By Linda Bentley | october 28, 2015
Court denies preliminary injunction in Texas birth certificate case
‘In sum, the arguments of plaintiffs, while heartfelt, compelling and persuasive, are not enough … to grant relief’
Robert L. Pitman
AUSTIN, Texas – On Oct. 16, U.S. District Judge Robert L. Pitman denied plaintiffs’ emergency action for temporary injunction in a case (Maria Isabel Perales Serna v. Texas Department of State Health Services (DSHS), Vital Statistics Unit: case number 1-15-CV-446 RP) brought by a group of illegal aliens against the Texas Department of State Health Services because they are unable to obtain certified birth certificates for their U.S. born children due to lack of acceptable identification.
Plaintiffs claim, because they are in the United States without legal immigration status they have effectively been denied the ability to obtain a birth certificate for children born in Texas, whom they state “are thus citizens of the United States.”
Because they have been unable to obtain birth certificates for their Texas-born children, plaintiffs assert it has created numerous issues, including the right to enroll their children in schools and welfare programs, as well as other services such as baptism and day care.
The Texas Administration Code mandates the person requesting a certified record of birth must be a “properly qualified applicant.”
It also mandates the person requesting the record must “present proof of identity acceptable to the State Registrar.”
Statute sets forth an extensive list of acceptable forms of identification broken down into three categories: primary, secondary and supporting.
A primary identification document includes a variety of IDs issued by the federal or state governments, including driver’s license, military ID, passport and permanent resident card, all of which must be current and valid.
A single primary ID is sufficient to establish identity.
Absent primary identification, an applicant must submit two forms of secondary identification of different types, or one form of secondary identification, which includes expired primary IDs, and two forms of acceptable supporting identification of different types.
Persons without legal immigration status almost universally lack any primary identification documents and many do not have foreign identity documents that would qualify.
Registrars used to accept matricula consular cards, photo documents issued by foreign consulate offices to its citizens residing in the United States.
However, a few years ago registrars began rejecting those IDs.
Plaintiffs sought a preliminary injunction requiring DSHS to determine at least two forms of identification reasonably and actually accessible to illegal alien parents of Texas-born children.
Pitman explained in his order a preliminary injunction is an extraordinary remedy and the decision to grant one is to be treated as an exception rather than the rule.
In order to be granted a preliminary injunction, the moving party must establish the following:
-
a substantial likelihood of success on the merits;
a substantial threat that failure to grant the injunction will result in irreparable injury;
the threatened injury out-weighs any damage that the injunction may cause the opposing party; and
the injunction will not disserve the public interest.
Additionally, Pitman pointed out the party seeking a preliminary injunction must clearly carry the burden of persuasion on all four of the requirements to merit relief.
Defendants stated a lack of birth certificate does not prevent a Texas-born child from attending school or qualifying for Medicaid, pointing to a provision of the governing statute that permits the registrar to issue a “certificate necessary for admission to school,” which is “limited to a statement of the child’s birth.”
According to DSHS, identification is not required to obtain that certificate.
In addition, the Texas Health and Human Services Commission, which administers the Medicaid program, has a gateway to the Vital Statistics Unit and can verify birth records.
Pitman, an Obama appointee, found defendants’ arguments inadequate.
However, while he believed Plaintiffs established, at a minimum, that the deprivation of a birth certificate to their children results in deprivations of the rights and benefits which inure to them as citizens, such as their right to free exercise of religion by way of baptism and their right to travel, he questioned whether the plaintiff parents had met the requisite burden at this particular stage of the litigation.
Pitman stated the plaintiff parents’ sole argument in their pleadings was that they are deprived of their fundamental right to raise and protect their children absent the issuance of a birth certificate.
Because plaintiffs presented evidence that the lack of a birth certificate presented grave difficulties to the parents seeking to obtain public assistance in providing their children with food, shelter and medical care, and, in some cases, getting their child baptized, Pitman found they had sufficiently shown a substantial threat of irreparable injury necessary to meet the first element necessary to obtain a preliminary injunction.
Defendants noted a certified copy of a birth record can be used to obtain numerous identification documents, such as a passport or driver’s license, as well as to commit identity theft.
The state argued, in Texas, birth records are not treated as open records and, in further recognition of the importance of protection of a birth certificate, it is a felony offense in Texas to fraudulently use or possess identifying information of another person, specifically including the “identifying information of a child younger than 18 years of age.”
Pitman concluded plaintiffs did not convince the court that Texas lacks a compelling interest in protecting the issuance of birth certificates.
He went on to state, “As a preliminary matter, the Court notes the record in this case has been an evolving one. At the outset, plaintiffs presented a broad sweeping narrative which suggested an entire class of persons was being deprived, as a matter of law, from obtaining a birth certificate. As the record developed, the evidence became something of a moving target, and unfortunately less clear.”
Pitman found it “particularly troubling” that the affidavits submitted by parents lacked precision in detailing which forms of identification they actually possess or can reasonably obtain.
He said the affidavit testimony made clear there are two sets of plaintiff parents.
The first set established that they either personally have, or another “qualified applicant” has, sufficient identification documents for a birth certificate to issue to the related child.
The other set of plaintiff parents attempted to obtain a birth certificate by presenting documents which do not satisfy statutory requirements and were turned down.
Defendants contend the current ID requirements were adopted due to concerns about identity theft and the reliability of identification documents, which Pitman notes was to address “a real potential for fraud.”
Research undertaken by DSHS “revealed that matriculas are issued by individual Mexican Consulates in the United States, and that the consulates do not maintain a centralized database that keeps track of persons who have been issued a matricula and which consular office issued the person a matricula.”
Additionally, the research revealed Mexican Consulates did not verify the authenticity of the documents presented by persons seeking a matricula, and registrars in only four of 20 states responding to DSHS’ inquiry accepted the matricula as stand-alone identification.”
DSHS also relied on “extensive research” that had already been performed by the U.S. government, whereas testimony provided to Congress by the FBI affirmed the FBI, Department of Justice and U.S. Immigration and Custom Enforcement did not recognize the matricula as a valid form of ID.
Because of these concerns a workgroup was commissioned by the 2011 Texas Legislature to develop recommendations to improve security and effectiveness of the state’s birth registration system.
The workgroup recommended amending the rules to strengthen controls related to the identification required to issue a birth certificate and reducing the number of forms of acceptable identification to reduce the state’s exposure to the presentation of fraudulent documents.
The current regulation was adopted based on the workgroup’s recommendations.
While Pitman was “very troubled” at the prospect of Texas-born children being denied issuance of a birth certificate, he noted plaintiffs had not presented any evidence suggesting defendants had improperly focused on and excluded the matricula and foreign passport without visa as forms of secondary identification.
Pitman stated, “In sum, the 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.”
In denying plaintiffs’ application for a preliminary injunction, Pitman concluded, “[A]lthough 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.”
On Oct. 19, plaintiffs filed an advisory notice with the court of their intent to file a motion to amend their complaint within 30 days to address the various issues identified by Pitman in his ruling.
