How We Got Here (Traditional Haitian Immigration in the 20th Century and New Haitian Immigration in the 21st Century)

Immigration to the Dominican Republic throughout the 20th century was largely occasioned by economic growth in the country, initially in the sugar cane industry and subsequently in other productive sectors that no longer attracted native labor. Historically, Haitian labor immigration has been the most voluminous in filling this gap, fueled by political instability and the lack of economic opportunities in this neighboring country, which shares a land border on the island of Hispaniola. Since the 1990s, immigrants of other nationalities have been increasing, notably a significant new cohort of Venezuelan émigrés, some segments of which have characteristics similar to the bulk of Haitian migrant workers in the bottommost jobs.

Toward the end of the 19th century, the fall in the price of sugar, which depressed salaries, led to Dominican peasants losing interest in cutting sugar cane and the subsequent importing of workers from the Anglophone Caribbean. These so-called cocolos came principally from the territories of St Kitts, Nevis, and Anguilla. The occupation by the United States of Haiti (1915–1934) and the Dominican Republic (1916–1924) facilitated a cross-border workforce. The peaking of the sugar industry thus led to a significant increase in Haitian labor, establishing a system of temporary migrant workers, which apart from some interruptions and variations was to extend into the mid-1980s.

The massacre of Haitians and Dominicans of Haitian ancestry on the border in 1937 under the Trujillo dictatorship was a focusing event affecting both countries. It marked a decade that was also characterized by the imposition of more military controls on the border and diplomatic tensions impeding the implementation of the contractual regime of groups of migrant workers. The 1939 Foreigners’ Law and its rules of procedure legislated for such groups. While this did not affect the Haitian population already living and working in the sugar plantations, it did lead to a labor shortage. Accordingly, informal arrivals and the presence of new workers from Haiti came to be tacitly tolerated in these sugar cultivation areas.

Interstate regulation of temporary migrant workers was promoted in line with the progressive acquisition of sugar mills on the part of the Trujillo dictatorship, which up until 1950 had been largely in the hands of foreign owners. Henceforth the Dominican government made annual estimates of the number of workers required and the Haitian government undertook the recruitment. The companies were responsible for managing the temporary residence permits for the workers with the Dirección General de Migración (DGM) and for assuming the costs of repatriation at the end of the sugar harvest.

Recent scholarship demonstrates that government functionaries used extra-legal coercion such as the retention of documents. These practices continued and amplified under the Balaguer administration begun in 1966, which succeeded the fall of the Trujillo dictatorship in 1961. Haitian documented and undocumented workers who lived or worked outside of the sugar mill areas (known as bateyes) confronted the threat of forced relocation. In implementing such policies, government officials faced resistance from local communities. Likewise, under the Balaguer administration, discussions began on revoking the acquired rights of migrants and their descendants born in the Dominican Republic. The results of these documented debates on proposed nationality stripping materialized only at the turn of the 21st century, some four decades later.¹

Immigration increased progressively, especially in the 1970s due to a hike in sugar prices and a consequent demand for more workers. Also on the rise was the traffic of irregular migrants from Haiti and a change in the demographic composition of the bateyes. Although many did return to Haiti at the end of the harvest, a good number made their permanent home in the Dominican Republic.²

Economic disparities between the two countries were further accentuated as a result of the earthquake in January 2010, which devastated the metropolitan area of Port au Prince and elsewhere in Haiti, stimulating cross-border migration to the Dominican Republic and internationally to other countries. There was greater participation of women and children in these newer arrivals between 2010 and 2012. This creeping feminization of Haitian immigration³ post-earthquake has been linked to inequalities and gender-based violence in Haiti, which in turn translates into greater difficulties in accessing employment and public services, exacerbated in times of crisis. Added to which there are a high number of female-headed households in Haiti, in part because of the traditionally majority male cross-border mobility.

The continued modernization of the Dominican state has been based on service industries and tourism, such that the demand for Haitian labor has diversified, stabilizing in urban construction and agricultural rubrics beyond sugar cane, where low-qualified and low-paid work is the norm; Haitian migrants are absent from businesses which provide services. The modest increase in Haitians, diversification of their presence in the labor market, and increased social visibility, including in the informal sector, have generated debate on the possible negative consequences of this so-called pacific invasion. The rejection and repudiation by some of this new visibility continues to be used by certain conservative sectors as a call for ratcheting up deportations.⁴

For over a decade, at the turn of the 21st century, progressive sectors and conservatives debated the need for and content of a new migration law to replace the obsolete 1939 regulatory framework, which was almost exclusively dedicated to outmoded Haitian groups and omitted new Dominican out-migration. Increasing exponentially in the 1960s, today net emigration is double immigration to the country. It was difficult to reconcile polarized proposals, such that the DGM wrote recently (2016) with diplomatic understatement that the dynamic had been “protracted and sinuous.”⁵ For its part, Dominican civil society observed that in the limited participation they had in the relevant Senate Commission, once again the legislators considered this new law to be a “law for Haitians.”⁶ The law was adopted on August 15, 2004, by the outgoing Partido Revolucionario Dominicano (PRD) and received reluctantly by the incoming Partido de la Liberación Dominicana (PLD) the following day. Ley General de Migración No. 285-04 of 2004 and its rules of procedure, adopted under Decree No. 631-11 of October 2011, continue to affect adversely the adequate regulation of the majority Haitian labor migration.

There were difficulties complying with its requirements at its initial application in mid-2012, especially because of high costs and the fact that the admission procedure should be begun in the country of origin, even though the irregular Haitian migrant workforce was already living and working in the Dominican Republic. A decade late, given that the National Regularization Plan for Foreigners with an Irregular Migration Status (PNRE) should have preceded the adoption of the migration law, the executive authority in December 2013 decreed the PNRE. It constitutes an ambitious initiative to regularize the migration status of hundreds of thousands of irregular migrants in the country (as identified in the first and only national survey of all immigrants carried out by the National Statistics Office in 2012). This new migration law also unveiled a normative attempt to curb the constitutional right to Dominican nationality of the descendants of irregular migrants born in the Dominican Republic (jus soli or birthright citizenship).

