Case Document 1 Filed 05/26/15 Page 1 of 21 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. Plaintiffs v. Texas Department of State Health Services, Vital Statistics Unit, Commissioner Kirk Cole, in his of?cial capacity, Unit Chief Geraldine Harris, in her official capacity Defendants COMPLAINT I. Introduction: CA. The adult Plaintiffs in this case are citizens ofMexico now residing in Texas. They bring suit on behalfofthemselves and as next friend for their children, who were born in Texas and are citizens ofthe United States. to The Defendant officials have refused, and continue to refuse, to provide the adult Plaintiffs with certified copies of the birth certificates for their Texas bom children. Such refusal is do facto based upon the immigration status of the Plaintiff parents. The lack ofa birth certificate, in turn, is causing serious harm, as discussed herein. 1L UI I ti. HE. Case Document 1 Filed 05/26/15 Page 2 of 21 Defendants? actions violate the Equal Protection Clause of the Fourteenth Amendment, as well as the Supremacy Clause. Defendants are sued in their official capacities. Plaintiffs seek declaratory and injunctive relief Jurisdiction and Venue: This court has federal question jurisdiction pursuant to 28 U.S.C. I331, and pendent jurisdiction over state law claims arising from the same operative facts. 28 use 1367. Declaratory judgment is sought pursuant to 28 U.S.C. 220l. Venue is proper pursuant to 28 U.S.C. l39l because many of the complained of acts in this case occurred in Travis County, Texas, and because the Defendants reside in Travis County, Texas. Parties: Plaintiff Maria Isabel Perales Serna (?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. Plaintiff Luisa Ines Barragan (?Plaintiff Barragan?) is a resident ofCameron County. She brings suit on her own behalf and as next friend for her minor son L.A.B. Plaintiff Maria Del Rosario Teran Uriegas (?Plainti ff Teran?) is a resident of Cameron County, Texas. She brings suit on her own behalfand as next friend for her minor son, Plaintiff S.Z. Case Document 1 Filed 05/26/15 Page l4. l5. PlaintiffNancy 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, L.M., J.M., and Y.M. Defendant Texas Department ofState Health Services, Vital Statistics Unit is the state agency and unit charged with recording Texas births and providing certified birth certificates upon proper applications therefore. State headquarters for the agency are located in Travis County, Texas. Defendant Kirk Coles is the Commissioner of the Texas Department of State Health Services. He resides in Travis County, Texas. He is sued in his official capacity. Defendant Geraldine Harris is the Unit Chief for the Texas Department of State Health Services, Vital Statistics Unit. She is a resident ofTravis County, Texas. She is sued in her official capacity. FACTS: Introduction: The Texas Department ofState 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 oflocal Vital Records offices located throughout the state. Tex. Health Saf. Code, Title 3 (Vital Statistics), .002. Case Document 1 Filed 05/26/15 Page 4 of 21 16. Vital Statistics of?cers must provide certi?ed copies ofbirth certi?cates upon request to all persons quali?ed to receive them. ld., Title 3 (Vital Statistics), Chapter l9 .05 . l7. To qualify for receipt ofa certi?ed copy ofa birth certificate, a person must produce adequate personal identi?cation. Specifically, the person must present one of the identi?cation documents set forth in the regulations. 25 Tex. Admin. Code, 81 .28 I). IS. The acceptable forms ofidenti?cation are divided into two categories, primary and secondary. 19. Primary forms ofidenti?cation are available only to U.S. 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 U.S. Re-Entry or Border Crossing permit. ?l81.28 20. Persons who cannot produce a primary document may qualify by producing two forms ofsecondary identi?cation, as set forth in ?l8 .28 21. These documents will only be available, for the most part, to persons who can establish their legal immigration status, whether temporary or permanent, in this country. 22.. Although passports are internationally recognized government identi?cation documents of the highest formality, .28 accepts foreign passports only if they bear a current U.S. visa. Case Document 1 Filed 05/26/15 Page 5 of 21 30. .28 l) (xiv and xv) list the only documents available to persons other than those who can prove their legal status within the United States. This section permits acceptance ofMexican Voter Registration cards and/or a foreign photo identi?cation card. For the last many years, the foreign photo identi?cation has been satis?ed by producing of?cial photo identification cards, known as ?matriculas?, issued by the person?s local consulate. Should a person have but one of the secondary documents, they may still satisfy the requirements by producing two of supporting identi?cation. For the past many months, Defendants have been refusing to accept any of the secondary documents set forth in ? 