Recent Court Rulings Block Deferred Action Programs and Raise Questions for Accessing Birthright Citizenship

In a long-awaited ruling, a three-judge panel of the Fifth U.S. Circuit Court of Appeals on November 9 declined to lift an injunction blocking implementation of President Obama’s signature executive action on immigration—a deferred action program that would protect from deportation up to 4 million unauthorized immigrants. The Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and an expansion of the existing Deferred Action for Childhood Arrivals (DACA) program, announced nearly a year ago, were immediately challenged in court by 26 U.S. states and enjoined by a federal judge in Texas.

The Fifth Circuit’s 2-1 decision to leave in place the injunction was not unexpected given that two of the panel judges issued a comparable ruling in the case in May. Within hours, the Justice Department announced its intention to appeal the ruling to the Supreme Court. Four Supreme Court justices must agree to take the case.

The Supreme Court is expected to hear the case, given the significance and scale of the DAPA and DACA programs, and the fact that more than half of all U.S. states are plaintiffs. The timing, however, will prove critical—the Fifth Circuit ruling may have come just in time for the Supreme Court to schedule arguments in the case and issue a decision by the end of its current term in June 2016. However, if the court delays its consideration until the following term, the case will most likely not be decided until 2017, after President Obama leaves office. An important factor is whether the Supreme Court will choose to rule on such a politically charged issue just months before the 2016 presidential election. If the court allows the Obama administration to proceed with the deferred action programs in 2016, federal agencies will have only a few months to launch them before the Obama presidency ends. A later decision would leave the fate of DAPA and DACA to whoever occupies the White House next.

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Documenting Citizenship: Does Texas Policy Undermine Birthright Citizenship?

In a separate case, a federal judge in Texas has permitted the state to continue denying birth certificates to the U.S.-born children of certain unauthorized immigrant parents. On October 16, U.S. District Court Judge Robert L. Pitman in Austin declined to temporarily block a recent state policy to refuse the issuance of birth certificates to children of parents who present consular IDs (matrícula consulars) as a form of identification. For many, the case represents an indirect attack on birthright citizenship as enshrined in the Constitution. Should the policy be upheld, it opens the door to further measures circumventing access to the rights and benefits of U.S. citizenship for which children born on U.S. soil are eligible.

Texas Attorney General Ken Paxton termed the court’s decision an “important first step in ensuring the integrity of birth certificates and personal identity information.” In denying the preliminary injunction, Judge Pitman made clear, however, his “grave concerns” about the state’s policy, and ultimately ruled that the “important and difficult” case merits a full evidentiary hearing. Many immigrant and civil-rights advocates view the ruling as a major setback, but one that may be overcome.

The Ruling

The lawsuit, Perales Serna et al vs. Texas Department of State Health Services (DSHS), centers on a quiet policy shift by the agency’s Vital Statistics Unit, which issues birth certificates. In order to obtain a birth certificate for a child born in Texas, a parent (or guardian) must present certain documents to prove his or her identity. Since 2013, an increasing number of local registrars have stopped accepting as proof of identity the matrícula consular—an ID issued to Mexican nationals by the Mexican government at its consulates abroad—and other consular IDs. DSHS has asserted that it never accepted the consular ID—a stance that appears to be first included in guidance in 2008, but that the department began to enforce more strictly among its 450 local registrars in recent years. Unauthorized immigrants, who are ineligible for most state- or federally issued identification documents, frequently use consular IDs. Texas is home to an estimated 1.46 million unauthorized immigrants, of which 527,000 (or 39 percent) reside with at least one U.S.-citizen child, according to Migration Policy Institute (MPI) estimates.

The plaintiffs—numbering 30 families consisting of unauthorized parents and their U.S.-citizen children—argue that the inability to obtain a birth certificate curtails their children’s privileges of U.S. citizenship, including access to public education, the ability to travel, and eligibility for assistance programs. As a result, the lawsuit contends, the Texas policy violates the equal protection and due process rights of both the children and parents. Furthermore, the lawsuit argues the policy is preempted by federal law, and violates the Texas Administrative Procedures Act because it represents a de facto regulatory change.