Discrimination and Anti-Haitianism (from the Trujillo Dictatorship, 1930–1961, to the Present)

Beyond these historical realities, mainstream and revisionist currents of scholarship diverge on anti-Haitianism and the rights claims of Haitian-ancestry Dominicans. Much scholarship on Haitian-Dominican relations, together with journalistic and international human rights monitoring reporting, holds that most Dominicans are anti-Haitian. For example, as recently as 2015, a history professor writing in the U.S. press felt beholden to describe the so-called spontaneous returns and the official deportations of Haitians from the Dominican Republic that started up after the end of registration for the National Regularization Plan for Foreigners with an Irregular Migration Status (PNRE) as “a slow-motion undercover pogrom.”⁷ Current inter-ethnic incidents and issues related to forced migration on the island are a far cry from the reality of the 1937 massacre of Haitians and Dominico-Haitians on the Dominican-Haitian border. Yet the outdated slavery in the middle of the Americas and genocide tropes have often persisted, ever since the first major international human rights analysis of Haitian migrant labor in the bateyes published in 1987 by Roger Plant, which pulls no punches, as its title, Sugar and Modern Slavery: A Tale of Two Countries, aptly foretells.

This sweeping view presents the two peoples as in permanent struggle, as metaphorical fighting cocks as Michele Wucker put it in 1999. Thus the “fatal conflict model” posits that anti-Haitian feeling has for generations pervaded all strata of Dominican society. Some cultural anthropologists have challenged this supposedly all-pervasive trend toward unmitigated conflict, especially in relation to the cross-border zone. More recently, literary scholars have produced a further corrective to the broad brushstroke anti-Haitian school of thought, including richly nuanced studies of the Haitian-Dominican border and a focus on the politics of border crossing.⁸

That said, ethnic divisions between Dominicans and Haitians, as well as local understandings of difference between the two groups, certainly existed prior to the massacre. Lauren Derby characterizes pre-1937 border communities thus: “Dominican border culture must be understood both as furnishing a common Haitian-Dominican identity in relation to centers of power and outsiders, and as containing fissures of separation, invisible internal indices of difference and differentiation that could become divisive when conflict arose.” Today a similar view on Haitian-Dominican communities throughout the country could obtain, given the ubiquitous presence of Haitians nationwide in the Dominican Republic. This occurs in the context of the “new Haitian immigration,” where more Haitians are to be found living and working outside the bateyes, as documented in the government’s pioneering survey on all immigrants in the country (2012).

Decades after the overthrow of the Trujillo regime, xenophobia and racism are much less prevalent and virulent, but there is still widespread ignorance and prejudice, especially when provoked by extremists for domestic political ends. Political leaders are reluctant to take a lead on the issue of Haitian migration for fear of being accused of betraying national interests. The reluctance of most political party leaders to address the question, and the ambiguous attitudes of private-sector interests, many of which depend on migrant laborers, have placed particular responsibility on civil society practitioners in the human rights movement, both internationally and in the country. This movement originated in the 1980s in the campaign against the abuse of the migrant cane cutters. It continues today but has broadened the focus to encompass Haitian migrants and their descendants in the country as a whole. One notable change in the movement in recent years is that Dominican nongovernmental organizations (NGOs) as well as grassroots movements have played the leading role, with international partners providing support, rather than vice versa.

Unsurprisingly, these local associations comprise mainly—but not exclusively—persons of Haitian ancestry. Since the late 1990s, advocates for the rights of Haitians and their descendants born in the country have availed themselves of new innovative legal possibilities for taking the Dominican state to court, through the inter-American human rights system, given dissatisfaction with legal remedies on the island. Initially, this judicial engagement focused on the right to Dominican nationality for persons born in the Dominican Republic to irregular Haitian migrants because of the arbitrary deprivation of nationality at the point of birth registration as such an egregious violation of a fundamental human right.

In the Dominican Republic, the questions of birth registration and nationality are entwined. As is common in Latin America, the jus soli doctrine here means that a Dominican birth certificate has become the evidence of nationality for children who are born in the country. The birth must be registered for the individual to be able to apply for a cédula (identity card) or a passport. Civil registry officials are charged with determining whether the child who has been brought before them to have his or her birth registered is eligible for Dominican nationality. If the official decides that the child does not qualify for Dominican nationality—such as in the case of unauthorized migrants from Haiti—the official will refuse to register the birth and there is no clear appeal system against such a decision.

The right to birth registration is thus equated with the right to Dominican nationality, and denial of birth registration has become the mechanism for denial of nationality to children of irregular Haitian migrants. Moreover, the birth certificate has uses beyond proving a claim to nationality in that it provides access to a host of other rights and special protections for the child, such as protection against trafficking, child labor, or early marriage.

Up until relatively recently there was no alternative civil register or birth certificate for these children whose birthright claim to legally exist was negated. However, in early 2007, the Central Electoral Board established a Foreign Register, for children born to undocumented foreign mothers, putting flesh on the “pink registers” allowed for in the migration law 285-04.⁹ This selfsame migration law attempted, moreover, to interpret expansively one of the conditionality clauses on jus soli such that the ‘in transit’ exception for parenting Dominican children (previously legally defined as ten days) would now come to encompass all immigrants with irregular migration status.

In 2013 the Dominican Constitutional Court (CC) handed down a sentence that went way beyond the practice of denial at the point of birth registry: it attempted to remove the Dominican nationality already acquired bona fide by persons born in the Dominican Republic to immigrants with an irregular migration status at the time of the birth of their offspring, going as far back as 1929.

