Two lawsuits filed on behalf of Rio Grande Valley residents detail how the federal government targets U.S. citizens born by midwives, opting to revoke the passports and citizenship certificates of those with duplicate birth records in Mexico before conducting any substantial investigation into the circumstances surrounding each case.
In the United States, a person who cannot afford an attorney is not entitled to free, court-appointed counsel in civil proceedings. Anyone whose passport is revoked (or whose application is denied due to question of citizenship) must hire counsel, sue the government, and prove they are a citizen in order to obtain a passport, according to Brownsville, Texas-based immigration attorney Jaime Diez, who represents the families.
The attorney is one of the only in the country with experience litigating the cases. Open Society Justice Initiative published a report titled Unmaking Americans: Insecure Citizenship in the United States last September, in part using his case work in the Southern District of Texas. With the help of pro-bono attorneys, researchers analyzed 111 cases filed between August 3, 2014 and May 31, 2019. The revocation and denial of passports by the Department of State (DOS) – which the Justice Initiative describes as “the discretionary deprivation of Americans’ proof of citizenship” – is identified in the research as one of three ways in which the government seeks to destabilize the security of citizenship among members of marginalized groups. Other identified methods include denaturalization – the stripping of U.S. citizenship from naturalized Americans, as well as political attacks and policy proposals designed to deny citizenship to U.S.-born children with non-citizen parents.
Data gathered by the initiative in its report suggests the Department of Justice (DOJ) is currently defending all cases seeking to confirm citizenship in relation to passports, using time and public resources rather than settling some. This, according to Diez, consistently results in the government concluding the person in question is, in fact, a citizen. “I have sued them so many times I’ve lost count,” he said in March.
The attorney has practiced immigration law in the Rio Grande Valley for over 20 years. Diez estimated he has filed close to 200 lawsuits contesting the issue since he began seeing passports recalled around 2007. “People started having problems getting passports because when they were applying, they were getting lots of questions,” he explained. “In fairness, in these cases, there’s preponderance of the evidence. The problem with the Department of State is they believe everyone is lying. They have a poor way of reviewing these cases. It involves not having attorneys that understand the culture – that understand whether someone is telling the truth or not.”
Diez has found over the course of his practice that DOJ counsel sent to litigate passport revocation cases tend to be unfamiliar with the history and cultural norms in in communities along the U.S./Mexico border, where trans-border lives and families are common. Many residents cross the border for work, shopping, and to access affordable healthcare and prescription drugs on a regular basis. Passports are essential to local lives, livelihoods, and economies. According to the attorney, security at border crossings was intensified post 9/11 and crossing for nonessential reasons became less common later in the 2000s, when violence spilling onto the streets of northern Tamaulipas began to deter residents from making unnecessary trips. “We used to go to Matamoros all the time. We used to have baptisms, we used to go hunting, we came at night and sometimes we didn’t even have documents,” he said.
“Crossing back, they’d ask things like, ‘Where were you? Where are you from? Are you from the U.S.? What were you doing — eating? Where are you going — home? They didn’t check anything. But, to believe that and know that, you have to have done it before. If you go today, they’re probably not going to be that easy coming back. They’re going to check you out.”
According to Diez, DOJ’s protocol has been to send a new attorney every case versus relying on prosecutors already familiar with the issue of midwife births in the Rio Grande Valley. He said, “I’ll get a lawsuit against a midwife and have probably five cases against that midwife — where they’re saying someone born by the midwife was not born here. Instead of getting the same attorney appointed, I get a different attorney. In the years that I have been doing this — I don’t want to exaggerate — I’ve met between 50 and 100 different attorneys representing these cases.”
Though passport denials began under the George W. Bush administration, they continued through the Obama years. A 2009 lawsuit brought by the American Civil Liberties Union (ACLU) resulted in the implementation of 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, according to a release published by the organization at the time of the decision. “Although midwifery has been a common practice for more than a century — particularly in rural and other 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,” the ACLU wrote. “Then, even after the applicants supplied further proof of their citizenship, DOS responded by summarily closing their applications without explanation.”
