V. CITIZENSHIP AND PROOF OF DOMINICAN IDENTITY

Under the Dominican Constitution, all persons born on the country's territory are Dominican citizens. Nonetheless, ethnic Haitians born in the Dominican Republic are systematically denied citizenship. The denial often begins in the hospital itself, on an infant's very first day, when medical staff refuse to provide undocumented Haitian parents with proof of their child's birth. Later in a child's life, the obstacles to obtaining proof of citizenship become progressively more onerous.

The result of such discriminatory policies is that many Dominico-Haitians who were born in the Dominican Republic and have lived there all their lives remain perpetually at risk of summary deportation. Not only is their own legal status precarious, but they transmit this status to their children. Generations of ethnic Haitians living in the Dominican Republic are denied recognition as Dominican citizens, leaving them in what the Inter-American Commission on Human Rights has termed a situation of "permanent illegality."¹⁰⁶

In recent months, however, the Dominican Republic has shown an unprecedented openness toward recognizing the citizenship of the children of undocumented Haitian immigrants. In July 2001, just after the Dominican minister of education announced that public schools would be open to undocumented Haitian children, President Mejía stated that this was a likely first step granting such children full citizenship. In September, as the result of negotiations with the Inter-American Commission, the authorities provided Dominican birth certificates to two Dominican-born children whose citizenship had been in dispute.¹⁰⁷ Although it is still unclear to what extent this case heralds a general reform in the country's citizenship policy, it is undoubtedly a positive sign.

Citizenship by Birth

"An illegal person cannot produce a legal person."

- Manuel E. Polanco, head of the Dominican Army.¹⁰⁸

Article 11 of the Dominican Constitution recognizes "all persons born in the territory of the Dominican Republic" as Dominican citizens. Yet, relying on a strained and opportunistic interpretation of an exception to this rule, Dominican officials have claimed that the Dominican-born children of Haitian migrant workers have no right to Dominican citizenship.

The Dominican Constitution's grant of citizenship to persons born in the country's territory has a narrow exception: it does not extend to the legitimate children of foreign diplomats or of foreigners who were "in transit" in the Dominican Republic at the time of the birth.¹⁰⁹ On first reading, the provision seems unlikely to give rise to any great interpretative debates. Any reasonable definition of persons who are "in transit" in the Dominican Republic would cover people who are briefly in the country while on their way to another country. The plain meaning of the term is further reinforced by the country's migration regulations, which state that "in transit privileges" will be conceded to "those foreigners who try to enter the Republic with the principal intention of proceeding through the country to an exterior destination."¹¹⁰ The regulation further specifies that a "period of ten days will normally be considered sufficient to allow passage through the Republic."

Yet, in a breathtaking misreading of the constitution's language, the Dominican authorities have repeatedly claimed that all undocumented Haitians are, by definition, considered to be "in transit."¹¹¹ People who have lived in the country for years, even decades, are thus squeezed into a category designed for brief and casual visitors. Some authorities even claim that all Haitian migrant workers, whether in the country legally or illegally, are "in transit" for the purposes of citizenship rules. Among those subscribing to the latter view is the president of the Central Electoral Board, the agency responsible for issuing Dominican identity documents.¹¹²

Crucially, because all Haitians are considered "in transit," their Dominican-born children are not entitled to Dominican citizenship.

Human Rights Watch noted certain differences among Dominican authorities regarding the proper scope and interpretation of the constitution's "in transit" exception. On the one hand, the director of migration flatly acknowledged that childen born in the Dominican Republic, even if born to undocumented parents, have the right to Dominican citizenship. At the other extreme, as noted above, was the head of the electoral board, who would bar all ethnic Haitian children from citizenship. The head of the army placed great emphasis on the "illegality" of the Haitian population, reasoning that because Haitians were not in the country legally they had to be deemed transitory. The legal advisor to the electoral board, taking a more moderate position, suggested that Haitians resident in the Dominican Republic for longer than three months could no longer be considered "in transit."¹¹³

Obstacles to Registering Births

Ethnic Haitian children who are born in the Dominican Republic are routinely denied Dominican birth certificates, the principal form of proof of citizenship used for minors.¹¹⁴ At hospitals, undocumented parents are typically unable to obtain "maternity papers" (papeles de maternidad) that attest to the date and location of their children's birth.¹¹⁵ Some hospitals have facilities for registering births and issuing birth certificates, but these services too are frequently denied undocumented Haitians.

