Justificación behind Dominican Republic’s Sentencia 168-13

By: Elizabeth Donald
Seton Hall 2016

In September 2013, the Tribunal Constitucional of the Dominican Republic ruled that children born in the Dominican Republic after 1929, whose parents were of illegal status at the time of their birth, are also illegal. This setencia sparked a huge controversy in the Caribbean, since it further called for a regularization plan to return as many as 300,000 Haitians affected by this ruling back to their native territory. As implementation of the plan has recently commenced, it has caused a stir among human rights advocates worldwide. The ruling has been deemed “racist” and “xenophobic” by journalists around the globe. So how could such a harsh ruling have come about?

The setencia examines the history of citizenship in the Dominican Republic, explaining how the many amendments to the Constitution have both broadened and narrowed citizenship requirements at times on a basis of jus sanguinis and jus soli naturalization. Since 1929 however, the Constitution has consistently adopted a jus soli standard for citizenship through all of its amendments, meaning that those born on Dominican territory may acquire citizenship. This standard is accompanied by two exceptions: (1) those born to parents engaged in diplomatic activity and (2) those born to foreigners in transit.

 

The second exception led to the decision in Sentencia 168-13, which reasoned that those “en tránsito” or “in transit” includes: visitors traveling on business, study, pleasure or curiosity, persons passing through the territory of the Republic while traveling abroad, persons who are serving employed on ships or aircraft, and temporary workers and their families. This categorization of the term tránsito was taken from over 30 years of litigation on the subject which has recognized people in transit as “those who do not have permanent legal residency in the República or who lack legal permission to obtain residency.” The court also drew upon the Constitutional Assembly’s understanding of transit through their observation that “the number of Dominican nationals born in foreign countries is scarce compared to the number of foreigners born in this country.” Therefore, the court does not limit concept of “en tránsito” to simply “transeúntes” defined as “those passing through a place in which they do not habitually reside.” Rather, it extends to visa holders who were authorized with a “determinado tiempo” or exact time period within which they could stay in the country, precluding their children from being born “dominicado.” And so although this sentence has been criticized by many as punishing the children of foreigners who have outstayed their visa expiration, the court demonstrates that the Constitution bars the right of children of illegal immigrants to obtain citizenship.

The retroactive application of the decision to 1929, affecting everyone up to age 86 whose parents were in transit, will burden hundreds of thousands of Haitians born in the Dominican Republic to parents deemed “en tránsito.” These Haitians constitute the overwhelming majority of people affected by this law, many of whom have never visited Haiti and only speak Spanish but still face deportation. For this reason, Sentencia 168-13 has been characterized as racist by media worldwide. Dominicans have contested that “this isn’t about race, it’s about sovereignty.” What do you think? Is this ruling an act of sovereignty, racism, or just constitutional interpretation?