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The Border War on Birthright Citizenship

When Texas began refusing birth certificates to the U.S-born children of undocumented immigrants, a legendary lawyer fought back

Texas Birth

ALAMO, TEXAS - August 28, 2015: A 2 year-old girl who was born in the U.S. and whose parents cannot get her birth certificate. She and her parents are plaintiffs in the lawsuit. Mexican and Central American undocumented immigrants who reside in Cameron and Hidalgo Counties in South Texas claim they were denied birth certificates for their U.S.-born children. Under the 14th Amendment, all persons born in the United States are U.S. citizens. However, Texas Vital Statistics Unit representatives are refusing to issue birth certificates, asserting the immigrants do not have proper forms of identification. Ilana Panich-Linsman for The New York Times NYTCREDIT: Ilana Panich-Linsman for The New York Times

Ilana Panich-Linsman/The NYTimes/Redux

The first time that María was told that she couldn’t get a birth certificate for her Texas-born infant daughter, she shrugged it off. The 41-year-old mother of five had arrived at the state registrar’s office late in the afternoon, and the clerk seemed harried. “When you’re at work all day and you’re tired and frustrated, you don’t want to deal with people, so you just say, ‘No, come back later,'” María reasoned. “I thought that’s what it was.”

Related: The GOP’s Fake Border War

So María, who asked that only her first name be used because of her immigration status, returned to the same office in the border city of McAllen, Texas to try again. She presented her Mexican passport and her matrícula, an identification card issued by the Mexican consulate, to corroborate that she was indeed the mother of her young daughter. But this clerk was equally unmoved. “Come here with someone who has a Texas ID,” she was told.

In her 14 years in America, María had been rewarded for her persistence. She’d arrived in 2001, fleeing an abusive husband — three children in tow, another soon to be on the way. She didn’t have a plan, and, at first, she was living in the deepest depths of poverty. For housing, she and her four children lived in a little shed next to a pig-pen. For work, she took cleaning jobs, earning $20 a day. But slowly, she’d built a life. She saved up enough to buy a car. She learned how to install irrigation pipes and paint houses. She began charging her own rates, and doing much better. (“I said, Wow, I’m making this money pretty fast!’ It made me happy,” María told me.) By the time her eldest son — who had been deported as a teenager — started attending college in Monterrey, Mexico, María was making enough money that she could pay for his tuition.

But now, Maria needed help. Trying to get her youngest child’s birth certificate for a third time, María asked an Anglo-Texan friend to accompany her to the registrar’s office. Since her friend had U.S. government ID and could vouch for her identity, Maria was hopeful they could navigate the red tape together. This time, María insisted, they would go right after the office opened. “We wanted to catch people there in a good mood,” she says, “but it was the same thing. They wanted a Texas ID or a U.S. visa.”

María didn’t have a Texas ID or a U.S. visa. No undocumented person did. And while no state officials were explicitly questioning whether María’s infant daughter was a U.S. citizen, until María got her daughter a birth certificate, the child’s citizenship would be difficult to prove. So would the fact that María was actually her mother. On a trip to San Antonio, María and her daughter had been stopped at a Border Patrol checkpoint. She showed the agent a photocopy of her daughter’s hospital-issued footprint card. The agent told her that the document was not valid ID. “Now, I’m too scared to go back there,” María says. “They’re going to think I stole her, and if someone takes her away, I won’t know how to fight it.”

In February, when Jennifer Harbury, an attorney for Texas RioGrande Legal Aid, began to hear about cases like María’s, she too thought there must be a mistake — maybe it was just an overly officious clerk on a power trip. But calls kept coming in, and Harbury began to realize that María’s case was far from an aberration. 

“They were turning everyone away,” Harbury tells me. “They clearly got a message that they should just get rid of everybody. These people were going back and forth with the clerks, and then the clerks would say, ‘Try calling Austin.’ A lot of the women did that and they got nowhere. So then they came to us.”

This bureaucratic maze was not just an inconvenience. Women were having difficulties extending Medicaid benefits for their children. They were being told that their children couldn’t enroll in Head Start early-education programs. They were getting turned down for government benefits like Section 8 housing. Even the Catholic Church was telling women that it couldn’t issue an official baptism record without a birth certificate. Many of the mothers had older Texas-born children who had acquired birth certificates just a few years earlier with ease. But something had changed.

