Analysis Immigration

Latinos Born Outside Hospitals Face Scrutiny Over Citizenship—and Lawyers Say Tactics Are Escalating Under Trump

Miriam Zoila Pérez

American-born citizens are having their citizenship questioned and their passports denied or confiscated because of race and ethnicity.

Gwyneth Barbara was surprised when, on April 16 of this year, she received a query in response to the passport application she had submitted just a month before. Barbara, who asked that Rewire.News not use her last name, was born in the United States—in her parents’ Kansas farmhouse, to be exact. The letter Barbara received from the U.S. Passport Agency said that because she was born outside of an institution, her birth certificate was not enough to prove her citizenship.

In a recent phone interview with Rewire.News, Barbara explained that her father was actually the one who caught her as she was delivered, with the assistance of a couple of lay midwives. As a child, she said, “I was told the story of my dad going to the courthouse to fill out the birth certificate, and they were all excited and bubbly. He was the talk of the courthouse.”

For decades, Barbara has successfully used that birth certificate to renew her driver’s license, and even to receive a prior passport. But this letter requested additional documentation to prove her citizenship.

“Border crossing card or green card for your parents issued prior to your birth? My parents were born in the United States …. Early religious records? We don’t have any. Family Bible? They won’t accept a birth certificate but they will accept a family Bible?” Barbara told KCTV 5 News.

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Barbara is not unique in facing this kind of challenge. But what makes her stand out is the fact that she is white, and lives in a state that does not border Mexico. Similar passport denials—and questioning of birth certificates for people who were born outside of hospitals—has been an issue for at least a decade, but primarily for Latinos born near the U.S.-Mexico border. Barbara’s case reflects a broader debate, one that is only heating up further among fears surrounding birthright citizenship: Is such scrutiny increasing under the Trump administration?

Barbara did end up sending the agency a long list of documents, including Xeroxes of yearbooks, presidential academic fitness awards, her high school diploma, a birth affidavit from her mother, a land purchase deed for the land her parents were in the process of buying when she was born, and a letter from the vital statistics office where her birth certificate was originally issued. But Barbara didn’t get any response from the passport agency until she finally contacted the office of her U.S. senator, Jerry Moran (R). Barbara disagrees with many of Sen. Moran’s political positions, including on immigration, but she says she was desperate.

When she spoke to people who worked in his office, she says they told her, “This seems to be a result of cracking down on immigrants.”

After collecting even more documentation—her parents’ birth certificates, one of which required her to first get a death certificate because her father is deceased—and letting the senator’s office know she’d submitted it, she received her passport in the mail without explanation.

Others, however, aren’t so lucky. Lisa Brodyaga, an immigration attorney in San Benito, Texas, has been practicing law since 1979. For the last ten years, she and her legal partner Jaime Diez have assisted more than 100 people who’ve had their citizenship challenged in ways similar to Barbara. The vast majority of those people are Latinos who were born on the U.S.-Mexico border and were born to midwives outside of hospitals.

While most of these people, like Barbara, have state-issued birth certificates, when they try to get a passport—or even renew an existing one—they receive a letter asking for more documentation. This begins what can be a long process of finding supplemental documentation, especially for people who were born decades ago. One person interviewed by the Washington Post said he was asked for “evidence of his mother’s prenatal care, his baptismal certificate, rental agreements from when he was a baby.”

These processes can be time-intensive, and costly. Retrieving birth certificates and death certificates can come with fees. Some document retrieval might require long-distance travel. These challenges can be just another barrier for already marginalized groups.

Brodyaga says this problem began when the Western Hemisphere Travel Initiative went into effect in 2007. The policy, which was implemented as part of post-9/11 changes under the Bush administration, required travelers to show a passport to cross the border, whereas before a driver’s license had been acceptable when traveling from Mexico and Canada. That led to an increase in passport applications from people living on the border. “The State Department, rather than saying no,” explained Brodyaga in a phone interview with Rewire.News, “would ask people for more documentation, more documentation.” Brodyaga explained that when the individual had no more documentation to submit, the State Department would close the case “without action”: “People in that situation were left in limbo—they couldn’t get a passport and they couldn’t go to court.”

A 2008 class-action suit that Brodyaga was involved in addressed this legal limbo, and she says in the years since, people have instead received formal denials of their passport applications. But unlike Barbara, they aren’t able to get the denials addressed quickly. Instead, they seek the help of lawyers like Brodyaga and Diez to help them navigate the process, often ending up at trial to argue their cases and prove their citizenship.

These cases have received increased media attention recently, including a major report by the Washington Post in August that claimed these types of denials are surging under the Trump administration. “We’re seeing these kind of cases skyrocketing,” Jennifer Correro, an attorney in Houston, told the Post. But some elements of the Post‘s reporting have come under criticism. The State Department denied the claims to HuffPost and released data in response to the Post report, asserting that passport denials are at their lowest level in six years.

In a statement released after the Post‘s report was first published, the State Department did, however, confirm that passport applicants born to midwives suspected of suspicious activity are being asked to submit additional documentation to prove their citizenship. In the 1990s, a number of midwives pleaded guilty to signing birth certificates of children not actually born in the United States in exchange for compensation. What isn’t clear is the exact scope of the fraud, and how many birth certificates may have been falsified.

