Academic journal article Columbia Journal of Law and Social Problems

An Assault on the Fundamental Right to Parenthood and Birthright Citizenship: An Equal Protection Analysis of the Recent Ban of the Matrícula Consular in Texas. Birth Certificate Application Policy

Academic journal article Columbia Journal of Law and Social Problems

An Assault on the Fundamental Right to Parenthood and Birthright Citizenship: An Equal Protection Analysis of the Recent Ban of the Matrícula Consular in Texas. Birth Certificate Application Policy

Article excerpt

I. RECENT CHANGES IN TEXAS'S BIRTH CERTIFICATE APPLICATION PROCEDURE

A.SECTION 181 AND RECENT CHANGES IN POLICY

Under Texas law, parents seeking to obtain birth certificates for their newborns must comply with the rules and procedures established by the DsHs, the state agency statutorily empowered to "administer the registration of vital statistics."1 One crucial DSHS rule that applicants must comply with is 25 Texas Administrative Code 181.28 (Section 181).2 Section 181 mandates that in order for applicants to be "properly qualified" to receive birth certificates for their children, they "must present proof of identity acceptable to the State Registrar."3

Section 181 sets forth an extensive list of acceptable forms of identification, divided into three categories - primary, secondary, and supporting.4 Applicants become "properly qualified" by presenting the state registrar with (1) one form of primary identification,5 (2) two forms of secondary identification,6 or (3) one form of secondary identification, plus two forms of supporting identification.7

Acceptable forms of primary identification are current and valid documents issued by the federal or state governments, such as a driver s license or a United States Passport.8 Some acceptable forms of secondary identification include signed Social Security cards, Medicaid and Medicare cards, and foreign passports accompanied by a visa issued by the Department of State.9 Finally, supporting identification is described as [o]ther records or documents that verify the applicant s identity. 10 DSHS has ultimate discretion in determining whether a supporting identification is acceptable or not.11 Examples of acceptable supporting documents include among other things, a recent utility bill, a current pay stub, a bank account statement, a public assistance letter, an official school transcript, a voter registration card, an automobile insurance card or title, and a social security letter. 12 In total, there are forty-two forms of acceptable identification listed in Section 181.13

One form of identification not included on this list is the matr cula consular, photo identification cards issued by Mexican consulates to citizens of Mexico residing in the United States and other countries.14 Prior to the enactment of Section 181 in 2013, DSHS accepted matr culas as sufficient identification for obtaining a birth certificate.15 Beginning in 2013, however, the state reversed course and through an aggressive campaign of audits, monitoring visits, and other communications with local birth certificate offices, DSHS officials gave strict orders to registrars to reject all consular identifications.16 Later that year, without complying with normal rule-making procedure, DSHS codified the changes as Section 181, which effectively implemented a universal ban on the use of matrículas in the birth certificate application procedure.17 In addition to the refusal to accept matrículas, the new policy also rejected foreign passports without visas, another ID form that is commonly accessible to undocumented immigrants.18

B.POSSIBLE EXPLANATIONS FOR THE CHANGES IN POLICY

The proponents and opponents of Section 181 have put forward different explanations as to why matrículas have been excluded as an acceptable ID form. In justifying the promulgation of Section 181, DSHS officials relied heavily on the McCraw Report, an analysis of the reliability of matrículas presented by Steve McCraw, the then-Assistant Director of the FBI, before Congress in 2003.19 These officials argue that matrículas are unsecure and that the tightening of birth certificate identification requirements since 2013 was motivated by concerns about the authenticity and reliability of source identifications used to obtain birth certificates.20 Marc Connelly, the then-Deputy General Counsel of DSHS, explained that in promulgating the new policy, DSHS was simply mirroring the approaches some federal agencies and states have taken in resolving the uncertainty over the matrículas' reliability. …

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