As a result of the lawsuit, DOS agreed to train its staff on how to fairly weigh all evidence provided in passport applications. All denials were to be automatically reviewed by a three-member panel comprised of experienced DOS staff members. The order also mandated that the panel communicate specific reasons of denial to the applicant, according to the organization. The ACLU reported the agency “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” and that DOS would not “deny a passport application simply because the applicant’s birth attendant or midwife is on the list”.
In a 2018 report published by The Washington Post on midwife cases in the Rio Grande Valley, DOS told the paper it “has not changed policy or practice regarding the adjudication of passport applications and that “the U.S.-Mexico border region happens to be an area of the country where there has been a significant incidence of citizenship fraud.”
Diez emphasized, “If you live at the border, you grew up knowing there’s nothing illegal about having a kid in the United States. The government asks, ‘Well, why would someone be born with a midwife?’ Being born with a midwife is not being born in a cave. I just don’t believe it’s that uncommon.”
According to Diez, Mexican schools used to require students entering 7th grade to obtain an elementary school certificate in order to continue. To receive that document, students needed to provide a Mexican birth certificate. “In Mexico, it is well known that back then, you needed to be a Mexican citizen. The teachers in the school knew the student was born in the United States and would say, ‘All you need to do is go get a Mexican birth certificate so we can give you the diploma.’ That doesn’t mean you were born in Mexico,” said Diez.
This was a common justification someone might have dual registrations, he explained, though the circumstances surrounding individual births may have prompted parents to register U.S.-born children in Mexico for a variety of reasons. With the centralization of Mexico’s birth records and intensified efforts led by U.S. government agencies to digitize records came an upsurge in passport revocation and denial cases. Taking away a passport does not automatically invalidate a certificate of citizenship or naturalization, however, and the Justice Initiative concluded that “Under U.S. law, a passport is construed as a fundamental right pursuant to the liberty interest expressed in the Fifth Amendment Due Process Clause. A passport does not have the same legal significance and effect as a certificate of citizenship or a certificate of naturalization, which can only be legally granted and taken away through a judicial process” — or denaturalization — which could potentially manifest as separate civil or criminal proceedings.
“The rules regulating proof of U.S. citizenship state that birth certificates showing full name, place and date of birth, parents’ full names, and signed and sealed by the official custodian of birth records with a filing date within one year of the birth are ‘primary evidence’ of birth in the United States. A birth certificate is not ‘conclusive proof’ of U.S. citizenship, although it may be “almost conclusive” when made ‘contemporaneously with the birth,'” their report concluded.
Anyone who does not have a birth certificate or whose place of birth is questioned by DOS must establish birth with secondary evidence, which is defined under the U.S. code as:
“Sufficient to establish to the satisfaction of the Department [of State] that he or she was born in the United States. Secondary evidence includes but is not limited to hospital birth certificates, baptismal certificates, medical and school records, certificates of circumcision, other documentary evidence created shortly after birth but generally not more than 5 years after birth, and/or affidavits of persons having personal knowledge of the facts of the birth.”
DOS reserves discretion to require passport applicants to provide “any evidence it deems necessary” to prove citizenship, including evidence not listed above, according to the researchers. Their analysis cited instances of DOS issuing a one-way travel document facilitating return to the United States if a person’s citizenship comes under question abroad, but noted that such documents “may be confiscated by U.S. Customs and Border Protection [CPB] upon arrival, potentially leaving the holder without proof of identity.”
Over the course of its investigation, the Justice Initiative found that several plaintiffs were granted passports while litigation was ongoing “even though they had been denied previously on the very same showing of evidence of citizenship”. The report was unable to state conclusively the number of passport denials and revocations has increased in recent years, though analysis of proceedings in the Southern District of Texas showed a 64.5% increase in the number of cases “seeking to confirm citizenship” in relation to passport revocations and denials under the Trump administration from January 2017 until the document’s publication. “The odds are massively stacked against anyone whose citizenship comes under question by the DOS, the agency responsible for issuing U.S. passports,” it stated. This conclusion, according to the report, is particularly evident in the cases U.S. citizens who are abroad and attempting to return to the United States — who in such circumstances must seek permission to enter the U.S. as non-citizens and subject themselves to the immigration system, which places non-citizens without documents in removal proceedings.
