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U.S. Citizen Kids' Benefits At Risk By Birth Certificate Denials in Texas

One mother’s U.S. citizen children were denied entry to Head Start. Another U.S-born child was kicked out of school. A mother stopped by police was in
Image: Chris DuCharme
In a July 1, 2015 photo, Chris DuCharme focuses on and follows one of the Red Tail Hawks as it circles the top of the State Capitol's dome in Austin, Texas. DuCharme has been photographing and documenting a few pairs of mated Red Tail Hawks that live in the downtown area for over seven years. A pair of mated Red Tail Hawks and it's juvenile roost at the top of the dome. (Rodolfo Gonzalez/Austin American-Statesman via AP)Rodolfo Gonzalez / AP

One mother’s U.S. citizen children were denied entry to Head Start. Another U.S-born child was kicked out of school. A mother stopped by police was interrogated over whether she was truly her U.S. citizen child’s parent.

These are some of the experiences that U.S-born children in Texas are going through because the state has made it impossible for their parents to get birth certificates proving the children were born in the U.S., according to court documents and the attorney representing the families.

Caught in the debate over immigration and the politics of a presidential election, an unknown number of children in Texas whose parents are potentially illegally in the country, are unable to get state and federal services given to U.S. citizens, face the threat of being unable to go to school and are unable to travel because their home state is denying their parents their birth certificates.

"We just filed a (request for) a preliminary injunction because a lot of parents had been told they have to have a birth certificate or their child can't get into school," said Jennifer Harbury, an attorney with Texas Rio Grande Legal Aid who is representing several families, said Monday. The families in the case keeps growing.

The children’s experiences are taking the debate over birthright citizenship and immigration beyond the academic arguments and political rhetoric of recent weeks and presenting real-life consequences of children born in this country but who are being denied proof of citizenship, something that is routine for a majority of Americans.

As the 14th Amendment is currently applied, the children being denied birth certificates are U.S. citizens, entitled to all rights of their fellow citizens with parents born here or who have become citizens.

But the issue wasn't addressed in a news conference by GOP candidate Jeb Bush following a meeting Monday with local officials in McAllen, a city on the Texas border. A request for comment made to his campaign was not provided.

Questions posed by NBC News to Texas Attorney General Ken Paxton on how he is protecting the rights of Texas residents who are American citizen children but are denied birth certificates were referred to the health department, which oversees birth certificates regulations and the filings by his office in the lawsuit. Paxton has asked that the suit be dismissed saying the state has the power to implement the rules under the 11th Amendment to the Constitution.

An answer to the same question was not immediately available from the office of Gov. Greg Abbott who had spoken at a school earlier Monday about ensuring "children get off to the very best start."

Texas’ new identification requirement for obtaining birth certificates has forced Dallas County to come up with its own solution for making sure children can enroll in school. The district has decided to allow children to enroll based on an affidavit from parents backed by a hospital record of the child’s birth. That has to be provided within 30 days of enrollment.

If for some reason the parents don't take that step, the child will stay enrolled but the school district by law will have to report the child as missing or exploited, said Miguel Solis, a school district board member. Lack of a birth certificates is considered a red flag for the possibility a child has been abducted or is not in the custody of the proper parent.

RELATED: Telemundo: Familias Demandan a Texas Por Negar Acta de Nacimiento A Sus Hijos

“It may not impact thousands of children … but my feeling is even if it impacts one child that is a serious issue,” Solis said. “We are talking about impeding the constitutional rights of U.S. children and making their American dreams that much harder to attain and placing roadblocks in their path to their successful future.”

The Dallas school district has its own police department so it can check that children are with their parents or the parents that have custody. But Solis said not all districts have that resource. Even with the resource, the birth certificate denials have created a whole new layer of bureaucracy for the schools and the local jurisdiction that has to verify hospital records. The district has over 100 languages and informing parents of the new rule might mean paperwork in appropriate languages.

“We are just creating more and more burdensome work on municipal institutions,” Solis said. “We’re creating a culture of ambiguity and in some ways a culture of fear is being placed in the minds of these parents who all they are doing is trying to make sure they get an education for their children.”