Texas has defended the policy, arguing that it is designed to protect against identity fraud and prevent children’s birth certificates from ending up in the wrong hands. The state argues the matrícula is not a secure form of identification because consulates lack the ability to verify applicants’ identities. DSHS has also stated that “vital records contain private information that is confidential by law” and state and local registrars have a duty to protect them.

In weighing the opposing arguments, Judge Pitman found the plaintiffs met the “burden for irreparable harm,” stating that “insofar as a birth certificate is the primary means of documenting citizenship, it follows that a citizen’s right to obtain it is as fundamental as the rights and privileges that flow from the status it documents.” However, he also found that Texas has a compelling interest to protect the integrity of its birth certificates. Whether that interest is compromised by accepting Mexican matrículas could only be determined after hearing all the evidence, the judge concluded.

Hardships to U.S.-Born Children

The outcome of Perales Serna v. Texas has clear consequences for unauthorized immigrants and their families in Texas, and perhaps beyond if the case moves to the Fifth Circuit and potentially the Supreme Court. If the district court, and ultimately higher courts, permit Texas to continue refusing birth certificates to parents who can only present matrículas as identification, their U.S.-born children may face permanent impediments to exercising their rights as citizens and accessing critical benefits and services for which they are eligible under current federal or state law.

For example, Texas statute allows children to enroll in public school with a state-issued “statement of the child’s birth”—a document that does not require identification to obtain. But every U.S.-born child under age 11 and attending a school for the first time must present a birth certificate within 30 days of enrollment or submit other evidence explaining why it is unavailable (which would require parents to disclose their immigration status). Similarly, eligibility for Medicaid in many cases cannot be verified without a birth certificate. The plaintiffs have also contended that at various state offices, birth certificates are required to obtain Women, Infants, and Children (WIC) benefits for supplemental nutrition assistance, federal Section 8 housing benefits, and to enroll in Head Start preschool. Finally, anyone applying for a U.S. passport must present a birth certificate.

The Documentation Challenge

Texas accepts various ID documents for issuing birth certificates. However, since many unauthorized immigrants lack other acceptable documents (including a foreign passport with a valid visa, state-issued ID, or green card) the matrícula has become the most relied-upon form of identification. Thus, the court’s finding on the integrity of Mexico’s consular ID card is pivotal.

Matrículas gained widespread prevalence in the early 2000s, when the Mexican government sought to help its nationals in the United States amid heightened post-9/11 security concerns. Since then, U.S. government and law enforcement agencies and financial institutions have been split on whether to accept them. In 2003, the FBI concluded matrículas are unreliable because they do not truly verify the identity of the card holder. The Treasury Department in 2004, however, issued regulations permitting banks to accept them. Four of the five largest banks in the United States—JP Morgan Chase, Bank of America, Wells Fargo, and Citigroup—accept consular IDs. They may also be used to obtain an Individual Taxpayer Identification Number (ITIN) to pay federal income taxes, and a number of states accept them for driver’s license applications.

The Mexican government maintains that it has significantly improved the security of the matrícula issuance system and the cards themselves by introducing visual and hidden anti-forgery features, interoperable consular ID and security databases, and biometric collection. The lawsuit could thus provide a fresh opportunity to assess the reliability of the Mexican matrículas. In the process, it will allow an examination for the first time of the integrity of consular IDs of other countries.

The Birthright Citizenship Debate

The timing of Perales Serna v. Texas and Judge Pitman’s recent decision amid a flare-up of the national debate over birthright citizenship gives the case heightened legal and political significance. Birthright citizenship, a constitutional right enshrined in the 14^th Amendment, guarantees U.S. citizenship to children born in the United States. It has become a controversial flashpoint in the 2016 presidential election, with some Republican candidates supporting its repeal, and others joining the Democratic candidate field in unequivocal support of the constitutional right. Repeal proponents argue ending birthright citizenship would deter illegal immigration and crack down on “anchor babies” and “birth tourism”—phenomena whereby noncitizens allegedly give birth to children in the United States for future immigration and citizenship benefits.

