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

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
& 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/36669lgl20080905.html

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