So Harbury and her Legal Aid colleagues began to investigate what was going on. What they found was a series of small policy updates that were now having a sweeping impact. In 2013, Texas Administrative Code 181.28 had been amended to exclude foreign passports (unless they had a U.S. visa) from a list of documents considered admissible on birth certificate applications. Around the same time, the Texas Department of State Health Services apparently ordered many of its local offices to stop accepting the Mexican matrícula consular ID. According to a state work group tasked with “strengthening the birth record information system,” changes like these were necessary “to protect Texas residents from identity theft and reduce fraud related to vital records.”

Of course, the updated policies were having another effect: Texas had declared invalid the forms of identification that undocumented immigrants were most likely to have. Undocumented parents could still obtain a birth certificate for their children if they had a valid foreign driver’s license or Mexican electoral identification card, but — unlike passports and matrículas — those documents could not be obtained in the United States. So those parents who had arrived in the U.S. without them (or had been in the U.S. long enough for them to expire) were simply out of luck.

This May, Harbury and attorneys at the South Texas Civil Rights Project filed suit against the state of Texas in federal court on behalf of four immigrant families. By October 1, on the eve of a hearing on the plaintiffs’ request for a preliminary injunction, twenty-one other families had joined the suit as plaintiffs, and the ACLU, the Anti-Defamation League and the governments of Mexico, El Salvador, Guatemala and Honduras had filed amicus briefs.

“We’re just asking the judge to go back to the way it was before,” Harbury tells me. “The state needs to figure out something that doesn’t lock an entire population out of their birth certificates. These parents have the hospital papers and the footprint cards and the Social Security cards for their kids. No one is saying that they weren’t born here.”

In the current political climate, where Donald Trump is bloviating about the scourge of Mexican “rapists” and “anchor babies,” it’s clear that many Americans wish these children hadn’t been. The Texas Republican Party, which has controlled every statewide office since 1999, has long been unequivocal on the issue of birthright citizenship. Its most recent platform calls on Congress to “clarify” Section 1 of the 14th Amendment to “limit citizenship by birth to those born to a citizen of the United States with no exceptions.” For nearly 150 years, the constitutional protection that grants citizenship to “all persons born or naturalized in the United States” has been a pillar of American democracy. Had a few state officials simply decided to take matters into their own hands and “clarify” the 14th Amendment however they saw fit?

Texas border fence

In 2013, an estimated 295,000 children were born in the U.S. who had at least one undocumented immigrant parent, according to the Pew Research Center, accounting for eight-percent of all domestic births. And Texas is home to 1.65 million undocumented immigrants, nearly 15 percent of the national total. It is reasonable to assume that tens of thousands of children are born to undocumented immigrants in Texas every year, and that a great many of them now lack birth certificates. “These quasi-citizens, outcasts, will likely experience the harsh effects of being unable to prove their true status for many years to come,” reads the Mexican government’s amicus brief. “We are witnessing the creation of a vulnerable citizenry: undocumented citizens.” 

Texas is an outlier in this regard, even among states that refuse to accept matrículas. In Arizona, parents can get a birth certificate for their children with a credible witness to attest to their identity and a notorized signature. In Arkansas, they can present a foreign passport without a U.S. visa. In Virginia, they can use a hospital birth letter. Even Mark Krikorian, executive director of the Center for Immigration Studies, a group that advocates for harsher immigration restrictions, told the Austin-American Statesman that “the more I think of it, the more I come down against the Texas argument, reluctantly.”

No one supporting the plaintiffs has been able to point to a smoking gun that reveals the state had a pre-meditated anti-immigrant agenda. In 2010, when Arizona enacted its sweeping SB 1070 law targeting undocumented immigrants, the legislature declared “the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona.” In other words, by cracking down on undocumented immigrants, the state hoped many would leave and fewer would come. But there has been no such declaration in Texas — the state describes its policy as “facially neutral and non-discriminatory.” Despite the fact that Texas politicians take apparent glee in talking tough on immigration and giving Washington the finger, no email has surfaced between state officials that reads, “Let’s squeeze ’em all out.” Even Harbury admits that — unlike in Arizona — the Texas policy grew in fits and starts. “It’s not like someone flipped a switch,” she says.

Still, the timing seems awfully suspicious. The decision to deny foreign passports that lacked a U.S. visa came on the heels of President Obama’s Deferred Action on Childhood Arrivals, a 2012 policy that lifted the threat of deportation for as many as 1.7 million undocumented immigrants. The increasing rejection of the matrícula as a valid ID coincided with the Central American immigration “surge” in 2013 and 2014. And what appeared to be a widening crackdown on the matrícula this year followed a Texas-led lawsuit filed last December to block President Obama’s new executive actions on immigration, one of which — the Deferred Action for Parental Accountability (DAPA) — offers immigration deferrals and work authorizations to the undocumented parents of U.S. citizens.

