State Department Agrees To Fair Issuance Of Passports To Mexican Americans

The
U.S. Department of State (DOS) has agreed to implement new procedures
designed to ensure the fair and prompt review of U.S. passport
applications by Mexican Americans whose births in Texas were attended
by midwives. Under the agreement, no eligible applicant should be
denied a passport.

The procedural changes are the
result of a settlement agreement following a class action lawsuit filed
by a coalition of civil rights and legal organizations including the
American Civil Liberties Union, the ACLU of Texas, the international
law firm Hogan & Hartson LLP, and Refugio del Rio Grande, Inc.

"The new procedures agreed to by the
government are aimed at restoring the core American values of fairness
and equality to the ways in which it issues U.S. passports," said
Vanita Gupta, staff attorney with the ACLU Racial Justice Program who
worked on the case along with the ACLU Immigrants' Rights Project.
"Citizens will no longer be denied a passport solely because of their
race, ancestry or because they happened to be born at home with a
midwife."

The settlement comes at a
particularly crucial time. The Western Hemisphere Travel Initiative
(WHTI), which went into effect June 1, requires every American who
wishes to exit or enter or the United States to have a valid U.S.
passport or passport card. Previously, citizens needed only a valid
U.S. driver's license to travel between the U.S. and Mexico or Canada.

"For U.S. citizens who live in the
Southwest, a passport is now as necessary as a driver's license," said
Lisa Graybill, Legal Director for the ACLU of Texas. "We are relieved
that US citizens who work, shop, receive medical care, and have family
on both sides of the border will no longer be in danger of losing their
jobs, risking their health, or being separated from family members
simply because of the circumstances of their birth."

Although midwifery has been a common
practice for more than a century - particularly in rural and other
traditionally underserved communities - the lawsuit charged that DOS
was violating the due process and equal protection rights of virtually
all midwife-delivered U.S. citizens living in the southern border
region by forcing them to provide an excessive number of documents
normally not required to prove their citizenship. Then, even after the
applicants supplied further proof of their citizenship, DOS responded
by summarily closing their applications without explanation.

"Because DOS lacked clear standards,
countless passport applicants were treated arbitrarily, said Lisa
Brodyaga, the attorney for Refugio del Rio Grande. "With this
settlement, applicants born with midwives are guaranteed the same full
and fair consideration of their applications as everyone else. This is
especially critical now given that the June 1st deadline of WHTI has
passed."

The lawsuit also charged that the
Department's practices were violating the Administrative Procedure Act,
which was enacted as a safeguard against arbitrary and capricious
government agency procedures. During the course of the litigation,
several of the plaintiffs were granted passports even though they had
been denied previously on the very same showing of evidence of
citizenship.

Pending court approval, DOS will
train its staff on how to fairly weigh all the evidence provided in
passport applications and how to avoid improperly subjecting people
whose births were assisted by midwives in Texas and along the
U.S.-Mexico border to heightened scrutiny in reviewing their passport
applications. All denials will be automatically reviewed by a
three-member panel comprised of experienced DOS staff members, and if
that panel also denies an application, DOS must communicate the
specific reasons for the denial to the applicant. The applicant can
then challenge the denial and ask DOS to reconsider its decision.

Additionally, anyone birthed by a
midwife who has filed an application for a passport between April 2003
and September 15, 2008 and, with a few exceptions, whose application
was not expressly "denied," can re-apply for free. DOS will be setting
up mobile units across the border on specific dates to assist those
reapplying.

DOS has also agreed to restrictions
on a list it maintains of suspect midwives and other birth attendants,
which it purported to use to justify its discriminatory policies.
Importantly, DOS will not deny a passport application simply because
the applicant's birth attendant or midwife is on the list. Furthermore,
DOS will conduct regular reviews of the list to ensure that no one is
included unless DOS has a reasonable, lawful basis to do so. These
measures will help ensure that DOS does force passport applicants to
take unnecessary measures to prove their citizenship and does not
arbitrarily deny passports merely because the individual was born to a
suspect midwife.

"We're very happy that we were able
to come to an agreement with the government that recognizes every U.S.
citizen's constitutional right to be treated with fairness and
equality," said Adam K. Levin of Hogan & Hartson. "You can't deny
basic rights to an entire group of U.S. citizens because their parents
did not deliver them in hospitals."

The attorneys working on the case
include Gupta and Dennis Parker of the ACLU Racial Justice Program;
Lucas Guttentag and Jennifer Chang Newell of the of the ACLU
Immigrants' Rights Project; Robin Goldfaden, formerly of the ACLU
Immigrants' Rights Project; Lisa Graybill of the ACLU of Texas; Levin,
Thomas Widor, David Weiner and Melissa Henke of Hogan & Hartson;
and Lisa Brodyaga of Refugio del Rio Grande, Inc.

A copy of the settlement agreement
and notice about the court-approval process for this class action
settlement is available online at: www.aclu.org/racialjustice/gen/40046lgl20090626.html

A copy of the complaint is available online at: www.aclu.org/immigrants/gen/36669lgl20080909.html

Podcasts with individuals who were
denied passports, community leaders in the Southwest, and attorneys who
worked on the case are available online at: www.aclu.org/racialjustice/gen/passports.html