Monday, October 26, 2015

Sadie Weller, UC Davis Law Student: “Grave concerns” regarding treatment of U.S.-born children of immigrant parents not enough for birth certificates, says federal Texas judge


On October 16, a federal judge in Texas ruled that the Texas Department of State Health Services (DSHS) may continue to deny issuance of birth certificates to U.S-born children of undocumented immigrant parents in a preliminary order in the case of Serna v. Texas Department of State Health Services. The order came in response to Plaintiff’s Emergency Application for Temporary Injunction.

Under Texas law, a parent seeking a birth certificate for their child must provide either one “primary identification document,” two forms of “secondary identification,” or one form of secondary and two forms of “acceptable supporting” identification (Tex. Admin Code tit. 25, §181). Parents without legal immigration status “almost universally” lack such identification. Without birth certificates, children face barriers in enrolling in schools and day cares and receiving social welfare benefits, and even in getting baptized. The U.S. District Judge who issued the order, Judge Robert Pitman, conceded that this would curb the constitutional right to travel and of free exercise of religion (by way of baptism) of these Texas-born children.

Plaintiffs sought a preliminary injunction requiring that the State determine “at least two forms of identification reasonably and actually accessible to undocumented immigrant parents.” They argued that the diminished exercise of the First Amendment right to free exercise of religion, as well as the interference with the fundamental rights of citizenship and education, constitutes an irreparable injury by the government. The court found the State’s response to this assertion inadequate and concluded that plaintiffs sufficiently proved a “substantial threat of irreparable injury,” meeting the first of the four requirements for a preliminary injunction.

Applying strict scrutiny, the court found that the plaintiffs failed to show that Texas lacked a “compelling interest” in protecting the issuance of birth certificates. The court also found that the plaintiffs sufficiently showed that application of the Texas law mandating certain forms of identification resulted in deprivation of a fundamental right. Ultimately, however, the court was persuaded that the State had adequately attempted to make birth certificates “reasonably available to the appropriate parties,” and their unwillingness to accept the matrícula (an identification documented issued by the Mexican Government through its consulate offices) as an adequate form of identification was sufficiently founded in the State’s interest in protecting access to birth certificates. Thus, the court found that plaintiffs failed to show a substantial likelihood of success on the merits of their constitutional claims. The plaintiffs also raised preemption claims, but the Court held that there was insufficient support for those claims as well.


  1. Serna v. Texas Dept. of State Health Services, Vital Statistics Unit (U.S. District Court, W.D.Texas, Austin Division, citation not yet available).
  2.  Texas Administrative Code Title 25, §181.


Sadie Weller is a law student at UC Davis School of Law.


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