How a federal judge navigates immigrant birth rights in Texas

Can Texas deny a birth certificate to someone born on United States soil?

Yes, ruled a federal judge this week, if their parents are using a Mexican identification card.

It’s often an undocumented immigrant’s only documentation, but the fate of the "matricula consular," or Mexican consular ID, as a legitimate form of ID in the US is now facing a major test in a federal court in Austin, Texas.

At issue is a move by Texas Department of State Health Services, starting in 2013, to deny birth certificates to children born to undocumented migrants in the Lone Star State. The reason: The parents’ Mexican ID cards aren’t reliable enough for state archivists to ensure the veracity of the birth certificate. But plaintiffs say an outright refusal to issue a birth certificate denies the child’s rights under the 14th Amendment, which guarantees citizenship to all those born on US soil.

On Friday, US District Judge Robert Pitman refused to issue an emergency stay on behalf of some 28 families – and 32 children – who joined an immigration rights lawsuit filed in May.

While Friday’s ruling came as a clear victory for the state of Texas, it also signaled the judge’s intention to dig deeper into the matricula consular issue at an upcoming evidentiary hearing. That hearing could take the case into the thicket of national immigration politics and, potentially, on a path toward how states can – and perhaps should – authenticate documents for US-born children of immigrants, without exposing their parents to deportation risk.

The issue of US birth rights, epitomized by a US birth certificate, pushes national political buttons, especially after several Republican presidential candidates criticized a so-called “anchor baby” phenomenon, and then suggested the US ditch the 14th Amendment, which grants citizenship to anyone born in the US.

While it’s not clear if Texas’ actions are fueled by immigration politics, the central state complaint – that the matricula consulars aren’t reliable – does have some merit. “Texas has a clear interest in protecting access to” birth certificates, Pitman wrote in denying the emergency stay.

The plaintiffs say Texas is arbitrarily denying the birth certificates, in violation of the children’s constitutional right to be declared US citizens. El Paso immigration attorney Kathleen Campbell Walker told The Christian Science Monitor in May that the state’s actions are “an example of our lack of understanding and lack of compassion.”

Pitman acknowledged that reality, as well, in his ruling.

The fact that parents would have to file for a special permission to enroll a child without a birth certificate in a US school could “expose them to potential criminal liability and removal from the United States,” Pitman wrote. In the same sweep, the judge said the state’s argument that a birth certificate isn’t a vital document “begs credulity.”

The matricula consular has been issued to expatriate Mexicans since 1871. It grew in popularity after Sept. 11, 2001, as the US cracked down on the international flow of money out of terror concerns. Dozens of states and hundreds of banks accept it as valid ID. Its primary purpose is to allow Mexican nationals living outside the country to wire money to family back home.

But the card is notoriously insecure, critics say. The FBI has testified to Congress that the matricula consular is highly vulnerable to fraud, even with its declared security features. The FBI has also pointed to a potential criminal threat posed by the cards, noting that narcotics traffickers are often found in possession of fraudulent matricula consulars.

According to a Congressional Research Service report from 2005, Mexico claims to have added security features to the matricula consular that thwarts identity fraud.

The plaintiffs’ strongest argument may be that Texas had long allowed the matricula consular as an identifying document for the parents on a birth certificate. The sudden shift, they argue, thus seems to have had more to do with national politics and anti-immigration fervor than any abiding state interest.

By Pitman ordering a full evidentiary hearing, the plaintiffs hope that an ultimate ruling will include a compromise by which immigrant parents can safely assure their identity in order to secure a vital document for their US-born babies.

In the end, Texas is obligated to create such a path, Texas Rio Grande Legal Aid attorney Jennifer Harbury said in a statement. The state “may not establish an obstacle course for these children alone,” she said.

Pew found in 2012 that more than 4.5 million US-born children lived with at least one undocumented parent. Officials estimate that around 11 million undocumented people currently call America home.