ACLU Challenges State Department's Refusal To Issue Passports To U.S. Citizens

Mexican-Americans From Southern Border States Face Delays And Denials

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McALLEN, TX – Today nine American citizens sued the federal government, challenging the U.S. Department of State's refusal to issue them passports because of their race and ancestry and because their births were attended by midwives. The class action lawsuit, filed by the American Civil Liberties Union, the ACLU of Texas, the international law firm Hogan and Hartson LLP and Refugio del Rio Grande, Inc., builds upon a complaint filed earlier this year.

The lawsuit charges that the State Department categorically questions the citizenship of virtually all midwife-delivered Mexican-Americans born in southern border states. According to the lawsuit, the State Department has been forcing these applicants to go to unreasonable lengths to prove their citizenship by providing an excessive number of documents that normally are not required. Then, even after the applicants supply further proof of their citizenship, the Department responds by summarily closing their applications.

"Based on blanket race-based suspicion, the State Department is sending this select group of passport applicants on a veritable scavenger hunt and then refusing to issue them passports without a fair examination of their individual cases," said ACLU Immigrants' Rights Project attorney Robin Goldfaden. "Denying passports to U.S. citizens in this way is clearly against the law and violates our core American values of fairness and equality."

The need for a passport has become particularly urgent for citizens who need or wish to travel outside the U.S. By virtue of the Western Hemisphere Travel Initiative (WHTI), every American who wishes to enter or reenter the U.S. must have a valid U.S. passport or passport card by June 2009. Prior to WHTI, only a U.S. driver's license was required to enter or reenter the U.S. from Canada or Mexico. As a result, there has been a surge in passport applications. Americans who must cross the border daily for work or family obligations but have not yet received their passports will be effectively barred from conducting the everyday business of their lives.

For countless Latinos who were delivered by midwives in the Southwest, however, trying to obtain a passport has become an exercise in futility. Although midwifery has been a common practice for more than a century, particularly in rural and other traditionally underserved communities, the U.S. government has imposed unsurpassable hurdles on midwife-delivered Latinos to prove their citizenship and eligibility for U.S. passports – even when their citizenship has already been established in the past. The government has demanded documents that never existed, like a 1935 census report; that no longer exist, like elementary school records that school districts long ago destroyed; and documents that only the government itself could produce, like immigration documents returned to the Immigration and Naturalization Service years ago.

The lawsuit contends that this pattern and practice by the State Department amounts to discrimination on the basis of race and ancestry in violation of applicants' right to equal protection under the law. The lawsuit also charges that the Department's practices violate due process and the Administrative Procedure Act, which was enacted as a safeguard against arbitrary and capricious government agency procedures.

"The U.S. government has effectively reduced a whole swath of the population to second-class citizenship because of their last names and because they happened to be born at home with a midwife," said Vanita Gupta, ACLU Racial Justice Program staff attorney. "Our clients have more than satisfied the requirements for a U.S. passport. It's wrong for the government to raise the bar to impossible heights and then arbitrarily shelve the applications for an entire group of people."

David Hernandez, a plaintiff in the case, is a U.S. citizen and was born in San Benito, Texas in 1964. Hernandez lived and attended school in the Rio Grande Valley and served honorably in the U.S. Army, earning various medals and ribbons. Hernandez's passport application was closed even after he responded to the Department's demand for additional documents by providing further evidence of his birth and baptism in the U.S., evidence of his mother's residency in the U.S. at the time of his birth, his immunization records, school records, and even a letter from the Mexican Civil Registry stating that there was no record of Hernandez being born in Mexico.

"I thought that in America everyone was supposed to be equal," said Hernandez. "I was born here. I've lived and worked here and served in the Army. I feel betrayed, like my country is stabbing me in the back just because my mother didn't have the luxury of having me in a hospital."

Juan Aranda, also a plaintiff in the case, was born in Weslaco, Texas in 1970 and has lived and worked in the U.S. his entire life. He works as a supervisor at a U.S. company that sells drinking water in Mexico and must frequently cross the border as part of his job. In anticipation of the new passport requirement, he applied for a passport last year and included his birth certificate in the application. He received a letter from the Department stating that more documentation was necessary to prove he was born in the U.S., including records of prenatal care that his mother did not have. Aranda sent in school records, immunization records, his baptismal certificate and a letter explaining that his mother did not receive prenatal care because she could not afford it.

"The cases of Mr. Hernandez, Mr. Aranda, and the other plaintiffs in this case are just the tip of the iceberg," said Lisa Brodyaga, the attorney for Refugio del Rio Grande, Inc. "There are countless other passport applicants like them who have done everything in their power to track down extra evidence, only to be told that their applications were being closed."

ACLU of Texas Legal Director Lisa Graybill said, "For citizens living on the border, a passport is as necessary as a driver's license. It's wrong for the government to deny people their basic rights because their parents could not, or chose not, to have them delivered in a hospital."

Defendants in the case before the U.S. District Court for the Southern District of Texas are Secretary of State Condoleezza Rice, Under Secretary for Management Patrick F. Kennedy, Assistant Secretary of State for Consular Affairs Maura Harty, Passport Services Directorate Managing Director Ann Barrett and the United States of America.

Lawyers on the case, Castelano, et al. v. Rice, et al., for the plaintiff class include Goldfaden of the ACLU Immigrants' Rights Project; Gupta of the ACLU Racial Justice Program; Graybill of the ACLU of Texas; Adam K. Levin, Melissa Henke, David Weiner and Robert Wolinsky of Hogan & Hartson; and Brodyaga of Refugio del Rio Grande, Inc.

The complaint is online at: www.aclu.org/immigrants/gen/36669lgl20080909.html

Podcasts with community leader Father Mike Seifert, Hernandez and Goldfaden are available online at: www.aclu.org/racialjustice/gen/passports.html