Illegal aliens sue to obtain birth certificates for ‘anchor babies’

Defendants have created a category of second-class citizens, disadvantaged from childhood on with respect to opportunities

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illegal crossing signAUSTIN, Texas – A group of illegal aliens from Mexico and Central America residing in Texas filed a complaint in federal court against the Texas Department of State Health Services, Vital Statistics Unit (DSHS), in an effort to obtain certified copies of birth certificates for their Texas-born children, commonly referred to as “anchor babies.”

The term “anchor baby” is used to refer to a child born with birthright citizenship to illegal alien parents, which could facilitate permanent legal residency for family members who would not otherwise qualify.

According to the complaint, filed on their behalf by Texas RioGrande Legal Aid and Texas Civil Rights Project, DSHS officials have refused to provide these illegal alien parents certified copies of their children’s birth certificates based upon the parents’ lack of acceptable identification.

To qualify for a certified copy of a birth certificate, a person must produce personal identification as set forth in the Texas Administrative Code (TAC).

TAC divides acceptable forms of identification (ID) into two categories, primary and secondary.

Primary forms of ID are only available to U.S. citizens or to persons with legal immigration status, such as a permanent resident card, employment authorization document, or a U.S. re-entry or border crossing permit.

Persons who are unable to produce a primary form of ID, may qualify by producing two forms of secondary ID, most of which are also only available to persons with either temporary or permanent legal immigration status.

National identity cards from Central America and Mexican electoral cards are also acceptable as one of the two secondary documents required.

However, the complaint states many persons leave Mexico and Central America when they are still minors and never obtained such identification cards.

Such identification cards cannot be obtained once the person arrives in the United States.

And, for those who once held a Mexican electoral card, they soon find them expired or they have been lost or stolen.

The complaint states various reasons why an illegal alien might have been stripped of their national ID documents even before arriving in Texas.

However, it notes, persons residing in Texas with a recognized immigration status are able to easily obtain replacements for lost or stolen identification documents.

TAC also permits acceptance of a foreign government photo ID card, which for many years included matricula consular cards (matricula) issued by Mexican and Central American consulates to their citizens residing in the United States.

DSHS ceased to accept the matricula a few years ago when it was learned the Mexican and Central American consulates did not verify the person’s information against any sort of database.

And, while passports may be used as a valid ID, DSHS only accepts foreign passports that bear a current U.S. visa.

The complaint alleges the combined regulations and policy changes leave “a very large percentage of the undocumented community without any form of identification acceptable to the defendants; and without any possibility of obtaining such identification.”

Because the TAC leaves hundreds, possibly thousands, of parents from Mexico and Central America with no reasonable alternative to obtain birth certificates, the complaints states the children are left with no birth certificate at all and both the parents and child with no official proof of their parent-child relationship.

A footnote states some of the families have been told the Texas-born child may obtain the birth certificate when he or she turns 18.

The complaint outlines potential obstacles faced by plaintiffs, including Medicaid renewal, school enrollment, travel, Head Start, as well as other programs and “benefits for which their child is eligible.”

Another plaintiff claimed she was having serious problems with her Section 8 apartment and knows she will “face similar obstacles with respect to school enrollment and other benefits due her citizen child.”    

One plaintiff claimed, due to her inability to obtain a birth certificate, she is unable to baptize her child and is very concerned about enrolling her children in school.

In several instances, plaintiffs have given birth to several children over the years and up until just a couple of years ago were able to obtain birth certificates using a matricula and/or a foreign passport without the required U.S. visa.

The complaint claims the plaintiffs suffer harms such as difficulties with school enrollment, travel, medical care and other benefits due to the plaintiff children on the basis of their U.S. citizenship.

It states defendants, in denying plaintiff children their birth certificates, have “created a category of second-class citizens, disadvantaged from childhood on with respect to health and educational opportunities.”

The complaint goes on to state DSHS, by denying birth certificates, has “greatly encumbered the plaintiffs’ ability to care for and raise their children, see to their education, assure their medical care, travel with them, and even establish that the child is indeed their own.”

Alleging discrimination, the complaint asserts DSHS, in deciding to reject the matriculas and foreign passports lacking U.S. visas as valid ID, knew that a substantial percentage of illegal aliens arriving from Mexico and Central America would be unable to obtain birth certificates for their Texas-born children as a result.

The complaint contends DSHS has acted with intent to discriminate against illegal alien parents on the basis of their status, “penalizing them and making their personal/family lives near untenable.”

According to the complaint, a vital statistics officer stated the law was changed in order to keep illegal aliens from gaining legal status in this country.

The complaint states, “There is no reasonable state justification for denying a U.S. citizen his or her own birth certificate on the basis of their parents’ entry into the United States,” or for denying citizens of Mexico or Central America a birth certificate for their Texas-born children.

Claiming discrimination under the 14th Amendment, the complaint contends the children are given unequal treatment by the defendants, as compared with the treatment of all otherwise similarly situated children in the state of Texas.

Specifically, because they are being denied birth certificates on the basis of their parents’ immigration status, the plaintiff children are being denied numerous health, education and legal benefits to which they are entitled, as well as other basic rights of all citizens.

The lawsuit asks the court to issue an injunction requiring DSHS to once again accept the matricula consular cards and/or passports of women seeking birth certificates for their U.S. born children; or in the alternative, to provide the plaintiffs other reasonable access to such birth certificates.

Defendants filed a motion to dismiss claiming, under the 11th Amendment to the Constitution, which states: “The judicial power of the United States shall not be construed to extend in any suit in law or equity, commenced or prosecuted against one of the United States by citizens or subjects of any foreign state,” the court lacks jurisdiction over all claims against DSHS.

The motion cites case law noting the 11th Amendment clause also includes suits brought by a state’s own citizens.

Plaintiffs filed a reply to that motion last week indicating the case pertains to 23 Texas-born children and 19 illegal alien parents.

And, because the children are being denied birth certificates due to their parents’ inability to produce specific identification documents, they face denial of the privileges and benefits to which they are entitled as citizens, including educational, medical, travel, cultural and religious rights, services and opportunities.

Plaintiffs argue the children in this case are facing denial of their rights as citizens.

While immigration statutes expressly permits states to withhold certain federal, state, and local benefits from illegal aliens (8 U.S.C. §§1621 and 1641 (b)), the complaint contends the statute in no way authorizes the states to deny benefits to citizen children and states the federal government has instead taken care to protect the rights of such citizen minors.

Because federal officials were concerned citizen children born to illegal aliens could lose benefits, to which they may be entitled, state officials have been prohibited from questioning parents about their own legal status.

In requesting DSHS’ motion to dismiss be denied, plaintiffs stated, “There can be little doubt that the harsh punishment of both the parents and children in this case will negatively impact matters of foreign affairs. Given the diplomatic concerns, the many clear federal provisions providing for the humanitarian treatment of all undocumented persons, and the federal protection of the rights of all citizen family members, defendants' denial of birth certificates to Texas-born children constitutes a gross intrusion into federally preempted affairs.”

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