Case Document 6 Filed 06/11/15 Page 1 of 37 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION Maria Isabel Perales Serna on her own behalf and as next friend for her minor daughter, Luisa Ines Barragan Gutierrez on her own behalf and as next friend for her minor son, Maria del Rosario Teran Uriegas on her own behalf and as next friend for her minor son, Nancy Garcia Castro on her own behalf and as next friend for her minor children, L.M., J.M. and Y.M., Rosa Isela Garcia Naranjo on behalf of her minor son F.D., Flavia Garza on her own behalf and on behalf of her minor sons D.G. and S.G., Juana Gomez on her own behalf and on behalf of her minor daughter E.S., Diana Hernandez and Javier Reyes on their own behalf and on behalf of their minor son M.A.R.H., Nancy Hernandez on her own behalf and on behalf of her minor daughter, R.J.I-I. Marta Ibarra Luna and Juan Carlos Rodriguez Velasquez, on behalf of their minor daughter Y.R.R.I. Katerine Johana Portillo on her own behalf and on behalf of her minor daughter, K.E.P., Marcelina Rangel Martinez for her minor children A.M.P. and S.A.P. Antonia Rodriguez on her own behalf and on behalf of her minor daughter .N.A.R., Damaris Romero Hernandez de Reyes on her own behalf and on behalf of her minor sons J.R.R. and G.G.R., Brizeida Sanchez on her own behalf and on behalf of her minor children, B.L.R. and L.A.R. ,Yveth Vega Diaz on behalf of her minor daughter N.Y.R., Fany Ventura on her own behalf and on behalf of her minor daughter E.I.H. C.A. lS-cv-00446 Plaintiffs V. Case Document 6 Filed 06/11/15 Page 2 of 37 Texas Department of State Health Services, Vital Statistics Unit, Commissioner Kirk Cole, in his of?cial capacity, Unit Chief Geraldine Harris, in her of?cial capacity, Defendants FIRST AMENDED COMPLAINT TABLE OF CONTENTS I. Introduction 3 II. Jurisdiction and Venue 3 Parties 4 IV. Facts 6 State Regulations and Policies resulting in Exclusion of Plaintiffs .. p. 6 Plainti?fs Harms to Plainti?fs .. p. 25 State Encroachment on Exclusive Federal Functions .. p. 26 Discrimination .. p. 26 V. First Cause of Action 28 VI. Second Cause of Action .. p. 30 VII. Third Cause of Action 32 Fourth Cause of Action 33 IX. Prayer for Relief 35 II. Case Document 6 Filed 06/11/15 Page 3 of 37 Introduction: The adult Plaintiffs in this case are citizens of Mexico and Central America who now reside in Texas. They bring suit on behalf of themselves and as next friend for their Plaintiff children, who were born in Texas and are citizens of the United States. The Defendant of?cials have refused, and continue to refuse, to provide the adult Plaintiffs with certi?ed copies of the birth certi?cates for their Texas-born sons and daughters. Such re?tsal is de facto based upon the immigration status of the Plaintiff parents. The lack of a birth certi?cate, in turn, is causing serious harm to all Plaintiffs. Defendants? actions violate the Equal Protection Clause of the Fourteenth Amendment, as well as the Supremacy Clause. Defendants are sued in their of?cial capacities. Plaintiffs seek declaratory and injunctive relief. Jurisdiction and Venue: This court has federal questionjurisdiction pursuant to 28 U.S.C. 1331, and pendent jurisdiction over state law claims arising from the same operative facts. 28 U.S.C. 1367. Declaratory judgment is sought pursuant to 28 U.S.C. 2201. Venue is prOper pursuant to 28 U.S.C. 1391 because many of the complained of acts in this case occurred in Travis County, Texas, and because the Defendants reside in Travis County, Texas. Case Document 6 Filed 06/11/15 Page 4 of 37 Parties: 7. Plaintiff Maria Isabel Perales Sema (?Plaintiff Perales?) is a resident of Hidalgo County, Texas. She brings suit on her own behalf and as next friend for her minor daughter K.Z.P.S. 8. Plaintiff Luisa Ines Barragan (?Plaintiff Barragan?) is a resident of Cameron County. She brings suit on her own behalf and as next friend for her minor son L.A.B. 9. Plaintiff Maria Del Rosario Teran Uriegas (?Plaintiff Teran?) is a resident of Cameron County, Texas. She brings suit on her own behalf and as next friend for her minor son, Plaintiff 8.2. 10. Plaintiff Nancy Garcia Castro (?Plaintiff Garcia?) is a resident of Hidalgo County, Texas. She brings suit on her own behalf and as next friend for her three minor children, Plaintiffs L.M., .M., and Y.M. 11. Plaintiff Rosa Isela Garcia Naranjo is a resident of Hidalgo County, Texas. She brings suit her own behalf and on behalf of her minor son, Plaintiff .D. 12. Plaintiff Flavia Garza is a resident of Hidalgo County, Texas. She brings suit on her own behalf and on behalf of her minor sons, Plaintiffs DC. and S.G. 13. Plaintiff Juana Gomez is a resident of Starr County. She brings suit on her own behalf and on behalf of her minor daughter, Plaintiff E.S.. 14. 15. 16. 17. 18. 19. 20. 21. Case Document 6 Filed 06/11/15 Page 5 of 37 Plaintiffs Diana Hernandez and Javier Reyes are residents of Cameron County, Texas. They bring suit on their own behalf and on behalf of their minor son Plaintiff M.A.R.H. Plaintiff Nancy Hernandez is a resident of Hidalgo County, Texas. She brings suit on her own behalf and on behalf of her minor daughter, Plaintiff Plaintiffs Marta Alicia Ibarra Luna and Juan Carlos Rodriguez Velasquez are residents of Hidalgo County, Texas. They bring suit on their own behalf and on behalf of their minor daughter, Plaintiff Y.R.R.I. Plaintiff Katerine Johana Portillo is a resident of Hidalgo County. She brings suit on her own behalf and on behalf of her minor daughter, Plaintiff K.E.P. Plaintiff Marcelina Rangel Martinez is a resident of Hidalgo County, Texas. She brings suit on her own behalf and on behalf of her minor children, Plaintiffs A.M.P. and S.A.P. Plaintiff Antonia Rodriguez is a resident of Hidalgo County, Texas. She brings suit on her own behalf and on behalf of her minor daughter, Plaintiff .N.A.R. Plaintiff Damaris Romero Hernandez de Reyes is a resident of Hidalgo County, Texas. She brings suit on her own behalf and on behalf of her minor sons, Plaintiffs RR. and G.G.R. Plaintiff Brizeida Sanchez is a resident of Hidalgo County, Texas. She brings suit on her own behalf and on behalf of her minor children, Plaintiffs B.L.R. and L.A.R. 22. 