81.28 l) (xiv and xv). As a result, scores of women from Mexico and Central America have been denied birth certificates for their Texas born children. Counsel for these children has also been denied birth certi?cates for their infant client. This leaves the child with no birth certi?cate, and both mother and child with no of?cial proofof the parent-child relationship. No amendment to T.A.C. .28(l l) foreclosing of?cial consular identi?cation and other matters has been promulgated or even preposed. In rejecting the manic:ch and other such documents, the local registrars are acting upon the instructions, policies, and orders of Defendants. Case Document 1 Filed 05/26/15 Page 6 of 21 33. 34. 35. 36. 37. 38. 39. 40. This situation is causing and will cause grave and harm to the parents and children. Defendants and their attorneys have been notified of this growing problem, but have failed and refused to correct the situation. Instead, Defendants have consulted with the foreign consulates, explaining the state requirements and reasons for rejecting the matricula. The burden on the consulates would become untenable should all fifty states issue individualized requirements. Such actions interfere with the exclusive federal authority over matters involving diplomatic affairs. Matters of immigration, and the benefits to be provided to immigrants, are preempted by the federal government. Defendants? conduct fails to serve any reasonable state purpose. Defendants? conduct violates the equal protection rights of both the Plaintiff mothers and children. Defendants have knowingly and intentionally instructed and-"or ordered their local officers to deny birth certificates to the mothers and children in the Plaintiffs? situation, as described below, and will continue to do so. Defendants have at all times acted in their official capacities in this case. Case Document 1 Filed 05/26/15 Page 7 of 21 42. As set forth below, Defendants are engaged in actions beyond the scope oftheir authority and in violation of the U.S. Constitution. Plaimi?s: 43. Plaintiff Maria Isabel Perales Serna was born and raised in Mexico. 44. As a young adult, Plaintiff Perales ?ed to Texas to escape from an abusive husband. 45. Ms. Peralcs gave birth in Texas to a daughter, now fourteen years old. 46. To obtain the birth certi?cate for this U.S. citizen child, Ms. Perales simply presented her matricula from the Mexican consulate. 47. The matricula is an of?cial photo identi?cation card provided by the Mexican consulate to Mexican citizens residing in the United States. Such persons must provide proofoftheir Mexican citizenship and identity to the consulate to obtain this identi?cation card. 48. The Texas Vital Statistics of?ce accepted the matricuia and issued the birth certi?cate to Ms. Perales, pursuant to Texas Administrative Code 49. On November 24, 2014, PlaintiffPerales gave birth to PlaintiffK.Z.P.S. in a McAllcn, Texas hospital. 50. Ms. Pcrales took her hospital records, matricuia, and Mexican passport to the Vital Statistics of?ce in McAllen, Texas. Case Document 1 Filed 05/26/15 Page 8 of 21 51. S3. S4. 56. 57. 58. 59. There, she was informed that the matricuia would no longer be accepted by the State of Texas. The passport was also rejected. Plaintiff Perales had ?ed Mexico before she had obtained a voter card, and can only obtain one now by returning to Mexico, at great risk to her own safety. Birth certi?cates are the only of?cial proof of the parent-child relationship. As a result of Defendants? wrongful denial of the birth certificates, there is no official proof of the parent-child relationship between Ms. Perales and K.Z.P.S. As a result of Defendants? wrongful denial of the birth certificate, 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 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. Ms. Barragan gave birth to L.A.B. in Texas on November 28, 20l0. The father has refused to recognize his child. This birth certi?cate was stolen. In April 20l5, she brought the hospital records, her son?s social security, her matricula. and her expired Mexican voter identification card. Case Document 1 Filed 05/26/15 Page 9 of 21 60. The officer rejected her matricuia, suggesting that Ms. Barragan could get into trouble for asking for the document ofa US. citizen and threatened to report her to US. Immigration and Customs Enforcement (I.C.E.). Plaintiff Barragan needs to enroll her child in school, but school officials have told her she must present a certi?ed copy of the birth certi?cate. They will not accept the other papers. 62. Plaintiff Maria Del Rosario Teran-Urriegas is a citizen of Mexico who has lived in the United States since I998. 63. She and her husband have 2 children. 64. The first child is 17 months old, and Ms. Teran had no trouble getting a birth certificate for him. 65. The second child, Plaintiff 8.2., was born December l8, 20l4. 66. Plainti ff Teran has her man'icula, passport, hospital papers, and the child?s social security card, but no Mexican voter card. 67. In February 2015, PlaintiffTeran went to the Registrar?s office to get the birth certificate and spoke to a man there. He would not accept the matrimch and told her to get a passport. 68. PlaintiffTeran obtained the passport and returned, only to be rejected because she did not have a valid US. visa in the passport. Case Document 1 Filed 05/26/15 Page 10 of 21 69. 70. 71. 73. 74. 75. 76. 77. 