Contestation on the Part of Civil Society (2005–2013)

The Dominican-Haitian Women’s Movement (MUDHA) with legal support from concerned organizations in the United States brought a test case through the inter-American human rights system, in what would be the first case found against the Dominican state in 2005, using this supra-national mechanism for legal redress. Dilcia Yean and Violeta Bosico, two girls born in their homes in bateyes, were taken as young children by their mothers to register their births. The girls’ mothers were Dominican nationals with cédulas and their fathers were Haitian migrant workers. Civil registry officials found that the girls’ mothers did not provide sufficient documentation for late registration and denied the requests. Thus, the civil registry denied the girls evidence of Dominican nationality that they needed to study, impeding their social mobility in Dominican society.

The mixed nationality of the girls’ parents gave the Inter-American Court of Human Rights (IACtHR) the option to decide the case without addressing the question of who was a qualifying foreigner. However, the IACtHR did, in fact, address the responsibility of the Dominican State to guarantee its nationality to children born in its territory to Haitian parents, ruling inappropriate the suggestion that the “in transit” exception would be linked to migratory status, and it emphasized that birth in the territory should be the only relevant criteria in cases in which a child would not have a right to any other nationality. Nevertheless, because the girls’ mothers were Dominican, these questions were not overriding in the girls’ claims to Dominican nationality. Another case decided by the IACtHR against the Dominican Republic in 2014 was to provide the opportunity to address the “in transit” exception in analyzing more complex nationality claims.

In 2005, after the Yean and Bosico ruling, high-placed government officials claimed that it evidenced a conspiracy by international actors to deny Dominican sovereignty and force the Dominican Republic to disproportionately bear the regional insecurity threat posed by the Haitian State. This manifestly mythical international conspiracy underpins a nationalist narrative that continues to be used for domestic political ends.¹⁰ Indeed some have suggested that international human rights advocacy in primarily international forums before 2005 may have had the net effect of hardening Dominican nationality law and policy.¹¹ Most local and international advocates believe that the supra-national legal challenge was possibly the best option available at the time, given that laws were likely to continue to evolve in a restrictive vein in line with discriminatory practices already under way against Haitian migrants and their family members. On the other hand, increasingly on the island, affected persons and their advocates were realizing the need for a more holistic advocacy strategy, beyond judicial engagement which they believe is necessary but insufficient if lasting change is to be effected. In this tenor, it is understood that affected persons (as well as their intermediaries) need to be even more visible as protagonists claiming rights, and public opinion needs to be influenced to contest the reactionary ultra-nationalist narrative.

An important shot across the bows by the ultra-nationalists in the Dominican Republic happened at the end of March 2007 at an international conference in Santo Domingo on issues concerning migration and nationality. In the middle of the conference, participants received with shock and disbelief the news that the Central Electoral Board (CEB) (responsible for the Civil Registry) was calling into question the validity of the birth certificate of the director of MUDHA, Amnesty International, and the Kennedy Foundation, laureate Sonia Pierre. A press note followed, part of which appeared in the national Hoy newspaper on March 31:

Some 18 NGO, national and international organizations, as well as persons of repute, rejected yesterday in a document the proposal of the CEB to call for the birth certificate of Sonia Pierre to be annulled, whom they consider to be an eminent defender of human rights in the country. Likewise they consider the request to be illegitimate and arbitrary.

The Department of Investigation of the CEB announced yesterday in the national press that it is proposing to judicially annul the birth certificate of Sonia Pierre, after considering the document to be false because her parents were in the country illegally.

The organizations and personalities who signed on to the document consider the initiative to be a clear reprisal for the work Pierre has been carrying out in defense of the communities of Haitians and Dominico-Haitians.

On receiving the news about the proposed action of the CEB, the legal counsel from the United States for the Yean and Bosico case attending the conference warned with prescient alarm: “That would be nationality stripping.” This particular threat to Dominico-Haitian activist Sonia Pierre turned out be saber rattling, which was not to be the case for many other Dominicans of Haitian ancestry.

In 2007, the Dominican State, by means of the CEB, used two administrative dispositions to purportedly “clean up” the Civil Registry but in practice suspended “temporarily” the issuance of copies of birth certificates when they were suspected of having irregularities. The latter might comprise apparent alterations, identity theft, “French-sounding” surnames, Haitian parents, or simply suspension because of the color of the skin of the applicants. This deprivation of access to birth certificates, ID cards, and Dominican passports to people who had already been recognized as Dominicans by the state and who had obtained copies of their documents in the past amounted to nationality stripping and a consequent serious limiting of the exercise of their fundamental rights.

In March 2011 the Dominican state presented before the Inter-American Human Rights Commission its progress with the modernization of the Civil Registry. Thus the president of the CEB denied that there were discriminatory practices in the Civil Registry while the organizations accompanying the affected persons continued to complain about the suspension of birth certificates on the part of the CEB as having a disproportionate effect on persons of Haitian ancestry, Afro-descendants.

Between September and December 2011 Dominican civil society organizations that accompanied affected persons engaged in no fewer than seven demonstrations to publicly denounce the nationality stripping policy of the Dominican State. It was during this period that the Reconoci.do campaign was launched, accompanied by the Jesuit-led Centro Bonό‎, perhaps the best known grouping of affected persons, although in parallel other grassroots movements emerged, including “Soy dominicano como tú” (supported by the Movimiento Socio-Cultural de Trabajadores Haitianos–Mosctha), “Declaro mis derechos” (supported by the Peace Corps), and the “Comités Comunitarios” (supported by MUDHA).

Prior to 2007, the pro-migrants and their descendants’ rights movement had taken to the streets timidly in general and, specifically, on the issue of the right to Dominican nationality for the sons and daughters born in the Dominican Republic of Haitian parentage. Insofar as the right to Dominican nationality for those born in the Dominican Republic was concerned, the demands were concentrated on confronting the denial of Dominican nationality at the point where Haitian parents attempted to register their children.