23. 24. 25. 26. IV. 27. 28. Case Document 6 Filed 06/11/15 Page 6 of 37 Plaintiff Yveth Vega Diaz is a resident of Hidalgo County, Texas. She brings suit on her own behalf and on behalf of her minor daughter, Plaintiff N.Y.R. Plaintiff Fany Ventura is a resident of Hidalgo County. She brings suit on her own behalf and on behalf of her minor daughter, Plaintiff E.I.H. Defendant Texas Department of State Health Services, Vital Statistics Unit is the state agency and unit charged with recording Texas births and providing certi?ed birth certi?cates upon proper applications therefore. State headquarters for the agency are located in Travis County, Texas. Defendant Kirk Cole is the Commissioner of the Texas Department of State Health Services. He resides in Travis County, Texas. He is sued in his of?cial capacity. Defendant Geraldine Harris is the Unit Chief for the Texas Department of State Health Services, Vital Statistics Unit. She is a resident of Travis County, Texas. She is sued in her of?cial capacity. FACTS: State Regulations and Policies Resulting in Exclusion of Plaintiffs: The Texas Department of State Health Services, Vital Statistics Unit, is responsible for registering, collecting, compiling, and preserving all state birth, death, marriage, and adoption records. This duty is carried out through a network of local Vital Records of?ces located throughout the state. Tex. Health Saf. Code, Title 3 (Vital Statistics), ?l91.002. 29. 30. 31. 32. 33. 34. 35. Case Document 6 Filed 06/11/15 Page 7 of 37 Vital Statistics of?cers must provide certi?ed copies of birth certi?cates upon request to all persons quali?ed to receive them. 1d., Title 3 (Vital Statistics), Chapter 191.051. To qualify for receipt of a certi?ed c0py of a birth certi?cate, a person must produce acceptable personal identi?cation. Speci?cally, the person must present one of the identi?cation documents set forth in the regulations. 25 Tex. Admin. Code, ?131.23 1). The acceptable forms of identi?cation are divided into two categories, primary and secondary. Primary forms of identi?cation are available only to US. citizens or to persons who already have legal immigration status in this country, such as a Permanent Resident card, an Employment Authorization Document, or a US. Re-Entry or Border Crossing permit. ?181.28 Persons who cannot produce a primary document may qualify by producing two forms of secondary identi?cation, as set forth in ?181.28 Most of these secondary documents will also only be available to persons who can establish their legal immigration status, whether temporary or permanent, in this country. However, national identity cards from Central America and Mexican electoral cards are acceptable, and could provide one of the two required secondary identi?cation documents. 36. 37. 38. 39. 40. 41. 42. 43. Case Document 6 Filed 06/11/15 Page 8 of 37 As set forth below, many persons leave Mexico and Central America when they are still minors, and have thus never attained such national or electoral identity cards. These national and electoral identi?cation cards cannot be obtained once the person arrives in the United States. Even those who once possessed Mexican electoral cards soon ?nd them expired, stolen or lost. Central Americans making the extremely dangerous journey north are often forcibly stripped of their national identi?cation cards before even arriving in Texas, either through assaults and theft, or for the other grim reasons discussed herein below. See, Plaintiff Katerine Johana Portillo, Para. 60. Even Central Americans managing to arrive here with their national identi?cation cards in their possession face problems of expiration, loss or theft. If the person is apprehended by US. Border Patrol, immigration officials often retain the person?s identity cards as well. Unlike the Plaintiffs, persons residing in Texas with a recognized immigration status are able to easily obtain replacements for lost or stolen identi?cation documents. ?18].28 (xiv and xv) permits acceptance of a foreign government photo identi?cation card. Case Document 6 Filed 06/11/15 Page 9 of 37 44. For many years, this option has also been satis?ed by producing of?cial photo identi?cation cards, known as ?matriculas?, issued by the person?s local consulate. This has long resolved the problems described above. 45. The matricula is an of?cial photo identi?cation card provided by the Mexican or Central American consulates to their citizens residing in the United States. Such persons must provide proof of their citizenship and identity to their consulate to obtain this card. 46. However, the Defendants have recently decided that such matriculas are to be rejected; knowing and intending that a large percentage of undocumented persons would then be unable to produce any other acceptable foreign identi?cation card.] 47. The rejection of matriculas evidently began a few years ago; but as the facts below indicate, this policy was only sporadically enforced until approximately 2013, when it began to be ever more strictly enforced. 