Bueno v. Dominican Republic

Bueno v. Dominican Republic

Court:
Inter-American Commission on Human Rights
Country:
Dominican Republic
Status:
Active

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Open Society Justice Initiative and CEJIL, June 2010
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February 2008
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March 2008
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Deprivation of Citizenship for Dominicans of Haitian Descent

Emildo Bueno needed a certified 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 to issue him this identity document solely on the basis of his Haitian heritage. 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 to Haitian national parents. At the time of his birth, everyone born on national territory—with few exceptions—had an automatic right to Dominican nationality. Bueno’s Dominican nationality was recognized in his official birth certificate, as well as in the national identity card and passport he was later granted by the Dominican government.

In 2007, Bueno requested a certified copy of his birth certificate from the Dominican civil registry office, the Junta Central Electoral (JCE). He needed this document to complete the family reunification visa he had submitted to the United States government in order to join his wife, an American citizen, in the US. Although Bueno showed his valid ID (called a cédula) and passport, the civil registry rejected his application. It claimed that Bueno was not Dominican because his parents were "non-residents" at the time of his birth. In so doing, the civil registry retroactively applied a series of laws and policies in a way that was specifically designed to deny citizenship to Dominicans of Haitian descent.

The government’s refusal to issue him a certified copy of his birth certificate, and its contention that he was not a lawful Dominican citizen, constituted his effective denationalization.

Legal Background

Up until January 2010, the Constitution of the Dominican Republic provided 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" had been legally interpreted to mean people travelling through the country on their way to a final destination, for a period of up to 10 days. Mr. Bueno was born and granted Dominican citizenship under this jus soli regime.

In 2004, the government introduced a new migration law that expanded the definition of “in transit” to include all “non-residents,” a broad category which included undocumented migrants as well as people who could not prove their lawful residency in the country. According to this new law, children of “non-residents” were not eligible for Dominican nationality. In 2005, the law was ruled constitutional by the Supreme Court of the Dominican Republic. Although it was meant to be applied only prospectively, the Dominican civil registry agency soon began to invoke the new migration law to retroactively declare as non-citizens Dominicans of Haitian descent whose nationality it had previously recognized. Additionally, the central civil registry administration utilized two internal memoranda to pursue this policy.

In March 2007, the JCE issued Circular 017 which directed civil registry officials not to expedite, process, sign or issue copies of identity documents when the applicants are children of “foreign parents,” on the assumption that any such individuals obtained their documents in an irregular manner. 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. A subsequent instruction, Resolución 12-2007, empowered registry officers to abstain from expediting any birth certificate that may have had irregularities and granted them the power to provisionally suspend birth certificates without the judicial supervision required under Dominican law.

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, but, given the pace of judicial recourse in the Dominican Republic, a decision is not expected for several years.

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.

In June 2010, a petition was submitted to the Inter-American Commission on Human Rights on Mr. Bueno’s case.

Open Society Justice Initiative Involvement

The Open Society 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.

Findings

The case is still under consideration.