Born in Rio de Janeiro on September 21 of this year, Brazilian Lia Sophia Ludeña Arciniegas spent two months without officially existing. Her parents, Venezuelans Melanie and Emmanuel, faced a journey to register their daughter and only succeeded after the intervention of a lawyer.
With the baby’s live birth certificate (DNV) issued by the hospital, the parents’ temporary registration protocol issued by the Federal Police, in addition to other Brazilian and Venezuelan documents, the couple, who have lived in Brazil for a year, went three times to the registry. But their documentation, even though it was official and within the expiration date, was not accepted.
Melanie, 20, says registrars have posed several barriers. First, they demanded the RNM (National Migration Registry), a definitive identity that immigrants only receive after some time in the country. Afterwards, they did not accept her parents’ surname abbreviated in one of the ballots.
According to her, they even took a test to see if they spoke Portuguese and asked for proof that the child “had been made in Brazil”, not in Venezuela. “They wanted to interrogate me, they asked for proof that I didn’t arrive in the country pregnant, I even showed them photos,” she says.
Without a birth certificate, Melanie was unable to take her daughter to the doctor when the child had a problem with her navel. At the health center, she says, they did not accept to see her because they did not have the registration.
The family returned to the registry, this time with Alexia Kilaris, a lawyer for the NGO Mawon, which serves immigrants. “They had documents issued by the PF with a photo, the future number of the RNM, the validity up to date, a QR Code that allows checking the authenticity. Anyone with good will could have registered the child, but the registry refused”, says Kilaris , who only left there after getting the certificate.
Unlike countries that assign nationality through the jus blood (from Latin, right of blood, that is, by ancestry), Brazil adopts the principle of jus alone (right of land), through which children born in the country gain Brazilian nationality. It is in article 12 of the Constitution: Brazilians are “those born in the Federative Republic of Brazil, even if of foreign parents”.
Despite this, entities that help immigrants and refugees have been receiving many couples with difficulties in registering children born in Brazil, a problem that has worsened since the beginning of the pandemic, with the closing of borders and the interruption of the expedition and renewal of documents for foreigners by the Federal Police . In Roraima, the UNICEF (United Nations Children’s Fund) team, for example, received 49 cases of this type between March and August this year.
“The border was closed for over a year. Many people entered the country during this period and were unable to get regularized”, says Tomás Tancredi, child and adolescent protection officer at the agency. “And even those who are regular encounter barriers, because many are not used to certain documents, such as the asylum request protocol [o primeiro que o refugiado recebe, enquanto o caso é julgado].”
He adds that there were also several cases of children registered only in the mother’s name, for not accepting the documents of the Venezuelan father. According to Tancredi, UNICEF has been talking to notary offices in Roraima and has drawn up guidance documents, in addition to notifying the Children and Youth Court.
invisible
About 3 million Brazilians do not have a civil birth certificate, according to the IBGE (Brazilian Institute of Geography and Statistics). It is unknown how many of them are children of immigrants.
According to a report released this month by the Observatório das Migrações Internacional (ObMigra), between 2011 and 2019 104,576 children of foreign mothers were born in Brazil.
The number has been growing year after year, following the increase in immigration to the country. In 2019, the three most common nationalities among mothers were Venezuelan, Bolivian and Haitian.
In July of this year, the Federal Public Defender’s Office (DPU) sent a request to the National Council of Justice (CNJ) for the body to issue a recommendation related to the topic. Currently, the rules governing the activities of notary offices are decentralized, which makes standardization difficult.
Federal Public Defender João Chaves specifies that the request asks that the child be registered regardless of the parents’ immigration regularity and that documents from the country of origin can be accepted. The DPU also urges the CNJ to carry out guidance campaigns, so that notary offices can help solve more complex cases, such as the lack of documents with a photo or with the name of the baby’s grandparents.
“An investigation process must be opened, with referral to the Guardianship Council, if necessary. When the family is simply sent away, many are afraid and give up. Then the child becomes invisible, and we run the risk of mass underreporting.” Chaves reminds us that civil registration is in the interests of the child, not the parents. Without a certificate, they are more vulnerable to rights violations, may be victims of human trafficking and have difficulty accessing the health and education systems.
Gabriel Mattos, assistant judge at the National Court of Justice, recognizes the problem and says that the body is taking action. It also adds that the CNJ is in contact with the Ministry of Justice, the PF and registrar associations to find a solution. According to him, the strict requirement for documents is also part of the concern to avoid fraud, child trafficking and irregular adoption. “But the child can never go unregistered. We have to see how we will do it, if a mechanism will be created to identify those [pais] without documents, for example. We are evaluating.”