Similar circumstances arose in a case filed by Diez in federal court in Brownsville in March in which a woman born in 1982 in Del Rio, Texas was detained by CBP at the Port if Entry in Hidalgo upon her return from Mexico with a valid passport. The woman, M.M.A., allegedly filed a visa petition for her spouse in 2016, causing U.S. Citizenship and Immigration Services (USCIS) to initiate an investigation and request to DOS that the agency revoke her passport. The petition for a writ of habeas corpus filed on her behalf alleged that in August 2018 the woman was “returning from a brief trip to Mexico to visit her mother, and without any prior notice that the government had questions about her birth, when she presented her valid and unexpired U.S. passport to CBP, she was detained by CBP because they claimed that she is not a U.S. citizen.”
CBP confiscated the woman’s passport and her passport card, both of which were in her possession as she attempted to cross back in to the United States. M.M.A. was then detained at the Hidalgo Port of Entry for five days. “She was told she was born in Mexico, not Texas, and that she had a fraudulent U.S. passport. While she was there, respondents attempted to force her into (falsely) admitting that she was not born in Texas,” Diez wrote.
CBP took the woman to the Port Isabel Detention Center (PIDC) in Los Fresnos, where she was held for an additional three days. Finally, eight days following her initial detention, M.M.A was taken from PIDC to the U.S. Customs and Immigration Enforcement (ICE) office in Harlingen, where she was released on her own recognizance and required to report periodically while her case was forwarded to immigration court. “She was born with a midwife and her father was a U.S. citizen. When she filed a petition to immigrate her husband, they investigated it and found she had a Mexican birth certificate, then referred the case to DOS saying they needed to cancel the passport,” explained Diez.
Even if M.M.A. were born in Mexico, her father was 44 years old at the time of her birth and had lived his entire life in Texas, he added. “Her dad would pass citizenship to her. She’s a citizen no matter what.”
The woman was stopped at the Hidalgo Port of Entry nearly 20 months ago. This March, she was still waiting to see an immigration judge. According to the petition, M.M.A. is still under order from the Department of Homeland Security (DHS) to report periodically while her case is supposedly being reviewed. At the time the lawsuit was filed on March 31, she had been reporting to ICE for 17 months while no Notice to Appear (NTA) had been filed by the agency. On top of that, Diez said the letter revoking M.M.A.’s passport was sent to an old address. “They’re not required to find you. They’re just required to send a letter to the last known address; that address might not be where you filed the application 10 years ago.”
Diez recited an entire history surrounding M.M.A.’s birth in Del Rio that would have been easily accessible to investigators in their own discovery process. His client’s father, born in Del Rio, was 18 years older than her 16-year-old mother, who was from Mexico. “She met the guy in Del Rio and he turned out to be a bad person. He was in prison for drugs. But, he was from a well-known family in Del Rio,” recalled Diez.
The father is now deceased. In Del Rio, the family has street named after them and also donated a park to the city. According to the lawsuit, M.M.A. was born in Del Rio in 1982. The petition stated she was “delivered by Guadalupe Guerrero, a friend. Her birth was not registered until August 1985. Even if M.M.A. was not born in Texas, she would still be a U.S. citizen through acquisition, since she is the child born abroad of a U.S. citizen father who was physically present in the U.S. for at least 10 years prior to her birth, five of which were after he was fourteen years of age.”
M.M.A.’s parents met in Del Rio in the early 1970s. Her mother’s parents didn’t want them to marry, so she eloped, according to testimony gathered by Diez. Her husband flew her to the San Antonio area, where they lived together and had two daughters. The father would often travel without telling the family where he was going. M.M.A. was born in Del Rio after he returned from a long absence with the assistance of her grandmother, her father’s sister, and the midwife, Guerrero, according to the lawsuit.
Shortly after M.M.A.’s birth, her parents moved to Guadalajara, where her father began to counsel her mother not to inform anyone of their location. The child was baptized in Guadalajara and the baptismal certificate obtained by Diez confirmed she was born in Del Rio. As baptisms require a birth certificate, however, her father registered her in Mexico using a false name indicating she was born in Guadalajara. Later, the family would learn he was a fugitive.
