Constitutional principles grant rights and duties to aliens living in the country. Federal law regulates immigration issues in general, and an immigration agency subordinated to the Ministry of Labor is in charge of immigration matters.
Citizenship is acquired by birth on Brazilian soil and through naturalization or a continuous period of residence in the country.
The federal government, through the Federal Police, is in charge of performing maritime, air, and border police services.
Brazil is in the process of changing its immigration legislation, which was enacted in 1980 and designed to align with Brazil’s national security needs at that time. Today, human rights are being emphasized in proposed legislation under consideration in the Chamber of Deputies.
According to the Brazilian Constitution, everyone is equal before the law, with no distinction whatsoever, guaranteeing to Brazilians and foreigners residing in the country the inviolability of the rights to life, liberty, equality, security, and property, according to the terms defined in article 5 of the Constitution. The law may not establish any distinction between native and naturalized Brazilians, except in cases provided for in the Constitution. Article 22 grants to the Union (Federal Government, Uni?o) the exclusive power to legislate, inter alia, on nationality, citizenship, and naturalization, as well as on emigration, immigration, entry, extradition, and the expulsion of foreigners.
Law No. 6,815 of August 19, 1980, the Foreigner’s Statute (Estatuto do Estrangeiro), defines the legal situation of the foreigner in Brazil, and Decree No. 86,715 of December 10, 1981, regulates all immigration matters concerning Law No. 6,815 and creates the National Council of Immigration.
General Immigration Policy
In order to travel to and enter Brazilian territory, an alien needs a visa, which can be one of the following types: transit, tourist, temporary, permanent, courtesy, official, and diplomatic.
An alien under the age of eighteen, unaccompanied by his legal representative or without express authorization, cannot obtain a visa. The same rule applies to aliens considered harmful to the public order or national interests; aliens previously expelled from Brazil, except when the expulsion has been revoked; aliens sentenced or prosecuted abroad for crimes conducive to extradition under domestic law; or aliens that do not meet the health standards established by the Ministry of Health. The visa requirement may be waived only in cases where there is an international agreement between Brazil and the requesting national’s country of origin, as a matter of reciprocity.
The visa granted to the alien by the consular authority does not imply any guarantee of entrance or permanent residence in Brazil. Additionally, an alien who does not present a valid travel document or any other form of identification valid in Brazil; who presents identification that has expired, that has been tampered with, or that has indications of forgery; or who presents a consular visa that does not observe the conditions established in Law No. 6,815 and in Decree No. 86,715 cannot be admitted into the country.
The resident alien enjoys all rights recognized to Brazilian citizens according to the Constitution and its domestic laws. The alien must also show proof of legal immigration status in the Brazilian territory as required by any authority. Aliens must have specific authorization to work, but the bearers of tourist, transit, or temporary visas, as well as their dependents, cannot work. An employer of unauthorized aliens is subject to fines.
The National Council of Immigration (Conselho Nacional de Imigraç?o—CNIg), which is subordinate to the Ministry of Labor, is the government body in charge of immigration matters. Its organization and functions are regulated by Decree No. 840 of June 22, 1993.
CNIg is responsible, inter alia, for the orientation and coordination of immigration activities; preparation of immigration policies; creation of immigrant selection rules designed to provide the many sectors of the economy with specialized workmanship; promotion of studies related to immigration problems; elaboration of immigration plans; conducting of periodic surveys related to the needs for qualified international workmanship, whether permanent or temporary; settlement of disputes and solution of cases unforeseen by immigration law in regards to the admission of immigrants; and provision of opinions on proposals to change immigration legislation.
Sanctions for Unlawful Entry and Overstaying
An alien who illegally enters or irregularly stays in Brazil and does not depart voluntarily is subject to deportation. At the request of the Minister of Justice, the alien may be imprisoned for sixty days until the deportation is put into effect. The Federal Police is the competent agency that arrests and deports an alien.
By the same token, an alien who in any way acts against national security, the political and social order, the public morality, or the popular economy, or whose behavior becomes harmful to the national interest, will be expelled.
Under the Brazilian Foreigner’s Law, an alien who practices fraud in order to enter or stay in Brazil is subject to expulsion. Making a false declaration during an immigration procedure or for the acquisition of a foreigner’s passport, laissez-passer, or exit visa subjects an alien to one to five years detention and expulsion from the country.
