Everyone born in Texas has a birth record filed with the state and is a U.S. citizen.
But since January 2014, three months after Ellie was born in a children’s hospital in rural Edinburg, the state of Texas has denied her mother’s request for a certified copy of her birth certificate. State officials have repeatedly refused to accept Juana’s Mexican consular card or passport as valid identification, effectively denying the child proof of her identity.
Juana is living in the country without permission and asked that the American-Statesman not use her last name or the real name of her daughter for fear of reprisals.
The denial of a copy of her child’s birth certificate is a problem Juana could share with hundreds of immigrant families in the Rio Grande Valley, more than 25 of whom are suing the Texas Department of State Health Services in Austin. The families say that in prohibiting certain forms of identification in the application for a birth certificate, the agency is depriving Texas-born children their citizenship rights based on the immigration status of their parents.
Texas officials say their precautions are needed to prevent fraud and identity theft.
The case, filed in May, has made headlines in the midst of a growing national debate over immigration, and late last month, the families garnered the support of the Mexican government, which denounced the Texas health department’s rules for putting young people in a “drastic state of vulnerability.”
Lawyers and foreign policy experts say the agency’s policy is part of reactionary measures to cyclical waves of anti-immigrant sentiment that heat up every few years, stemming from a frustration with the federal government’s inability to address immigration reform on a national level.
This year, that narrative has found a new and brazen voice in the surprise Republican presidential front-runner, Donald Trump, who has referred to Mexican immigrants as criminals and rapists and proposed doing away with birthright citizenship. As other candidates join the discourse and up the rhetoric, the federal case over birth certificates is unprecedented, political observers said, and could raise serious implications.
“It stops being about immigration when we are talking about trying to take away the citizenship of children being born in the United States,” said Krystal Gomez, an immigration lawyer in Austin who formerly headed the American Civil Liberties Union Texas office in Brownsville. “At that point, it is not even anti-immigrant. It is anti-Latino.”
Rights vs. security
Both sides of the case are expected in a federal courtroom in Austin as early as October, when U.S. District Judge Robert Pitman will consider whether to order the state Health Department to immediately end its practice of denying birth certificates to parents based on its policies while the case is pending.
Lawyers with the Texas Civil Rights Project and Texas Rio Grande Legal Aid, which are representing the parents, filed the emergency request last month, arguing the agency is causing their children irreparable harm and creating a group of second-class citizens. A certified copy of a birth certificate, they say, is needed to enroll children in school and help them get access to government services, such as Medicaid.
Named in the lawsuit along with the Department of State Health Services are Kirk Cole, its interim commissioner; the Vital Statistics Unit; and the head of that division, Geraldine Harris. The state agency sets the policy, but it is local vital statistics offices that issue the birth certificates.
Texas officials said the rules secure the identities of Texans. Attorney General Ken Paxton, whose office is defending the state, has sought to have the case dismissed. In his response to the latest request from the plaintiffs, Paxton says the policy is necessary, “facially neutral and non-discriminatory.”
At the center of contention is the “matricula consular,” a photo identification card issued by consulates from Mexico and Central American countries in the United States to their foreign citizens living in the country. Chris Van Deusen, a health department spokesman, said the agency’s policy is to not accept these consular cards as a verifying documents to secure a copy of a birth certificate for a child.
“However, local registrars — and there are more than 400 of them around the state — I can’t say that they’ve never accepted them or what each local registrar policy has been over the years,” he said
The cards first came under scrutiny in the aftermath of the Sept. 11 terrorist attacks, when federal authorities said the Mexican government had given out multiple matriculas with different identities to the same person and had no centralized database to track or crosscheck who had received one.
The Mexican government says it implemented such a system in 2006, which now allows consular employees to see what other forms of identification the applicant has filed and received, and keeps scanned versions of previous documents on file.
“It is simply incorrect that we do not verify,” said Carlos González Gutiérrez, consul general of Mexico in Austin. “It is also incorrect to say we don’t have a national database.”
Despite that, the Texas Department of State Health Services concluded in 2008 that the consular cards were unreliable because consulates don’t authenticate the documents presented by applicants.
Two years later, it reiterated its policy in a handbook for local registrars, Van Deusen said. Since then, the department has cracked down on local vital statistics offices that have accepted those forms of identification as found through its yearly audits.
Barring U.S. citizens
Jennifer Harbury, a Texas Rio Grande Legal Aid lawyer, said she started seeing the department slam the door on more parents in the summer of 2012 after the creation of the Deferred Action for Childhood Arrivals program, which allowed eligible immigrants who entered the country unlawfully before the age of 16 to receive renewable two-year work permits.
Enforcement of the policy kicked up again last summer, immigration lawyers said, after thousands of children and young people fleeing gang violence and poverty in Mexico and Central America began arriving at the Texas-Mexico border.
Harbury said she reached out to local vital statistics offices and realized the issues were not isolated and that the only solution was to file a lawsuit. Four families were part of the original complaint. Now nearly 30 — hailing from Brownsville, McAllen, Edinburg and across the Valley — have asked the lawyers for help.
In affidavits, the parents chronicle their stories and frustrations with discrepancies that have sent them in loops of bureaucracy. Many worry about getting their children into school and losing food stamps and Social Security benefits. One mother said her son has not been allowed to return from the Mexican border city of Reynosa without a birth certificate.
Some of the parents say they received birth certificates for their first-born children using the consular cards and were denied years later with the same identification after the birth of another child.
An American-Statesman analysis of the Texas health department records reveals that even the audits have resulted in varying consequences. Brownsville, for example, was audited in 2011 but was not faulted for accepting consular cards until 2014 and again in 2015.
