On 29 August 2018, the Washington Post reported a frightening new immigration-related trend was afoot: the U.S. State Department was stripping passports from U.S. citizens of primarily Mexican heritage, leaving them in a state of limbo and depriving them of their full rights, including the ability to travel outside the U.S. The State Department denies the allegation.
Relaying anecdotes from immigration attorneys on the front lines and from those persons affected, the Post reported that hundreds -- possibly thousands -- of people with U.S. birth certificates provided by Texas midwives have found themselves either trapped in the U.S. or outside its borders, their passports suddenly revoked or their applications denied:
As he would later learn, Juan is one of a growing number of people whose official birth records show they were born in the United States but who are now being denied passports — their citizenship suddenly thrown into question. The Trump administration is accusing hundreds, and possibly thousands, of Hispanics along the border of using fraudulent birth certificates since they were babies, and it is undertaking a widespread crackdown ...
In some cases, passport applicants with official U.S. birth certificates are being jailed in immigration detention centers and entered into deportation proceedings. In others, they are stuck in Mexico, their passports suddenly revoked when they tried to reenter the United States. As the Trump administration attempts to reduce both legal and illegal immigration, the government’s treatment of passport applicants in South Texas shows how U.S. citizens are increasingly being swept up by immigration enforcement agencies.
When we spoke to immigration attorneys who specialize in the issue, they reported seeing an obvious upswing in such cases, particularly in the last year or so. But the State Department has adamantly denied that a "surge" of passport denials or revocations is taking place, nor that a new policy has been enacted which would result in one. The opposite is true, according to spokesperson Heather Nauert:
The facts don’t back up the Washington Post’s reporting. This is an irresponsible attempt to create division and stoke fear among American citizens while attempting to inflame tensions over immigration. Under the Trump Administration, domestic passport denials for so called ‘midwife cases’ are at a 6-year low. The reporting is a political cheap shot.
Included with Nauert's statement was a graph showing that, according to the State Department, "domestic passport denials are at the lowest rate in six years for midwife cases":
But immigration attorneys dealing with such cases say their experience contradicts the State Department's assertions.
"I’ve had probably 20 people who have been sent to the [immigration] detention center — U.S. citizens," Brownsville, Texas-based attorney Jaime Diez told the Post. (We were unable to reach Diez for comment.)
San Benito, Texas, immigration attorney Lisa Brodyaga told us by phone that she too has seen more cases in which passports are being revoked or renewals denied to persons with U.S. birth certificates in south Texas. In addition, she told us, the process of proving citizenship has become much more onerous. Previously, the procedure would involve applicants' suing the State Department over passport denials, and in many cases their passports would be issued when evidence of citizenship was uncovered in the discovery process.
But in the last year or so, Brodyaga said, the government has instead been taking the cases to trial instead of resolving them in discovery, creating a strain on both immigration lawyers and their clients. "That is the most dramatic escalation and the most damaging for us," Brodyaga told us. "We have this gut feeling that they’re doing this to drive us out of business more than anything else."
Houston-based immigration attorney Jennifer Correro, who was quoted in the Post story, told us by phone that many of her clients have had their current passports flagged by the Department of State and then revoked by Border Patrol officers when they arrive at ports of entry from abroad. "It's happening to people in the Rio Grande Valley, big time," she told us. "The people it’s really affecting are those who have midwives on their birth certificates who are suspected of being fraudulent." (U.S. Customs and Border Protection spokesman Daniel Hetlage declined to comment and referred us to the State Department.)
Correro was referring to an issue that has plagued primarily Latino residents of the Rio Grande Valley for years. Between the 1960s and 1990s, dozens of midwives were convicted on fraud charges for claiming that babies who were born in Mexico were actually born in Texas. Although the actual number of babies for whom fraudulent U.S. birth certificates were issued was small in comparison to those who were legitimately born on American soil, Brodyaga said the cases have been used by the U.S. government to cast suspicion on anyone whose birth was attended to by a midwife -- a common practice in a region where many families couldn't afford or had no access to hospitals.
Brodyaga said in the course of prosecuting the midwives the government forced them to hand over their birth registries, and because the women often couldn't recall which children were born in the U.S., everyone they attended to ended up on the list of suspect births. "That’s why you see hundreds of people affected, not because that’s how many births [the midwives] falsified, but [because] that's how many they were forced to claim to avoid going to prison."
Some of those lists ended up with the state of Texas, while others the State Department "sat on" for years, Brodyaga said. "Only fairly recently these lists are being brought out of cold storage and all the people on them are having their passports revoked or denied." But the number of people affected extends beyond those named on the lists if the government considers the midwife listed on a birth certificate to be suspicious, she added.
The consequences for affected Americans go beyond travel restrictions, Brodyaga said. Once a passport is denied or revoked and a birth certificate is flagged as potentially fraudulent, copies of the latter can no longer be issued, making it impossible for the holder to get a driver's license if the extant copies are lost. "And you’ll always be looking over your shoulder, wondering if they're going to put you in deportation proceedings," she added.
The passport issue gained notoriety in 2008 with the imminent implementation of the Western Hemisphere Travel Initiative (WHTI), which required a passport to cross North American borders rather than a birth certificate or state-issued identification. People who lived along the U.S. border applied for passports en masse, and many who had believed themselves to be U.S. citizens by birthright were suddenly faced with demands from the government that they prove it. In many cases the State Department left people in a state of limbo with no recourse instead of issuing outright denials.
Brodyaga, along with the American Civil Liberties Union (ACLU), sued the government, accusing the State Department of having "blanket suspicion" against predominantly Latino passport applicants for no other reason than the fact that they were delivered by midwives near the border in Texas. "[The State Department is] effectively denying the passports of many for the alleged sins of a few," the complaint stated. The case was settled in 2009, with the government agreeing to "fair and prompt review of U.S. passport applications by Mexican Americans whose births in Texas were attended by midwives."
With immigration being perhaps the most fraught issue under the Trump administration, the Post story created an emotional flash point. Democratic lawmakers called for congressional hearings over the specter of U.S. citizens of primarily Mexican heritage being caught in a Kafkaesque trap and relegated to second-class status. "U.S. Citizens in Texas are being denied full rights of citizenship and having their citizenship questioned based on their heritage," U.S. Rep. Joaquin Castro (D-Texas) tweeted, asking his Republican colleagues whether they would "stand up for Texans" or acquiesce to President Trump's harsh approach to immigration.
Allen Orr, vice president of the American Immigration Lawyers Association, told us the denial and revocation of passports creates two tiers of U.S. citizens. "It’s policing poor people to make examples of the entire group -- for example, one immigrant kills someone so they say all immigrants are killers. They take one example from one case of fraud to say all of these are fraudulent," he said. "The correct answer to this should be, punish the person responsible so other people won’t do it, and assume all other documents are valid until proven otherwise."
In a 30 August 2018 statement, ACLU attorney Lee Gelent announced the organization is exploring the possibility of legal action in the wake of the Post story: "The Trump administration’s attempt to deny passports to long-term American residents living in border areas is just one more inhumane act in a series of unlawful actions. We’re investigating and exploring possible legal steps."
The ACLU fought for and won a temporary restraining order over the Trump administration's "zero tolerance" immigration policy, which had resulted in 2,654 children being taken away from their parents when they were apprehended crossing the U.S.-Mexico border. A federal judge has ordered the government to reunite those children with their parents, although hundreds remain separated as the reunification process is ongoing.