If the parents have not registered their child's birth at the hospital, they have to visit a civil registry (Oficialía) to obtain a birth certificate. These registries generally require applicants to show maternity papers as proof of birth in the country. Although registries also accept documents known as "acts of notoriety" that attest to a child's birth in lieu of maternity papers, such documents are extremely difficult to obtain.¹¹⁶

Besides maternity papers, both parents must also generally prove their own Dominican citizenship at the civil registry by showing their Dominican cédulas. The practice of civil registry officials is, however, somewhat inconsistent with regard to this requirement. In some instances, civil registries accept Haitian identity documents, such as Haitian passports, although the acceptance of Haitian identity documents may be further limited to those Haitians who can show proof of legal residence in the country.¹¹⁷ In most cases, however, officials require both parents to present Dominican cédulas.¹¹⁸

An additional obstacle to obtaining proof of citizenship is posed by racially discriminatory profiling. Civil registry officials sometimes presume that a child's parents are Haitian because they are black, even if they have cédulas proving Dominican citizenship.

If the parents try to register their child's birth more than ninety days after the date of birth, an additional step is added to the registration process. After the civil registry reviews the application for the birth certificate, the registry must forward the applicant's file to a civil judge. A birth certificate will only be issued upon the judge's approval, which usually takes a couple of months to obtain. According to a lawyer familiar with such proceedings, civil registries generally refuse to forward applications filed by undocumented Haitian parents, telling the parents that it is pointless to send the application because the court will reject it.¹¹⁹

Added to these requirements are other, substantially more onerous administrative requirements in cases of late birth registration: children registered after the age of thirteen. To begin with, the family must obtain a certificate from each of the Dominican Republic's fourteen civil registries, verifying that the applicant is not already registered there.¹²⁰ The costs alone, as well as the substantial practical difficulties involved in obtaining these certifications, bar most families from complying with these requirements.¹²¹

Whether they attempt to register their child in a timely fashion, or they employ the late registration procedures, ethnic Haitians face daunting obstacles to obtaining proof of their children's Dominican citizenship. Even with the help of a lawyer to navigate the complex requirements for registration, they may be unable to obtain the necessary documents. The Movimiento de Mujeres Dominico-Haitianas (MUDHA), an NGO based in Santo Domingo, estimates that since 1994 at least three-quarters of their applications for Dominican identity documents on behalf of persons of Haitian descent have been rejected. Moreover, they told Human Rights Watch, rejection rates have been steadily increasing in recent years.¹²²

Given the difficulty of obtaining Dominican identity papers, it is not surprising that many Dominicans of Haitian descent remain undocumented. While there are no official estimates of the numbers of Dominico-Haitians who lack proof of citizenship, anecdotal accounts suggest that their proportions are high. According to Padre Pedro Ruquoy, for example, of the roughly 20,000 people who live in the eighteen bateyes that service the Barahona sugar mill, 80 percent are Dominicans of Haitian descent, 10 percent are Dominicans of other origins, and 10 percent are Haitian.¹²³ Yet only about 50 percent of the overall batey population has proof of Dominican citizenship. In other words, another 40 percent of batey residents have the right to Dominican citizenship papers, but remain undocumented.¹²⁴

Discouraged by what appears to be an impossible process, some ethnic Haitians resort to buying false identification papers, or to obtaining identification papers under false pretences (they may, for example, pay a Dominican woman to register their children for them).¹²⁵ Unquestionably, many of the people who use such illegal methods have no valid claim to Dominican citizenship for themselves or their childen, but others do, in fact, have legitimate claims; they are just unable to successfully assert their claims using legitimate means.

Individual Cases

The following are some representative case histories:

_ Both Aniseto Bria and his wife Beatriz José were born in the Dominican Republic. They have spent their whole lives in the bateyes outside of Santo Domingo, and they speak fluent, unaccented Spanish, but neither has any identity documents. Their five children -- Francisco (age ten), Tilson (age 8), Eduardo (age seven), Fausto (age four), and Diego (age nine months) - were all born in the hospital near Batey Mata Mamón. All of them were given maternity papers at the hospital, but they have all been denied birth certificates. "They also say that because the mother has no papers, we can't get papers for the children," said Bria.