Most constitutional law experts agree that repealing birthright citizenship would require a constitutional amendment—a difficult challenge to surmount. Some advocates and commentators argue that Texas’ policy of limiting unauthorized immigrants’ ability to obtain birth certificates for their U.S.-born children effectively accomplishes the same result.

Resolution of the Texas case will ripple beyond the state. If the Texas policy is struck down, it will signal to other states that such a policy will not hold up in court. If upheld, states under pressure to crack down on illegal immigration may see similar measures as a policy option. Should such practices become a trend, the current disparate treatment of immigrants under patchwork state and local laws will be deepened.

• Read the Fifth Circuit’s ruling in Texas v. United States
• Read Judge Pitman’s ruling in Texas birth certificate case
• Read a backgrounder on the Mexican matrícula
• Read an MPI commentary on repealing birthright citizenship

National Policy Beat in Brief

Newly Elected House Speaker Paul Ryan Rules out Immigration Reform. On October 29, the U.S. House of Representatives elected Paul Ryan (R-WI) to replace John Boehner (R-OH) as Speaker. In order to win the support of more conservative Republicans, Ryan swiftly promised to not bring immigration reform legislation to the House floor for the remainder of the Obama presidency (which ends in January 2017). He also affirmed that any future immigration legislation must have support from the majority of GOP House members in order to be considered for a House vote. Though Ryan ruled out broader changes to the immigration system, including a measure that would offer legal status to unauthorized immigrants, he left the door open for individual border security and interior immigration enforcement bills.

• Read an NBC News article on House Speaker Ryan’s stance on immigration reform

DHS Extends Work Authorization Relief to Nepali Students. The Department of Homeland Security (DHS) on November 9 announced it will waive certain work and study regulatory requirements to offer economic relief to Nepali students in the United States on F-1 visas. Under the new rule, foreign students who experience extreme hardship as a direct result of the earthquake that struck Nepal in April may request employment authorization, work an increased number of hours while school is in session, and reduce their course load while continuing to maintain their F-1 student status. The negative economic impacts of the 7.8 magnitude earthquake, which resulted in more than 8,500 deaths and the displacement of millions, have exacerbated the widespread destruction and humanitarian challenges, according to DHS. As a result, students whose primary financial support comes from Nepal may lack the means to meet their U.S. living expenses. As of September 19, 2015, approximately 9,326 F-1 students from Nepal were enrolled in courses at U.S. schools.

• Read the DHS regulation for Nepali students

First Central American Minors Approved for In-Country Refugee Processing. Approximately 85 minors have been approved for admission to the United States through the Obama administration’s Central American Minors (CAM) in-country refugee processing program; 10 were granted refugee status, 75 others humanitarian parole. Thus far, applications for 5,400 children have been filed, with the first approved minors expected to arrive within the next few weeks. The program, launched in December 2014, allows parents who are lawfully present in the United States (including permanent residents, holders of Temporary Protected Status, parolees, deferred action recipients, and others) to request refugee status or humanitarian parole for their children affected by violence in El Salvador, Guatemala, and Honduras. To qualify, a child must be unmarried; under the age of 21; a national of Honduras, Guatemala, or El Salvador; and reside in his or her country of nationality. The program’s goal is to provide a safe, legal, and orderly alternative to the dangerous journey to the U.S.-Mexico border by which 40,000 unaccompanied children arrived in fiscal year (FY) 2015 and 69,000 in FY 2014. Increasing gang violence, drug trafficking, and organized crime are key drivers of the flows of Central American children to the United States.

• Read a New York Times article on the CAM in-country refugee program

Renunciation of U.S. Citizenship Spikes. The number of individuals who have chosen to renounce their U.S. citizenship reached 1,426 in the three-month period between July 1, 2015 and September 30, 2015—an all-time quarterly high. Citizenship renunciations have risen steadily in recent years, from an average of 200-400 cases annually prior to 2009, to 1,780 in 2011, 2,999 in 2013 and 3,415 in 2014. Individuals relinquish their citizenship for a variety of personal and financial reasons. However, many attribute the recent increase to efforts by Congress and the Internal Revenue Service (IRS) to pursue U.S. citizens who fail to disclose assets held in international bank accounts. As a result, U.S. citizens living abroad face greater risk of penalty for tax violations and some overseas banks have become increasingly selective in servicing U.S.-citizen clients because of stricter reporting requirements. The United States is the only major industrialized country that taxes all of its citizens, whether they reside on U.S. territory or abroad, for their worldwide income. Each quarter, the IRS publishes in the Federal Register a list of all individuals who have renounced their U.S. citizenship.

