NEW LAW STRENGTHENS COSTA RICAN IMMIGRATION

UNCLAS SECTION 01 OF 04 SAN JOSE 000280

SIPDIS

DEPT FOR CA/OCS/ACS/WHA; WHA/CEN FOR JMACK; CA/OCS/CI

E.O. 12958: N/A
TAGS: CASC KFRD CS
SUBJECT: NEW LAW STRENGTHENS COSTA RICAN IMMIGRATION
AUTHORITY


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SUMMARY
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1. (SBU) On October 27, 2005 the Legislative Assembly
approved a draft law that criminalizes alien smuggling;
increases fines on airlines carrying passengers without
correct documentation; and fines individuals who aid, abet,
harbor, transport, and/or employ illegal migrants. After
nearly four years of political debate, the law is expected
to reduce illegal immigration. The new legislation will
come into effect on August 12, 2006. Human rights
organizations have spoken out vigorously about the law's
"draconian anti-human rights measures." It remains to be
seen whether the General Migration Directorate will receive
the resources needed to conduct the patrols and
investigations necessary to execute its new authority. END
SUMMARY.

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New Law In Effect Next August
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2. The last legislation on immigration was enacted in 1986
and it continues to serve as the country's migration law. It
does not criminalize human smuggling. The rise in smuggling
and illegal immigration was a major impetus in the decision
to draft new legislation four years ago. The President of
Costa Rica heartily supported the bill, emphasizing that it
would improve citizen security, reduce exploitation of
immigrants, and improve the GOCR's ability to collect social
security taxes. In a January 6, 2006 meeting, General
Migration Directorate Director Johnny Marin told ConOff that
the bill is a watershed in updating the law to reflect the
reality of Costa Rica's current migration trends. He
pointed out that the new law clearly articulates a
comprehensive migration policy that is focused on three
issues: public security, integration of foreigners who are
already living in Costa Rica, and preventing future waves of
immigrants. The full text of the law is available on-line
at: http://www.asamblea.go.cr/


3. Marin commented to ConOff that several issues in the new
law need to be developed further in future legislation. He
noted that the three pillars of the new migration policy are
going to be hard to implement. Marin shared that, due to
lack of political will, several important issues remain
untouched, such as the sections of the law which deal with
the amount of monthly income foreigners must show to obtain
status as residents in the country and the rules regarding
transmission of residency via marriage. He explained that
legislators are reluctant to attempt any changes to the bill
after the four long years of work it took to pass the
current version.


4. The new law states that foreigners who wish to obtain
legal permanent resident status as a "pensioner" must
demonstrate that they receive a minimum monthly pension of
USD 600 (Article 77). The law for retirees with no pension
seeking such status is contradictory. Article 77 states
they must show a "stable and permanent income from abroad"
in the amount of USD 1,000. However, Article 79 states that
retirees without a pension must demonstrate a "permanent and
stable income from abroad" in the amount of USD 2,000.
Marin himself pointed out this contradiction to ConOff, and
expressed his frustration that the paradox was not resolved
before the law was passed. He attributed the fact that the
amounts were not increased to efforts made by the
Libertarian legislators and an influential retirees
association.

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New Smuggling Sanctions May Help U.S. Border Security
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5. The new migration law explicitly criminalizes the
"illicit smuggling of people" for the first time in Costa
Rica. Marin commented to ConOff that this is one of the
strongest planks for getting tough on illegal migration.
The new law punishes "the transport of persons" with the
"intent to illicitly smuggle" them "into or out of the
country" by "evading established migratory controls or
utilizing false data or documents" with two to six years of
incarceration. The same punishment applies to persons who,
"with the intent to illicitly smuggle humans," "house, hide,
or conceal foreigners who enter or remain illegally in the
country." The punishment is increased by a third when the
individual involved is a government employee, or when minors
are involved in the smuggling process, whether as
accomplices or as victims (Article 245). The new law
stipulates that any foreigner who has entered the country
without following the proper procedures and is in the
country without the necessary legal documents may avoid
deportation if the person opts to press charges against
those individuals involved in their illegal entry and if
they cooperate with local authorities in the ensuing
investigation.
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Enhanced Sanctions For Complicity With Illegal Migration
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6. The new Migration Law has stiffer and more detailed
penalties for individuals who aid, abet, harbor, transport,
and/or employ illegal migrants. Director Marin pointed out
to ConOff that the 1986 legislation had only one section
that encompassed all regulations regarding "international
transport" issues. The new law has expanded this into four
sections, dealing with maritime, air, and land transport
separately, as well as a section that addresses "general
norms." Marin expressed confidence that the new law will
provide the Migration Department with expanded oversight and
investigative authority that should help cut down
significantly on the illegal flow of people and goods,
provided that staffing levels and resources are adequately
funded.


7. International transport companies will now be
responsible for presenting travel documents of each
passenger and crewmember, along with passenger lists
(Article 150). Sea vessels must present this information
eight days prior to arriving at a Costa Rican port (Article
157).


8. The new law prevents any boat from sailing or any plane
from taking off prior to receiving formal approval from the
Migration Directorate that all individuals on board comply
with migration requirements (Articles 158 and 161). Failure
to comply with this rule will result in administrative
proceedings being taken against the port's captain or the
air traffic controller for "grave error in exercising his
duties." The Migration Directorate will also be able to
board ships to conduct migratory checks of the passengers
either in port or while the boat is in national or
international waters. All inspection costs will be covered
by the maritime vessel involved (Articles 160 and 161).


9. The Migration Directorate will now be able to prevent
the entry or exit of any ground transport, national or
international, which is carrying individuals who do not
comply with migratory requirements. The Directorate will
also be able to detain vehicles for the time necessary to
ensure that all passengers comply with these requirements.