_ Bernarda Jojo was born in Haiti, but came to the Dominican Republic "when [she] was so little that [she] can't remember." In 1996, she gave birth to her first daughter, Rosanna, in a state sugar council (CEA) hospital in San Luis, near Santo Domingo. Just after Rosanna was born, the hospital staff told Jojo that she could not register Rosanna for a birth certificate unless she had Dominican identity documents herself. Since Bernarda did not have Dominican identification, she was barred from registering Rosanna for a birth certificate. Rosanna, who is now five years old, was born in the Dominican Republic, speaks Spanish, and has never been to Haiti. Nonetheless, she does not have a birth certificate to prove her Dominican nationality.¹²⁶

_ Victoria Baluisa is a second generation Dominican of Haitian descent. When she was born, Dominican officials refused to give her parents a Dominican birth certificate for her. Her three children, Ronnie (age three), José Enrique (age two), and Vladimir (age six months), all of whom were all born in the Hospital Los Minas in Santo Domingo, have received similar treatment. After each birth, medical staff at the hospital told Victoria that she could register her baby for a birth certificate if she could present her own Dominican cédula. Without any Dominican identification, Baluisa was unable to obtain birth certificates for her infants. Baluisa's children, third generation Dominicans of Haitian descent, remain undocumented.¹²⁷

_ Jacquelin Baluisa, Victoria's sister, was also born in the Dominican Republic, but she too lacks documentation. In 1996, when she gave birth to her daughter Victoria at the Hospital Los Minas in Santo Domingo, and again in 2000, when she gave birth to her daughter Catherine, she was denied a birth certificate. On both occasions, hospital staff made it clear to her that she could only register her baby if she had Dominican documentation herself.¹²⁸

_ When a baby is born at home, rather than in a hospital, the first step in applying for a birth certificate is to ask the local mayor to certify the birth. Pedro San Milis and Andrea Charlie's first daughter, Joranda, was born in their home in Mata los Indios, a batey near Santo Domingo. In 1992, San Milis went to the mayor's office in Monte Plata to ask the mayor to certify Joranda's birth. The mayor told Pedro that he could not certify Joranda's birth because San Milis did not have a Dominican cédula.¹²⁹

_ Jesús de la Cruz Pena and his wife, Cecilia Martínez, are second generation Dominicans of Haitian descent. They were both born in Batey 7, in the southwest Dominican Republic, and were ultimately able to obtain Dominican cédulas proving their citizenship status.¹³⁰ Nonetheless, their three children, Nelson (age fourteen), Papilin (age thirteen), and Cimena (age one) are all undocumented. On January 18, 2001, Jesús tried to obtain Dominican birth certificates for his children at the official registry in San Cristobal. De la Cruz told Human Rights Watch that the director of the official registry said that he could not issue the birth certificates because "the Junta Central prohibits registering Haitians." Even though both parents were born in the Dominican Republic and have Dominican cédulas, they were still refused birth certificates for their children when the registry official labeled them "Haitian" because of their dark skin.

_ C.P. was born in the Dominican Republic but is undocumented. Together with G.G., she has two children: Martina, age nine, and Frank, age five. At the hospital where her children were born, C.P. was able to obtain maternity papers. Because C.P. lacks a Dominican cédula, however, her children were denied birth certificates by the civil registry, even though G.G., the children's father, is Dominican and has proof of Dominican identity. Not wanting their children to go through life facing deportation and other problems, the parents paid a Dominican woman to register their children as her own.¹³¹

International Legal Standards

The right to a nationality is guaranteed under several international human rights treaties, including the American Convention on Human Rights.¹³² The relevant treaties do not, however, require the country of a person's birth to grant him or her citizenship, except, perhaps, when the person would otherwise be stateless.¹³³ The descendants of Haitian immigrants in the Dominican Republic are not facing statelessness because they are entitled to Haitian nationality under Article 11 of the Haitian Constitution, which provides citizenship by descent from Haitian parents.

Yet, even though the Dominican Republic is not obligated under international law to extend Dominican citizenship to all persons born on its territory, having made the constitutional decision to do so, it may not arbitrarily deny citizenship to ethnic Haitians in violation of its own law.¹³⁴ Nor may it discriminate in the decision to confer or withhold citizenship based on skin color or race.¹³⁵

By keeping Dominico-Haitians in a condition of "permanent illegality" - lacking identity documents and vulnerable to summary deportation - the Dominican Republic seriously enfringes upon their rights as citizens.