“In order for an immigrant parent to apply for DAPA, they would need their U.S.-born child’s birth certificate for that application,” Ana Hernandez, a Democratic state representative from Houston, tells me. “I don’t think that it’s a coincidence that after that was announced, they began to enforce this policy.”

When we first filed, I really thought that it would settle — this is so patently crazy!” Harbury told me when I visited her office in the border city of Weslaco in early October. “Everyone else thought the same thing: Two weeks after a certain Republican presidential candidate leaves town, it’ll be over. But someone way upstairs” — Harbury doesn’t claim to know exactly who — “is just saying, ‘No, we want all those kids sent back and we don’t want them showing their face here again — they’re not really citizens.’ And so we are dealing with a constitutional disaster.”

Had a few Texas officials taken matters into their own hands to interpret the 14th Amendment however they saw fit?

Harbury is slight, with shoulder-length hair and intense green eyes that have been described as looking like a hawk’s. Her office is full of clutter. (“I thrive in chaos,” she says.) On her desk are stacks of court papers, some in the process of slowly toppling over. On her walls are various maps of the world, a clue to her outlook and her past. 

Texas’s Rio Grande Valley is a parochial place. It’s not uncommon for a mayor to be cousins with the district attorney who is the brother-in-law of the sheriff and many of the area’s powerful clans have inhabited the area since before there was a border of any kind. But the region also attracts outsiders, both immigrants and refugees coming from the south and do-gooders and dreamers from the north.

Harbury falls into the latter camp. She arrived in the Rio Grande Valley in 1976 after her first year at Harvard Law School. At the time, she was considering dropping out. She had spent the previous year backpacking around the world — “I lived in the Khyber Pass for three months, I washed dishes in Istanbul, I was up in the Arctic Circle” — and she had imagined that a career as an attorney would be a means to pursue worldly humanitarian work. At Harvard, though, she found few kindred spirits. Most of her peers were gearing up for careers on Wall Street or at white-shoe firms. 

But in the Rio Grande Valley, she found the life she wanted. “We were doing strike lines and minimum wage and bilingual education and going back and forth to the other side of the river and out to the colonias for fresh drinking water rights,” she says. “It was like, ‘Wow, that’s what I went to law school for.'” 

Harbury, now 64, has made a career uncovering injustices on the ground, then speaking out about them — forcefully and persistently — until judges and lawmakers take notice. And while it would be easy to caricature her as a boomer lefty — Noam Chomsky and Democracy Now! host Amy Goodman wrote the forwards for two of her three books — that would fail to capture her tenacity. In the 1980s, when federal judges were turning down the asylum applications of her Guatemalan clients, Harbury decided to travel to the war-torn country to document the horrors that many refugees were fleeing. “I was way out in remote jungle areas where the cooperative villages had been burnt to the ground by the Army,” she says. “I’d just send everything back to my friends here who were working 24 hours a day, seven days a week on those cases.” 

Jennifer Harbury

In 1990, she returned to Guatemala to finish a book on female indigenous resistance fighters. While ensconced in a guerrilla camp for thirty days, she fell in love with one of the leaders of the Revolutionary Organization of the People in Arms — a quiet, intensely intelligent Mayan commander named Efraín Bámaca Velásquez. Shortly after the couple married in Texas in 1991, Bámaca was captured by the Guatemalan Army. Harbury launched a campaign to save him — holding hunger strikes in downtown Guatemala City and taking aggressive legal action. She sued the CIA for information and discovered that the agency not only knew about Bámaca’s fate, but that his Army torturers and eventual executioners were paid CIA informants.

Harbury’s current case may lack the drama of her efforts to save her husband, but she sees a similar icy detachment between the halls of power in Texas and the lives of the people whose decisions they impact. In one court filing for the state, Deputy Registrar Lonzo Kerr contends that the plaintiff mothers “have just not made a proper application using the document they have or likely should have.” At the same time, Kerr makes a case for “the flexibility of the rule.” If one parent, such as María, lacks the proper documents, Kerr writes, “there may also be other qualified applicants for the plaintiff children — the other parent, maternal or paternal grandparents, by blood or marriage, for example.”

To Harbury, this all seems deeply out of touch. Grandparents are often far away in Mexico or Central America. Some of the fathers of the children have been abusive, and “there’s no way in hell these women are going to look those guys up,” Harbury says. And the idea that plaintiffs actually have the proper documents, but simply hadn’t filled out their applications properly, was downright insulting — “OK, you really think these women were just so stupid that they didn’t bring their rent receipts?”