48. Tellingly, although passports are internationally recognized government identi?cation documents of the highest formality, and may be obtained from the local consulates, ?181.28 (i)(11)(D)(ix)permits the acceptance of foreign passports only if they bear a current US. visa. 49. This combination of regulations and policy changes leaves a very large percentage of the undocumented community without any form of identi?cation Current foreign driver?s licenses are accepted. However, for economic reasons, many undocumented persons have never obtained a license, or left their homeland before they were old enough to have one. Those who do possess such a license soon ?nd it expired, lost or stolen. These cannot be obtained or replaced once the person is in the United States. Case Document 6 Filed 06/11/15 Page 10 of 37 acceptable to the Defendants; and without any possibility of obtaining such identi?cation. 50. Defendants have provided no reasonable alternative means for the Plaintiffs to obtain the birth certi?cates, such as presentation of a parental passport without a US. visa, together with supplementary materials and the child?s hospital records and social security card. 51. As a result of this situation, hundreds, and possiny thousands, of parents from Mexico and Central America have recently been denied birth certi?cates for their Texas-born children.2 52. Counsel for these children has also been denied birth certi?cates for their infant clients. 53. This leaves the child with no birth certi?cate at all, and both the parents and child with no of?cial proof of the parent-child relationship. 54. No amendment to T.A.C. ?181.28(l 1) foreclosing of?cial consular identi?cation and other matters has ever been promulgated or even proposed. 55. Defendants have knowingly and intentionally instructed and/or ordered their local of?cers to deny birth certi?cates to the mothers and children in the Plaintiffs? situation, as described below, and will continue to do so. 56. Defendants and their attorneys have been noti?ed of the growing problem, but have failed and re?Jsed to correct the situation. 2 As set forth below, some of the families have been told that the Texas- born child may obtain the birth certi?cate when he or she turns eighteen years of age. 10 Case Document 6 Filed 06/11/15 Page 11 of 37 B. Plafnn'jfr: 57. Plaintiff Maria Isabel Perales Serna was born and raised in Mexico. a. As a young adult, Plaintiff Perales ?ed to Texas to escape from an abusive husband. b. Ms. Perales gave birth in Texas to a daughter, now fourteen years old. c. To obtain the birth certi?cate for this US. citizen child, Ms. Perales simply presented her matricula from the Mexican consulate. d. The Texas Vital Statistics of?ce accepted the malricuZa and issued the birth certi?cate pursuant to Texas Administrative Code e. On November 24, 2014, Plaintiff Perales gave birth to Plaintiff K.Z.P.S. in a McAllen, Texas hospital. f. Ms. Perales took her hospital records, matricula, and Mexican passport to the Vital Statistics of?ce in McAllen, Texas. g. There, she was informed that the matricula would no longer be accepted. The passport was also rejected. h. Plaintiff Perales had ?ed Mexico before she had obtained a voter card, and cannot obtain one now that she is in the United States. i. As a result of Defendants? wrong?Jl denial of the birth certi?cate, Plaintiff Perales faces serious problems in enrolling her daughter in day care, travelling with her child, obtaining necessary medical care and other health, education, and 11 58. 59. Case Document 6 Filed 06/11/15 Page 12 of 37 welfare services requiring parental consent and/or proof of Plaintiff Texas birth. Plaintiff Luisa Ines Barragan Gutierrez is a citizen of Mexico and has lived in Texas for approximately eight years. She too had ?ed an abusive relationship. a. Ms. Barragan gave birth to Plaintiff L.A.B. in Texas on November 28, 2010. b. She obtained a birth certi?cate, but it was later stolen. c. In April 2015, she brought the hospital records, her son?s social security, her matricula, and her expired Mexican voter identi?cation card to the local Vital Statistics of?ce. d. The of?cer rejected her matricula, suggesting that Ms. Barragan could get into trouble for asking for the document of a US. citizen and threatened to report her to US. Immigration and Customs Enforcement (I.C.E.). e. Plaintiff Barragan needs to enroll her child in school, but school of?cials have told her she must present a birth certi?cate. They will not accept the other papers. Plaintiff Maria Del Rosario Teran-Uriegas is a citizen of Mexico who has lived in the United States since 1998. a. She and her husband have 2 children. b. The ?rst child was born on November 24, 2014 and Ms. Teran had no trouble getting a birth certi?cate for him. 0. The second child, Plaintiff 8.2., was born December 18, 2014. 12 Case Document 6 Filed 06/11/15 Page 13 of 37 cl. Plaintiff Teran has her mairicula, passport, hospital papers, and the child?s social security card, but no Mexican voter card. e. In February 2015, Plaintiff Teran went to the Registrar?s of?ce to get the birth certi?cate. The of?cial there would not accept the matricula and told her to get a passport. f. Plaintiff Teran obtained the paSSport and returned, only to be rejected because she did not have a valid U.S. visa in the paSSport. g. The third time, Ms. Teran took her mother-in-law, who had a Mexican voter identi?cation card, and has also been in the United States for many years. They rejected her voter card because it was too old. 64}. Plaintiff Katerine Johana Portillo is a citizen of Guatemala. a. She and her three year old son ?ed her violent spouse in Guatemala, and were brought to Texas by a ?Coyote?, or human smuggler. b. As the group neared northern Mexico, the Coyote ordered everyone to throw all of their identi?cation cards and telephone lists into the ?eld. 3 c. Pregnant and fearing for her safety if she disobeyed, Plaintiff Portillo discarded her Guatemalan identi?cation card. She cannot be issued a new one in the United States. 3 Plaintiff was told that the cartels in northern Mexico charged the Coyotes much higher ?crossing fees? for Central Americans. For this reason, all of the women were told to say they were Mexicans. Other persons report that the cards are sold later by the coyotes. 