“They would plead guilty and they would be debriefed by immigration,” says Brodyaga of the midwives in question. “‘We want you tell us every single baby that you ever falsely registered. If you miss one, we’ll send you to prison,’” says Brodyaga, reenacting these conversations. “They would frequently say: ‘Well here. Take all my files.’ They would have them sign something saying all of the babies were falsely registered,” even if they weren’t.

As a result, Brodyaga and others contend there is a specific list of suspicious midwives maintained by the State Department. On the list, she says, “There were a few who were taken to court and convicted, but the vast majority were just considered suspicious.”

In the last few years, she says, lawyers discovered there was even a doctor on the list: Dr. Jorge Treviño, a long-time McAllen, Texas, doctor who at one time operated the McAllen Maternity Clinic. A 2015 affidavit signed by a Mexican doctor asserting that he had delivered a child in Mexico who had a birth certificate signed by Treviño began the suspicion. “On the basis on that one instance,” says Brodyaga, “they are now challenging all of the thousands of people that this doctor delivered if they were born in [his] clinic and not the hospital.”

According to the Post, the data submitted post-publication by the State Department leaves out some key elements that might account for the increases reported by the outlet: “In the majority of cases reviewed by the Post, passport applicants delivered by midwives in South Texas receive repeated requests for additional documentation, but never receive formal denials from the State Department.” But Brodyaga, at least, hasn’t seen these kind of legal limbos since the class-action suit was settled during the Obama administration. The Post also reports requesting more data about people who’ve been denied outside of the border region—such as Barbara—with no response.

While Brodyaga says these passport denials existed under the Obama administration, she has noted some major changes in the two years since Trump took over. She says the government no longer does any discovery, meaning any research into whether the individual in question was actually born in the United States: “Before Trump, even if you were denied or revoked and you would file in court, the local assistant U.S. attorney would do deposition with parents and they would convince the State Department to issue you a passport,” she told Rewire.News. “Now under Trump, every case has to go to trial. I never saw that happen under Obama.”

Going to trial can be a lengthy and expensive process. “The way the Department of State handles it now, you have to go to court on everything,” she explained. “Federal court is not cheap. We’re the only ones willing to do it at a price people can afford. It’s just not fair and not right.”

Another change, she says, is that the local U.S. attorney is no longer the one litigating the cases. Instead, the Office of Immigration Litigation will send an attorney from D.C. to argue the case. She thinks it is because the current administration officials don’t trust the local attorneys—or the local elected judges involved—so they send government lawyers without connections to the region. “They think the judge who was granted all these cases was biased because she was Hispanic,” she explained. “The new judge is also Hispanic. I’m sure they now think he’s biased too. But they don’t let the local U.S. attorneys get involved because I suspect they think they’re involved. That’s just garbage. The judges are not biased, they are just fair. They know the culture.”

“Basically, [the Office of Immigration Litigation doesn’t] believe anybody down here,” she said.

And although Barbara was something of an outlier, additional scrutiny for out-of-hospital births is not isolated to Latinos on the border, at least not in the birth certificate process, says Colleen Donovan-Batson, a longtime certified nurse midwife and the director of policy and advocacy for the Midwives Alliance of North America (MANA). Donovan-Batson says that it’s not unheard of for home-birth parents to be asked for additional documentation when applying for a birth certificate for their child if the child was born outside of a hospital. Why people choose home birth varies widely—for some it’s a preference around a particular birth experience, for some it reflects their values around medical intervention, and for others, especially for many on the border, it can involve cost and access to hospitals. Home-birth midwives often charge just a few thousand dollars for prenatal care and delivery.

“I have had clients and/or [the office in charge of birth certificates] ask me to provide original chart documents,” Donovan-Batson explained. In these cases, she was working in communities far from the border in Northern California and Washington state. “I have never heard any stories of people being denied; they were just asked for additional information.” Donovan-Batson thinks the issue at hand is simply that midwives aren’t recognized as legitimate providers. She imagines officials saying: “It’s fine if you had a home birth, but show us when you went to a pediatrician.”

What sets the reported cases on the border apart is that these individuals do have state-issued birth certificates, which they’ve often been using for decades without issue. MANA released a statement written by Donavan-Batson in response to the news of passport denials to Latinos on the border. “Midwives Alliance condemns any involvement in the provision of fraudulent vital records,” reads the statement. “Of greater concern is that American born citizens are having their citizenship questioned, their rights violated, and their passports denied or confiscated because of their race or ethnicity and for being born outside of an institution.”

It is difficult to assess the exact scope of this issue and just how many people are facing the legal limbo that comes from having their birth certificates’ validity questioned. Brodyaga says that of the cases she and her partner Diez have taken on over the last decade, every single person born to a midwife has been eventually granted their passport. But that doesn’t mean that people aren’t afraid or changing their behavior in response. Brodyaga shared that some people who were born to Dr. Treviño are trying not to travel, for fear that their passports might be challenged.

Even Barbara, despite having her passport again, is fearful. “It’s terrifying. Even knowing that I had a reasonable shot at getting it fixed, it’s terrifying. I’m scared to let the passport expire. I’m going to have to pay the passport fee every ten years to maintain my citizenship and I’m not certain that’s enough.” Of how this might change future decisions, Barbara says, “I’ll keep the letter from vital statistics and possibly I’ll put off traveling to visit my family in Arizona because it’s a border state. I realize I wouldn’t be their first target but that doesn’t make me feel any better.”

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