Sh!t Out of Luck Thanks to the Statute of Limitations

So, there was a person who  was convicted of murder more than 15 years ago and was granted residency in Costa Rica, but another person was arrested and discharged for a DUI and got his residency denied. How is this possible?

A Matter of Legality

Any legal system is governed by some principles. Some of these principles are common such as equality and liberty. Some others are not very well-known in the community but still guarantee our access to justice, such as due process.

The Costa Rican legal system is governed by many principles, and today we will focus on the principle of legality and reasonability.

The principle of legality establishes that the only law that can be enforced is the law in the books. In English, this is generally referred to The Law of the Land, which is the digest of laws, regulations and jurisprudence coming out of the court system.

The principle of legality is applied in two different perspectives. On the one hand, the law that is applicable to government, and on the other hand, the law that is applicable to people. How the law is applied to one or the other is very different. Government can only do what it is expressly allowed to do, while people can do what is not expressly forbidden to do. How this is enforced, changes from country to country.

For our purposes, we are going to focus on Immigration Law in Costa Rica.

The Statute of Limitations

Section 61.3 of immigration law 8207 sets for an eligibility requirement for acquiring residency in Costa Rica in relation to a criminal history. Specifically, it does not allow foreign nationals to obtain residency in Costa Rica if they have been convicted of a crime during the 10 years prior to applying for residency. The conviction must contain two elements to be considered ineligible for residency. To wit:

• There must be mans rea. This means the act must be willful. For instance, murder has mans rea, manslaughter does not.
• The felony must be mirrored by the Costa Rican Penal Code. This means the felony for which the person was convicted abroad must also be a felony in Costa Rica. For instance, a person was convicted for skipping the military draft in their home will be eligible for residency in Costa Rica considering that it is not a crime in Costa Rica to skip the military service as there is no military in Costa Rica.

The Immigration Department in Costa Rica (DGME) has had a very difficult time implementing section 61.3 of the law. On the one hand, it has given a hard time to foreign nationals with convictions within ten years of the application, even if the conviction does not meet one of the two elements required to be ineligible. At the same time, the DGME has not respected the 10 years of the Statute of Limitations (SOL). People have been given a hard time and applications for residency have been rejected for people who were convicted of a felony more than ten years ago.

 An Arbitrary System

The DGME has argued that people who have been convicted of a crime “pose a threat to national security” and thus do not deserve the right to be a legal resident of Costa Rica.

The Immigration Law is very clear in setting a SOL of ten years. As drafted, the intention of the legislation is to give people a reasonable period to adjust for events that happened too long ago, and ten years seems a reasonable amount of time, one may think. However, the DGME decided differently. The thought it was OK to ignore the SOL and consider convictions older than ten years to reject applications for residency.

When they started to reject them, we decided to take action and argue the cases in the Board of Immigration Appeals and Supreme Court.

At some point, the Supreme Court agreed with the DGME stating that in the interest of national security, they had the authority to go beyond the SOL as stated in the law. The DGME decided to request court records for residency applicants who had a record, regardless of whether it was only an arrest or a conviction.

So now, there is this additional requirement for obtaining residency: to produce court records for all of the records appearing on the background check of any given individual. The problem with this requirement is the level of difficulty associated with obtaining court records while abroad. Many people for which this was required were already in Costa Rica. The DGME decided to request court records for cases already initiated in their system which resulted in longer processing times and additional costs for people required to produce the court documents. What is worse, is the people who were only arrested, but not taken to court. There are cases that may reflect an arrest but never reached a criminal court and thus cannot be possible to produce court record. For people in this situation, it was just impossible to comply with the requirement and obtain residency.

Arbitrarily, the DGME decided to require additional documents beyond what was established in the law and with some sort of support from the supreme court. This was applied as a Russian roulette. Some people were required to produce documents, some other people were approved for residency with no questions asked. There was just no security, while one person who was convicted of murder over 15 years ago got residency, a person with a DUI did not

The Legal Issues

We believe that each country has the right to protect its citizens, and thus must be allowed to enact regulations with the intent to address matters of national security. However, it must do so legally, fairly and reasonably.

The implementation of the requirement to produce court records and/or reject applications for residency applicants with criminal records more than ten years ago had the following issues:

• It does not respect the statute of limitations.
• It does give equal treatment of the laws to foreign nationals as it gives to Costa Rican nationals. In Costa Rica, criminal records are expunged by default in ten years. This means that a CR national who was convicted of a crime will not show a record after ten years. Why give such a favorable treatment to nationals and not to foreigners? Under section 19 of the CR Constitution foreigners are granted equal protection of the laws as CR nationals.
• It is reasonable. A person convicted of a crime more than 10 years ago does not represent an imminent danger. There have been cases where the conviction or arrest happened 40 years ago, and still the DGME considers the person to be a threat to national security.
• Definition of threat to national security. There are no regulations or parameters establishing the definition of a threat to national security. For instance, how having a DUI 30 years ago represent a threat today? And how that affects national security? What is national security?

The Battle

We developed a strategy to be able to address the issue.

First, we organized cases into the following categories:

1. Current pending cases. We had two categories of this type of cases

   1. Cases with no criminal records. We did not anticipate any background check issues with these type of cases. While the DGME may through a curve ball for any other non sense, at least we knew a criminal history was not going to be an issue here.

   2. Cases with criminal records. These cases would possibly result in three possible outcomes:

      1. Approval. As noted, the DGME is arbitrary, it is a hit or miss, so while they gave a hard time to some applicants, other applicants will be spared the trouble. So, it was always a relief to get approvals.