The novelty since 2007 is that nationality stripping involves the deprivation of Dominican nationality, and many of those affected are unable to continue to higher education (where a birth certificate is an indispensable requirement), or to engage in normal civil life and work, requiring identity documents.¹² A comparison may be drawn between these young denationalized persons and the young so-called DREAMers in the United States, where the latter, under the Obama administration, have gained legal protection to continue their studies, open a bank account, and work independently of their fragile migration status.¹³ However, the difference resides in the fact that those abruptly denationalized persons in the Dominican Republic do not even have a country to which they may be deported, given that their “own country” is the one where they were born. Therefore these Dominican youngsters of Haitian ancestry run the risk of being condemned to permanent social immobility if their documentary status is not effectively reversed.

On December 8, 2011, a significant gathering of persons affected by nationality stripping took place in front of the Supreme Court, organized by various Dominican organizations including MUDHA, much to the group’s credit given the untimely passing of its director, Sonia Pierre, in the week preceding the demonstration. It represented a watershed as regards the public perception of the people affected: from being virtually invisible and underestimated in numbers and presence, they emerged as a significant group of rights holders, demanding their rights in no uncertain terms.

In 2012 the strategy turned more to the offensive, exemplified in the special appeals processes (recurso de amparo) brought on behalf of persons being stripped of their nationality. Dominican civil society organizations presented more than sixty such actions representing some 250 affected persons. Despite favorable judgements in many cases, the CEB refused to comply with rulings for the plaintiffs that ordered the immediate handing over of suspended documents.

These legal actions were complemented by intensified communication with the media and the public in general. Also, approaches were made to the Congress, especially to the Commission for Human Development of the Chamber of Deputies, by concerned civil society organizations regarding reports on violations of human rights. Both of these strategies sought the same objectives: to denounce the effects of the administrative dispositions on the affected population, restore fundamental rights, and promote public recognition on the part of the authorities of the damage caused.

Crisis and Dialogue (2013–2014)

The Dominican Republic passed a new Constitution in 2010 with a revised nationality provision that excluded from birthright nationality the children of “foreigners in transit or residing illegally in the Dominican territory.” The 2010 Constitution also established the Dominican Constitutional Court (CC), which three years later heard the case of Juliana Deguis Pierre, a young woman whose cédula had been seized by the civil registry, in line with the Central Electoral Board (CEB) 2007 administrative dispositions. The sentence 168-13 of the CC concluded that the “in transit” exception had always been intended by legislators to cover four groups of non-immigrants, including temporary workers and their families. The court ordered the CEB to review all births registered from 1929, which was the first year that the “in transit” exception appeared in the Dominican Constitution, until 2007 (presumably chosen as the year that the “pink registers” were established for foreign mothers) to ensure that no children of foreigners “in transit” had mistakenly been registered as Dominican nationals. Two female CC judges issued dissents of the sentence.

Paradoxically, 2013 had started auspiciously with a week of policy dialogue in Santo Domingo on the right to nationality, coordinated by a coalition of civil society organizations and a local university in which international specialists were present. The dialogue comprised a high-level meeting with jurists, visits to the affected communities, a meeting with the Dominican Congress, and an international symposium. Thus the glimmerings of spaces for public debate were created between the Dominican authorities, human rights defenders, and the affected people themselves.

Moreover, various demonstrations took place in the first half of 2013, perhaps the most evocative of which was in April when young people from the Reconoci.do Movement and the Asociación Scalabriniana al Servicio de la Movilidad Humana (ASCALA) walked over two days from the traditional sugar cane enclaves around San Pedro de Macorís to the National Palace, Santo Domingo. The objective was to challenge President Daniel Medina to make a public declaration on the situation of the affected persons.

Finally, lobbying efforts before the Chamber of Deputies bore fruit to the extent that a representation of the Congress met with affected persons and called the CEB to account for its actions on the documents of persons of Haitian ancestry inter alia. However, the ensuing report was disappointing, investigating less than satisfactorily allegedly questionable practices of the CEB.

In a year when civil society had pulled out all the stops to arrive at institutional solutions with which to confront incipient denationalization begun in 2007, the affected persons and their advocates reeled when they heard the bombshell CC decision. While civil society activists had understood through “in corridors” conversation that an impending ruling would be negative, they had wrongly imagined that the ruling would evacuate one judgement but had not in their wildest dreams considered that it would universalize from the Juliana Deguis decision. La Sentencia (as it became known) generated widespread outrage against what was perceived as an anti-Haitian reinterpretation of the Constitution to retroactively strip the citizenship of Dominicans of Haitian ancestry in contravention of human rights protections against discrimination and deprivation of nationality. The United Nations High Commissioner for Refugees (UNHCR) estimated that 133,770 people were left stateless as a result of the decision.

There has been much speculation as to the reasons behind the timing of the judgement and its scope, despite the signposts that preceded it. One theory is that extreme conservative sectors, exemplified by the political party Fuerza Nacional Progresista (FNP), understood that they were possibly losing ground and it represented their attempt to go as far as they could on the “Haitian question” while they still had the upper hand, as they saw it. Some credence may be given to this explanation for the timing and wide-reaching nature of this critical event in that, several months after the Sentence was handed down, this ultra-nationalist party (allied up until then with the ruling PLD) split from the government and announced that the FNP would not ally with any major political party in the general elections scheduled for May 2016. The precipitating issue on which the FNP resigned was their opposition to President Medina standing for re-election, changing the constitution to suit his purposes. Key FNP figures may also have felt uncomfortable about the Medina administration pushing back on the Sentence to the extent that it did in seeking palliative solutions to its effects.

Additionally, it is widely believed that the Leonel Fernández faction of the ruling PLD may well have had a hand in passing the “poisoned chalice” to the presidential incumbent. Leonel Fernández’s arch political rival is Danilo Medina. Ex-president Fernández, it is surmised, may have sought to reduce the elevated popularity levels of President Medina. Fernández had aspired to a return to a third term in office, were he to have been chosen as the party’s candidate for presidential elections in May 2016. He was not, and Medina was returned for a second consecutive period. Regardless, given that Leonel Fernández’s PLD had allied notoriously in 1996 with Balaguer’s conservative Partido Reformista Social Cristiano (PRSC) for political convenience, the denationalization agenda may be read partly as a legacy of Balaguer’s strident anti-Haitianism.