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 mother-in-law?s voter card because it was too old. Plaintiff Nancy Garcia Castro is a citizen of Mexico who has lived in the United States for many years. Ms. Garcia gave birth in Texas to Plaintiff L.M. on March 5, 2009, to Plaintiff on May 9, 20l0, and to Y.M. on October ID, 2012. In early May 20l5, PlaintiffGarcia sought birth certificates for her three U.S. citizen children at the McAllen, Texas Vital Statistics of?ce. The registrar refused to accept Plaintiff Garcia?s valid mairicu/a. This Defendants" denial of birth certificates is causing all of the Plaintiff mothers problems with school enrollment, travel, medical assistance and other benefits for their U.S. citizen children. Numerous other women from Central America are being denied birth certificates for their U.S. citizen infants at this time as well. Discrimination and Harm: The current Texas Vital Statistics Unit?s practice and policy ofdenying birth certificates to U.S. citizen children is causing and will continue to cause serious harm to Plaintiffs as set forth above. A birth certificate is the primary official continuation of the parent-child relationship as well as ofthe citizenship ofthe child born in the U.S. 10 Case Document 1 Filed 05/26/15 Page 11 of 21 78. 79. 80. 83. 84. 85. 86. 87. Denial of the birth certificate will greatly complicate and/or obstruct the Plaintiff children?s right to enroll in schools and other educational and cultural programs, to obtain a passport and travel, and even to receive medical care and assistance. The denial of the birth certi?cates also interferes with the Plaintiff mothers? ability to properly care for their children, and hence with the parent-child relationship. Should any of the Plaintiff mothers be deported to Mexico in the future, their US. born children will later face complications in establishing their citizenship. Every US. citizen has a right to receive his or her birth certificate. A minor has no way to obtain his or her own birth certificate other than through his or her parents. The State ofTexas is discriminating against US. citizen children on the basis of their national origin and their parents? immigration status. There is no 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. The State ofTexas is also discriminating against the Plaintiff mothers in this case on the basis of their national origin and immigration status. There is no justi?cation for denying citizens ofMexico or Central America a birth certificate for their Texas born children. This Texas practice and policy interferes with the exclusive federal function of regulating immigration. 11 Case Document 1 Filed 05/26/15 Page 12 of 21 88. 89. 90. 91. 93. 94. 95. 96. 97. The State ofTexas has also engaged in communications with the Mexican and Central American consulates, suggesting changes in the official man-fault: system. Such requests and requirements, if made by all fifty states, would create a severe burden on the foreign consulates and grossly interfere with federal diplomatic relationships. The determination of the rights and privileges of undocumented immigrants and their families has long been preempted by the federal government. The de facto changes in the regulations accepting the consular maniac/as andfor Mexican Voter Registration cards were never properly promulgated. The requirement that a Mexican passport bear a current US. visa has no rational basis and ?thhers no state concerns. Plaintiffs are facing imminent and irreparable harm. FIRST CAUSE OF ACTION: 42 U.S.C. 3 I983 FOU RTE ENTH AMENDMENT Plaintiffs herein incorporate Paragraphs l- 93 above. At all relevant times, Defendants in this case were acting in their official capacities on behal fof the State of Texas. At all relevant times, Defendants were acting under color ofstate law. Defendants have a current policy, pattan and practice birth 12 Case Document 1 Filed 05/26/15 Page 13 of 21 93. 99. 00. 101. l02. lO3. IO4. IOS. certi?cates to the Texas-born, 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. The Plaintiff mothers 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? policies and practices. All persons born in the United States are entitled to receive of?cial copies of their own birth certificates. Defendants are violating the Fourteenth Amendment by abridging the privileges and immunities ofthe Texas born children. 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 oftheir parents? immigration status. The Plaintiff children are further being discriminated against on the basis of their national origin. Defendants have no valid justification for their discriminatory denial ofbirth certi?cates to the Plaintiffchildren. 13 Case Document 1 Filed 05/26/15 Page 14 of 21 06. 107. 108. 109. 110. 113. ll4. 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 and/or regulation unconstitutional, and enjoining the current rejection of valid consular matricuias and/or passports. Plaintiffs bring this claim pursuant to 42. U.S.C. ?l983 and 28 U.S.C. ?2201. SECOND CAUSE OF ACTION: EOUAL PROTECTION Plaintiffs herein incorporate Paragraphs 1-93 above. At all relevant times, the Defendants were acting in their official 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 ofdenying birth certi?cates to undocumented immigrant women from Mexico and Central America, who have given birth to a child in Texas. 