The Civil Registry and Identification Office issued a number of internal administrative orders detailing procedures to comply with this order.191 These orders effectively
ensured that the children of undocumented parents born in the Chilean territory were
considered children of transient foreigners. The notation stating “child of in transit parents” in a birth certificate requires children born in the country to seek a visa in order
to maintain legal residency in the territory. At 18, the legal age of majority in Chile, they
can initiate a naturalization process.192 President Bachelet’s new policy in 2014 reversed
the change, deeming undocumented migrants no longer “in transit”; their children
born in Chile are entitled to Chilean nationality.193 This new policy applies retroactively,
but it is non-automatic and redress continues to require a special procedure.
The Department of Foreign and Migration Affairs has widely publicized through
its website194 and Twitter account195 its change in policy toward the interpretation of
the “in transit” exception. It created a comparative chart distinguishing the post-2014
policy from its predecessor, terming the change as “repairing an error.” (reparando un
error) The Civil Registry, in turn, issued an internal memorandum to all its offices
instructing them to restrict the “transient” exception to tourists or international vessel
crew members.196
Parties now entitled to Chilean nationality (or their legal guardians) may initiate one of two procedures to gain proof of status. The first is to petition the Supreme
Court under a special constitutional procedure, according to Article 12 of the 1980
Constitution. The drafting history indicates that the main purpose of this recourse
was to provide a guarantee to those who had been arbitrarily deprived of nationality.197
However, with the passing of time, those whose parents were deemed transient have
benefited from it.198 Unfortunately, petitions normally require at least one year before a
final decision is made. Procedural formalities also make filing difficult for petitioners in
remote regions. For example, rules of procedure to petition the Supreme Court require
that the power of attorney of the person representing the applicant must be formalized
before a notary or a minister of public faith; in remote regions of the country these may
be scarce or even absent. Also, there is no right to appeal the Supreme Court’s decision,
and the case can only be filed in the capital, Santiago. Despite these complications,
children born in the territory to undocumented migrants have consistently gained the
right to nationality when they or their legal guardians petition.199
As an alternative to petitioning the Supreme Court, interested parties can also
petition the Department of Foreign and Migration Affairs to correct the birth certificate.
The Department of Foreign and Migration Affairs will carry out an initial review, and
if it finds that the child was registered as that of transient foreigners under the 1995
policy (now reversed), it will give an order of approval recognizing the petitioner as a
Chilean, and then it will submit the case to the Civil Registry to make the appropriate
correction of the information within the civil registry, and provide a new birth certificate
BORN IN THE AMERICAS
55
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