DOMINICAN POLITICS II #6: HAITIAN MIGRANT

UNCLAS SECTION 01 OF 03 SANTO DOMINGO 004946

SIPDIS

SENSITIVE

STATE FOR WHA, WHA/CAR SEARBY, WHA/OAS, DRL; DHS FOR
CIS-CARLOS ITURREGUI; GENEVA FOR PSA; SOUTHCOM ALSO FOR
POLAD

E.O. 12958: N/A
TAGS: PGOV PHUM PREL SMIG DR HA
SUBJECT: DOMINICAN POLITICS II #6: HAITIAN MIGRANT
REGULARIZATION "UNDER THE RADAR"

REF: SANTO DOMINGO 4611


1. (SBU) This is the sixth in a series on political events in
the second year of the administration of Leonel Fernandez.

Haitian Migrant Regularization "Under the Radar"
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While a recent migration-related decision of the
Inter-American Court of Human Rights has provoked much angry
comment from some and a good deal of soul-searching among
serious commentators, a more recent and equally critical
migration matter appears to be occurring nearly under the
radar. This is taking place as some politicians have begun
to talk about amending the Constitution simply to eliminate
"jus soli", the right to citizenship for those born on
Dominican soil (currently automatic for all except diplomats
and "transients," an undefined term). Former Vice President
Milagros Ortiz Bosch and Dr. Milton Ray Guevara made the
suggestion in comments to the press on November 2 and former
Foreign Minister Hugo Tolentino Dipp endorsed it. All are
members of the opposition PRD, which holds a decisive
majority in the Senate and an important plurality in the
House of Representatives. "El Dia" newspaper enticed two
constitutional experts into stating for its November 4
edition that yes, indeed, the Dominican Constitution can be
changed. Political Scientist Pedro Catrain went so far to
posit that "jus solis" was appropriate in the 19th century
for a largely unpopulated country, but is no longer
appropriate today.

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Background
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Meanwhile, as the broader themes of nationality were being
debated, on October 26, the Dominican National Council on
Migration published a multi-part draft regulation iregarding
implementation of Law 285-04 on Migration (promulgated August
15, 2004). Printed in its entirety in leading newspapers,
this draft regulation is open to public comment through
November 15, 2005. Its final implementation will take place
through presidential decree.

Of particular note is its plan to regularize a significant
portion of undocumented migrants currently in the Dominican
Republic via a future census of foreigners. Given that the
majority of the approximately 800,000 plus Haitians now in
the Dominican Republic are undocumented and that public
opinion toward them is generally hostile, one question is
what, exactly, is causing the lack to date of both official
and unofficial comment?

It appears that attitudes have not changed significantly
since the 1998 Gallup poll in which 45 percent of Dominicans
favored deporting illegal Haitians and an additional 17
percent favored repatriating all Haitians, legal or illegal.
Estimates of Haitian population vary widely; President
Fernandez told the Ambassador last year there are probably
about 700,000 undocumented Haitians; in 1998 the World Bank
estimated a total population of 800,000; current upper
estimates by Dominican politicians are of 1.5 million or
more.

In these circumstances, what would be the repercussions of
regularization of perhaps as many as several hundred thousand
undocumented Haitian migrants?

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The Problem with (Talking About) Amnesty
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To a large extent, the popular press in the Dominican
Republic is politically controlled, understaffed, and
scandal-driven. The combination of these factors restricts
newspaper editorial boards from commenting or soliciting
comment on all but the most immediate crises affecting
Dominican society. The draft regulations propose carrying
out a complete census of foreigners over a period of up to
two years. Popular recognition of the implications could be
very late.

This does not speak, however, to the dearth of official
comment. Never shy to make remarks on the work of
Haitian-rights activists, some outspoken members of the
Fernandez administration have been silent on these measures
that could grant residency rights to hundreds of thousands of
overwhelmingly Haitian undocumented migrants. For the
moment, opposition parties also remain silent on the issue,
possibly because the full implications of this proposal have
not yet sunk in.

We expect this will change and that pressures for a
constitutional change will grow.

If, on the other hand, the silence endures, other
explanations are possible:

-- 1) The administration has avoided explaining the
implications, well aware that they will rouse popular
opposition;

-- 2) The simple fact is that rarely, if ever, has there been
a request for public comment on draft regulations prior to
their implementation;

-- 3) Some may consider that statements against the draft
regulations will play into the hands of the alleged
international conspiracy to label the Dominican Republic as
xenophobic. Statements against regularization would be seen
in the international community as evidence of pervasive
racism in Dominican society;

-- 4) More "hard-line" provisions of the regulations (e.g., a
blanket declaration that mass deportations do not violate the
principles of the Organization of American States' 1969
"American Convention on Human Rights"),serve as an effective
sop to critics; and

-- 5) Talking about regularization of status is similar to
offering "amnesty." It may encourage illegal immigration
more than simple implementation without debate.

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The Articles in Question
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The draft regulations are remarkably straightforward
regarding regularization, with conversion to some sort of
legal status for all undocumented migrants who entered the
Dominican Republic up to and including August 15, 2004. The
principal provisions are as follow:

-- 1) All foreigners in the country who have entered up to
and including August 15, 2004, and who have remained for a
period of 10 years or more will have the "right" to opt for
Permanent Residency under the law, as well as the right to
receive a personal identification card valid for 4 years.
(Ch. VI, Art. 11, para. C)

-- 2) Those present for less than 10 years, but more than 5
years, have the right to opt for "Temporary Residence" and be
endowed with an identification card valid for 2 years. They
also may petition for a change of category standing. (Ch.
VI, Art. 11, para. D)

-- 3) Foreigners with less than 5 years presence who entered
up to and including August 15, 2004, will be considered
"non-resident" and, as such, persons "in transit" as per
Article 11 of the Dominican Constitution. Nevertheless, they
will be given a personal identification card with an
expiration date matching that of the maximum, legal
non-resident stay. (Ch. VI, Art. 11, para. E).

While portions of this draft remain deeply troubling,
including the declaration regarding mass deportations, these
draft regulations could represent a significant step forward
in assuring the rights of many undocumented migrants.

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No Resolution for the Issue at the Human Rights Court
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Since they will be new, and presumably not applied ex post
facto, the draft measures might not necessarily resolve cases
of nationality for the newly recognized residents born here
before regularization of status. The many opponents of
Haitian or Haitian-Dominican presence could argue with
greater vehemence that the act of granting residence is de
facto confirmation that up until that time the individual in
question was a "transient", even if he or she had been in the
country for 10 years or much longer (or even, perhaps, if the
individual had been born in the Dominican Republic). It
would follow from this line of thought that children born to
such individuals before regularization would have no right to
Dominican citizenship. These are issues to be examined in
depth -- perhaps, as requested by the Council of Bishops on
November 1, by the Supreme Court, "taking into account all
possible variants."


2. This piece was drafted by Michael Garuckis and Michael
Meigs.


3. This piece, as well as the original and complete
Spanish-language text of the proposed regulations, can be
found on our SIPRNET web site at
http://www.state.sgov.gov/p/wha/santodmingo). Embassy has
posted Spanish-language text of the regulations on the web
site and has sent them by e-mail to WHA/CAR (Searby).
HERTELL