US embassy cable - 05SANTODOMINGO4946

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, Dominican Politics 
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" 
- - - - - - - - - - - - - - - - - - - - - - - - 
 
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. 
 
---------- 
Background 
---------- 
 
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? 
 
---------------------------------------- 
The Problem with (Talking About) Amnesty 
---------------------------------------- 
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. 
 
------------------------ 
The Articles in Question 
------------------------ 
 
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. 
 
--------------------------------------------- -------- 
No Resolution for the Issue at the Human Rights Court 
--------------------------------------------- -------- 
 
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