The petition established that the father was kidnapped twice while in Mexico. M.M.A. and her siblings were kidnapped in a separate incident, prompting the family to return to Del Rio. There’ Guerrero assisted the couple in the birth of two more daughters. M.M.A’s father moved the family to Canada, where the couple was married, causing the government to become aware of the father’s presence in the country and initiate a search for him. According to the lawsuit, the parents relocated the family Coahuila, then back to Del Rio, then to Monterrey. One day, while the mother was traveling to Guadalajara with one of M.M.A.’s sisters, they were stopped by soldiers and federal police, who “tortured her, beat her, and left her for dead on the side of the road,” the attorney wrote.
The family relocated to Roma, Texas, then up to San Antonio, then to Mission, near McAllen. All the while, the father’s illicit activities continued, ultimately leading to the couple’s arrest. M.M.A.’s mother served 13 years in prison. Her father died in federal custody in the early 2000s. Diez found documents made by the man using at least three aliases. “We have proof that he was in prison. [M.M.A.] is not at fault for that. It puts into context all this evidence the government has of her birth, why she was registered late, and the fact that there’s no question the father was in the U.S. for many years before she was born, because he was in federal prison,” he said.
Yet, when USCIS interviewed M.M.A.’s spouse in 2016, officials commenced an investigation which found the woman was not a citizen, referring the case to the DOS to revoke her passport. This prompted CBP to detain her when she presented at Hidalgo for re-entry. “When I found out she was kept five days at the port of entry — they don’t even keep Cubans for that long. She was sleeping in a chair. She came back with her ex-husband, so the ex-husband kept her daughters. If I had known, I would have filed a lawsuit and they would have released her immediately. It’s unlawful for the U.S. to keep someone for almost eight days, detained, because they want someone to admit they were not born here,” Diez remarked. “Once they realized she was not going to crack, they served her with a document that most attorneys would not even know what to do with.”
The lawsuit filed asserts that it is now the policy of CBP to “interrogate and detain any person seeking entry with a facially valid U.S. passport, if they have received word from the Department of State that said passport has been revoked,” Her attorney argued this is in violation of the Fifth Amendment of the U.S. Constitution, as well as binding authority from the U.S. Court of Appeals for the Fifth Circuit and the Supreme Court of the United States, citing two cases setting precedent:
“Worthy v. United States (5th Cir, 1964): [It is a] fundamental right, inherent in citizens of all free government, peacefully to dwell within the limits of their respective States, to move at will from place to place therein, and to have free ingress thereto and egress there from, with a consequent authority in the States to forbid and punish violations of this fundamental right.”
“Hernandez v. Cremer (5th Cir, 1990): the right of a United States citizen to enter the country is a right ‘which the fundamental law has conferred upon him,’ and holding that a person with facially valid documents showing U.S. citizenship is entitled to fair procedures in determining whether they will be allowed to enter the U.S. or placed in immigration proceedings.”
Diez alleges that “neither USCIS nor DOS provided her with notice and an opportunity to be heard, in order to address any concerns they had regarding her birth in Texas, and to provide evidence thereof. Instead, on information and belief, it is alleged that DOS requested that CBP detain and interrogate her.”
The document also asserts that USCIS opened a “sua sponte investigation of her citizenship, without allowing her to inspect and rebut any adverse evidence discovered, or present live witnesses to corroborate her U.S. citizenship, and on the basis of that investigation, to request that DOS revoke her U.S. passport, where final agency actions for which there is no other adequate remedy in court.”
Diez requested a permanent injunction ordering M.M.A.’s documents returned to her possession “and enjoining defendants from detaining and interrogating for more than four hours, a person with facially valid documents showing U.S. citizenship, absent a showing that the person presents a danger to the community, and/or a significant risk of flight.”
The attorney asked the court to mandate her release from custody by cancelling the order of release on her own recognizance and requirement that she report to DHS. “Plaintiff also urges the Court to conduct a de novo hearing on the issue of her U.S. citizenship, and thereafter, issue a Declaratory Judgement, declaring [M.M.A.] to be a U.S. citizen.”
