This record is a partial extract of the original cable. The full text of the original cable is not available.

UNCLAS SECTION 01 OF 04 SAN JOSE 000280 
 
SIPDIS 
 
DEPT FOR CA/OCS/ACS/WHA; WHA/CEN FOR JMACK; CA/OCS/CI 
 
E.O. 12958: N/A 
TAGS: CASC KFRD CS
SUBJECT: NEW LAW STRENGTHENS COSTA RICAN IMMIGRATION 
        AUTHORITY 
 
 
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SUMMARY 
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¶1. (SBU) On October 27, 2005 the Legislative Assembly 
approved a draft law that criminalizes alien smuggling; 
increases fines on airlines carrying passengers without 
correct documentation; and fines individuals who aid, abet, 
harbor, transport, and/or employ illegal migrants.  After 
nearly four years of political debate, the law is expected 
to reduce illegal immigration.  The new legislation will 
come into effect on August 12, 2006.  Human rights 
organizations have spoken out vigorously about the law's 
"draconian anti-human rights measures."  It remains to be 
seen whether the General Migration Directorate will receive 
the resources needed to conduct the patrols and 
investigations necessary to execute its new authority.  END 
SUMMARY. 
 
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New Law In Effect Next August 
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¶2.  The last legislation on immigration was enacted in 1986 
and it continues to serve as the country's migration law. It 
does not criminalize human smuggling.  The rise in smuggling 
and illegal immigration was a major impetus in the decision 
to draft new legislation four years ago.  The President of 
Costa Rica heartily supported the bill, emphasizing that it 
would improve citizen security, reduce exploitation of 
immigrants, and improve the GOCR's ability to collect social 
security taxes.  In a January 6, 2006 meeting, General 
Migration Directorate Director Johnny Marin told ConOff that 
the bill is a watershed in updating the law to reflect the 
reality of Costa Rica's current migration trends.  He 
pointed out that the new law clearly articulates a 
comprehensive migration policy that is focused on three 
issues: public security, integration of foreigners who are 
already living in Costa Rica, and preventing future waves of 
immigrants.  The full text of the law is available on-line 
at: http://www.asamblea.go.cr/ 
 
¶3.  Marin commented to ConOff that several issues in the new 
law need to be developed further in future legislation.  He 
noted that the three pillars of the new migration policy are 
going to be hard to implement.  Marin shared that, due to 
lack of political will, several important issues remain 
untouched, such as the sections of the law which deal with 
the amount of monthly income foreigners must show to obtain 
status as residents in the country and the rules regarding 
transmission of residency via marriage.  He explained that 
legislators are reluctant to attempt any changes to the bill 
after the four long years of work it took to pass the 
current version. 
 
¶4.  The new law states that foreigners who wish to obtain 
legal permanent resident status as a "pensioner" must 
demonstrate that they receive a minimum monthly pension of 
USD 600 (Article 77).  The law for retirees with no pension 
seeking such status is contradictory.  Article 77 states 
they must show a "stable and permanent income from abroad" 
in the amount of USD 1,000.  However, Article 79 states that 
retirees without a pension must demonstrate a "permanent and 
stable income from abroad" in the amount of USD 2,000. 
Marin himself pointed out this contradiction to ConOff, and 
expressed his frustration that the paradox was not resolved 
before the law was passed.  He attributed the fact that the 
amounts were not increased to efforts made by the 
Libertarian legislators and an influential retirees 
association. 
 