• See the Federal Register List
• Read a Migration Information Source article on disillusionment among overseas Americans due to tax-reporting requirements

Senate Fails to Pass Sanctuary City Legislation. On October 20, the U.S. Senate failed to pass the Stop Sanctuary Policies and Protect Americans Act. The bill was designed to crack down on so-called sanctuary cities (jurisdictions that limit their law enforcement agencies’ cooperation with federal immigration authorities), by stripping them of certain federal grants. The measure would also have increased the maximum prison term for an individual who illegally reenters the United States after deportation from two to five years, and imposed a new ten-year maximum sentence on anyone who reenters after being deported three or more times. Additionally, it would have imposed a five-year mandatory minimum sentence on an individual who reenters after deportation following a conviction for an aggravated felony or two or more prior convictions for illegal reentry. The bill failed on a procedural vote of 54 to 45, largely along party lines, and short of the 60 votes needed to defeat a filibuster. Sanctuary city policies gained widespread national attention in July, when an unauthorized immigrant from Mexico who had been deported five times and was recently released from prison shot and killed a 32 year old woman in San Francisco.

• Learn more about the Stop Sanctuary Policies and Protect Americans Act

State and Local Policy Beat in Brief

North Carolina Enacts Sanctuary Cities, ID, E-Verify Law. North Carolina Governor Patrick McCrory on October 28 signed the Protect North Carolina Workers Act, multipronged legislation designed to address the presence of unauthorized immigrants in the state. In an effort to crack down on sanctuary cities, local governments are prohibited from instructing law enforcement agencies to not inquire about arrested individuals’ immigration status or to not share that information with Immigration and Customs Enforcement (ICE). The measure also prohibits use of identification issued by municipalities, counties, or consulates to establish eligibility for state benefits. Additionally, it requires that state and local government agencies only hire contractors who use the E-Verify system to check their workers’ immigration statuses. Upon signing the legislation, Gov. McCrory stated that North Carolina “is standing up for the rule of law. Public safety officials must have the flexibility and tools to investigate crimes and sanctuary city policies deprive law enforcement of those tools." Immigrant rights advocates strongly opposed the law and pressured the governor not to sign it.

• Read Gov. McCrory’s press release on the law
• Read the Protect North Carolina Worker’s Act

Dallas County Announces New Detainer Policy, San Francisco Reaffirms “Sanctuary City” Status. Dallas County Sherriff Lupe Valdez announced in September that Dallas County jails will no longer comply with immigration holds for individuals arrested for low-level, nonviolent crimes. The county will automatically honor requests for those arrested for serious offenses such as murder, aggravated assault, or crimes posing a public-safety threat, such as driving under the influence. Texas Governor Greg Abbott has resisted the new policy, announcing on November 4 that any jurisdiction that does not “honor all ICE detainers for criminal immigrants” will be ineligible for certain state grants. He had previously written to Sheriff Valdez that her decision would not be tolerated, and called on Texas lawmakers to take legislative action against sanctuary cities.

In a policy mirroring Dallas County’s, the San Francisco Board of Supervisors on October 25 unanimously passed a nonbinding resolution stating that prevents the Sheriff’s office from notifying ICE when a suspected unauthorized immigrant is released, except if the subject has been convicted of a violent felony within the last seven years and faces another such charge. In 2013, San Francisco passed the Due Process for All Ordinance, which bars local law enforcement from complying with detainers if a subject is eligible for release, with some exceptions. A detainer or “immigration hold” is an ICE-issued request that a law enforcement agency detain an individual up to 48 hours beyond his or her scheduled release for transfer to ICE custody for potential removal.

• Read a Dallas Morning News story on the new detainer policy
• Governor Abbott’s letter to Sheriff Valdez
• Read an Associated Press article on San Francisco’s resolution