The Citizen Constitution, the Hoerig Case and the Loss of Brazilian Citizenship: The Need for the Approval of PEC 16/21
Alvaro Lima is the Director of Research for the Boston Planning and Development Agency (BPDA) and a WBO Research Fellow. He recently served as Senior Vice President, Director of Research of the Initiative for Competitive Inner City (ICIC), a non-profit organization founded by Harvard Professor Michael Porter. A political economist by training, he is the former Chief of the Economic Department of the Ministry of Industry and Energy in Mozambique and coordinator of Regional Development Projects at the Institute for Social and Economic Research—IPARDES, in his home country Brazil. He is also the Founder of the Instituto Diáspora Brasil (IDB), a community-based, immigrant-led action research organization. Alvaro holds a Master’s in Political Economy from the New School for Social Research. This text was originally written for issue 75 of the WBO Newsletter, published on July 14, 2023. Fill in the form at the bottom of the text to access and subscribe to the WBO weekly newsletter in English.
The Federal Constitution, enacted on October 5, 1988 by the National Constituent Assembly, provides for the possibility of Brazilians having dual or multiple nationality in just two cases: if recognized as a national for having been born in its territory, or as the descendant of a national. In the second case, the acquisition of dual nationality occurs when naturalization is imposed on a Brazilian residing abroad as a condition for staying in the territory of the country of residence or for exercising civil rights.
For years, the official understanding was diametrically opposed: “Brazilian nationality does not exclude the possibility of simultaneously having another nationality. The loss of Brazilian nationality will only occur in the case of a will formally manifested by the individual. In short, when becoming a foreign citizen, through the naturalization process, the Brazilian citizen does not automatically lose his Brazilian citizenship, but rather, he starts to have dual citizenship: Brazilian, by birth, and a foreigner, by naturalization”.
In practice, however, the opinion of the Ministry of Foreign Affairs (MRE) that there was “no restriction regarding the multiple nationality of Brazilians” was confirmed due to the non-occurrence of cases of revocation of nationality. All this changed with the decision of the Federal Supreme Court (STF) in the judgment of the Cláudia Hoerig case, causing great insecurity in the Brazilian emigrant community.
Brazilian Cláudia Hoerig was extradited to the United States in 2018 to respond to the accusation of having murdered her own husband. Although Brazilian law prohibits the extradition of native Brazilians, the STF ruled that she had lost her Brazilian nationality when she became a naturalized American in 1999.
According to the analysis of the STF, the Brazilian who has a Green Card and chooses to acquire U.S. nationality will automatically lose his Brazilian nationality. The basis for such a decision rests on the erroneous assumption that (1) to reside, work and exercise civil rights in the United States, it is enough to have a Green Card and that, (2) the oath of allegiance during the naturalization ceremony constitutes "an act of renunciation of Brazilian nationality.”
The first argument that guides the entire Supreme Court decision does not adhere to reality, since Green Card holders do not have the right to live and work in the United States without restrictions. They can be stripped of their immigration status at any time and deported. Entry into the country can be denied very easily. In addition, the Brazilian holder of a Green Card cannot exercise fundamental civil rights such as voting, holding elected office, serving as a juror and working in positions reserved only for citizens. Other restrictions include entrepreneurial possibilities, restrictions on acquiring loans and tax benefits, and problems with inheritances. Limitations still exist when they decide to apply for visas for their family members. And recently, in the reform of the Social Security system in the United States, limits were placed on access to certain benefits provided by the government for those holding a Green Card.
Finally, it is important to suggest that there is a whole body of literature showing that an individual's migratory status affects their standard of living. Citizenship protects immigrants from exploitation in the labor market, opening up multiple economic possibilities and facilitating occupational mobility – a kind of prize for naturalization. However, with the decision of the STF, many Brazilians will not obtain U.S. nationality for fear of losing their Brazilian nationality and, therefore, will have greater problems of absorption in the labor market and obstacles in occupational advances, income generation, and wealth.
Thus, it seems that the position that states that naturalization is not necessary because the Green Card guarantees “permanence in the territory of the country of residence, or for the exercise of civil rights, does not seem correct. The second reason has less argumentative weight, as it derives from the first, in addition to representing a ritualistic formal obligation.
These questions and concerns raised by the Hoerig case bring up the discussion of dual nationality and inspire the Constitutional Amendment Proposal (PEC 16/21) that amends Article 12 of the Federal Constitution to suppress the loss of Brazilian nationality due to the acquisition of another nationality. Authored by then Senator Antonio Anastasia (Social Democratic Party, PSD-Minas Gerais), the proposal was approved in the Senate in June 2021 and is under analysis by the Committee on the Constitution, Justice and Citizenship of the Chamber of Deputies, the lower chamber on the Brazilian Congress. In the proposed text, the loss of nationality occurs only when the naturalization is canceled by a court decision due to fraud or an attack against the constitutional order and the Democratic State; or when an express request is made by the citizen to the Brazilian government, except for cases that would result in statelessness.
According to the US Census, in 2021, 562,700 Brazilian immigrants live in the United States, a much smaller number than the Ministry of Foreign Affairs (MRE) estimate of 1.7 million. Still according to U.S. Census, 35.9 percent of the 562,700 Brazilians residing in the United States acquired U.S. citizenship, a decision taken without the intention of giving up Brazilian citizenship and in accordance with the guidance of the MRE. Thus, PEC 16/21 will bring legal certainty to these Brazilians and to thousands of others who, due to their family composition, professional requirements, among many other situations, are at risk of losing their Brazilian nationality.
Let us return to one of the basic foundations of the 1988 Citizen Constitution, which is the idea of broad-based citizenship and in alignment with the 1948 Universal Declaration and the Vienna Conference, aimed at recognizing and defending the dignity of the human person. Years ago, we overturned the constitutional amendment approved in 1994 that denied automatic Brazilian citizenship to the children of Brazilians born abroad – the stateless Brazilians. Now, their parents find themselves in this legal limbo. We must approve PEC 16/21 later this year so that the democratic Brazil that is being reborn also welcomes its citizens abroad.