13 61. Case Document 6 Filed 06/11/15 Page 14 of 37 d. On November 20, 2014 Plaintiff gave birth to her daughter, Plaintiff K.E.P. e. Because she had lived in the US. as a child with her mother, Plaintiff Portillo still had her Minnesota identi?cation card for minors, which was still in effect, and a social security card. f. Plaintiff Portillo took her own identi?cation card and social security card, together with her daughter?s hospital record and social security card, to the Vital Statistics office in McAllen, Texas. g. Plaintiff was denied a birth certi?cate for K.E.P., and was told to bring a passport. g. Plaintiff returned with a Guatemalan passport but was still denied the birth certi?cate for Plaintiff K.E.P. h. Plaintiff Portillo faces dif?culties in enrolling her child in Head Start and later in the public schools, as well as in renewing the child?s Medicaid bene?ts. Plaintiff Nancy Garcia Castro is a citizen of Mexico who has lived in the United States for many years. a. Ms. Garcia gave birth in Texas to Plaintiff L.M. on March 5, 2009, to Plaintiff J.M. on May 9, 2010, and to Y.M. on October 10, 2012. b. Initially, Ms. Garcia had to arrange for her birth certi?cates and other Mexican records to be sent to her. 0. In 2013 she was ?nally able to obtain a matricula. 14 Case Document 6 Filed 06/11/15 Page 15 of 37 d. From 2013 through early 2015, Plaintiff Garcia sought birth certi?cates for her three US. citizen children at the McAllen, Texas Vital Statistics of?ce. e. The registrar refused to accept Plaintiff Garcia?s valid matricuIa. Plaintiff Rosa Isela Garcia Naranjo is a citizen of Mexico. She arrived in Texas more than ten years ago, when she was still a minor. a. Because she arrived as a minor, Plaintiff Garcia-Naranjo never had a Mexican electoral card or driver?s license, and she cannot obtain them here in the United States. b. Plaintiff Garcia Naranjo?s ?rst two children were born in Texas in 2008 and 201 1 respectively. c. Plaintiff Garcia-Naranjo obtained a birth certi?cate for the ?rst child with her U.S. student identi?cation papers. d. Plaintiff Garcia-Naranjo was able to obtain a birth certi?cate for her second child with her husband?s matricuia card. e. Her third child, Plaintiff F. D., was born on April 5, 2013. f. Plaintiff Garcia-Naranjo sought to get a birth certi?cate for F.D. with her own matricula and her husband?s passport. Both documents were rejected. g. On ?rst birthday, Plaintiff returned to the Registrar?s of?ce to obtain a birth certi?cate. She was again turned away. 15 62. Case Document 6 Filed 06/11/15 Page 16 of 37 h. Plaintiff then telephoned the Vital Statistics of?ce in Austin, but was told that without the required identi?cation documents, nothing could be done. i. The local church will not baptize Plaintiff F.D. without a birth certi?cate, and Garcia-Naranjo faces serious problems in the ?xture with regard to school enrollment, travel and other programs and bene?ts. Plaintiffs Marta Alicia Ibarra Luna and Juan Carlos Rodriguez Velasquez are citizens of Mexico now residing in Texas. 21. Plaintiff Marta lbarra has both a Mexican matricula and current electoral card. b. Her husband, Plaintiff Juan Carlos Rodriguez has a Mexican matricuch and passport. c. Their daughter, Plaintiff Y.R.R.I., was born on March 27, 2015. d. They took their credentials and the baby?s birth records to the McAllen Vital Statistics Of?ce. e. Marta Ibarra?s current electoral card was rejected and she was told she would need a passport with a valid U.S. visa. f. Juan Carlos Rodriguez? Mexican passport and matricula were also rejected. g. Plaintiffs face renewal deadlines for the child?s Medicaid in six months, and face potential obstacles with school enrollment and Head Start as well as other bene?ts for which their child is eligible. 15 63. Case Document 6 Filed 06/11/15 Page 17 of 37 h. When Plaintiffs asked the McAllen Vital Statistics of?cial why birth certi?cates had become so dif?cult to obtain, the woman responded that since 2014-2015 the requirements had become stricter to prevent undocumented persons from obtaining status through their U.S. citizen children. Plaintiff Flavia Garza is a citizen of Mexico. She arrived in Texas as a child and has lived here for more than twenty years. a. Because of her age on arrival, she has never had, and cannot obtain, a Mexican electoral card or driver?s license. b. She gave birth in Texas to her ?rst son, D.G., in 2003. c. She had no of?cial identi?cation at that time, and could not obtain a birth certi?cate. d. Approximately four years ago, Plaintiff Garza obtained a matricula card from her local consulate. She was still denied a birth certificate for D.G. e. Plaintiff Garza gave birth to S.G. on August 13, 2013. f. She returned to the local Vital Statistics of?ce, this time with her own matricula, her school transcripts, and her birth certi?cate as well as records. She was again denied a birth certificate for S.G. g. She approached other Vital Statistics of?ces, seeking assistance. All denied her a birth certi?cate, telling her that S.G. could obtain one when he turned 18 years of age. 17 65. Case Document 6 Filed 06/11/15 Page 18 of 37 h. Approximately two months ago, Plaintiff called the Vital Statistics of?ce, asking for assistance for both sons. She was told no birth certi?cates can be issued to her. i. The lack of birth certi?cates has caused Plaintiff Garza problems in caring for her US. citizen children, including but not limited to obtaining SSI for them, and enrolling them in Head Start and grade school. Plaintiff Fany Ventura was born in Honduras and arrived in Texas as a minor. She has lived here since 1996. a. Because she left Honduras as a minor, she has no national identi?cation card or driver?s license and cannot obtain them here. b. Plaintiff gave birth to a son, Plaintiff V.H., on July 5, 2011 in Edinburg, Texas. 