A final request asked the court to require the government to remove any information from its records indicating M.M.A. is not a citizen:
“Plaintiff also urges that the Court declare that the aforementioned policy of CBP with respect to certain persons seeking entry as U.S. citizens, is unconstitutional, and that the actions of CBP in detaining and interrogating her for a period of four days, before transferring her to ICE custody, and in confiscating her lawfully issued documents without conducting a hearing, either before or after, to determine her right to possess said documents, violated her constitutional rights, and issue corresponding injunctive relief, requiring that they return her documents and take steps to remove from the DHS and DOS computer systems all lookouts and other indications that she is not a U.S. citizen, and remove any information from the DHS and DOS computer systems that her parents committed fraud in registering her as having been born in Texas; and to request the State of Texas to ignore any information that they have given them regarding the validity of her Texas Birth Certificate.”
M.M.A. is unable to leave the Rio Grande Valley, either to travel North or to go to Mexico, because officials confiscated her passport and passport card at the bridge. After she was detained, M.M.A.’s husband couldn’t emigrate, so the couple split. “She’s completely worried about everything. Especially now,” said Diez.
She’s now under threat of being returned to detention following a recent check-in with a USCIS officer in Harlingen. According to Diez, the officer asked her, “What are you doing? Are you working?”
When his client answered yes, she was reprimanded. “The officer told her, ‘You shouldn’t be working, you’re an illegal, I want to make a report.’ First of all, it’s not true that she’s illegal. Second, she can work. She doesn’t have to ask for permission to work. This officer’s job is not to badger this woman and make her feel like a criminal because she’s working. [M.M.A.] has to support her family. Now, if she doesn’t work, she’s an alien that is ‘taking’ from people,” said Diez.
“You think, ‘What can I do? Stop breathing? That’s the only thing that will make you happy.’”
Diez filed another case on March 27 involving six siblings, all born in the United States between 1943 and 1959. In December of last year, USCIS suddenly revoked five of those siblings’ citizenship certificates when the agency determined their mother was not a U.S. citizen, disqualifying their naturalization.
All six siblings were born in Matamoros, Tamaulipas to a U.S. citizen father. Five reside in Weslaco. Their mother, L.R., was the subject of an investigation into dual birth records in 1965 prompted by an application she filed for a nonimmigrant visa to enter the country. Evidence collected by Diez showed that she was physically present in the U.S. from 1928 to 1930 — when her parents were deported — then from 1957 until her death. Former INS completed its investigation in December 1971, finding that L.R. was born in Texas. The agency then granted a certificate of citizenship to M.V., her second-oldest child, born in 1946, according to the lawsuit.
Certificates were issued on the same basis by INS to five of L.V.’s other children, daughter M.D.P.V., born in 1952; daughter M.D.C.V., born in 1955; daughter R.V., born in 1959; and son A.V., born in 1943. The complaint indicated that certificates were issued in 1972, 1975, 1987, and 1987, respectively. In November 2016, USCIS denied a motion to reconsider a previous denial of a certificate of citizenship for sibling S.V., born in Matamoros in 1950. “As reason for denying the motion to reconsider its decision, USCIS found that L.R. was not a U.S. citizen, and therefore, he was not the biological child of two U.S. citizens as they had found in the case of his five other siblings,” the attorney wrote.
In December 2019 and in January 2020, USCIS used this as justification to revoke the certificates of M.V., M.D.P.V., R.V., A.V., and M.D.C.V (who was placed in removal proceedings and is not a plaintiff in the lawsuit) because USCIS determined they were “not the children of two U.S. citizen parents, since their mother was not a U.S. citizen, and therefore not eligible for a certificate of citizenship.”
According to Diez, the agency used information that was already considered in 1965 when the investigator found the siblings’ mother was a U.S. citizen by birth, providing the 1971 certificate of citizenship to M.V. on that basis. “The evidence was investigated back in 1965. But, they don’t tell you that. They misrepresent what the evidence is. They denied him, then sent letters revoking all the passports, all the certificates of citizenship.”