Dallas County, which was reviewed by the department in 2011 and 2014 without being faulted, was swept into the debate in June when it announced it would no longer take the matricula consular as proof of identity. The decision prompted Dallas school district officials to reassure parents who could not receive birth certificates for their children that their sons and daughters would not be pulled out of school if the missing documentation could not be immediately produced.
In Austin and Travis County, where local registrars accept the matricula cards as long as parents also have other verifying documents, officials said they had seen “a huge uptick” in applications from families in other cities where the cards were not accepted, according to emails among county officials obtained by the American-Statesman.
But their policies may soon change. In the emails, officials were told to prepare for calls from constituents as city and county registrars were expecting to receive an edict from the state requiring them to abide by the state restrictions on the card. As of Wednesday, city and county officials said no such notice had been delivered.
The bottom line, the plaintiff’s lawyers say, is that the children were undoubtedly born in the United States and therefore have constitutional rights, regardless of the documents presented by their parents.
“The Fourteenth Amendment is there to protect all people, especially minorities and the disfavored, from being punished or treated as scapegoats,” Harbury said.
The Mexican government, which in August filed a brief siding with the plaintiffs, says the state’s policy not only violates U.S. laws but international rights to identity. By not taking internationally accepted forms of identification, such as a passport, experts said, Texas is interfering in the federal government’s jurisdiction over immigration and hindering relations between Mexico and the United States.
“One of the reasons the courts have strictly treated immigration as a federal policy area — and that federal policy preempts state policy — is that immigration does have foreign relations implications,” said Marc Rosenblum of the Washington-based Migration Policy Institute, a nonpartisan think tank. “Texas shouldn’t be doing things that damage that relationship.”
Texas accepts foreign passports as verifying documents but only if they are accompanied by current U.S. visas, which Van Deusen, the health department spokesman, said it does to verify authenticity. Critics say it creates barriers for unauthorized immigrants.
González Gutiérrez, the Austin-based Mexican consul general, said Texas seems to be the only state not accepting Mexican passports without current visas in the application for a birth certificate, and added that Mexican consulates in the state are tracking the denials.
Guatemalan and Honduran foreign ministries in Texas, which have citizens who have joined the suit, are doing the same.
“We expect a country’s authorities to recognize and honor our passports just like we recognize and honor their citizens carrying its passports in our country,” González Gutiérrez said.
The Mexican government is also interested in the debate over the “matricula” cards. Over the past decade, its foreign ministry has lobbied U.S. governments at the local, state and federal level to accept the “matricula” cards as valid and has beefed up the card’s security to address concerns.
But while Texas and foreign ministries go back and forth about the card’s security, Mark Krikorian, executive director of the Washington-based Center for Immigration Studies, an independent think tank whose research often calls for more restrictive immigration policies, said the more serious issue is the use of the cards to legitimize people who are in the country illegally.
“The matricula card is exclusively for illegal aliens,” Krikorian said. “The only people who need that card for ID are illegal aliens. Everyone who’s here legally has some other form of ID.”
The Mexican “matricula” card is available to any Mexican citizen in the United States as proof of their Mexican nationality and foreign residence. It does not impact or take into account a person’s immigration status, but often, the card is the only form of identification available to unauthorized immigrants who may have lost their personal documents — or were told to dump them by the people who led them into the country — during arduous journeys north.
The acceptance of the card by some government entities in the United States but not others has led to confusion and a battle over identity nationwide. In the face of continued inaction over immigration at the federal level, lawyers and analysts said, state governments are taking matters into their own hands by loosening or tightening regulations for immigrants on policies across the board.
This year, California enacted a law allowing unauthorized immigrants access to driver’s licenses. Virginia’s attorney general began granting in-state tuition to some unauthorized immigrants in 2014. Texas, which was the first state to allow them in-state tuition in 2001, narrowly avoided a vote to repeal that legislation this year and approved a new $800 million budget to tighten security at its border with Mexico.
Still, Krikorian said he’s torn about Texas’ birth certificate requirements. Although he does not believe that children of people who entered the country illegally should be automatically granted citizenship as the Fourteenth Amendment guarantees, that is the law of the land and should not be blocked by a state policy, he said.
“The more I think of it, the more I come down against the Texas argument, reluctantly,” Krikorian said.
Accepting the consular cards for the sole purpose of obtaining a copy of a birth certificate doesn’t legitimize an unauthorized immigrant’s residency, Krikorian said, only that of the U.S.-born child. But, he said, allowing the cards for any other reason — to obtain a driver’s license or open a bank account, for example — would be problematic.
“Those really do legitimize a person’s status,” Krikorian said. “They become a little less undocumented. It’s like a little bit of amnesty every time they use the card.”
Multiple times denied
Juana went three times to the vital statistics office in Edinburg to ask for a copy of her daughter’s birth certificate. The first time, she presented her consular card, the second her Mexican passport and the third, she brought them both, along with Ellie’s hospital records and documents to verify their home address.
Each time, she said, she was turned away. She felt discriminated against and alone in her battle. Then she sought legal help and felt empowered to meet other mothers in her situation.
In Ellie, who is almost 2, Juana, a single parent and a farmworker, sees hope for a better life, like the one that she envisioned for herself when she immigrated to the United States as a teen almost 20 years ago. But without a birth certificate, Juana has had difficulty enrolling Ellie in preschool and fears the child could lose her Medicaid coverage.
The health department is hindering her future, the mother said.
“The state does not ask me about my legal status when I pay my taxes, nor does it ask me about my status when I pay my bills,” she said. “I’ve contributed my part to this country. I’ve helped put food on people’s tables. I cannot leave my daughter without a birth certificate.”