Oral arguments in birth certificate lawsuit

Here we go.

U.S. District Judge Robert Pitman heard oral arguments in a lawsuit filed by a group of undocumented parents and their U.S.-citizen children against the state Department of State Health Services, which has effectively blocked the children from obtaining birth certificates.

The families allege that the department has violated the children’s constitutional rights by ordering local county registrars to stop recognizing Mexican consular IDs — known as a matrícula consular — and foreign passports without valid visas, as proof of identification that the parents may use to obtain the vital records. The state argues the documents are susceptible to fraud.

“Is this a solution in search of a problem?” Pitman asked assistant attorney general Thomas Albright, representing the agency, health Commissioner Kirk Cole and State Registrar Geraldine Harris. “What makes this burden necessary?”

Pitman’s remarks came after he told the state’s attorneys he would not allow them to debate the importance of birth certificates, a document he said was “the primary evidence of U.S. citizenship.”

The hearing came after the families asked for an emergency injunction ordering the health department to identify two acceptable forms of identification parents can use to obtain birth certificates.

Attorney Jennifer Harbury, representing the families, reiterated her belief that Texas changed its policies without warning in reaction to the national debate over illegal immigration that reached a fever pitch in 2011. After that, she said, Texas became the only state in the country to prevent undocumented immigrants from getting birth certificates.

But Albright said the families haven’t proven their case enough for Pitman to grant the emergency order, and instead said the issue should play out through a regular trial.

“There is no burden on us to say ‘We’re great. Our rule is perfect,’” he told Pitman. “Today is just one step in what is a longer process. I don’t think they’ve argued the proof that you need.”

Albright also focused on the Mexican matrícula, conceding it has been made more secure and tamper proof but saying it is still susceptible to fraud.

Harbury said the families would be amenable to a ruling that excluded that document from a list of approved items. Her argument, she said, is that nothing else is currently acceptable.

“Forty-nine other states accept another form [of ID],” she said.

Though he seemed to question more than one of the state’s claims, Pitman also appeared hesitant to make a decision without more information. It’s unclear when he will rule.

See here, here, here, and here for the background. If you get the impression that the state didn’t have the strongest argument for its defense, you wouldn’t be alone.

Judge Robert Pittman did not offer many clues about his feelings on the case during the three-hour hearing, but he did grill Albright about the extent of birth certificate fraud, asking several times whether the new state policy was a “solution in search of a problem.”

“If you’re asking if there’s some statistical analysis … I don’t have that,” Albright conceded.

He was quick to add, however: “That’s not my burden.”

Still, the judge did not grant the emergency order, and it is not clear when he will rule. So until then, things will continue to be as they were. The Observer has more.

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6 Responses to Oral arguments in birth certificate lawsuit

  1. Bill Daniels says:

    I’m just wondering about the semantics of this. A bunch of illegal aliens are suing in federal court. Just how are they going to get into the federal courthouse, since they are illegal and have no papers? When they show up and freely admit they are breaking federal law, why aren’t they being arrested, right then and there to be deported?

    The federal government is planning on using their “real ID” intimidation to keep actual citizens from flying on airplanes, by using the TSA to deny citizens with a driver’s license from certain states from getting past security, but people with no US ID at all get to walk right into secure federal facilities? Oh, the irony.

  2. Robbie Westmoreland says:

    Hi, Bill. It’s good that you’re asking questions, because that’s how you learn.

    Your first question was “how are they going to get into the federal courthouse, since they are illegal and have no papers?” You should know that it is not necessary that they ever enter a federal courthouse in the course of this case. They are represented by attorneys, just as the state is, and they and the state officials named in the complaint will probably not appear in person during the course of the case. The involved attorneys representing the parties may also never have entered the courthouse before the hearing last week, since federal courts allow them to file documents over the Internet.

    Your second question was “when they show up and freely admit they are breaking federal law, why aren’t they being arrested, right then and there to be deported?” That’s more complex. First, all that’s necessary to enter a federal courthouse is a photo ID in a much wider range than is, apparently, required to get a birth certificate for one’s child. Court security officers, who are not law enforcement officers, do not ask whether a person who requests entry into the building is has a documented, legal status that allows them to remain in the United States, just as Walmart cashiers do not ask for that sort of thing, because it is irrelevant to their jobs.
    Second, it is not, in fact, a crime to be in the United States without a documented, legal status, so your implication that they are committing a crime is, in fact, wrong. If they have no documented legal status, then the actions (or inactions) that resulted in them being in that situation are probably crimes. For example, crossing the border of the United States from another country in a non-approved manner is a Class C misdemeanor (8 USC 1325), roughly equivalent in severity to a first Driving Under the Influence infraction. Once a person is here, though, even if they did commit a petty misdemeanor to get here, they are not committing a crime merely by being here (sort of the way that the person who drove drunk to get home from the bar is not committing an ongoing crime by driving again, later, after they sober up).

    Your third question is confusing, but I think the gist of it is the last clause, “people with no US ID at all get to walk right into secure federal facilities?” That answer is “yes,” because access to the courts for redress of grievances has been considered an important right, historically, in the United States. It’s only been just over 20 years that an ID of any sort was required to enter most federal courthouses. Now, sadly, anti-government, white Christians have made that untenable, and entry into courthouses is through controlled checkpoints.
    You draw a connection between the accessibility of the courts and actions by the Department of Homeland Security. Just to clarify, the Judiciary is a separate branch of the government, and its policies are different from those of Executive Branch agencies such as the Department of Homeland Security and its subsidiaries. I’ve often wondered why the Legislative Branch doesn’t use its authority to influence the policies of, for example, the Transportation Security Administration, but apparently the parties in control of that branch over the last ten years have been happy with the results of the laws they pass in that regard.

  3. Steve Houston says:

    Bill, in a related note, if the children were born here, they aren’t “illegals”, they are citizens per our laws. While I wouldn’t equate a class C misdemeanor to a class B misdemeanor as Robbie did, denying the children what they are due is wrong.

  4. Bill Daniels says:

    @Robbie: Good answers. I honestly didn’t know that someone could be party to a lawsuit and never appear in court. It’s interesting how when I get a speeding ticket I want to fight, I actually have to appear in court.

    @Steve: Given the current interpretation of the Constitution, I agree. I think that interpretation needs to be changed going forward, but you can’t (and shouldn’t) un-ring the bell of citizenship for those born here to non-citizens (both legal and non-legal).

  5. Robbie Westmoreland says:

    Steve, I actually mis-typed. 8 USC 1325 has a potential range of zero to six months imprisonment and up to $250 in fines for first offense illegal entry. So it’s not a Class C; it’s probably a B depending on how one breaks that sort of thing down. At the federal level, the discussion is really felonies, Class C misdemeanors and “petty offenses,” with the last category including anything that can be determined by a magistrate judge without consent of the defendant.

    Bill, criminal litigation (which most ticketed offenses are) does pretty much require appearance of the defendant at most court proceedings. That’s one of several differences between those actions and civil litigation.

  6. Manuel Barrera says:

    The issue does not seem to be that the state is not issuing birth certificates, from what I have read is that the mothers cannot obtain them because they do not sufficient proof as to who they are. Like the voting ID laws.

    “GOODWYN: Texas doesn’t dispute that the children born in the state are U.S. citizens, but that child’s access to a Texas birth certificate is another issue. Wade Goodwyn, NPR News, Dallas.”

    Source http://www.npr.org/2015/07/20/424722479/immigrants-sue-texas-for-denying-birth-certificates-to-u-s-born-children

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