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The issue itself, however, is nothing new.
"I used to run into these cases," says Brent Renison, an immigration attorney in Oregon who used to work for the State Department in one of its passport agencies, "and I know how they were dealt with, at least in the early 1990s. This has been going on for a long time."
Birth certificates signed by midwives or filed more than a year after the birth are flagged and applicants are asked for additional proof, he says. The trouble arises when the applicants then submit further evidence deemed insufficient by the passport office.
"It becomes a battle of documentation," Renison says. "The government can't prove they're not a citizen, the citizen can't prove they are, so they're just stuck in the middle. I think it comes down to the applicants not feeling that their evidence is being considered properly."
To Hernandez and his lawyer, Lisa Brodyaga, it's much more.
"The Department of State thinks it has discretion to decide who's a citizen and who's not," says Brodyaga. "They consider that how they weigh the evidence is a discretionary function. And to me that's incorrect. As a matter of law, there's a standard called 'preponderance of the evidence,' and it's not a discretionary thing to decide whether or not a person is a U.S. citizen."
This is the same standard used in civil courts, as opposed to the more severe "beyond a reasonable doubt" required in criminal courts. In this case, Brodyaga argues, it means that if an applicant has documentation he was born here, it must be accepted, barring more convincing proof that he was born elsewhere.
U.S. Representative Solomon Ortiz, a Democrat from the 27th District, ranging from Corpus Christi to Brownsville, contacted the State Department after getting numerous calls from constituents who were able to vote for him but could not get a passport.
"What we got from [the State Department] was that a lot of this is pretty subjective," says Danny Guerrero, Ortiz's spokesman. "If you presented your case and paperwork to a certain adjudicator, their criterion could be very different than if you presented the same paperwork to a different person."
Hernandez is one of eight plaintiffs in the ACLU lawsuit representing thousands of Hispanic Americans delivered by midwives along the border. The lawsuit alleges that the State Department is denying passports to applicants by using a subjective standard and that this discriminates against U.S. citizens based on their Mexican descent and midwife birth. The plaintiffs are asking Judge Randy Crane in McAllen federal court to prohibit the discriminatory standard.
Officially, the State Department is not commenting, citing the pending litigation. In July, when the issue was first hitting the news, spokesman Cy Ferenchak of the U.S. Bureau of Consular Affairs told The Brownsville Herald, "Normally, a birth certificate is sufficient to prove citizenship. But because of a history of fraudulently filed reports on the Southwest border, we don't have much faith in the (midwife-granted) document."
A list last updated in 2002 by the then-named Immigration and Naturalization Service, now part of the Department of Homeland Security, and widely distributed among immigration attorneys in Texas, identifies nearly 250 "suspicious" midwives, 74 of them convicted of fraud-related crimes from the late 1950s through the 1990s.
David Hernandez's midwife appears on the document but is not listed as having a conviction. One of Brodyaga's frustrations is that the government will not say what makes a midwife suspicious if she does not have a conviction.
According to the Texas Midwifery Board, which regulates the industry, 13 midwives have been disciplined for document fraud since 1999. Additionally, a 2000 Inspector General report from the Department of Health & Human Services cites problems specifically along the border (see "Hispanics Delivered by Border Midwives Are Having Trouble Getting U.S. Passports: Location, Location").
"In fact," the report states, "midwife registration has become such a problem in one border city we visited that they now require a police officer to be called to the scene shortly after any midwife delivery to verify that the birth actually occurred in the United States."
Former Brownsville city councilman Tony Zavaleta says this kind of vigilance is unnecessary today, but remembers widespread lawlessness before regulation. Brownsville passed the state's first city ordinance regarding midwives in 1977, followed by statewide regulation in 1983.
"The practice of midwifery was out of control," Zavaleta says. "There was no restraint or anything. It was the Wild West, and so as you can imagine, there were numerous cases where people just signed birth certificates for money."
Brodyaga argues, however, that suspicion is not proof. "There's absolutely no rhyme or reason [to the list]," she says. "I can't tell if it's any midwife or all noninstitutional births that they view with jaundiced eyes. I used to think they treated immigrants badly. Now they're treating U.S. citizens like dirt."
Today, the midwife business is strictly regulated by the state. In order for Texas to accept a birth certificate signed by a midwife, she must be licensed and registered with the Texas Midwifery Board. Among its duties, the board sets standards for mandatory continuing education, investigates complaints and disciplines midwives found guilty of violations.