0. Plaintiff Ventura obtained a birth certi?cate for V.I-I. using her own birth certi?cate, Medicaid receipts, rent receipts and other similar materials. d. Plaintiff gave birth to her daughter E.I.H. on February 19, 2014. e. Plaintiff again went to the registrar?s of?ce and produced her own birth certi?cate and Honduran school photo i.d. card, and the child?s hospital records and social security card. f. Plaintiff has been repeatedly denied the birth certi?cate for Plaintiff E.I.H. g. As a result of this denial Plaintiff is having serious problems with her Section 8 apartment, and knows that she will face similar obstacles with respect to school enrollment and other bene?ts due to her citizen child. 18 66. Case Document 6 Filed 06/11/15 Page 19 of 37 Plaintiffs Diana Hernandez and Javier Reyes are citizens of Mexico. They arrived in Texas more than a decade ago. a. Plaintiff Hernandez was a minor at the time of her arrival, and Plaintiff Reyes hadjust turned 18 years of age. b. Because of their age on arrival in Texas, they have never had and cannot now obtain, a Mexican electoral card or driver?s license. 0. Their ?rst child was born in 2009, and they obtained a birth certi?cate for him with their matriculas. d. Their second child was born in 2010, and again, they obtained a birth certi?cate with their matriculas. e. Their son M.E.R.H. was born in Texas on January 4, 2015. f. Plaintiff Reyes went to the Harlingen Vital Statistics of?ce with his matricula, but was turned away. g. The of?cial at the Vital Statistics of?ce stated that the new laws did not permit them to accept the matricula. h. Plaintiffs were told they could apply by mail to the Austin of?ce of Vital Statistics. i. Plaintiff Hernandez sent copies of her passport, recent receipts, Medicaid and school paperwork together with the application form and fee. The application was denied. 19 67. 68. Case Document 6 Filed 06/11/15 Page 20 of 37 Plaintiff Damaris Romero Hernandez and her husband are both citizens of Mexico. a. Both arrived in this country when they were minors and hence do not have, and cannot obtain, a Mexican driver?s license or electoral card. b. Their ?rst child, Plaintiff .R.R., was born here on August 2, 2011. c. Plaintiff Damaris Romero took paperwork, together with her own birth certi?cate and matricuia, to the local Vital Statistics of?ce. d. There, she was told she would have to produce a passport. e. She returned with a passport and was again denied. f. The child?s grandparents also applied for the birth certi?cate, using their unexpired Mexican electoral cards. These were also rejected. g. On July 20, 2013 her second son, Plaintiff G.G.R. was born. h. Plaintiff Damaris Romero returned to the Vital Statistics of?ce requesting birth certi?cates for both Texas born children. i. The birth certi?cates were again denied. Plaintiff Marcelina Range] Martinez is a citizen of Mexico. a. Plaintiff Marcelina Rangel arrived in Texas at the age of 21 and has resided here for 17 years. 20 69. Case Document 6 Filed 06/11/15 Page 21 of 37 b. Plaintiff arrived here before she had obtained a Mexican voter electoral card or driver?s license and she cannot obtain those here. c. Plaintiff gave birth to her ?rst four children in 1999, 2002, 2004, and 2011. d. All four children received birth certi?cates with Plaintiff Marcelina Rangel?s matricuch and birth certi?cate, and/or her husband?s Mexican passport. e. Plaintiff gave birth to her son, Plaintiff S.A.P., on February 28, 2014. f. She brought the same matriculas and passport to the Vital Statistics of?ce but was denied the birth certi?cate for SAP. g. Plaintiff, after applying at several different local Vital Statistics of?ces, sent her application to Austin in December 2014. She never received a reply. h. In late 2014 Plaintiff lost the birth certi?cate of her daughter A.M.P. i. She has been denied a duplicate copy of birth certi?cate. Plaintiff Brizeida Sanchez is a citizen of Mexico, now residing in Texas. a. Because Ms. Sanchez left Mexico as a minor, she has no Mexican electoral card or driver?s license and cannot obtain them. b. In 2010 Brizeida did obtain a Mexican matricula. c. On September 27, 2012 she gave birth to her son, Plaintiff L.A.R. d. She presented her matricula and old school identi?cation to the Vital Statistics of?ce in Edinburg, Texas but was denied the birth certi?cate. 21 70. Case Document 6 Filed 06/11/15 Page 22 of 37 e. She tried again in 2014 but was again rejected. f. On June 8, 2014 she gave birth to her daughter, Plaintiff B.L.R. g. Plaintiff Brizeida Sanchez took her daughter?s hospital records and social security card, together with her matricula, to the Vital Statistics of?ce. h. The of?cials there again denied her a birth certi?cate, telling her she needed a Mexican voter identi?cation card or a US. visa or a Texas identi?cation card. i. The mother of Brizeida Sanchez is married to a U.S. citizen. j. The citizen grandparent was not allowed to obtain the birth certi?cate for B.L.R. because he is not a biological relative. k. Plaintiff Brizeida Sanchez has not been able to baptize her child and is very concerned about trying to enroll her children in school. Plaintiff Iveth Vega Diaz is a citizen of Mexico. She arrived in Texas as a child nearly twenty years ago. a. Because she left Mexico as a minor, she has no Mexican driver?s license or voter registration card and cannot obtain them. b. On April 12, 2013, Plaintiff Iveth Vega gave birth to her daughter, Plaintiff N.Y.R., in McAllen, Texas. c. Plaintiff took her daughter?s hospital records and social security card, together with her own matricula, to her local Vital Statistics of?ce. 22 71. 