting a municipal office knows the ritual: after hours of waiting in line, the applicant files a claim that sends a clerk to excavate the paperwork from the moldering piles of binders filled with yellowing documents that have never been computerized and whose very existence is uncertain. Those who are lucky enough to locate documents have been known to find notes attached that read “this person is Haitian.” Moreover, the further back you go, fewer are the Dominicans of Haitian descent who can find any certification of their existence at all. Something like thirty percent of the Dominican population has no legal documentation of their status. (One of the ironies of deportations in the past is that Dominicans of Dominican descent – if we can call them such – have been swept up in the raids.)
As Diario Libre reported, the court “states that the implementation of the national plan of normalization of illegal foreigners with roots in the country will have positive repercussions for hundreds of thousands of foreigners, since it awards them a normalization of the migratory status.” This equivocal statement can be read in two ways. By regularizing the status of foreigners, the plan will indeed confirm one small group as legitimate recipients of citizenship – those who can provide the proper documentation. But the much larger group of those who cannot will presumably be left in the limbo of improper registration.
Moreover, the plan is intended to prevent a new generation of unwanted children born on Dominican soil from claiming citizenship. The Court has not only sealed the fate of past generations of migrant laborers but also nullified the claims of future generations whose labor contributes toward enabling the Dominican economy as well as modernizing its infrastructure. The decision is not just retroactive; it is proactive.
They have done this because more worrisome to the government than the bateys is the existence of a vast new migrant labor force, whose presence is due in part to Leonel Fernández’s ambitious program of development. The government is anxious to prevent future offspring of foreigners in transit from perpetuating the cycle that led to this crisis of stateless individuals. The nation depends heavily on cheap, expendable Haitian labor for its construction projects as well as its agriculture, but the government wishes to keep the labor pool perpetually in a state of transience.
The remarkable size of the current wave of Haitian migration provokes concern. Every state has the right to regulate immigration and define the terms whereby resident foreigners may acquire citizenship. However, those who struggle, like the recently deceased Sonia Pierre, on behalf of stateless Dominicans do not seek to undermine that right. The paranoid fear of a putative threat of Haitianization of the nation is unwarranted. The nation has not been subverted by the descendants of Haitians, who in turn have been thoroughly Dominicanized. The humanitarians are seeking only to ensure that people who have been born and raised on Dominican soil, and have lived their entire lives on it as Dominicans, be accorded the dignity and full rights of all those who contribute to the state. Those whose being sprang from Dominican soil and whose bones will one day rest in it must be considered, legally as well as existentially, Dominican.

**********

Jon Anderson is a journalist whose documentary work on Dominican sugar plantations and the plight of Haitian migrant laborers during the past decade was supported by grants from the Open Society and the Alicia Patterson Foundation, which named him a Fellow in 2006