14 Case Document 1 Filed 05/26/15 Page 15 of 21 HS. ll6. HS. 119. l22. As set forth above, the Plaintiff mothers in this case have proffered valid and of?cial forms ofidentification, but have been denied the birth certificates for their US. citizen children. All parents have the right to receive a birth certi?cate for their US. born children. The denial ofthis birth certificate deprives the Plaintiff mothers of any official confirmation of their relationship to their own children. Such denial greatly complicates and obstructs the Plaintiffs mothers? rights to consent to urgent medical care, to enroll their children in school. and to obtain other educational, health and cultural benefits for which such US. citizen children are eligible. Defendants are treating the Plaintiff mothers unequally to all otherwise similarly situated mothers of US. born children. Defendants are discriminating against the Plaintiff mothers on the basis of their immigration status and national origin. Defendants have no adequate justification for their discriminatory denial of birth eerti f1cates to Plaintiffs. Defendants have at all times acted knowingly, intentionally and under color of state law. Defendants? conduct violates the Equal Protection Clause ofthe Fourteenth Amendment ofthe United States Constitution. 15 Case Document 1 Filed 05/26/15 Page 16 of 21 124. 126. I31. Defendants? conduct is causing and will cause the Plaintiff mothers 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 ?l983 and 28 ?220l. THIRD CAUSE OF ACTION SUPREMACY CLAUSE AND PREEMPTION Plaintiffs herein incorporate Paragraphs l-93 above. Defendants have during all relevant time periods acted in their of?cial capacities on behalfofthe State of Texas. Defendants have at all times acted under color of state law. The federal government has preempted the field of immigration, especially matters involving the rights and privileges due 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, benefits, shelter, and numerous other matters. 15 Case Document 1 Filed 05/26/15 Page 17 of 21 I33. I34. I35. I36. I37. I38. I39. I40. Detennination of immigration policies, including the treatment, rights and privileges ofsuch immigrants, is the exclusive function ofthe 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 matriculas and/0r passports. Plaintiffs bring this claim pursuant to 42 U.S.C. and 28 U.S.C. ?2201. FOURTH CAUSE OF ACTION: PENDANT STATE CLAIM Plaintiffs herein incorporate Paragraphs l- 93 above. 1? Case Document 1 Filed 05/26/15 Page 18 of 21 I42. I43. I44. I45. I46. I47. I48. I49. I 50. ISI. At all relevant times, Defendants were acting in their official capacities on behalf ofthe State of Texas. At all relevant times, Defendants were acting under color of state law. T.A.C. ?18 I .28 l) specifies that consular matricuias are acceptable forms of identification for purposes of obtaining a birth certificate. 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 officials. 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. Government ode, ??200l et seq. Such changes have been made, and new rules de facto issued, without benefit of any 0 the A.P.A. required procedures. Such new policies and de facto regulations are accordingly void. 18 Case Document 1 Filed 05/26/15 Page 19 of 21 l53. 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 matricuias. WHEREFORE PLAINTIFFS PRAY THAT THIS COURT: is.) GRANT Plaintiffs? request for a Declaratory Judgement, declaring that the denial of birth certificates to US. born children on the basis of their parents? immigration status is a violation ofthe 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 US. born children, a violation of the Equal Protection Clause. GRANT Plaintiffs? request for a Declaratory Judgement, declaring that the denial ofbirth certificates to undocumented women for their US. 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 man'iculas and-"or passports of women seeking birth certificates for their US. born children. 19 Case 1:15-cv-00446-RP Document 1 Filed 05/26/15 Page 20 of 21 ORDER Defendants to pay attomeys? fees, costs, interest, and all other such matters as this Court deems just and reasonable. Respectfully Submitted, .-"S-"Jennifer K. Harburv Jennifer K. Harbury Attorney in Charge] Texas bar No. 08946500 S.D. No.26569 TEXAS LEGAL AID. INC. 300 S. Texas Blvd. Weslaeo, Texas 78596 Tel. 956-447-4800 Fax: 956-968-8823 Marinda Van Dalen Marinda Van Dalen Attorney at Law Texas Bar No. 00789698 SB. No. 17577 TEXAS LEGAL AID. INC. 53] E. St. Francis St. Brownsville TX 78520 Tel. 956-982-5540 Fax: 956-54l-l410 James C. Harrintzton James C. Harrington Attorney at Law State Bar No. 09048500 TEXAS CIVIL RIGHTS PROJECT 1405 Montopolis Drive Austin, Texas 78741-3438 Efren C. Olivares Attorney at Law Texas RioGrande Legal Aid, Inc. represents all Plaintiff children in this case. All adult Plaintiffs are Represented by the Texas Civil Rights Project. 20 Case Document 1 Filed 05/26/15 Page 21 of 21 Texas Bar No. 24065844 Southern District ot?Texas No. 0l5826 SOUTH TEXAS CIVIL RIGHTS PROJECT lOl7 W. Ave. Alamo, Texas 785l6 Tel 956-787-8l7l Fax: 956-787-6348 21