      2. Request of Court Records. In these instances, we proceeded to obtain the record and comply, and the cases will always be approved. In some instances, we decided to fight the case with the approval of the client. Clients were given the option to comply or fight, and most of the time they choose to comply.

      3. Rejection. These cases were rejected on the grounds of being a threat to national security. These cases we will fight.

2. New cases. Planning ahead, we decided to address this situation with the new cases in the following fashion, people will be given the option to:

   1. Produce the court record.

   2. Wait and see if the DGME request the record.

As noted, some people were approved but some other people were faced with a difficult time. Certainly, people who got approved did not require to do anything further when it came to court records. The problem was for the people who were requested to produce the court documents.

We wanted to err on the side of caution. We gave visibility of the challenges to new clients, and gave them the option to comply or wait and see. Preferably, we did not want to just cross the fingers and wait several months to figure out whether the DGME was going to be capricious and request court records.

We wanted to produce the court records when filing the application.

Getting the documents from abroad represented two types of problems: first, the difficulty of obtaining the record; and second, the additional cost involved. Unfortunately for people in this situation, the feat of obtaining residency resulted in additional costs related to the procurement of court records from abroad.

Most importantly, we did not want the DGME to get away with it. It was obvious this requirement deviated from the law, and it was used maliciously by the DGME with the intention to keep foreign nationals from obtaining residency in Costa Rica. In my own opinion, I thought it was just discriminatory against foreign nationals and flat out racist and xenophobic. Thus, we decided to go to the mattresses.

We started filing motions and appeals against the request for additional documents as well as against the rejections on the alleged threat to national security.

Initially, we would lose when fighting the request for additional documents and resulted in having to comply with the request of additional court documents. In those cases, the residency would get approved. As long as the court documents were produced, the DGME will approve the cases.

Nevertheless, we thought the request was unnecessary. Why would the DGME request a court record from 20 or 30 years ago? How is this person a threat to national security?

For the most part, we got the residencies approved through sweat, blood and tears. And it should not be like that. The fight continued.

The Ultimate Outcome

It came down to a handful of cases that we continued battling with the courts. Finally, we got a good result. Just a few weeks ago, we received a notice from the Board of Immigration Appeals (or TAM for Tribunal Administrativo Migratorio in Spanish) whereby they agree with our arguments, and they stated that:

1. Requesting court records from 20 years ago is not reasonable.

2. Not granting residency to a person for criminal record that old is not reasonable.

3. The DGME does not define what a threat to national security is and thus that practice is abusive and excessive.

With this ruling, the TAM reversed the rejection by the DGME and approved the residency for the applicant was requested by the DGME to produce court records for a criminal conviction that happened in the 1980’s.

To take a step further, we went on to obtain the definition of Threat to National Security. Under the TAM ruling the DGME must define what represents a threat to national security, and we do not expect them do so quickly, we decided to reach the Department of Intelligence in CR (Direccion de Inteligencia y Seguridad or DIS) for them to determine when a foreign national represents a threat to national security and this is what they said:

“a foreign national represents a threat to national security when they enter the country with the intention to engage in criminal activity to undermine the well being of the population at large”.

This means that the DGME must demonstrate that a foreign national has the intention to engage in criminal activity to be able to legally reject an application for residency. Basically, it is impossible for the DGME to demonstrate a person’s intention.

Why is this Important?

As noted, a legal system is created around some basic principles with the intention to guarantee the wellbeing of people. One of those principles is equality.

We believe that people must be equally treated with dignity, and in current times we have witnessed how people at large continue to discriminate against each other on the basis of political opinion, religion, gender, race, nationality, so on and so forth.

When we open the door to create a separate class of people, where does it end? Last year, we saw how the CR government decided to ban foreign residents from traveling as if they were more likely to get COVID than CR nationals. That was a racist policy. The government wanted to prevent Nicaraguans living in Costa Rica from traveling to Nicaragua during Semana Santa (Easter). While the primary intention of the ban was to prevent the spread of covid, it is not fair to create a restriction based on nationality. Anybody traveling to Costa Rica from abroad could have been infected with COVID, not only Nicaraguans.

Costa Rica is not a paradise of human rights, nor is any country in the world. We humans are imperfect and thus we create imperfect systems whereby we leave some people behind. The American Dream is not exclusive to America. Everybody has a dream, but for some reason the US monopolized the dream of wellbeing. Grass is always greener on the other side. Sometimes the road to those dreams takes you to another country and for some people that dream is in Costa Rica.

While there are many battles to fight for numerous classes of people worldwide, one of these battles is to guarantee that foreigners are treated equally, with the same guarantees and privileges afforded by the CR Constitution, the guarantee that the law is going to be applied with no discrimination, the guarantee that the statute of limitations for ten years will be respected and not overlooked to your detriment.

Final Thoughts

I personally believe people should have the right to live anywhere they want to. However, I understand the reasons why immigration laws are enacted worldwide, and why governments implement filters to determine who is allowed into a country. The way in which it has been done it is not correct. and we are committed to change what is not right.

All of these court battles we do it at no additional expense to our clients. While some people can afford paying additional fees, some other people really cannot afford to pay thousands of dollars in legal fees. We do this out of our commitment to our communities. This achievement is the result of thousands of hours of work of many people at Outlier Legal. Your support will allow us to continue the effort to make things right.