In cases of expulsion, the Ministry of Justice may require, at any time, the imprisonment of an alien for ninety days, and to assure the conclusion of a legal inquiry or to guarantee the fulfillment of the expulsion, the imprisonment may be extended for an additional ninety days. An expelled alien who reenters the Brazilian territory is subject to reclusion for a maximum period of four years and a subsequent expulsion after serving his time.
Under criminal law, an alien who uses a name other than his own to enter or stay in Brazil faces one to three years of detention and a fine. An alien who claims a false attribute to promote his entrance into Brazilian territory can be punished with one to four years of reclusion and a fine. Additionally, aliens who use passports or any other document that is not their own, as well as persons who facilitate or supply such documentation, are subject to detention of four months to two years and a fine, if this action does not constitute an element of a more serious crime.
Other sanctions in the Brazilian Penal Code that apply to Brazilian citizens as well as to aliens include the forgery of public documents, with a punishment of two to six years of reclusion and a fine; and the destruction, suppression, or concealment for the person’s own benefit, for the benefit of a third party, or to the detriment of a third party, of a public or private document that should not be used, with a punishment of up to six years of reclusion and a fine.
The current legislation does not establish any criminal sanctions against aliens who illegally enter or illegally stay in Brazil.
Sanctions for Hiring Undocumented Workers
The Brazilian Labor Law establishes that no company may admit into its service an alien worker that does not present a duly noted alien card. The employment of aliens who have an irregular situation or are unauthorized to work subjects the employer to a fine.
The Ministry of Labor is responsible for the enforcement of the labor legislation, which provides for inspections performed by competent authorities of the Ministry of Labor and inspectors of the National Institute of Social Security in order to verify compliance with laws and regulations.
Acquisition of Citizenship
In order to apply for Brazilian citizenship, an alien must satisfy certain conditions. The alien
I. must have civil capacity according to Brazilian law;
II. must be registered as a permanent alien in Brazil;
III. must be in continuous residence in Brazilian territory for at least four years immediately before applying for citizenship;
IV. must read and write the Portuguese language, evaluated on the basis of the social and intellectual situation of the applicant;
V. must practice a profession or have enough possessions to guarantee his and his family’s maintenance;
VI. must have good behavior;
VII. cannot have been indicted or convicted in Brazil or abroad for a felony; [and]
VIII. must be in good health[.]
The four-year residence requirement may be reduced to three years if the alien possesses real estate or an enterprise in Brazil; two years because of the alien’s professional, scientific or artistic abilities; and one year if the alien has a Brazilian spouse, a Brazilian child, a Brazilian parent, or has performed a relevant service to Brazil.
The residency requirement is dispensed with in cases where the alien spouse is married to an active Brazilian diplomat for more than five years, or the alien is employed by a Brazilian diplomatic mission or Brazilian Consulate for more than ten continuous years. In these cases, the only requirement is a thirty-day stay in Brazil.
Extraordinarily, Brazilian citizenship can also be obtained upon request if a person has continuously resided for more than fifteen years in Brazil and does not have any criminal conviction.
The application for naturalization is filed with the local agency of the Department of Federal Police, which is subordinate to the Ministry of Justice, and must indicate whether the applicant intends to have his name translated or adapted to the Portuguese language. The application must also include the documents listed in article 119 of Decree Law No. 86,715 of December 10, 1981.
An alien who is admitted to Brazil by the age of five and permanently lives in the country may, within two years after reaching adulthood, apply for naturalization.
A foreigner admitted to Brazil during the first five years of his life and who permanently lives in the country may, while still a minor, require through his legal representative the issuance of a provisional certificate of naturalization. An alien who is the holder of such a provisional certificate of naturalization and wants to confirm his intention to continue to be a Brazilian citizen must manifest such intention to the Minister of Justice within two years after reaching majority.
A foreigner who comes to reside in Brazil before reaching the age of majority and has obtained a degree from a national institution of higher education may, within one year after graduation, apply for naturalization.
Birth and Descent
A child born in Brazil to foreign nationals is considered a Brazilian citizen provided that the parents are not employed in the service of their country. A child born abroad to a Brazilian father or mother is considered a Brazilian citizen provided that either of them is employed in the service of the Federative Republic of Brazil. In addition, a child born abroad to a Brazilian father or mother is considered a Brazilian citizen provided that he comes to reside in Brazil and opts for the Brazilian nationality at any time.