A “legislative fix” from the Dominican state became imperative when few bought into the official line that nationality-stripped persons would not be stateless because they might acquire Haitian nationality, given the unlikelihood of this eventuality. In May 2014 the Dominican legislature unanimously passed Law 169-14 as its proposed solution to the crisis. Consultation was minimal with civil society, but most concerned organizations believed that it was necessary to keep the door open for solutions rather than slamming it shut because of the perceived inadequacies of the new law, recognizing that in comparable situations worldwide such opportunities for remedies (however partial) to alleviate sudden mass deprivation of nationality have been few and far between. Thus, “the holier than thou” positioning of some international allies was not necessarily well received locally, because many Dominican organizations felt that their on-the-ground pragmatism was being called into question by distant others who had the luxury to take the moral high ground from afar on what should or should not have constituted the bottom line for negotiations. Early on, a coalition of organizations and Dominicans of repute presented a Recognition Law to the Congress for their consideration, but this was not the option chosen.¹⁴

Instead, the law adopted ordered the restoration of Dominican nationality to approximately 55,000 individuals who had acquired Dominican nationality by birth in the national territory, but who were technically denationalized as ordered by the Constitutional Court (“Group A”). The law also created a path to naturalization for those individuals who had been born in the Dominican Republic prior to 2007 but had never acquired nationality documents (“Group B”). The Inter-American Human Rights Commission, invited to visit in late 2013 by the Dominican government as a means to assuage international uproar, had already advised about the likely “ripple effect” of the Sentence on those born in the Dominican Republic of foreign ancestry and never registered. Therefore the Dominican authorities were unable to ignore these hitherto largely invisible protagonists, and civil society concurred that the opportunity to shine light on their particular plight should not be missed.

“Group B” comprises individuals who considered themselves Dominican nationals by birthright (“unrecognized citizens”), and the prevailing interpretation of the constitution supported this understanding at the time of their birth. The solution that they naturalize through a procedure that required them to declare themselves Haitian nationals, before potentially naturalizing after two years had elapsed, was unacceptable to many. Added to the social and political implications of the proposed solution, bureaucratic complications and tight time frames to initiate registration for Group B resulted in only 8,755 applications. This number understates initial estimates of the number of people who would qualify to naturalize under this provision of the law, which the Dominican government believed to outnumber “Group A” and for whom there is now no window of opportunity under the current operation of Law 169-14.

As fallout from the Sentence, the National Regularization Plan for Foreigners with an Irregular Migration Status (PNRE) was decreed in late 2013, according to the mandate of the Dominican Constitutional Court (CC). There was consensus between progressive and conservative sectors as to the need for the plan, given that this Caribbean territory was the only country in the Americas that had never had such a plan but had such a significant number of migrants with irregular status. Dominican civil society took a proactive stance and approached the authorities in early 2014 with a view to cooperating and, indeed, sharing suggestions on how to incorporate a gender perspective and best practices from other regularization experiences in the Americas. For their part, the competent authorities, executives of the Ministry of Interior and Police, were initially most enthusiastic, too, especially when—in their initial schema of things—all of those tens of thousands of persons denationalized under the sentence 168-13 would be obliged to register as foreigners. As noted, because of large-scale protests, the implementation of the Sentence was not carried out exactly as its architects would have wished, due in part to Law 169-14 being adopted.¹⁵

Finally, added to the mix, was new regional jurisprudence, in mid-2014, in the Case of Expelled Dominicans and Haitians v. The Dominican Republic co-litigated by a Dominican, Haitian, and U.S. civil society coalition. The Inter-American Court of Human Rights (IACtHR) analyzed the right to nationality with regard to two groups of petitioners: Dominican nationals whose nationality documents were disregarded by authorities at the time of their expulsion and persons who had been born in the Dominican Republic but were unable to acquire nationality documents and were subsequently expelled. This second group was germane to the girls Yean and Bosico before they received their birth certificates, in that they had been born in the Dominican Republic and had been denied birth registration. The main differences were that the parents of the petitioners in Expelled Dominicans and Haitians did not have Dominican nationality documents, and the Dominican state was actively arguing that they were not entitled to Dominican nationality as the children of foreigners “in transit.”

The court affirmed that the risk of statelessness together with the Dominican state’s failure to adequately resolve the question of nationality had triggered the state’s obligation to guarantee nationality. Moreover, the IACtHR found that the 2013 CC decision violated equal protection and the right to nationality of those petitioners who had previously acquired nationality despite their parents’ irregular status, unreasonably differentiating between the acquisition of nationality by regular and irregular migrants. The court further adjudged that Law 169-14 violated both equal protection and the right to nationality of the family in question, because it forced them to sign up as foreigners and gave them only the option to naturalize as the children of foreigners “in transit.”

An international perspective confirms that caution is needed when it comes to using strategic litigation without a wider policy advocacy strategy. Recent scholarship suggests that the inter-American human rights system delivers more robust jurisprudence on migrant matters than the European Court of Human Rights (ECtHR), the former considering affected persons first as human beings and then as migrants, whereas the latter operates with the inverse supposition. A third case found against the Dominican Republic on Haitian migrant matters, Nadege Dorzema et al. v. Dominican Republic (2012), brought by a Dominican, Haitian, and Canadian civil society coalition, is used to buttress this thesis in legal anthropologist Marie-Bénédicte Dembour’s 2015 study. Notwithstanding this important distinction, she concludes that the stumbling block remains the lack of compliance nationally with regional jurisprudence, on which the European and American systems alike score badly.¹⁶

Contemporary Initiatives on Migrant Policy and Nationality Matters (2014–2017)

A government functionary of the Ministry of the President two years on from the Sentence, in an international seminar in Santo Domingo in November 2015, summed up the enormity of the situation facing the government:

The situation of irregularity and uncertainty in which the descendants of Haitian migrants found themselves provoked a grave political and institutional crisis. The Government, noted the Ambassador, did not have the tools with which to confront the situation, such that it was obliged to create an ad hoc technical team and draw up a new normative to placate the social and legal situation around the descendants of immigrants. Additionally, the government found itself with a multitude of situations which affected decision-making.¹⁷

Ambassador Josué Fiallo further remarked, in this international forum, that the government had also been obliged to contract a public relations firm in order to explain to the world at large what was happening in the Dominican Republic in the wake of the Sentence.

