Undocumented Mexican mothers are suing Texas officials on behalf of their U.S.-born children after being prevented from getting them birth certificates. Various Texas institutions have tried to bar undocumented children from accessing essential services in the past but if substantiated these actions would represent a new low, experts say. The plaintiffs are represented by Texas Rio Grande Legal Aid, filed a civil suit in the U.S. District Court in Austin last week. Jennifer Harbury, an attorney representing the six American children plaintiffs and their mother’s went as far as to claim that the Texas Department of State Health Services has an unspoken policy aimed at punishing the children of immigrants.

“Clearly the intent here is to deny birth certificates to U.S. citizens to mothers who do not have valid immigration status,” Harbury told reporters last week. “You can’t discriminate against children here in the United States based on their parent’s status. You can’t punish a child for what the parent did.”

Multiple public service agencies in Texas have tight and tightening requirements for identification. Legal Aid claims that the Texas Department of State Health Services only started enforcing this rule last fall, following a swell in numbers of unaccompanied minors entering the country illegally. Health Services Press officer Christine Mann told the Latin Times that immigration is not the issue.

“We’re not necessarily concerned with citizenship,” she said.

Health Services is particularly concerned with the Matricula Consular, an ID issued by Mexican consulates. Multiple states accept the Matricula things like driver’s licenses (which are issued to undocumented immigrants in states like New Mexico and California), but Texas officials say that those IDs are not as secure because consulates do not rigorously check applicant’s identities. Health Services do accept foreign passports as a form of ID, but there are two problems for undocumented immigrants.

First, Legal Aid argues that some of the women they represent only possess expired passports, and can’t renew them without returning to Mexico (and as undocumented immigrants, it would be hard to return to register their child’s birth). Second, Human Services only accepts passports with a valid immigration visa.

“We require a visa accompany a foreign passport because our requirements were modeled after what the Texas Department of Public Safety requires,” Mann told the Latin Times.

De Facto Discrimination Against Children Born To Undocumented Mothers

In other words, immigration status could be a de facto requirement for registering a woman’s births. Aside from deferring to the Department Of Safety (who issues state IDs and driver’s licenses), Human services declined to give reason for requiring legal immigration status for those wishing to registering the births of their U.S. born children. The department also could not explain how a child might get registered if it didn’t have at least one immediate relative with legal status. Since most immigrant households are of mixed status, this issue may not adversely affect more than a few hundred births per year. However, for those American children born into completely undocumented households, it could be devastating.

“The U.S. Citizen’s rights to identity documents is fundamental and one would expect the courts to direct the agency to find a rational compromise that meets both privacy, security  and human rights concerns,” Robert F. Loughran, an immigration attorney and Partner at the Texas-based firm Foster LLP, told the Latin Times.

Children need birth certificates to receive medical benefits, enroll in school and countless other interactions with the state (just ask Alecia Faith Pendleton, a Texas native who was 19 and didn’t have a birth certificate). Are Texas officials trying to punish undocumented parent’s children? It’s certainly happened before. In the 1970s and 1980s, Texas education officials tried to defund schooling for undocumented children, moving to charge them a fee for attending public school. The Supreme Court affirmed that education is a fundamental right of all children present in the U.S. in Plyler vs. Doe (1982), and Texas had to desist. In a sense, the birth certificate case is an even more glaring disenfranchisement, because it’s impeding the rights of U.S. citizens.

Loughran, the immigration lawyer says that the state must balance the need between privacy and accessibility, but that not accepting valid passports crosses a line.

“The state has an articulable interest in protecting the privacy of U.S. Citizens and not releasing a copy of a child’s birth certificates to just anyone,” he continued, arguing that if Human Services only issue was the validity of the Matricula as a legitimate form of identification,  “The State [would] basically [be] saying ‘go away and come back with a valid ID so we can release this important document to you.’

Bureaucratic Gobledygook?

It also worth noting that  Human Services accepts California and New Mexico state IDs, where both a Matricula Consular and a valid visa-less passport are accepted. In other words, it hypothetically possible that undocumented mothers could legally circumvent the Texas rules, if they were residents of those states. It would just be very, very inconvenient. In the end, Loughran says, there doesn't appear to be any reason for the policy, based on the information we told him about the case.

“I think that requiring the valid visa is not rationally related to the mission of Vital Statistics [....] Sometimes individual clerks allow their political opinions to influence their discretion, but often times it’s an innocent or unclear understanding of what is the purpose of the rule and how it relates to the mission of the agency [....] Picking up a birth certificate for your U.S. citizen child is different than applying for a State ID for oneself when one does not have immigration status.”

Loughran warns that situations like this are not always malicious, intentional acts of the state.

"Sometimes public servants would rather take no action than the wrong action when they are uncertain. Sometimes relying on another state agency’s interpretation can feel safe, but not if the mission of the two agencies serve different purposes."

Yet it's harder to give the benefit of the doubt in a state like Texas, where government officials regularly go over the line, and rooting out immigrants is a major political pastime. It’s currently spearheading the effort to block White House immigration actions, trying to keep immigrants in the shadows or -- it hopes -- make them so miserable that they’ll go home. Yet in an interconnected world and in a region where binationalism is the norm, it’s hard to go after undocumented immigrants without hurting citizens as well.

This article was published on June 2, 2015 and has been revised.