Case Law
There is very limited case law in Brazil related to citizenship. The Brazilian Federal
Supreme Tribunal (Superior Tribunal de Justiça), the highest court in Brazil, has not
made any rulings on restrictions to the right to nationality based on jus soli norms. The
“” court has, however, made rulings under Brazil’s refugee determination procedure
concerning statelessness and the recognition of the status of stateless refugees,128 but
none relate to Brazilian-born children who cannot access their nationality due to a
denial of birth registration. Most nationality cases litigated before federal court relate
to nationality based on jus sanguinis through the expedited process of writ of nationality
(Ação de Opção de Nacionalidade).129 Brazil requires claimants to petition issues related
to birth registration before ordinary (non-federal) courts. Brazil’s Constitutional Court
(Supremo Tribunal Federal), offers no relevant legal cases. This absence of jurisprudence
might be the result of difficulties accessing justice, particularly the cost and burden of
litigating the series of appeals that reaching one of these courts would require.
Populations at Risk of Statelessness
The indigenous population of Brazil numbers only 817,963 people (0.4%) out of the
country’s population of over 200 million,130 but this group has the highest rate of birth
under-registration in the country. Nationally, 93.4% of Brazilian children under age one
have a birth certificate, but only 57.9% of indigenous children within that age range do;
similarly, 98.1% of Brazilian children all children under age 10 have a birth certificate,
whereas only 67.8% of indigenous children do.131 Brazil’s civil registration outreach
campaigns target indigenous groups in order to address this gap.132
The Brazilian Constitution, Chapter 8, creates a constitutional framework specifically aimed at the recognition and protection of the rights of indigenous people.
Furthermore, Decree 5.051 of 2004 incorporates the International Labor Organization
Convention 169 on indigenous and tribal peoples, and under the mandate of the
Ministry of Justice the National Foundation of the Indigenous (FUNAI), the decree
oversees the promotion and implementation of public policies in favor of indigenous
groups. FUNAI has reported133 that it periodically coordinates activities with the different
federal and local government agencies in charge of identity documentation processes to
ensure the promotion of the right to identity among indigenous groups. Within regions
where services are lacking or communities are hard to reach, FUNAI works with the
National Social Security Institute and its mobile units to facilitate registration. FUNAI
local officers assist in registration of births for indigenous communities that do not
BORN IN THE AMERICAS
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