¹⁰⁶ Inter-American Commission on Human Rights, Country Report on the Dominican Republic (1999), para. 363.

¹⁰⁷ The two children were denied birth certificates in 1997. They were not recognized as Dominican citizens because both of their fathers are Haitian (their mothers are Dominican). A coalition of NGOs challenged the government's actions in a case brought before the Inter-American Commission. The case is discussed at length in the chapter on "The International Response," below.

¹⁰⁸ Human Rights Watch interview, Manuel E. Polanco Salvador, Santo Domingo, Dominican Republic, June 13, 2001.

¹⁰⁹ See Constitution of the Dominican Republic, art. 11(1) (recognizing the citizenship of "[a]ll persons born in Dominican territory, with the exception of the legitimate children of foreign diplomats or those in transit in it"). A number of constitutions, including the constitution of the United States, grant citizenship on the basis of birth on the territory (by the principle known as jus soli), but include an exception for the children of foreign diplomats. See U.S. Constitution, Amendment XIV (granting citizenship to persons born in the United States "and subject to the jurisdiction thereof"). An exception for transiting foreigners is less common, although it exists in the Chilean Constitution. Constitución Política de la República de Chile de 1980, con reformas de 1997, art. 10 (1). The Dominican Republic's exception for foreigners "in transit" was originally added to the country's 1908 Constitution, together with an exception for the children of foreign diplomats, and was retained in most subsequent constitutions. See generally Juan Jorge García, Derecho Constitutional Dominicano (Santo Domingo: Editora Corripio, 2000), pp. 129-56.

¹¹⁰ Reglamento de Migración No. 279, sec. V (Transeuntes); Carmen Amelia Cedeño-Caroit, "El estatuto jurídico de los haitianos y sus descendientes nacidos en República Dominicana," 1991, pp. 68-80.

¹¹¹ See, for example, Inter-American Commission on Human Rights, Report on the Situation of Human Rights in the Dominican Republic, OEA/Ser.L/V/II.104 (1999), para. 352.

¹¹² Human Rights Watch interview, Manuel Morel Cerda, president, Central Electoral Board, Santo Domingo, Dominican Republic, June 13, 2001. In discussion before the Committee on the Elimination of Racial Discrimination in 1999, the representative of the Dominican Republic asserted a similar view, concluding that children in the Dominican Republic born to Haitian workers were not Dominican citizens. Committee on the Elimination of Racial Discrimination, "Consideration of Reports, Comments and Information Submitted by States Parties under Article 9 of the Convention," U.N. Doc. CERD/C/SR.1365 (September 1, 1999), para. 17.

¹¹³ Interview with Rafaelina Peralta Arias, Legal Advisor, Junta Central Electoral, in Santo Domingo, Dominican Republic, June 13, 2001.

¹¹⁴ Human Rights Watch interview, MUDHA staff, Santo Domingo, June 7, 2001; Human Rights Watch interview, Wilian Chapatiel, MOSCTHA, Santo Domingo, June 5, 2001; Human Rights Watch interview, Padre Regino Martínez, Dajabón, Dominican Republic, June 8, 2001; Human Rights Watch interview, Padre Pedro Ruquoy, Batey 5, Dominican Republic, June 5, 2001. At age sixteen, by showing a birth certificate, a Dominican may obtain a minor's cédula, and at age eighteen he or she may obtain an adult cédula.

¹¹⁵ A maternity paper does not in itself prove Dominican nationality. Instead, it serves as a record of the date and location of the child's birth. According to the Convention on the Rights of the Child, the Dominican Republic is required to register every child born in its territory immediately after birth. Convention on the Rights of the Child, art. 7.

¹¹⁶ Human Rights Watch interview, Miriam Jacquenera de Jesús, legal advisor, Jesuit Refugee Service, Santo Domingo, June 4, 2001. Such documents must be notarized, which is prohibitively expensive for many Haitian families, and must include the sworn testimony of seven witnesses and the parents of the applicant.