Since mid-2014, the Dominican government has been implementing three parallel processes. These are, as depicted in Figure 1, regularization of foreigners with irregular migration status, partial restoration of identity documents for descendants born in the Dominican Republic (DR) (Group A), and registration of unregistered descendants (Group B) in a special foreigners’ book.

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Figure 1. From mid-2014 up to the present, the Dominican government has been implementing these three parallel processes.

The local government offices opened for business with many deficiencies, including under-trained staff and weak computer systems. Owing to the complexities of the requirements, the majority of the people who applied for the National Regularization Plan for Foreigners with an Irregular Migration Status (PNRE) had to go at least five or six times to the regularization centers. Other difficulties were the lack of information for a dispersed population with little access to the media and low education levels. Several estimates show that everybody who applied for the Plan had to have at least 8,000 pesos (around $180) to cover the tax costs of legalization and notarization of documents, as well as “tips” in order to obtain certain documents.

For its part, in support of the PNRE, Haiti initiated operations of its Programme for the Identification and Documentation of Haitian Immigrants with considerable delay, and managed to set up only five centers, including one in Barahona from April 2015—a few days before the registration for the PNRE was set to finish. Some 45,000 people managed to register but only 5 percent of these received their passports before the registration process for the Plan was finalized on June 17, 2015.

Civil society actors accompanied irregular migrants as best they could in a situation where most believed that the bar had been set too high for criteria of inclusion for the category of migrant involved, mainly Haitian migrant laborers in the bottommost jobs. By the time the program closed registration in mid-June 2015, fewer than 5,000 migrants had obtained residence status by completing files. The status of some 250,000 migrants who were regularized as “non-residents,” without access to rights beyond exemption from deportation and limited entry to the social security system for very few, comes up for renewal again in mid-2018 when the validity of their documentation begins to expire. Documentation was renewed for a further year in mid-2017 but, as of September, the announced accompanying protocol for this administrative action has yet to be issued.

The end of PNRE registration unleashed a series of reports, communiqués, and videos, some of which were refuted by the government while others resonated with “the World communication strategy of the results of the Dominican Government’s migration policy” (The Foreign Affairs Ministry or MIREX, 2015), spearheaded by the Foreign Affairs Ministry in direct coordination with the office of the president. Two Dominican diaspora video-bloggers favorably compared the Dominican Republic with the United States in its treatment of migrants.¹⁸ Two local video-bloggers picked up the gauntlet: one of whom analyzed a range of the video material circulating while the other concentrates on correcting misinformation on the distinctions between the rights of Haitian migrants and those of their descendants born in the Dominican Republic inter alia.¹⁹ While it is impossible to know the full impact of this video and social communications blitz on public opinion in the Dominican Republic, there was undoubtedly an opening up of discussion and debate for hitherto largely taboo subjects on racial prejudice and anti-Haitianism.

Given sustained criticism about the slow pace with which Group A was being processed and in order to assuage criticisms as to what might happen to this group once the PNRE finished and deportations started again (when inadvertent expatriations might take place), the authorities appeared to take decisive action by mid-2015. As per the Sentence, the Central Electoral Board (CEB) carried out the audit of all those persons registered as Dominicans and born to two foreign parents going back to 1929.

The ensuing publicized audit of 55,000 persons contains 43,000 persons of Haitian ancestry (according to the CEB); several thousand people who might reasonably have supposed that they had been audited are unaccounted for on the list, and no time frame has been given for dealing with this latter group. The preamble to this list indicates that persons therein should be immediately restored their documents, but, on their own count, the CEB, as of early 2017, reports that only 13,000 persons have managed to re-possess their documents.

Civil society organizations have been particularly challenged in following up the document status of Group A, in part because many key leaders are themselves in this group and have individual cases to be resolved (consuming energy and resources in so doing) and in part because the task of dissecting the audit list is daunting because of the number of mistakes and truncated information. Nevertheless, Group A is relatively more visible and vocal than Group B (which is more sizable but more invisible, because persons in it remain largely unidentified).

Theoretically, the unregistered persons of foreign ancestry were required to present only one of the following four requirements: (i) certificate of live birth issued by the hospital, (ii) notarized act with seven witnesses, (iii) sworn statement by the midwife, or (iv) notarized act of Dominican family members. However, applicants were often rejected when more than one of the requirements was routinely required and additional documentation was added arbitrarily to the list, especially an identity document of the mother. This last extra requirement reinforces the gender bias, salient in the new migration law of 2004, regarding the disproportionate role of the mother in registering her offspring, as documented by Allison Petrozziello.

It is unsurprising that a chief motivation for those who did sign up was that they might be protected against deportation, given that this is a real threat for those (majority) Dominico-Haitians who have never been registered, even though technically they should not be expelled from their “own country,” given that they have no proven legal link to any other country. For whatever reason, the majority of persons in Group B who might have applied for registration under the operation of Law 169-14 did not. When the period to do so elapsed on February 1, 2015, 8,755 persons had signed up. As with irregular Haitian migrants (who may be deported to Haiti), these undocumented Dominicans of Haitian ancestry may be erroneously expatriated to Haiti if they cannot prove their birth in the Dominican Republic.

