In a move that clearly seems to be a violation of the Fourteenth Amendment, the State of Texas is apparently refusing to issue birth certificate to children born in the United States whose parents are here illegally:
A number of undocumented immigrants and their children have filed a federal lawsuit against the state of Texas for what they say is a policy designed to deny their U.S.-born children birth certificates.
“Defendants have acted with the intent to discriminate against the Texas-born children on the basis of their parents’ immigrations status, depriving the children of their rights, benefits and privileges granted to all other citizen children,” the complaint says. “Defendants have also acted with the intent of discriminating against undocumented parents on the basis of their immigration status, penalizing them and making their personal/family lives near untenable.”
Lawyers from Texas RioGrande Legal Aid, the Texas Civil Rights Project and the South Texas Civil Rights Project are representing the challengers in the lawsuit, which is being brought against Kirk Cole, the Texas Department of State Health Service’s Vital Statistics Unit commissioner, and Geraldine Harris, the unit chief. The suit started with four mothers,according to the Texas Observer, but has now expanded to well over a dozen parents who say they were denied birth certificates for their U.S. born children.
According to the complaint, undocumented immigrants had previously been able to use a “matricula consular” — a type of ID granted to immigrants by the consulates of their home countries — to meet the requirements to acquire a birth certificate for their U.S.-born children. However, in recent years, officials have stopped accepting matriculas, the complaint alleges, and around 2013 rejection of the matricula became widely enforced. Texas has also not offered an alternative route for the immigrants, according to the challengers, knowing that most undocumented immigrants don’t have to access to the other types of ID that can be used to acquire birth certificates. Foreign passports are only accepted in conjunction with a U.S. visas, for instance.
The complaint says that a vital statistic officer admitted the policy was changed to make it more difficult for U.S. citizen children of undocumented immigrants to receive birth certificates.
“By denying Plaintiff children their birth certificates, Defendants have a category of second-class citizens, disadvantaged from childhood on with respect to health and educational opportunities,” the complaint said. “All Plaintiffs suffered and will continue to suffer irreparable harm. Defendants knew and intended their actions would result in such harm.”
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The complaint says Texas’ actions are at odds with the 14th Amendment, which guarantees children born on U.S. soil citizenship. The suit also accuses Texas of violating the Constitution’s equal protection clause, as the policy discriminates against the immigrants and their children on the basis of the mothers’ origins, as well as the supremacy clause, which says federal law on immigration and citizenship trumps state policy.
As noted, Texas is apparently using as an excuse for the change in policy that is making it harder for immigrants from Mexico and Central America to get birth certificates for their children the idea that the consular documents that they are relying may or may not be genuine. On it’s surface, though, this clearly seems to be a flimsy excuse that doesn’t withstand much scrutiny. For one thing, it would be interesting to find out if Health Department officers in Texas have the same policy regarding consular documents from other nations, such as Canada or European nations. Obviously, there aren’t likely to be as many children born in Texas whose parents are citizens of these countries, but it’s not inconceivable that it could happen and if the state is willing to take similar documents from other nations than there is really no basis to refuse to accept similar documents from Mexico or Central America. Additionally, the admission noted above from a state official that the decision to stop accepting consular documents from certain counties was motivated by the desire to make it harder for children born in the United States to get birth certificates is an extremely damming admission. If it can be proven to the satisfaction of a Federal Judge, it may well be all the Plaintiffs really need to put into evidence to rebut any claims that Texas makes regarding a “rational basis” for the refusal to accept documents that it had been accepting before.
As a matter of law, of course, this is a fairly easy issue. The Fourteenth Amendment makes it clear that, outside of a few minor exceptions that apply to the children of diplomats stationed in the United States, every person born in the territory of the United States is a citizen from the moment they are born regardless of the citizenship of their parents. This comes from Section One of the 14th Amendment, which says:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside
Three decades later, the Supreme Court dealt with the meaning of this provision in United States v. Wong Kim Ark, 169 U.S. 649 (1898), where it said:
[T]he Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.
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The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States.
The Court’s ruling in Wong Kim Ark would seem to be in line not only with the plain language of the Amendment, but also, comments made y one of the framers of the 14th Amendment when it was first pending in Congress:
The author of the 14th Amendment, Senator Jacob Merritt Howard of Michigan proposed the addition of the jurisdiction phrase and stated that it tracked what he believed was already the law of the land. As such, he stated,“This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the family of ambassadors, or foreign ministers accredited to the the Government of the United States, but will include every other class of persons.”
Not surprisingly, of course, the idea of “birthright citizenship” is one that has come under attack from the anti-immigration wing of the Republican Party over the past several years. Five years ago, Lindsey Graham was floating the idea of altering the 14th Amendment’s language in such as way that children of illegal immigrants would not receive citizenship at birth, and even John Boehner, who at that point had not yet become Speaker of the House, was speaking positively about “reviewing” the 14th Amendment’s language and the issue of birthright citizenship. At that time, of course, it was apparent that much of this rhetoric was just pandering to anti-immigrant groups and that there was obviously no real chance that a Republican controlled Congress would “amend” the 14th Amendment in any way. Despite that, after the Republican victory in the 2010 elections, there were moves by these groups to challenge birthright citizenship on both the state and Federal levels. In the Senate, Rand Paul and David Vitter even introduced a bill that would attempted to bring an end to birthright citizenship for the children of illegal immigrants without actually amending the Constitution. These, and most of the other proposals before Congress died out without any real action being taken. However, there’s been a renewed focus on the birthright citizenship issue on the right, and part has been the argument, legally dubious though it may be, that states really aren’t obligated to issue birth certificates to the children of illegal immigrants. This lawsuit in Texas, and the apparent motive behind the new document policy there, seems to be part of that.
The lawsuit was filed in May and there doesn’t appear to have been any action in the matter yet, although that is typical for these types of cases. The law, however, seems to be exceedingly clear on this issue and unless Texas changes its policy it is likely setting itself up for a big loss here.
Here’s the Complaint:
Perales Serenas et al v. Texas Dept. of Health Services by Doug Mataconis