10. Any person representing an international transport
company whose vehicle, plane, or boat enters the country
with foreigners not in compliance with migration
requirements can be fined three to twelve times the base
monthly salary established by law. This fine can also be
applied to any foreigner who remains in Costa Rica after the
departure of the vessel by which he entered the country.
Repeat offenders in either of these areas may be subject to
administrative proceedings involving formal charges
(Articles 168 and 169). These are new sanctions that do not
appear in the existing migration legislation. Current law
states that international transport companies can be fined
$30-$45 for each person who enters the country via their
company and who is not in compliance with migration
requirement or who remains behind after the departure of the
vessel by which they entered the country (Articles 103 and
105 of 1986 legislation). The new law will also hold
transport companies financially responsible for all costs
involved with foreigners who remain in the country while
their status (whether they can stay or must leave the
country) is being determined (Article 153).


11. The new bill increases the sanctions against
individuals who harbor and/or employ illegal migrants
(Articles 173 and 178) from two to twelve times the minimum
monthly salary.

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New Law Criticized For Alleged Human Rights Infractions
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12. Several entities involved with migration issues have
expressed concern about the law. Presidential candidate
Oscar Arias unsuccessfully asked the President to veto the
bill due to his concerns that it could lead to abuse of
illegal immigrants. The Human Rights Ombudsman's office,
the Catholic Church, and the U.N. High Commission for
Refugees (UNHCR) also expressed strong reservations about
the law. The Human Rights Ombudsman's Office (an
independent entity within the GOCR) was worried that there
is no system of checks and balances in place; the new law
gives General Migration Directorate final authority on
several matters. Article 220 of the new law states that
decisions made by the Migration Department to deny a visa,
refuse entry, or deport an individual cannot be appealed.
However, Migration Department Director Marin pointed out to
ConOff that the law does allow for appeals in some
circumstances; Article 219 cites five specific instances in
which appeals to the Migration Directorate's decision can be
made regarding the status of foreigners who are already
legally in the country.


13. The Catholic Church was concerned about measures that
would mete out jail sentences to individuals assisting
undocumented labor migrants. The Church succeeded in
getting the language changed such that individuals can
provide humanitarian assistance to undocumented migrants
without fear of going to jail. The UNHCR is worried that
the internationally accepted definition of refugee is not
used in the text, and key articles dealing with the
treatment and status of refugees (Articles 108 and 113) use
definitions created by the Legislative Assembly as opposed
to the internationally recognized terms. When asked about
the motive for this decision, Migration Department Director
Marin explained that one legislator decided it was pointless
to repeat definitions that had already been used in the
Geneva conventions to which Costa Rica is a party, so he
decided to craft his own. (Note: Marin expressed
frustration at the many thousands of Colombians in Costa
Rica with refugee status. It appeared that he supported the
narrower definitions included in the law; he said it is the
GOCR's right to establish whatever refugee definitions are
appropriate for Costa Rica. End Note.)


14. A spokesperson for the International Organization of
Migration (IOM) commented in a recent press interview that
the law does not adhere to standards set out in the U.N.
Protocol to Prevent, Suppress, and Punish Trafficking in
Persons. The Public Security Ministry responded that the
new legislation "complements international agreements
signed, ratified, and in force in Costa Rica." (Note: The
U.N. Protocol to Prevent, Suppress, and Punish Trafficking
in Persons was ratified by Costa Rica on September 9, 2003
and entered into force on December 25, 2003. End Note.)


15. After four years of debate in the legislature, the
Constitutional Court also weighed in, providing suggestions
to modify an area of the law that, in the Court's view,
contained potential Constitutional shortcomings. On July
21, 2005, the Court issued an opinion stating that paragraph
one of Article 67, aimed at reducing marriage fraud as a
means of obtaining citizenship, was unconstitutional. The
law's draft language stated that the Costa Rican citizen in
the marriage would have to prove the union's legitimacy by
having lived overseas for a year with a foreign spouse. The
Court pointed out that the GOCR could not require a citizen
to live outside of his country on any grounds. The bill's
text was changed to eliminate this constitutional weakness.
Marin expressed his frustration to ConOff regarding the new
law's inability to outlaw marriages by proxy in which
foreigners are able to marry Costa Ricans and be in full
compliance with all the current requirements for residency
without having ever met their spouse. He explained that
Chinese and Cuban citizens widely abuse the current
loopholes in the system to gain Costa Rican citizenship.

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Funding Uncertain for New Law's Implementation
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16. Marin declined to comment directly on funding issues,
but candidly pointed out that his research indicates he
needs at least 300 more staff to carry out the new mandate
adequately. He stated that the Migration Directorate will
need "international dollars" to implement the new
legislation correctly. Marin added that due to payments on
the national debt, the Migration Directorate only receives
one-third of its allocated budget. He explained that
several key border posts lack the most basic tools, such as
vehicles, to investigate reported cases of illegal migration
and lawyers on staff who know the law and can build a case.
He mentioned that in San Jose alone, there are over 500
pending immigration investigations that are not attended to
due to lack of resources. Marin explained that some border-
crossings close at 4:30p.m., and that anyone who wants to
can easily cross over after the officials have gone home for
the evening.

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COMMENT
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17. It appears that the challenge facing the migration law
is whether the GOCR has the political will and financial
resources to enforce it. It remains to be seen how the
implementing legislation, which is scheduled to be presented
to the newly elected President this summer, will be received
by the new administration. If the GOCR is successful in
eking out the required funds from its already cash-strapped
budget to fully enforce the new law, Nicaraguans who used to
come to Costa Rica looking for work may now start going
elsewhere, presumably north.


LANGDALE