In order to obtain Brazilian citizenship, an alien is required to read and write the Portuguese language at a level that accords with his social and intellectual situation. The knowledge of the Portuguese language is measured by asking the alien applicant to read excerpts of the Constitution.
Integration of Immigrants
Brazilian legislation does not establish any specific provision concerning the integration of immigrants into the society.
Legalization of Illegal Immigrants
In 1988 and 1998 Brazil granted amnesty to immigrants who lived in the country illegally. Recently, on July 2, 2009, Brazil issued a new law allowing immigrants who were in an irregular migratory situation and had entered the country before February 1, 2009, to request provisional residency.
For the purposes of Law No. 11,961, an alien was considered to be in an irregular migratory situation when he
I. had entered the country illegally;
II. had been regularly admitted to the national territory but the period of stay had expired; or
III. was the beneficiary of the provisions of Law No. 9,675 of June 29, 1998 but had yet to complete the necessary procedures to obtain permanent resident status.
The request for provisional residency had to be filed with the Ministry of Justice within 180 days after publication of Law No. 11,961. The request had to comply with the provisions of the regulation of Law No. 11,961 and contain the following documents:
I. the original document proving thepayment of the Alien Identity Card fee in the amount corresponding to 25% of the amount charged for the first-time issuance of Permanent Alien Identity Cards;
II. the original document proving thepayment of the registration fee;
III. an affidavit stating that the person was not subject to criminal prosecution or had been criminally convicted in Brazil or abroad;
IV. a proof of entry into Brazil, or any other document that enabled the authorities to verify the alien’s entry into the country before February 1, 2009; and
V. other documents required by regulation.
Aliens who applied for provisional residency were exempt from payment of fines or any other fees besides those provided for in article 4 of Law No. 11,961. Once the request for provisional residency was approved, the Ministry of Justice would issue an Alien Identity Card valid for two years.
Within ninety days prior to the expiration of the Alien Identity Card, an alien could request its conversion into a permanent identity card as long as the request was in accordance with the regulation’s provisions and the alien established
I. the practice of a profession or employment or lawful ownership of sufficient assets to maintain himself and his family;
II. that he had no tax debts and no criminal record in Brazil or abroad; and
III. that he had not been out of the country for a period exceeding ninety consecutive days during the period of provisional residence.
The provisional or permanent residence would be declared null and void if, at any time, it was verified that the information provided by the alien was false. The provisions of Law No. 11,961 did not apply to aliens who were expelled or who, according to the law, were considered dangerous or undesirable.
The Brazilian Constitution confers on the Union the power to perform maritime, air, and border police services, and the federal police exercise these functions by investigating criminal offenses against the political and social order.
The federal police’s jurisdiction extends to property damages, to the services and interests of the Union and its autonomous government entities and public companies, and to other offenses with interstate or international effects that require uniform repression as established by the law.
The federal police prevent and repress smuggling and the illegal traffic of narcotics and illicit drugs without prejudice to actions by the treasury authorities and other government agencies in their respective areas of competence.
Northern Border Protection
In an effort to control and defend Brazil’s borders, in 1985 the federal government launched a program called Projeto Calha Norte. Initially, the program’s objective was to install military units along border strips in the northern part of Brazil to support the civil population and, consequently, prevent and discourage illicit activities in the area.
Today the program is subordinate to the Ministry of Defense and has been renamed Programa Calha Norte. Its main purpose is to maintain Brazilian sovereignty in the Amazon region, promote the Amazon’s orderly development, increase in the Amazon the presence of the appropriate public authorities, and contribute to the national defense.
A demographic decrease in more remote areas and the increase of illegal practices in the region has led to the expansion of the program. In this context, the need for border surveillance and protection of the population has grown substantially. By providing assistance to the local people and promoting socially just and ecologically sustainable activities, the program aims to encourage the population to remain in the Amazon. For this to happen, it is essential that, along with national interests, regional characteristics be respected.
Currently, the program covers 194 municipalities in six states (Acre, Amap?, Amazonas, Par?, Rondônia, and Roraima), with ninety-five of these municipalities extending over 10,938 km (6,796 miles) of the frontier strip. The program has an area of operation corresponding to 32% of the country, and the eight million people who live there include up to 30% of the indigenous population of Brazil.
