By Lana Shadwock
October 17, 2015
A federal judge signed an order on Friday that denied a preliminary injunction in a lawsuit filed by citizens of Mexico and several Central American nations claiming entitlement to birth certificates for their children born in the United States. They sued the Vital Statistics Unit of the Texas Department of State Health Services saying the agency denied them the certificates because they did not possess the required identification.
As reported by Breitbart Texas in July, the parent plaintiffs of the 23 children claimed that the state of Texas violated their children’s rights because the Fourteenth Amendment provides that any child born on U.S. soil is an American citizen as well as a citizen of the state where they reside. The plaintiffs and their children reside in Texas. La Union del Pueblo Entero, Inc. (“LUPE”) is also a plaintiff in the case. LUPE describes itself as a non-profit organization dedicated to promoting the health, education, labor, and civil rights of indigent farm workers and other low-wage workers in the Rio Grande Valley.
The illegal immigrants filed a lawsuit in U.S. District Court in Austin in June stating that the birth certificates were being denied because of their immigration status. The plaintiff illegal immigrants argued that, “Such refusal is de facto based upon the immigrant status of the Plaintiff parents.”
In the lawsuit, the parents did not refer to themselves as “immigrants,” or “illegal immigrants.” They referred to themselves in their legal capacity “as next friend.”
In the petition filed in federal court in the Western District, the parents cited the Equal Protection Clause and the Supremacy Clause, and alleged that their rights were being violated under these sections.
At issue was the form of identification that was being required of parents by the Bureau of Vital Statistics in border communities. They claim that officials in Hidalgo, Cameron, and Starr counties denied them birth certificates that were lawfully theirs and their children’s.
In the past, a form of identification called “matriculas” or “matricula consular” was accepted for issuance of the birth certificates. As the name suggests, this form of identification is procured from the consulate. The plaintiffs complained that they are now only allowed to show their drivers licenses, or a border identification card, and that visas are required with passports.
As noted in the Court’s October 16th order, Texas law provides an extensive list of acceptable forms of identification, including a passport, Form I-94 accompanied by the applicant’s Visa or Passport, a Mexican voter registration card, or foreign identification with identifiable photo of applicant. A single primary identification document is sufficient to establish identity. Absent these primary forms of identification, an applicant may submit two forms of secondary identification, or one form of secondary identification and two forms of acceptable supporting identification of different types.
As reported by Breitbart Texas, the communications spokesman for the Texas Department of State Health Services, Chris Van Deussen, said the state of Texas has never accepted the consulate form of identification. He said matriculas are not reliable because the issuer of the ID does not verify the data or documents that are shown when procuring the identification. The state spokesman said the department must verify that parents are who they claim to be. He said the agency must not only issue birth certificates, but make sure that valid information is provided. The intent is to not facilitate identification theft or other fraud. Van Deussen denied that the ID requirements had anything to do with immigrant status.
The parents complain that their children are not able to obtain government benefits, including health insurance and social welfare programs, and that they cannot enroll their children into school or get day care services.
The federal court judge concluded in the order on Friday that the plaintiffs have established, at a minimum, that deprivation of a birth certificate results in deprivations of the rights and benefits which inure to them as citizens, as well as deprivations of their right to free exercise of religion by way of baptism, and their right to travel; however, the Court declined to issue a preliminary injunction.
The judge found that the illegal immigrant “Plaintiffs have presented evidence that the lack of a birth certificate for a Texas-born child presents grave difficulties to a parent seeking to obtain public assistance in providing that child food, shelter and medical care. In addition, Plaintiffs have presented evidence that the lack of a birth certificate makes it impossible for at least some parents to have a child baptized.” The Court opined, “The Court thus finds Plaintiffs have sufficiently shown a substantial threat of irreparable injury to the Plaintiff children and parents to meet the first element necessary to obtain a preliminary injunction.”
A preliminary injunction is an extraordinary remedy and the Court noted that to grant a preliminary injunction is the exception, rather than the rule. A party may be granted relief only if they show that they have a substantial likelihood of success on the merits, a substantial threat that failure to grant the injunction will result in irreparable injury, and that the threatened injury out-weighs any damage that the injunction may cause the opposing injury. They must also show that the injunction will not disserve the public interest. Under this standard, the Court declined to give relief to the Plaintiffs at this stage of the legal proceedings.
The 27 page federal order stated that Texas had both a “clear interest in protecting assess to [birth certificates],”and that there are valid concerns about the reliability of the matricula. The Court wrote that the State had “provided evidence which substantiates other governmental agencies, including the FBI, the Department of Justice and United States Immigration and Custom Enforcement, [which] have expressed concerns regarding the reliability of the matricula.”
The Court continued, “Plaintiffs have not presented any evidence which suggests Defendants have improperly focused on and excluded the matricula and foreign passport without visa as forms of secondary identification.”
The Court also concluded that Plaintiffs have failed, at this preliminary stage, to meet their burden of showing a substantial likelihood of success on the merits.
In denying relief at this juncture, the Court concluded in its summary that “although the Plaintiffs have provided evidence which raises grave concerns regarding the treatment of citizen children born to immigrant parents, this case requires additional determinations which can be made only upon development and presentation of an evidentiary record which thoroughly explores the facts and circumstances of the issues raised in this case.”
The Office of the Texas Attorney General represented the state in the lawsuit.
In a statement obtained by Breitbart Texas, Attorney General Ken Paxton said, “Today’s ruling is an important first step in insuring the integrity of birth certificates and personal identity information. Before issuing any official documents, it’s important for the state to have a way to accurately verify people are who they say they are through reliable identification mechanisms. We will continue defending DSHS’s policy on safeguarding Texans’ most sensitive information and vital documents.”
Lana Shadwick is a contributing writer and legal analyst for Breitbart Texas. She has served as a prosecutor and an associate judge in Texas. Follow her on Twitter @LanaShadwick2
By Lana Shadwock