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Birthright citizenship and Texas birth certificates

October 17, 2015

    In the aftermath of the U.S. Civil War, the Fourteenth Amendment to the U.S. Constitution was adopted on July 9, 1868.  The Fourteenth Amendment includes a Citizenship Clause, which states:

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.

This clause has been read to mean that any child born in the U.S. or its territories is automatically a U.S. citizen.  Acquiring citizenship by the circumstances of one's birth, such as place of birth, is known as birthright citizenship; and approximately 33 countries offer birthright citizenship.

    Against the backdrop of birthright citizenship, there has been a concern that illegal immigrants are having children in the U.S. that become U.S. citizens.  See CNN link.  As the U.S. does not keep any records of births, that duty falls to the states, and each state determines what documentation is required to obtain a birth certificate.  In Texas, the Department of State Health Services determined that it would no longer accept as proof of identification a foreign photo identification card issued by Mexican consulates known as a Mexican matriculas. 25 Tex. Admin. Code § 181.28(i)(11)(D)Serna v. Texas Dep't of State Health Services, Case No. 1-15-cv-446 RP, Dkt 82 at 17-18 (To prevent link rot, I am hosting a copy of this decision through Mega.co.nz). As a result of that decision, a lawsuit was filed by immigrant parents who could not obtain birth certificates for their children.  Serna v. Texas Dep't of State Health Services, Case No. 1-15-cv-446 RP.

    On October 16th, federal district court judge, the Honorable Robert L. Pitman, issued an order denying plaintiffs' request for a preliminary injunction that the Department of State Health Services accept the Mexican matriculas as proof of identification for issuance of birth certificates in Texas.  Serna v. Texas Dep't of State Health Services, Case No. 1-15-cv-446 RP, Dkt 82.  

    As a procedural matter, it is important to note that a preliminary injunction is "an extraordinary remedy and the decision to grant a preliminary injunction is to be treated as the exception rather than the rule."  See Opinion at 5.

    Judge Pitman found that there was a substantial threat of irreparable injury to the Plaintiffs' children.  "[I]t simply begs credulity for Defendants to argue a birth certificate is not a vitally important document.  The rights and privileges of citizenship inure to those who are citizens.  The lack of a birth certificate, or other documentation establishing citizenship, presents a clear bar to access to those rights."  Opinion at 5-9.  Additionally, Judge Pitman found that there was a substantial threat of irreparable injury to the Plaintiff parents because the lack of the birth certificate affects family integrity.  Opinion at 9-11.

   Judge Pitman, however, did not find that the Plaintiffs were likely to succeed with their claims based on the evidence that was presented.  First, the Plaintiffs failed to show that Defendants lacked a compelling interest in protecting the issuance of birth certificates.  Opinion at 14.  Second, the Plaintiffs failed to show that law was not narrowly tailored to be the least restrictive means of achieving the compelling government interest.  This analysis is "not solely a question of law, but rather a mixed question of law and fact."  Opinion at 14.  Texas purported to be concerned with identity theft, reliability of identification documents, and fraud when it decided to no longer accept the Mexican matriculas.  Opinion at 17-19.  However, by singling out the Mexican matriculas compared to other foreign photo identification documents, current student identification, or medical insurance cards, that could lead to an underinclusive policy which would violate strict scrutiny.  Opinion at 19-20.  However, Plaintiffs failed to present any such evidence.  "[T]he arguments of Plaintiffs, while heartfelt, compelling and persuasive, are not enough without substantiating evidence to carry the burden necessary to grant relief to Plaintiffs at this early stage of the proceedings."  Opinion at 22.

   Therefore, Judge Pitman denied Plaintiffs request for a preliminary injunction and requested a full evidentiary hearing on this matter.

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