¹¹⁷ The Legal Advisor to the Central Electoral Council told Human Rights Watch that the children of Haitian nationals who are legally resident in the Dominican Republic are entitled to Dominican birth certificates. Human Rights Watch interview, Rafaelina Peralta Arias, Legal Advisor, Junta Central Electoral, Santo Domingo, June 13, 2001.

¹¹⁸ Human Rights Watch interview, Miriam Jacquenera de Jesus, legal advisor, Jesuit Refugee Service, Santo Domingo, June 4, 2001. Law 659, which sets out the rules covering the registration process, requires that the birth certificate include the number of the registering parent's identification card, although it does not specify that the identification card must be Dominican. Ley No. 659 sobre Actos del Estado Civil, art. 46. The president of the electoral board insisted, however, that the law requires parents to present Dominican documentation. Human Rights Watch interview, Manuel Morel Cerda, president, Central Electoral Board, Santo Domingo, June 13, 2001. In fact, the law's requirement that the birth certificate include a record of the nationality of both the mother and father suggests that it contemplates the registration of children born to non-citizens.

¹¹⁹ Human Rights Watch interview, Miriam Jacquenera de Jesus, Santo Domingo, June 4, 2001.

¹²⁰ Ibid.

¹²¹ In an interview, the president of the Central Electoral Board, the agency that controls the issuance of Dominican nationality documentation, acknowledged that the late registration process can be extraordinarily burdensome and costly. He pointed out, among other things, that most late applicants must retain a lawyer because of the complexity of the application process. Human Rights Watch interview, Manuel Morel Cerda, president, Central Electoral Board, Santo Domingo, June 13, 2001.

¹²² Human Rights Watch interview, MUDHA staff, June 7, 2001.

¹²³ Human Rights Watch interview, Padre Pedro Ruquoy, Batey 5, Dominican Republic, June 5, 2001.

¹²⁴ See also NCHR, Beyond the Bateyes, p. 18 (citing a small-scale study of Santo Domingo-area bateyes that found that 46 percent of Dominico-Haitian residents had no official documentation).

¹²⁵ The woman may take the child to the civil registry and register it in her name, claiming that she does not know who the child's father is. Sometimes such "godparents" do such services for free, as friends of the family, but more often they are paid for their services.

¹²⁶ Human Rights Watch interview, Bernarda Jojo, Batey Mata Los Indios, Dominican Republic, June 3, 2001.

¹²⁷ Human Rights Watch interview, Victoria Baluisa, Batey Mata Los Indios, Dominican Republic, June 3, 2001.

¹²⁸ Human Rights Watch interview, Jacquelin Baluisa, Batey Mata Los Indios, Dominican Republic, June 3, 2001.

¹²⁹ Human Rights Watch interview, Pedro San Milis, Batey Mata Los Indios, Dominican Republic, June 3, 2001.

¹³⁰ Human Rights Watch representatives viewed these documents.

¹³¹ Human Rights Watch interview, C.P., Batey Mata Mamón, Dominican Republic, June 2, 2001.

¹³² American Convention on Human Rights, art. 20(1); see also ICCPR, art. 24(3).

¹³³ See American Convention, art. 20(2); U.N. Human Rights Committee, General Comment 17, para. 8 ("the right of every child to acquire a nationality. . . does not necessarily make it an obligation for States to give their nationality to every child born in the territory."); Convention on the Reduction of Statelessness, art. 1(1)(the Dominican Republic has signed but not yet ratified this treaty).

¹³⁴ Notably, the Inter-American Commission has found that the Dominican Republic is wrongly denying children of Haitian descent the right to citizenship, since "[i]t is not possible to consider persons who have resided for several years in a country in which they have developed innumerable contacts of all types to be in transit." Inter-American Commission on Human Rights, Report on the Situation of Human Rights in the Dominican Republic, OEA/Ser.L/V/II.104 (1999), para. 363; see also U.N. Committee on Economic, Social and Cultural Rights, "Consideration of Reports Submitted by States Parties under Articles 16 and 17 of the Covenant," U.N. Doc. E/C.12/1/Add.16 (December 12, 1997), para. 34 (recommending that the Dominican citizenship of Dominican-born children of Haitian residents be recognized "without delay").

¹³⁵ ICCPR, art. 26; Convention on the Elimination of All Forms of Racial Discrimination, art. 5(d)(iii).