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New Smuggling Sanctions May Help U.S. Border Security 
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¶5.  The new migration law explicitly criminalizes the 
"illicit smuggling of people" for the first time in Costa 
Rica.  Marin commented to ConOff that this is one of the 
strongest planks for getting tough on illegal migration. 
The new law punishes "the transport of persons" with the 
"intent to illicitly smuggle" them "into or out of the 
country" by "evading established migratory controls or 
utilizing false data or documents" with two to six years of 
incarceration.  The same punishment applies to persons who, 
"with the intent to illicitly smuggle humans," "house, hide, 
or conceal foreigners who enter or remain illegally in the 
country."  The punishment is increased by a third when the 
individual involved is a government employee, or when minors 
are involved in the smuggling process, whether as 
accomplices or as victims (Article 245).  The new law 
stipulates that any foreigner who has entered the country 
without following the proper procedures and is in the 
country without the necessary legal documents may avoid 
deportation if the person opts to press charges against 
those individuals involved in their illegal entry and if 
they cooperate with local authorities in the ensuing 
investigation. 
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Enhanced Sanctions For Complicity With Illegal Migration 
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¶6.  The new Migration Law has stiffer and more detailed 
penalties for individuals who aid, abet, harbor, transport, 
and/or employ illegal migrants.  Director Marin pointed out 
to ConOff that the 1986 legislation had only one section 
that encompassed all regulations regarding "international 
transport" issues.  The new law has expanded this into four 
sections, dealing with maritime, air, and land transport 
separately, as well as a section that addresses "general 
norms."  Marin expressed confidence that the new law will 
provide the Migration Department with expanded oversight and 
investigative authority that should help cut down 
significantly on the illegal flow of people and goods, 
provided that staffing levels and resources are adequately 
funded. 
 
¶7.  International transport companies will now be 
responsible for presenting travel documents of each 
passenger and crewmember, along with passenger lists 
(Article 150).  Sea vessels must present this information 
eight days prior to arriving at a Costa Rican port (Article 
157). 
 
¶8.  The new law prevents any boat from sailing or any plane 
from taking off prior to receiving formal approval from the 
Migration Directorate that all individuals on board comply 
with migration requirements (Articles 158 and 161).  Failure 
to comply with this rule will result in administrative 
proceedings being taken against the port's captain or the 
air traffic controller for "grave error in exercising his 
duties."  The Migration Directorate will also be able to 
board ships to conduct migratory checks of the passengers 
either in port or while the boat is in national or 
international waters.  All inspection costs will be covered 
by the maritime vessel involved (Articles 160 and 161). 
 
¶9.  The Migration Directorate will now be able to prevent 
the entry or exit of any ground transport, national or 
international, which is carrying individuals who do not 
comply with migratory requirements.  The Directorate will 
also be able to detain vehicles for the time necessary to 
ensure that all passengers comply with these requirements. 
 
¶10.  Any person representing an international transport 
company whose vehicle, plane, or boat enters the country 
with foreigners not in compliance with migration 
requirements can be fined three to twelve times the base 
monthly salary established by law.  This fine can also be 
applied to any foreigner who remains in Costa Rica after the 
departure of the vessel by which he entered the country. 
Repeat offenders in either of these areas may be subject to 
administrative proceedings involving formal charges 
(Articles 168 and 169).  These are new sanctions that do not 
appear in the existing migration legislation.  Current law 
states that international transport companies can be fined 
$30-$45 for each person who enters the country via their 
company and who is not in compliance with migration 
requirement or who remains behind after the departure of the 
vessel by which they entered the country (Articles 103 and 
105 of 1986 legislation).  The new law will also hold 
transport companies financially responsible for all costs 
involved with foreigners who remain in the country while 
their status (whether they can stay or must leave the 
country) is being determined (Article 153). 
 
¶11.  The new bill increases the sanctions against 
individuals who harbor and/or employ illegal migrants 
(Articles 173 and 178) from two to twelve times the minimum 
monthly salary. 
 
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New Law Criticized For Alleged Human Rights Infractions 
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¶12.  Several entities involved with migration issues have 
expressed concern about the law.  Presidential candidate 
Oscar Arias unsuccessfully asked the President to veto the 
bill due to his concerns that it could lead to abuse of 
illegal immigrants.  The Human Rights Ombudsman's office, 
the Catholic Church, and the U.N. High Commission for 
Refugees (UNHCR) also expressed strong reservations about 
the law.  The Human Rights Ombudsman's Office (an 
independent entity within the GOCR) was worried that there 
is no system of checks and balances in place; the new law 
gives General Migration Directorate final authority on 
several matters.  Article 220 of the new law states that 
decisions made by the Migration Department to deny a visa, 
refuse entry, or deport an individual cannot be appealed. 
However, Migration Department Director Marin pointed out to 
ConOff that the law does allow for appeals in some 
circumstances; Article 219 cites five specific instances in 
which appeals to the Migration Directorate's decision can be 
made regarding the status of foreigners who are already 
legally in the country. 
 