72. Case Document 6 Filed 06/11/15 Page 23 of 37 d. Of?cials there denied the birth certi?cate for N.Y.R., and told Iveth she needed a passport. e. Plaintiff then obtained a paSSport was again turned down at the Vital Statistics of?ce. f. Plaintiff then wrote to Austin, requesting the birth certi?cate for N.Y.R. g. The Austin Of?ce of Vital Statistics denied the birth certi?cate on December 4, 2014. Plaintiff Juana Gomez is a citizen of Mexico who resided in Texas for sixteen years. a. Because she left Mexico as a minor, Ms. Gomez has no Mexican electoral card and cannot obtain one. b. On October 17, 2013 Plaintiff Gomez gave birth to her daughter, Plaintiff E.S., in Edinburg, Texas. c. Plaintiff Gomez has attempted repeatedly to obtain a birth certi?cate for her infant daughter E.S., but continues to have her matricuch rejected. Plaintiff Nancy Hernandez is a citizen of Mexico. a. She arrived in Texas at the age of fourteen and has lived here for about ?fteen years. b. Because she left Mexico as a minor, she has no Mexican electoral card or driver?s license and cannot obtain one. 23 73. Case Document 6 Filed 06/11/15 Page 24 of 37 c. Her husband is also a Mexican citizen residing in Texas, and he has a matricula and his birth certi?cate. (1. Plaintiff Nancy Hernandez gave birth to her ?rst two children in Texas in 2010 and 2012. 6. Both children were given birth certi?cates upon presentation of their father?s matricula. f. On August 19, 2014 Ms. Hernandez gave birth in Texas to her daughter, Plaintiff R.J.H. g. The local Vita Statistics of?ce refused to issue a birth certi?cate for Plaintiff R.J.H. even when presented with the hospital records, the matricula and other supplementary materials. h. Plaintiffs have repeatedly returned to seek the birth certi?cate for R.J.H., but have been told that the law changed in 2014. i. Plaintiffs are deeply concerned about problems they face for Plaintiff baptism and school enrollment. Plaintiff Antonia Rodriguez is a citizen of Mexico. a. She ?ed the violence in Mexico and has resided in Texas since 2009. b. Plaintiff has her Mexican birth certi?cate, passport, matricuia and school certi?cate. 2d Case Document 6 Filed 06/11/15 Page 25 of 37 c. Ms. Rodriguez gave birth to her daughter, Plaintiff J.N.A.R., in Texas on August 29, 2014. d. Shortly after the birth, US. Immigration and Customs Enforcement apprehended and detained both Plaintiffs Rodriguez and her infant daughter, later releasing them on bond. e. ICE of?cials have not returned any of Plaintiff Rodriguez?s identi?cation papers. f. Plaintiff Rodriguez obtained a new matricula and passport from the Mexican consulate. g. The local Vital Statistics of?ce has nevertheless re?Jsed to issue a birth certi?cate for Plaintiff J.N.A.R. Harms to Plaintiffs: 74. The Defendants? denial of birth certi?cates is causing all Plaintiffs problems with school enrollment, travel, medical care and other bene?ts due to the Plaintiff children on the basis of their US. citizenship. 75. By denying the Plaintiff children their birth certi?cates, Defendants have created a category of second- class citizens, disadvantaged from childhood on with respect to health and educational opportunities. 76. By denying the Plaintiff parents the birth certi?cates of their infant children, Defendants have greatly encumbered Plaintiffs? ability to care for and raise their 25 Case Document 6 Filed 06/11/15 Page 26 of 37 children, see to their education, assure their medical care, travel with them, and even establish that the child is indeed their own. 77. All Plaintiffs have suffered and will continue to suffer such irreparable harm. 78. Defendants knew and intended that their actions would result in such harm. State Encroachment on Exclusive Federal Functions: 79. Defendants? conduct has created an undue burden upon the foreign consulates to somehow support and protect their citizens. 80. The burden on the consulates would become untenable should all ?fty states issue individualized requirements. 81. Moreover, all matters of immigration, including the bene?ts to be provided to, or penalties imposed upon, immigrants are preempted by the federal government. 82. Defendants actions interfere with the exclusive federal authority over matters involving immigrant rights and penalties, and diplomatic affairs. 83. Defendants are acting beyond the scope of their authority in denying birth certi?cates on the basis of the parents? immigration status, as set forth above. Discrimination: 84. Defendants, in deciding to reject the matriculas, knew and intended that a substantial percentage of undocumented persons arriving from Mexico and Central America would be unable to obtain birth certi?cates for their Texas born children as a result. 26 85. 86. 87. 88. 89. Case Document 6 Filed 06/11/15 Page 27 of 37 Likewise the Defendants, in rejecting foreign passports lacking U.S. visas, knew and intended that a substantial percentage of undocumented persons arriving from Mexico and Central America would be unable to obtain birth certi?cates for their Texas born children as a result. Defendants have acted with the intent to discriminate against the Texas-born children on the basis of their parents? immigration status, depriving the children of the rights, bene?ts and privileges granted to all other citizen children. Defendants have also acted with the intent to discriminate against undocumented parents on the basis of their immigration status, penalizing them and making their personal/family lives near untenable. Defendants also have acted with the intent to discriminate against all Plaintiffs on the basis of their national origin. Such discriminatory animus and intent is evidenced in many ways, including but not limited to the following: a. Passports, the most formal of international identi?cation documents, are rejected unless accompanied by a current U.S. visa. b. In changing state policy and rejecting the matriculas, Defendants made no attempt to provide any other means for undocumented persons to obtain the birth certi?cates of their Texas born children. c. Such policy changes and the escalating denials of birth certi?cates occurred as the public debate over growing immigration intensified. 