Aside from accompaniment of affected persons in these three distinct processes, civil society organizations have contributed variously to policy advocacy. Firstly, they have done so by indicating the challenges to be overcome from mid-2017 in taking the PNRE forward, in a document presented by the United Nations system, with support of select businesspeople, pro-migrants rights organizations, and some academic sectors, to the Dominican authorities in late 2016.

Secondly, on the denationalization crisis, civil society organizations have continued to engage with the inter-American human rights system, using key dates and events to keep the spotlight on the issues in country while lagging behind in drawing up an exhaustive list of the problems faced under the operation of Law 169-14, precisely because of their multiplicity and legal complexity.

Whither Inclusive Citizenship for Persons of Haitian Ancestry in the Dominican Republic

An expert witness brought on behalf of the girls Yean and Bosico in the 2005 lawsuit was the cultural anthropologist Samuel Martínez, whose statement to the Inter-American court observes:

Dominico-Haitians are not only struggling for legal citizenship but also for cultural citizenship, so that a broader recognition is given to their belonging in the Dominican Republic such that they may legitimately be part of the country. Cultural citizenship is a broad term which legal scholars and social researchers have created to describe the aforesaid unwritten presuppositions about those who, in race-ethnic-class terms, belong totally to the nation which defines their fundamental identity. The exclusion from cultural citizenship may have negative social, economic and psychological consequences for people who are internally colonized or disadvantaged ethnic-racial minorities who see themselves relegated to the permanent condition of second class citizen or whose citizenship may be totally denied.²⁰

It could be argued that the Inter-American Court of Human Rights jurisprudence on nationality and statelessness is a tipping point in the Dominican Republic, insofar as Dominico-Haitians have entered the political landscape to stay, notwithstanding the fact that some of their fundamental rights may be in jeopardy.

After decades of non-regulated immigration from Haiti, notably since the fall of the Duvalier dictatorship there in 1986, and a decade of restrictive legislation on migration and nationality as a sequel to the adopting of the new Migration Law of 2004, the country has been convulsed by new dynamics. In this new context, the eminent Dominican sociologist Fran Báez believed migration policy to be “in transition.”²¹

Engagement with each of the three interrelated processes on the part of concerned civil society actors has been practically non-negotiable in order to underscore legitimacy as willing interlocutors with the state and its functionaries, not least in the search for more durable solutions. Nevertheless, the uncertainty generated by many of the authorities as to how these processes are carried out combined with the mistrust of many of the supposed rights holders means that the net results have been mixed.

Paradoxically, the country does appear on the cusp of positive change at a time when the international scene reveals backpedaling on migrant rights and nationality claims compliance on the part of important states worldwide, not least under the Trump administration in the United States since January 2017. An optimistic take on the Sentence might read it as a Reculer pour mieux sauter moment, or a putting off of the inevitable on the part of the ultra-nationalists.

Undoubtedly much more judicial engagement (especially nationally) on the part of civil society may be on the horizon in order to move forward on more inclusive citizenship for persons of Haitian ancestry born in the Dominican Republic before 2010. However, the new turn toward a cultural approach should also yield rewards and may well, in the long run, turn out to be decisive.

One final example may suffice to make this latter point. David Perez “Karmadavis” is a Dominican artist who for over a decade has carried out video performances around Dominico-Haitian relations, the rights of Haitian migrants in the Dominican Republic, and, more recently, the rights of Dominicans of Haitian ancestry to Dominican nationality. Over the years his performances have won critical acclaim inside and outside of the country, including in biannual competitions organized by the Centro Cultural Eduardo Jiménes León in Santiago de los Caballeros, the second largest and most conservative city in the country. Established in 2003, this center is probably the biggest and best modern art museum in the insular Caribbean and has recently cemented inter-institutional links with Memorial ACTe, the new museum in Guadeloupe, which, since 2015, has offered a memorial to Caribbean involvement in slavery and human trafficking.

Karamadavis’s latest performance, entitled “Visitante Atemporal” (see Video 1) deals with a young Dominico-Haitian woman who has been denied access to her Dominican birth certificate but because she has a valid Dominican cédula or ID manages to obtain an individual burial plot in the Cristo Redentor Cemetery in Santo Domingo, guaranteeing in this way her “permanence” on Dominican soil, despite evidence to the contrary while alive. An ID or a birth certificate may be used to obtain a burial plot in the Dominican Republic. With the cemetery gravestones as backcloth, this Dominico-Haitian woman affected by the Sentence points out, in the performance, that she has been unable to enroll at university because this requires a complete birth certificate, which she has unsuccessfully requested from the Dominican authorities. This performance was shortlisted for a prize in the biannual art competition of the Centro León in 2016 and exhibited there until February 19, 2017, when the viewing closed, although the video performance remains in the Museum’s permanent collection.²²

Poignantly, in interviews around this video performance, Karmadavis has clarified for him that this is: “The end of a subject. . . . The end or the transformation into something. . . . The issue must be resolved or it stagnates.” Affected persons and their advocates on the island, supported by their allies abroad, fervently hope that inclusive citizenship for all persons of Haitian ancestry in the Dominican Republic born there before 2010 becomes a reality and not just a scenario.

Discussion of the Literature

Analysis on the sugar plantation system is to be found in José del Castillo’s La Inmigración de Braceros Azucareros en la República Dominicana, 1900–1930 (1981), in Orlando Inoa’s Azúcar, árabes, cocolos y haitianos (1999) (as regards the cocolos), and in Fran Báez Evertsz’s Braceros Haitianos en la República Dominicana (1986).