¶13.  The Catholic Church was concerned about measures that 
would mete out jail sentences to individuals assisting 
undocumented labor migrants.  The Church succeeded in 
getting the language changed such that individuals can 
provide humanitarian assistance to undocumented migrants 
without fear of going to jail.  The UNHCR is worried that 
the internationally accepted definition of refugee is not 
used in the text, and key articles dealing with the 
treatment and status of refugees (Articles 108 and 113) use 
definitions created by the Legislative Assembly as opposed 
to the internationally recognized terms.  When asked about 
the motive for this decision, Migration Department Director 
Marin explained that one legislator decided it was pointless 
to repeat definitions that had already been used in the 
Geneva conventions to which Costa Rica is a party, so he 
decided to craft his own.  (Note: Marin expressed 
frustration at the many thousands of Colombians in Costa 
Rica with refugee status.  It appeared that he supported the 
narrower definitions included in the law; he said it is the 
GOCR's right to establish whatever refugee definitions are 
appropriate for Costa Rica. End Note.) 
 
¶14.  A spokesperson for the International Organization of 
Migration (IOM) commented in a recent press interview that 
the law does not adhere to standards set out in the U.N. 
Protocol to Prevent, Suppress, and Punish Trafficking in 
Persons.  The Public Security Ministry responded that the 
new legislation "complements international agreements 
signed, ratified, and in force in Costa Rica."  (Note: The 
U.N. Protocol to Prevent, Suppress, and Punish Trafficking 
in Persons was ratified by Costa Rica on September 9, 2003 
and entered into force on December 25, 2003.  End Note.) 
 
¶15.  After four years of debate in the legislature, the 
Constitutional Court also weighed in, providing suggestions 
to modify an area of the law that, in the Court's view, 
contained potential Constitutional shortcomings.  On July 
21, 2005, the Court issued an opinion stating that paragraph 
one of Article 67, aimed at reducing marriage fraud as a 
means of obtaining citizenship, was unconstitutional.  The 
law's draft language stated that the Costa Rican citizen in 
the marriage would have to prove the union's legitimacy by 
having lived overseas for a year with a foreign spouse.  The 
Court pointed out that the GOCR could not require a citizen 
to live outside of his country on any grounds.  The bill's 
text was changed to eliminate this constitutional weakness. 
Marin expressed his frustration to ConOff regarding the new 
law's inability to outlaw marriages by proxy in which 
foreigners are able to marry Costa Ricans and be in full 
compliance with all the current requirements for residency 
without having ever met their spouse.  He explained that 
Chinese and Cuban citizens widely abuse the current 
loopholes in the system to gain Costa Rican citizenship. 
 
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Funding Uncertain for New Law's Implementation 
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¶16.  Marin declined to comment directly on funding issues, 
but candidly pointed out that his research indicates he 
needs at least 300 more staff to carry out the new mandate 
adequately.  He stated that the Migration Directorate will 
need "international dollars" to implement the new 
legislation correctly.  Marin added that due to payments on 
the national debt, the Migration Directorate only receives 
one-third of its allocated budget.  He explained that 
several key border posts lack the most basic tools, such as 
vehicles, to investigate reported cases of illegal migration 
and lawyers on staff who know the law and can build a case. 
He mentioned that in San Jose alone, there are over 500 
pending immigration investigations that are not attended to 
due to lack of resources.  Marin explained that some border- 
crossings close at 4:30p.m., and that anyone who wants to 
can easily cross over after the officials have gone home for 
the evening. 
 
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COMMENT 
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¶17.  It appears that the challenge facing the migration law 
is whether the GOCR has the political will and financial 
resources to enforce it. It remains to be seen how the 
implementing legislation, which is scheduled to be presented 
to the newly elected President this summer, will be received 
by the new administration.  If the GOCR is successful in 
eking out the required funds from its already cash-strapped 
budget to fully enforce the new law, Nicaraguans who used to 
come to Costa Rica looking for work may now start going 
elsewhere, presumably north. 
 
 
LANGDALE