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Ohio State Journal of Criminal Law






In May 2017, the government of Brazil enacted a new immigration law, replacing a statute introduced in 1980 during the country’s military dictatorship with progressive legislation that advances human rights principles and adopts innovative approaches to migration management. One of the most notable features of the new law is its explicit rejection of the criminalization of migration, and its promotion of efforts to regularize undocumented migrants. Although the law itself is new, the values embedded in the law reflect recent trends in Brazilian immigration policy, which has embraced legalization, and has generally resisted the use of criminal law to punish unauthorized migration. Indeed, in Brazil, an initial unlawful entry does not carry criminal consequences, and at the level of society, public discourse and policy debates display minimal concern regarding this act. This posture is especially intriguing, given Brazil’s otherwise aggressive focus on criminality and incarceration.

This paper seeks to understand the circumstances that have led to this non-embrace of the criminalization of migration, and in particular, the scarce use of criminal law tools to punish and deter unlawful entry and related acts. The paper explores how a combination of historical factors, present-day conditions, and political forces have largely suppressed practices that dominate in the United States and in parts of Europe. Contemporary Brazilian immigration policies have generally adopted norms of forgiveness and integration — values buoyed by broader geopolitical interests that the Brazilian government has pursued in recent times. Additional factors unique to Brazil undergird the current approach, including Brazil’s history of immigration, current migration flows, and criminal justice priorities. The paper concludes with some cautionary notes, suggesting that the disavowal of criminalization in Brazil may be ephemeral in Brazil’s volatile political climate, and may mask other conditions that create structural vulnerability for noncitizens in the country.



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