Deprivation of Citizenship for Dominicans of Haitian Descent

Emildo Bueno needed a copy of his birth certificate to apply for a visa to join his wife in the United States. Even though he was born and raised in the Dominican Republic and had previously been issued identification documents, the government refused, because he is of Haitian descent. The refusal to issue of his birth certificate and the retroactive deprivation of his citizenship leaves Bueno effectively stateless, massively disrupting his life and that of his family. (Keywords: Statelessness - Discrimination)

Facts

Emildo Bueno Oguís was born in the Dominican Republic. His parents were both of Haitian nationality. He possesses a Dominican passport and a valid national identity card (cédula de identidad y electoral), both of which recognize his Dominican nationality.

In 2007, he made an application to the Junta Central Electoral (JCE), the national agency that administers the civil registry) for a certified copy of his birth certificate which was required by the United States Consulate in order to process his visa application. Although he was able to show his valid cédula and passport, the JCE rejected his application on the basis that he was not Dominican, because his parents were "non-residents" at the time of his birth. In reality, the rejection of Bueno's application was part of a government policy to deny citizenship to Dominicans of Haitian descent.

Without the certified copy of his birth certificate, Bueno's visa application process was suspended, and he was unable to join his wife in Florida.

Legal Background

Article 11 of the Constitution of the Dominican Republic provides for nationality on the basis of jus soli - the right to citizenship based on an individual being born in a country's territory - with an exception for children born to diplomats or to parents who were "in transit" at the time of the birth who are not given citizenship. "In transit" has always been interpreted to mean people travelling through the country on their way to a final destination, for a preiod of up to 10 days.

The 2004 General Law on Migration created a new category of "non-residents" who are considered permanently "in transit" for the purposes of Article 11 of the constitution. This was defined broadly to include not only travelers genuinely in transit to another country but also persons who overstay their visas, undocumented migrant workers, and "persons who cannot otherwise prove their residence" in the Dominican Republic.

In March 2007 the JCE issued Circular 017 which required registry officials when issuing birth certificates to insist that both parents prove their legal residence in the Dominican Republic at the time of the child's birth. This Circular also prohibited the issue of certified copies of birth certificates or the renewal of existing identity documents without the same proof. Without these documents, it is impossible to do many things that require proof of citizenship such as go to school or university, apply for a passport, get married, obtain health insurance coverage, register the birth of a child, or travel outside the Dominican Republic.

Many Dominicans of Haitian descent have constructed their lives upon their Dominican nationality. They have attended university, developed professional careers, participated in elections, served in the military, and traveled the world without having their nationality called into question. Now, without the benefit of a proper explanation or effective judicial recourse, they are being branded as non-citizens in their own country.

Proceedings

In February 2008, Bueno filed a constitutional complaint alleging the violation of many substantive rights and arguing that Circular No. 17 was unconstitutional. The claim was rejected in April 2008. He filed an appeal to the Supreme Court of the Dominican Republic. A hearing on that case was held in May 2009.

Acts of violence against his family were explicitly linked to his advocacy activities, and an order for precautionary measures was made by the Inter-American Commission of Human Rights in August 2008.

Open Society Justice Initiative Involvement

The Justice Initiative assisted local counsel in domestic proceedings and acts as Co-Counsel with the Center for Justice and International Law (CEJIL) in proceedings before the Inter-American Commission on Human Rights.

Arguments

Unlawful Discrimination. The treatment suffered by Bueno constitutes unlawful discrimination on the grounds of ethnicity, in violation of the right to equality in Article 24 of the American Convention of Human Rights (ACHR) and the Right to Dignity in Article 11 ACHR amounting to degrading treatment contrary to Article 5 of the ACHR.

Arbitrary Deprivation of Nationality. The government has arbitrarily deprived Bueno of his nationality, in breach of international standards, leaving him effectively stateless in breach of international law and the right to nationality protected in Article 18 ACHR.

Denial of Judicial Personality. The failure to accord protection to Bueno violates his rights under Article 3 ACHR.

Consequential Violations. The lack of documentation means that he is not able to freely move or reside in the Dominican Republic, in breach of Article 22 ACHR and violates his right to family life (Article 17), political participation (Article 23), and property (Article 21).

Timeline

February 28, 2008. Local lawyers file an acción de amparo before the Tribunal Contencioso y Administrativo.

April 30, 2008. The Tribunal Contencioso y Administrativo refuses the acción.

June 13, 2008. Local lawyers file a Recurso Extraordinario de Casación before the Supreme Court of the Dominican Republic.

August 2008. Application for precautionary measures granted.

May 2009. Hearing before the Supreme Court of the Dominican Republic.

June 2010. Petition filed to the Inter-American Commission on Human Rights.

Finding

The case is still under consideration.