“We had a woman who came up from Guatemala and she didn’t have her national ID card, so I asked her why,” Harbury tells me. “She said that when they got to the border, the coyote went to them and said, ‘Pull out all your ID and your telephone books and throw them right here on the ground.'” The coyote told the group of immigrants that he wanted them to pose as Mexicans. The cartels that controlled the Rio Grande charged more for Central Americans to pass — they were farther from home and had fewer options — and if the group was carrying any identification, it could throw off his ruse. “So that’s a problem,” Harbury says, “but really everyone has a problem coming northbound.”

On October 2nd, Harbury appeared in the Austin courtroom of U.S. District Judge Robert Pitman to argue for a preliminary injunction. Pitman, a 2014 Obama appointee who has the distinction of being the first openly gay federal judge in Texas history, began his opening remarks by teasing out the issue. The citizenship of the children was “uncontested,” Pitman said — Section 1 of the 14th Amendment was not on trial — but he wondered if the state was depriving those children the means of “substantiating their citizenship.” In court filings, the state had asserted that birth certificates were not necessary to claim the benefits afforded U.S. citizens. “I’m not going to be persuaded by that,” Pitman declared. “A birth certificate is close to a fundamental right.”

Around fifty people filled the gallery nearly to capacity, a crowd heavy with reporters and law students eager to see the first arguments in a case that had already generated national press. The question at hand, Pitman continued, was whether the state was justified in limiting its list of acceptable documents for obtaining a birth certificate. Yes, the state had a responsibility to make sure birth certificates didn’t fall into the wrong hands, Pitman said, but were its efforts “a solution in search of a problem?”

Harbury, every bit the Harvard-trained lawyer — polished, courteous and measured — spoke about the hardships of the families in the case and implored Pitman to reverse the state’s policy. “What we’re suggesting is the state must open one door to the undocumented parent community,” she said. “Texas is the only state out of 50 that has locked all of the doors, and that is disenfranchisement.”

The state, of course, said it was not so. Assistant Attorney General Tom Albright, with a mop of curly gray hair and a twang, argued there were a “lot of avenues open” for the plaintiffs to obtain a birth certificate, and cast doubt on their motives. “I suspect the agenda in this lawsuit is less about getting birth certificates and more about legitimizing the matrícula,” he said to Pitman, adding that the state’s rules merely created “classes of documents, not classes of persons.”

Pitman then asked Albright if the state had any evidence to back-up its position on birth certificate fraud. Was the state chasing what amounted to “an imaginary concern?” Pitman asked. “If you’re erecting a barrier to a perceived harm, why? Where is the harm?” Albright admitted that, at this time, the state did not have any statistics or studies to support the claim.  

Texas Birth

Nonetheless, two weeks after the hearing, on October 16, Pitman denied Harbury’s motion for a preliminary injunction. He had found the plaintiffs’ arguments “heartfelt, compelling and persuasive,” he wrote, but the case merited a trial with “full factual development and a thorough presentation of evidence.” (The trial will take place some time next year). Some in the press presented this as a ringing victory for the state. (“Judge: Texas May Deny Birth Certificates to Immigrants’ Kids,” read the AP’s headline.) But in truth, it was far from Pitman’s final word, and Harbury had been fully anticipating the outcome. 

“He needs to protect himself, because almost for sure the state is going to appeal it to the Fifth Circuit — which is the worst in the United States, they’re out of control judicially,” Harbury tells me. “So it needs to be airtight.” Pitman’s final ruling will have more sway after a full trial, and Harbury is confident that the plaintiffs will win in the end.

For now, though, Pitman’s decision means María and her daughter remain in limbo. Since her daughter can’t get into day care, María needs to work at night, and all she could find was a shift at a tortilla factory. But the men who worked there were abusive and rude, and a few days before I met her, she’d quit. “I’m not a pushover,” she told me, “I’m not going to allow people to mistreat other people or mistreat me.”

María and I were sitting in the conference room at the Texas RioGrande Legal Aid offices in Weslaco. Case files and law books lined the shelves, and María’s daughter crawled around the floor, weaving in and out of chairs and occasionally twirling beads on a wood-and-wire toy box. María shook her head and turned to her rambunctious baby. “These children don’t exist,” she said. “If you don’t have a birth certificate, you don’t really exist to them.”

In This Article: Immigration

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