27 90. 91. 92. 93. 94. 95. 96. 97. Case Document 6 Filed 06/11/15 Page 28 of 37 d. As explained by one Vital Statistic of?cer, the law was changed to keep undocumented persons ?'om gaining legal status in this country. There is no reasonable state justi?cation for denying a US. citizen his or her own birth certi?cate on the basis of their parents? entry into the United States. There is no reasonable statejusti?cation for denying citizens of Mexico or Central America a birth certi?cate for their Texas-born children. Defendants have at all times acted in their of?cial capacities in this case and under color of state law. FIRST CAUSE OF ACTION: 42 U.S.C. 5 1983 FOURTEENTH AMENDMENT Plaintiffs herein incorporate Paragraphs 1? 92 above. At all relevant times, Defendants in this case were acting in their of?cial capacities on behalf of the State of Texas. At all relevant times, Defendants were acting under color of state law. Defendants have a current policy, pattern, and practice of denying birth certi?cates to the Texas-bom, infant children of undocumented immigrants from Mexico and Central America. The Plaintiff children in this case were born in the United States and are United States citizens. 23 Case Document 6 Filed 06/11/15 Page 29 of 37 98. 99. 100. 101. 102. 103. 104. 105. The Plaintiff parents have produced valid and of?cial identi?cation in seeking the birth certi?cates for their Texas-born children. They were nevertheless denied, pursuant to Defendants? intentional policies and practices. All persons born in the United States are entitled to receive their own birth certi?cates. Defendants are violating the Fourteenth Amendment by abridging the privileges and immunities of the U.S. citizen children. Furthermore, Defendants are giving unequal treatment to the Plaintiff children, as compared with the treatment of all otherwise similarly situated children in the State of Texas. Speci?cally, the Plaintiff children are being denied birth certi?cates on the basis of their parents? immigration status; and as a result are being denied numerous health, educational and legal bene?ts to which they are entitled as well as other basic rights of all citizens. The Plaintiff children are ?lrther being discriminated against on the basis of their national origin. Defendants have no reasonable justi?cation for their discriminatory denial of birth certi?cates to the Plaintiff children. Defendants have taken the actions complained of in this suit with the intention and goal of discriminating against the Plaintiff children and depriving them of their rights. 29 Case Document 6 Filed 06/11/15 Page 30 of 37 106. 107. 108. 109. 110. 111. 112. 113. 114. Defendants have at all times acted knowingly, intentionally, and under color of state law. Defendants? conduct violates the Fourteenth Amendment of the United States Constitution. Defendants? conduct is causing and will cause Plaintiffs irreparable harm as set forth above. Plaintiffs seek declaratory and injunctive relief, declaring the Defendants? current practices andfor regulation unconstitutional, and enjoining the current rejection of valid consular matricuias and/or passports. Plaintiffs bring this claim pursuant to 42 U.S.C. ?1983 and 28 U.S.C. ?220]. SECOND CAUSE OF ACTION: EQUAL PROTECTION Plaintiffs herein incorporate Paragraphs 1-92 above. At all relevant times, the Defendants were acting in their of?cial capacities on behalf of the State of Texas. At all relevant times, the Defendants were acting under color of state law. The Defendants have a current policy, pattern, and practice of denying birth certi?cates to undocumented immigrant parents from Mexico and Central America, for their Texas-bom children. 30 - - Case Document 6 Filed 06/11/15 Page 31 of 37 115. 116. 117. 118. 119. 120. 121. 122. 123. As set forth above, the Plaintiff parents in this case have proffered valid and of?cial forms of identi?cation, but have been denied the birth certi?cates for their U.S. citizen children. All parents have the right to receive a birth certi?cate for their U.S. bom children. The denial of this birth certi?cate deprives the Plaintiff parents of any of?cial con?rmation of their relationship to their own children. Such denial greatly complicates and obstructs the Plaintiffs parents? rights to consent to urgent medical care, to enroll their children in school, and to obtain other educational, health and cultural bene?ts for which such U.S. citizen children are eligible. Defendants are treating the Plaintiff parents unequally to all otherwise similarly situated parents of U.S. born children. Defendants are discriminating against the Plaintiff parents on the basis of their immigration status and national origin. Defendants have taken the actions complained of in this suit with the intention and goal of discriminating against and penalizing the Plaintiff parents as set forth above. Defendants have no reasonable state justi?cation for their discriminatory denial of birth certi?cates to Plaintiffs. Defendants have at all times acted knowingly, intentionally and under color of state law. 31 Case Document 6 Filed 06/11/15 Page 32 of 37 124. 125. 126. 127. 128. 129. 130. 131. 