Diez corresponded with the child of one of the siblings while preparing the case. He sent an email in Spanish and received a reply asking for an English translation. The child didn’t speak Spanish at home like he’d expected. “I would think that if USCIS going to be yanking someone’s certificate of citizenship they’ve been relying on for the last 40 to 60 years of life — that before you take such a drastic action, you recognize that these are people who have been here all their lives. Their children have been here all their lives.”
The particular sibling whose child corresponded with Diez is in her 70s. “What would they get from deporting her? If she qualifies for any programs or assistance, it’s because she has paid taxes here. Why are we wasting taxpayer money on such an investigation?”
In this case, Diez is working limited access to witnesses, as his clients are senior citizens and the parents are no longer living. While birth certificates issued in Mexico may contain witnesses, those witnesses were likely working at the civil registry, were asked to sign the document, and were not physically present when the birth took place. In March, at least one of the siblings was already in immigration proceedings, prohibiting her from filing a lawsuit. “Thank god there are six of them. As long as one of them stays alive and does not get placed in proceedings, I can go ahead and resolve this thing in federal court. In the meantime, I’m going to have to fight this thing in immigration court. The way that court is, I could be there for the next five years,” he said.
According to the lawsuit, L.R. was born in Brownsville in the late 1920s. Her birth certificate was properly registered in the state in 1956. A section of Texas law amended in July 1941 established that residents could file the record of any birth or death that occurred outside the state, not previously registered, to the probate court in the county where the person resides. Should those affidavits be unattainable, the requirements are as follows:
“The certificate shall be substantiated by the affidavit of the medical attendant present at the time of the birth, or case of death, the affidavit of the physician last in attendance upon the deceased, or the undertaker who buried the body. When the affidavit of the medical attendant or undertaker cannot be secured, the certificate shall be supported by the affidavit of some person who was acquainted with facts surrounding the birth or death, at the time the death or birth occurred, with a second affidavit of some person who is acquainted with the facts surrounding the birth or death, who is not related to the individual by blood or marriage.”
Sections of the investigation included in the complaint for declaratory and injunctive relief detailed how Investigator R. S. Belcher prepared a report for the investigation on June 11, 1965. Officials interviewed L.R.’s mother, husband, and brother in regards to a claim of citizenship involving four of their children – M.V., M.D.P.V, A.R., and S.R.
L.R.’s husband told investigators that his wife was born in 1928 in Brownsville and lived in Texas for a short time before her parents were deported. In Mexico, L.R.’s parents wanted to baptize her, and since she didn’t have a birth certificate, a friend of the family registered her in Matamoros, according to his testimony.
Years later, upon re-entry from a trip, L.R. was told she had a false Texas birth record. The husband informed the officer his wife only had a Texas birth certificate and offered to check in Mexico, where he found the second birth record. According to the testimony, L.R. didn’t know the second registration existed. She then applied for the non-resident immigration visa, as she didn’t want to be investigated again. A copy of the Mexican birth certificate obtained by Diez confirmed that several inaccuracies existed on the document, including an incorrect difference in the couple’s ages and that L.R. was supposedly born in Matamoros in 1929. “As concluded by the investigator, as stated in the investigator’s report, the Mexican birth certificate was registered by another person in order to allow [L.R.] to be baptized,” wrote the attorney.
In November 2016, USCIS denied S.R.’s motion to re-open a prior denial of an application for a certificate of citizenship. In its decision, USCIS in part cited a form which appeared to have been signed his brother, A.R., in 1963 stating that he knew their mother was born in Matamoros. The document sent to S.R acknowledged “service records” indicating his mother “was in fact born in El Soliceno, Tamaulipas, on September 10, 1929 and her birth was registered on September 29, 1931 in the Civil Registry. Also, that was a narrative in Form I-213, in which your father states that your mother was born in Mexico.”
Diez specified the I-213 USCIS refers to is one that appears to have been provided on December 16, 1963 by A.V. — the man’s brother, not his father.
Litigation is pending. Diez is asking the court to issue a permanent injunction restraining and enjoining the government from re-issuing (or not issuing) the siblings’ certificates of citizenship.