The judge cites CNJ resolution 425, from October 2021, which provides for access to the judiciary by homeless people, “but it can be applied, by analogy, to cases of children of foreigners born in Brazil.” One of the articles deals with the need to reduce bureaucracy in the civil registry, specifying that “the lack of civil identification of parents does not prevent [cria obstáculo] the issuance of the Declaration of Live Birth (DNV) and the registration of the child’s birth”.
unknown protocol
In addition to Melanie, the leaf interviewed five other families from three different states. Among them, a Nigerian and a Venezuelan who took three months each to register their babies, a Bolivian woman who does not have a birth certificate herself and therefore cannot register her three-year-old daughter and a refugee from Guinea Conakry who had a child with a Brazilian woman in the interior of São Paulo.
The latter is the athlete Ibrahima Camará, 17, who lives in Tatuí (SP) and presented the CPF and the refuge protocol to register Ahmadou, born in September. “They said they had never seen this document. I sent a link that proves it is valid nationwide, I came back and was told it had expired,” he says. Due to the interruption of services, the PF considers the documents expired during the pandemic valid until March 2022, but Ibrahima wanted to guarantee it and went to São Paulo to renew his. “Then they asked the registry office for me to bring two witnesses. I did. That’s the only way I could, but it was difficult.”
During this period, the baby was not vaccinated – the SUS (Unified Health System) should not deny care, but in practice, such cases happen. After registration, there were four bites at once.
In Aracaju, in the state of Sergipe, an employee of Cáritas Arquidiocesana contacted several notary offices to help two Venezuelan families with uncertified babies. “Each one had a different claim. It is a terrible mismatch of information”, says Irenir Jesus. The organization ended up paying for the sworn translation of a document from one of the couples, required by the registrar. They had already wandered through three registries. “It was so hard they wanted to give up, but I wouldn’t let it.”
Questioned by leaf, Arpen (National Association of Registrars of Natural Persons) says it is working on an agreement with Cáritas on the matter and that it is concerned with legal certainty in the cases of families who do not bring any documents from their country of origin.
Arpen also states that the correct identification of parents is important to avoid “the so-called Brazilian adoption, in which a father registers someone else’s child as his own, and from there, he may incur crimes such as trafficking and smuggling of people, including sale of human organs”. On the other hand, the association’s note highlights the “essential right to birth registration”.
According to Arpen, the civil identification “cannot be adequately supplied by the asylum request protocol, a declaratory document, in which the photo can be pasted by the interested party and, more importantly, whose confirmation cannot be checked by the civil registrar, who does not have access to this Federal Police database”.
Under Brazilian law, however, the refugee protocol is an “identity document valid throughout the national territory” and its holder “has the same rights as any other foreigner in a regular situation in Brazil and must be treated without discrimination of any kind”.
Issued on white paper, the protocol is in fact often refused by banks and other services, due to ignorance. The PF has launched a new model, a kind of card, but even the old model has a verification code that allows its authenticity to be checked on a Ministry of Justice portal – the address appears next to the code.
For defender João Chaves, in many cases there is an “institutionalized xenophobia”, which poses barriers to hinder the immigrant’s access to rights. “Obviously, notaries have to exercise the necessary caution, but this caution has been used to hinder access to rights. Temporary protocols are documents that are valid by law. It is not up to the notary’s office to deny their validity. Furthermore, most of the time the person also presents the passport and other documents of their country of origin.”
According to Chaves, in case of doubt, the registry can initiate a clarification procedure before a judge, but this is rarely done. “Most of the cases dealt with by the DPU are pure and simple denial. They ask the person to come back later with a document that does not exist.”
Another organization that has been accompanying families with this difficulty is the IOM (World Organization for Migration). “Before, it was something sporadic. After the closing of the borders in the pandemic, it became an expressive demand”, says Yssyssay Rodrigues, project coordinator at the IOM, citing cases in Santa Catarina, Rio Grande do Sul, Minas Gerais and Rio de Janeiro.
She cites as good practice what happened in Rio Grande do Sul, where civil registration rules were changed at the end of 2020 to cover the cases of immigrants. “The previous rule was from the time of the Foreigners’ Statute, in the 1980s, it listed documents that no longer exist”, says lawyer Adriano Pistorelo, from the Center for Assistance to Migrants (CAM) in Caxias do Sul.
It was Pistorelo who sent a letter to the State Court of Justice requesting that the rules be updated after receiving requests for help from immigrants who were unable to register births and marriages.
“There were many reports, mainly in very small towns, generating cases of statelessness [ausência de nacionalidade] of children born in Brazil, which is absurd. I talked to the notary offices, some understood, others didn’t. After the change [nas normas], we never had a problem again.”
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