132. Defendants? conduct violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. Defendants? conduct is causing and will cause the Plaintiff parents irreparable harm. The Plaintiff mothers seek declaratory and injunctive relief, declaring Defendants? current practices and/or regulations unconstitutional, and enjoining the current rejection of valid consular matricuias and/or paSSports. Plaintiffs bring this claim pursuant to 42 U.S.C. ?1983 and 28 U.S.C. ?2201. THIRD CAUSE OF ACTION SUPREMACY CLAUSE AND PREEMPTION Plaintiffs herein incorporate Paragraphs 1-92 above. Defendants have, during all relevant time periods, acted in their of?cial capacities on behalf of the State of Texas. Defendants have at all times acted under color of state law. The federal government has preempted the ?eld of immigration, eSpecially matters involving the rights, privileges, and penalties applicable to persons present in this country who have not yet attained legal immigration status. Speci?cally, Congress has promulgated extensive statutory provisions and regulations with regard to such immigrants? documentation, employment, bene?ts, shelter, penalties, and numerous other matters. 32 Case Document 6 Filed 06/11/15 Page 33 of 37 I33. 134. 135. 136. I37. 138. 139. 140. 141. Determination of immigration policies, including the treatment, rights and privileges of such immigrants, is the exclusive function of the federal government. Likewise, matters of international diplomacy are solely matters for the federal government. Defendants have no authority to interfere with such matters. Defendants have violated the Supremacy Clause of the United States Constitution by refusing to accept valid consular identi?cation cards and/or valid foreign passports. Plaintiffs have been and will be irreparany harmed by the unconstitutional actions and policies of Defendants. Defendants have at all times acted knowingly and intentionally. Plaintiffs seek declaratory and injunctive relief, declaring Defendants? current practices unconstitutional, and enjoining the current rejection of valid consular matricuIas and/or passports. Plaintiffs bring this claim pursuant to 42 U.S.C. ?1983 and 28 U.S.C. ?2201. FOURTH CAUSE OF ACTION: PENDANT STATE CLAIM Plaintiffs herein incorporate Paragraphs 1- 92 above. 33 Case Document 6 Filed 06/11/15 Page 34 of 37 I42. 143. 144. 145. I46. 147. 148. I49. 150. 151. At all relevant times, Defendants were acting in their of?cial capacities on behalf of the State of Texas. At all relevant times, Defendants were acting under color of state law. T.A.C. l) speci?es that consular matricuias are acceptable forms of identi?cation for purposes of obtaining a birth certi?cate. In previous times, these documents were properly accepted and the birth certi?cates were issued. As set forth above, these documents are no longer being accepted by the local registrar of?cials. Such denials are being made upon the current orders and policies of Defendants. Certainly, such matters are of great public interest and impact, and cause great harm to Plaintiffs. Such substantial changes to published regulations are required to be promulgated in accordance with the Texas State Administrative Procedure Act including, but not limited to, an opportunity for public comment. V.T.C.A., Government Code, ??2001 et seq. . Such changes have been made, and new rules de facto issued, without bene?t of any of the A.P.A. required procedures. Such new policies and de facto regulations are accordingly void. 34 Case Document 6 Filed 06/11/15 Page 35 of 37 152. 153. Plaintiffs are suffering and will continue to suffer serious and irreparable harm as a result of these violations. Plaintiffs seek declaratory and injunctive relief, declaring Defendants? current practices unconstitutional, and enjoining the current rejection of valid consular matriculas. WHEREFORE PLATNTIFFS PRAY THAT THIS COURT: GRANT Plaintiffs? request for a Declaratory Judgement, declaring that the denial of birth certi?cates to U.S. born children on the basis of their parents? immigration status is a violation of the Fourteenth Amendment. GRANT Plaintiffs? request for a Declaratory Judgement, declaring the rejection of the Plaintiff mothers? consular matriculas and/or passports, and hence the denial of birth certi?cates for their U.S. born children, a violation of the Equal Protection Clause. GRANT Plaintiffs? request for a Declaratory Judgement, declaring that the denial of birth certificates to undocumented women for their U.S. born children is preempted by the federal government, and that Defendants? current policies violate the Supremacy Clause. ISSUE an injunction requiring Defendants to once again accept the consular matriculas and/or passports of women seeking birth certi?cates for their U.S. born children; or in the alternative, to provide the Plaintiffs other reasonable access to such birth certi?cates. 35 Case 1:15-cv-00446-RP Document 6 Filed 06/11/15 Page 36 of 37 5. ORDER Defendants to pay attorneys? fees, costs, interest, and all other such matters as this Court deemsjust and reasonable. Respect?illy Submitted, lS/Jennifer K. Harbug: Jennifer K. Harbury Attorney in Charge4 Texas Bar No. 08946500 S.D. No.26569 TEXAS RIOGRANDE LEGAL AID, INC. 300 S. Texas Blvd. Weslaco, Texas 78596 Tel. 956-447-4800 Fax: 956-968-8823 Marinda Van Dalen Marinda Van Dalen Attorney at Law Texas Bar No. 00789698 17577 TEXAS RIOGRANDE LEGAL AID, INC. 531 E. St. Francis St. Brownsville TX 78520 Tel. 956-982-5540 Fax: 956-541-1410 James C. Harrington James C. Harrington Attorney at Law State Bar No. 09048500 TEXAS CIVIL RIGHTS PROJECT I405 Montopolis Drive Austin, Texas 78741-3438 4 Texas RioGrande Legal Aid, Inc. represents all Plaintiff children in this case. All adult Plaintiffs are represented by the Texas Civil Rights Project. 36 Case Document 6 Filed 06/11/15 Page 37 of 37 Efren C. Olivares C. Olivares Attorney at Law Texas Bar No. 24065844 Southern District of Texas No. 1015826 SOUTH TEXAS CIVIL RIGHTS PROJECT 1017 W. Hackberry Ave. Alamo, Texas 78516 Tel 956?78 7-8 1 71 Fax: 956-787-6348 37