The Dominico-Haitian border is a central theme in Dominico-Haitian relations, including ideological debates derived from the Dominican perspective of Manuel Arturo Peña Batlle’s Política de Trujillo (1954) and the Haitian perspective criticizing the conservative Dominican position from Jean Price Mars’s La República de Haití y la República Dominicana (1953). The latter-day conservative position on the Dominican side is exemplified in Manuel Núñez’s El Ocaso de la Nación (2001). A new wave of literature on the border over the last decade includes Ministerio de Fuerzas Armadas’s La Frontera: Prioridad en la Agenda Nacional del Siglo XXI (2004), Haroldo Dilla et al.’s La Frontera Domínico—Haitiana (2010), Marie Doucey’s Gender and Human Security in the Haitian-Dominican Border Zone (2010), and Allison Petrozziello and Bridget Wooding’s Fanm nan fwontyè, Fanm toupatou: Una mirada a la violencia contra las mujeres migrantes haitianas, en tránsito y desplazadas en la Frontera Domínico-Haitiana (2011).

The 1937 massacre has produced the classic text by Richard Turits and Lauren Derby Historias de terror y los terrores de la histórica: La masacre haitiana de 1937 en la Republica Dominicana (1993) and more recently (with new archival material) Edward Paulino’s Dividing Hispaniola. The Dominican Republic’s Border Campaign against Haiti 1930–1961 (2016). Amelia Hintzen, also using new archival material, presents a fresh analysis on the lead-up to the 1937 massacre, A Veil of Legality: The Contested History of Anti-Haitian Ideology under the Trujillo Dictatorship (2016).

While Frank Moya Pons’s voluminous study El batey (1986) is the most comprehensive to date, important anthropological angles are to be found in Martin Murphy’s Dominican Sugar Plantation: Production and Foreign Labour Integration (1986) and Samuel Martínez’s Peripheral Migrants: Haitians and Dominican Republic Sugar Plantations (1995). The role of women is examined in the economy and society of the batey in Zenaida Jansen and Cecilia Millan’s Género, trabajo y etnia en los bateyes dominicanos (1991).

Necessary background for understanding the current crisis of denationalization in the Dominican Republic is to be found in Riveros’s Estado de la situación de la población de los bateyes dominicanos en relación a la documentación (2014) and, from a gender perspective, Allison Petrozziello et al.’s Género y el riesgo de la apatridia en los bateyes (2014). Dominican sociologist Carlos Dore Cabral inaugurated the social literature on the descendants of Haitian migrants in Los dominicanos de origen haitiano y la segregación social en la Republica Dominicana (1987), and Dominican lawyer Amelia Cedeño Caroit began the legal debate justifying their right to Dominican nationality in El estatuto jurídico de los haitianos y sus descendientes nacidos en la República Dominicana (1991). The most complete human rights analysis of contemporary issues for Haitian migrants and their descendants is to be found in the Inter-American Human Rights Commission’s Human Rights in the Dominican Republic (2015). This builds on the pioneering work carried out by the first United Nations Mandate on Minority Issues, whose rapporteurship produced Informe del Relator Especial sobre las formas contemporáneas de racismo, discriminación racial, xenofobia y formas conexas de intolerancia.²³

The first and only survey of all immigrants in the Dominican Republic is invaluable for hard data, Primera encuesta nacional de inmigrantes en la Republica Dominicana UNFPA-UE (2013), as is the analysis in the studies derived from it: Familia, migración y género: Estudios complementarios, ENI, 2012. Alicia Mirta Maguid, Santo Domingo, República Dominicana; UNFPA-UE (2013). Inmigración, Género y Mercado de Trabajo en la República Dominicana. Estudios complementarios ENI, 2012. Wilfredo Lozano, Santo Domingo, República Dominicana; UNFPA-UE, (2013). Análisis comparativos de condiciones socioeconómicas de las poblaciones de inmigrantes, descendientes de inmigrantes y población nativa. Estudio complementario ENI, 2012. Martin Murphy, Santo Domingo, República Dominicana; UNFPA-UE. (2013). El aporte de los trabajadores inmigrantes a la actividad económica en la República Dominicana: Una primera aproximación. Estudio complementario a partir de la ENI, 2012. Jefrey Lizardo and H. Carlos Gratereaux. Santo Domingo, República Dominicana; UNFPA-UE. (2013). Características y análisis comparativo entre jóvenes inmigrantes y de origen inmigrante en República Dominicana. Estudio complementarios, ENI, 2012. Luis Vargas, Santo Domingo, República Dominicana; UNFPA-UE (2014). Características y análisis de salud de la población de origen extranjeros. Estudios complementarios. E. Guerrero et al., Santo Domingo, República Dominicana.

For a vision of the ideological debate on migration governance, especially the buildup to the adoption of the new migration law, see Wilfredo Lozano La paradoja de las migraciones: El Estado dominicano frente a la inmigración haitiana (2008). Civil society’s first contributions to policy advocacy debates are to be found in the network Red Jacques Viau’s texts, Documento de análisis crítico del anteproyecto de código de migración (1998) and Observaciones de Red Jacques Viau al anteproyecto de Ley de Migración de Febrero de 2000 y algunas sugerencias para una nueva Ley de Migración, 2001. A United Nations Development Programme study, Política social: capacidades y derechos: Análisis y propuestas de políticas sociales en República Dominicana (2010), contains a proposal for policies of social inclusion for Haitian immigrants with irregular migration status in the country.

An introduction to civil society policy advocacy on migrants’ rights and those of their descendants is to be found in Bridget Wooding and Richard Moseley-Williams’s Needed but Unwanted: Haitian Immigrants and Their Descendants in the Dominican Republic (2004). The complexities of transnational policy advocacy on these matters is examined in Samuel Martínez’s The Price of Confrontation: International Retributive Justice and the Struggle for Haitian-Dominican Rights (2014). The specific issues around deportations (and expatriations) are first systematized from both sides of the border in the text of the International Human Rights Law Clinic, Boalt Hall School of Law, University of California, Berkeley, Huespedes mal recibidos: Un estudio de las expulsiones de Haitianos y Dominicanos de origen Haitiano de la Republica Dominicana (2002). The seminal text drawing attention to mistreatment of Haitians in the Dominican Republic is Roger Plant’s Sugar and Modern Slavery: A Tale of Two Countries (1987).