Solis also questioned whether investigations by police of the children's birthplace might stir fear in an immigrant community where people are not legally in the U.S. and prevent families from enrolling children at all.

Texas has had a regulation requiring certain types of identification for birth certificates for several years. Among acceptable identification was a foreign identification with a photo and a foreign passport with a valid visa – meaning the person entered legally. Foreign identification could be an unexpired driver's license from the country of origin or a national ID, but these are items that for a number of reasons the parents may not have or that they have had and are now expired, stolen or lost.

Recently, the state’s health department began interpreting a 2008 rule prohibiting identification from foreign consulates – which some call matricula consulares, the primary ID used by people not legally here, but that federal officials have said is not a secure identification.

Harbury said crackdowns are being seen in Dallas, Del Rio, Houston and places where there are large immigrants populations.

Asked about the issue by NBC News, Housing Secretary Julián Castro criticized officials in his home state. As former mayor of San Antonio, who was born and raised in the U.S. - as was his mother - Castro secured funding from voters to expand pre-school education for the city's children.

“It’s time for folks to come to their senses and stop dehumanizing these children. These are people,” he said. “They are children. They are American citizens and we ought to be as concerned about them as we are about any children in our country.”

He said it’s not coincidence that “with the fever of (GOP presidential candidate Donald) Trump and (Texas Lt. Gov.) Dan Patrick and this ultra-right wing approach in Texas, that the state has started to play games on this birth certificate issue with these families. That ought to stop. These are clearly American citizens.”

In an affidavit filed with the lawsuit, one mother of three has not been able to get birth certificates for any of her children, born in 2009, 2010 and 2012 in the U.S.

Trump has reinvigorated debate over whether being born here should trigger automatic citizenship.

Opponents of what is known as birthright citizenship say it acts as incentive for illegal immigration and that the writers of the Constitution did not intend for it to do so. Critics of that argument say the issue is well settled and undoing the 14th Amendment would erase protections stemming from when former black slaves were treated as property.

As the 14th Amendment is currently applied, the children being denied birth certificates are U.S. citizens, entitled to all rights of their fellow citizens with parents born here or who have become citizens.

But it has become clear with the Texas case that those constitutional rights are only as good as the ability to meet the burden of proof that you are entitled to them.

In an affidavit filed with the lawsuit, one mother of three has not been able to get birth certificates for any of her children, born in 2009, 2010 and 2012 in the U.S.

As a result, she can’t baptize her children and although those children are supposed to have Medicaid she is being told she must come up with a birth certificate. The mother, Nancy Garcia, said she and her husband worry their children will lose medical coverage. Generally, the birth certificate is required upon renewal, but not in the first year of coverage, which is set up by the hospital, Harbury said.

Garcia also stated in her affidavit she was told last year to present a birth certificate in 30 days or her children would be expelled. They were allowed to finish the semester but she worries that they will not be allowed to enroll this year.

Her children also have lost their housing assistance, calculated based on U.S. citizens in a household, because they could not present birth certificates.

“We also worry a lot that the police or immigration will stop us. What will happen to the children in this situation? How can we establish that they are our children?” she wrote in the sworn statement.

Another plaintiff, Luisa Ines Barragan Gutierrez, tried to replace a stolen birth certificate of her son but was refused, according to the lawsuit. She tried to get a replacement but was threatened with being reported to immigration officials. School officials refuse to accept anything other than a birth certificate to enroll her son in school, the lawsuit said.

Some of the parents have older children for whom they had no trouble getting birth certificates in prior years. Parents unable to get birth certificates are not only from Mexico, but also Central America.

“These types of attacks on on U.S. citizens, children born in the U.S. are what we can expect if” the immigration rhetoric of the 2016 presidential race continues, said David Leopold, an immigration attorney.

“There is not a national registry for citizenship based on birth certificates,” Leopold said. He suggested that a national ID card may be the only way to prevent the denials but added that national ID cards have been vehemently opposed by conservatives.

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