In 1990 the federal government began developing SIVAM (Sistema de Vigilância Aérea da Amazônia), a program designed to reinforce the protection of the Amazon region. SIVAM began operating in 2002 and consists of a network of radar receivers that enable the detection of clandestine aircraft and such illegal activities as drug trafficking, deforestation, and forest burning.
Brazilian Code of Aeronautics
The Brazilian Code of Aeronautics determines, inter alia, that aviation or tax authorities or the Federal Police may detain an aircraft
I. when it is flying in Brazilian airspace in violation of international conventions or acts, or authorization for such purpose;
II. when it disregards mandatory landing at an international airport after entering Brazilian airspace;
III. for the purpose of verifying certificates and other documents;
IV. to check the aircraft’s load for conformity to legal restrictions (article 21 of Law No. 7,565) or for possession of prohibited equipment (Id. article 21 (sole para.)); [and]
V. to investigate illicit activities.
Paragraph 1 of Law No. 7,565 establishes that aviation authorities may employ any means deemed necessary to compel an aircraft to land at an indicated airport. Once all the coercive methods provided by law have been exhausted, the aircraft will be classified as hostile and subject to destruction upon approval of the Brazilian president or the person to whom such power has been delegated to. The aviation authorities mentioned in article 303(§1) are liable for the use of excessive force.
Decree No. 5,144 of July 16, 2004
On July 16, 2004, Brazil promulgated Decree No. 5,144, regulating the Brazilian Code of Aeronautics, specifically paragraphs 1, 2, and 3 of article 303 of Law No. 7,565 of December 19, 1986. Decree No. 5,144 establishes the procedures to be followed in relation to hostile aircraft or aircraft suspected of transporting illegal drugs, as these aircraft may present a threat to public security.
For the purposes of Decree No. 5,144, an aircraft is considered suspect of trafficking in narcotic drugs if it
I. enters the country without an approved flight plan, coming from regions known to be sources of production or distribution of illegal drugs; or
II. omits information to the organs of air traffic control that is necessary for identification purposes, or does not follow the decisions of these organs if utilizing routes presumably used for distribution of illegal drugs.
Such aircraft are subject to progressive measures of coercive investigation, intervention, and persuasion, to be carried out by an interception aircraft. The objective of these measures is to compel the suspicious aircraft to land at an indicated airport and submit to control measures of the federal or state police on the ground.
When all attempts to persuade the suspect aircraft to land fail and all procedures established in the decree are complied with, the intercepting aircraft may apply a destructive measure by firing at the suspect aircraft to produce damage and prevent it from continuing to fly.
Strategic Border Plan
Overall, Brazil has 16,866 kilometers (10,500 miles) of borders with ten neighboring nations (Argentina, Bolivia, Colombia, French Guiana, Guyana, Paraguay, Peru, Suriname, Uruguay, and Venezuela).
In an effort to increase the protection of the country’s borders, on June 8, 2011, Brazil issued Decree No. 7,496 creating the Strategic Border Plan (Plano Estratégico de Fronteiras) for the purpose of strengthening the prevention, control, inspection, and repression of cross-border crimes and offenses committed in the Brazilian border areas.
The Plan’s guidelines include
I. the integrated performance of public safety agencies, the Internal Revenue Service of Brazil (Secretaria da Receita Federal), and the Armed Forces, and
II. integration with neighboring countries.
The Plan’s goals are
I. the integration of the actions of public security, customs control, and the Armed Forces with the action of states and municipalities located along the border;
II. implementation of joint activities among federal and state law enforcement agencies, the Internal Revenue Service of Brazil, and the Armed Forces;
III. the exchange of information between federal and state law enforcement agencies, the Internal Revenue Service of Brazil, and the Armed Forces;
IV. the creation of partnerships with neighboring countries to implement the measures provided for in article 1 of Decree No. 7,496; and
V. the expansion of staff personnel and the organizational structure for the prevention, control, inspection, and repression of crime along the border.
New Immigration Law
The current Brazilian immigration law was developed during the period of military dictatorship, which occurred in the late sixties and the seventies, and has a national security perspective. At present, legislation prepared by the Ministry of Justice and tailored with a human rights perspective is under consideration in the Chamber of Deputies. The bill’s provisions relate to the entry, stay, and exit of aliens; naturalization; coercive measures; definitions of offenses; and other matters.