David Hernandez is crying alone in an empty field. There used to be a house here; it's where he was delivered by midwife Albina Pedraza 44 years ago. The home is gone. And with it, proof that Hernandez was born in the United States.
For Hernandez, tracking down as much of his past as possible and proving he was born on South Milam Street in San Benito, Texas means the difference between getting a passport or being a prisoner in his own country.
Hernandez's shoes crunch over the dead, yellow grass. He feels like a criminal, though he can't figure out what he's done wrong. As far as he can tell, his only sin is being delivered by a midwife less than 20 miles from the border.
After serving in the U.S. Army and living a pretty average American life, he just wants his passport. But the State Department won't give it to him. There is a history of midwife deception along the border, so the U.S. government has to be sure applicants are not using fraudulently filed birth certificates. Thus far, Hernandez has not convinced them that his is the real McCoy.
Hernandez first applied for a passport a year and a half ago in response to the announcement of a post-9/11 terrorism prevention law that kicks into effect this summer, requiring all citizens to show a passport when traveling abroad in the western hemisphere.
Hernandez doesn't have plans to wing off to the beaches of Jamaica any time soon, but needs his passport in case he wants to visit relatives just south of the border. He's spent more than a thousand dollars hunting down as much evidence as he can find. So far, it's been money wasted.
He's submitted records that show he was baptized, immunized and attended high school in Texas; he even has a letter from the Mexican government saying he wasn't born there. None of it has mattered. The problem, it seems, is that midwife Pedraza's name appears on what's known as a "suspicious list" — an inventory kept by the U.S. government of midwives convicted of or suspected of birth certificate fraud — and so his passport application has been flagged, requiring him to prove to the U.S. government's satisfaction that he was in fact born in the United States.
The State Department asked Hernandez for a birth announcement in the local newspaper. San Benito did not have a newspaper when Hernandez was born. The government asked for his early school records, but the Harlingen school district did not keep Hernandez's elementary school file. The Texas Midwifery Board has no record of Pedraza because it does not maintain records prior to 1983. Pedraza died in 1983. Making matters more difficult, his mother is the only competent witness left to his actual birth. Of the two other witnesses, his godmother is dead and his godfather has Alzheimer's.
"This has been a real wild-goose chase," says Hernandez. "You send in everything you can find, then they won't give you a passport, but they don't tell you what you do need to give them in order to correct the situation and get one. It's nothing less than a witch hunt."
In his car parked across from the empty lot, Hernandez carries a photo album: pictures of him dressed up as a Christmas bell for a school pageant, playing guitar in a garage band, running drills during basic training and downing beers with army buddies while stationed in Germany. It almost smacks of a 1950s U.S. propaganda film directed by Norman Rockwell.
After Hernandez received his fourth letter from the government refusing to issue him a passport despite all the evidence he'd sent in, he jumped on board a class-action lawsuit filed in September by the American Civil Liberties Union against the State Department.
"It's a civil rights issue," says Hernandez. "They're not doing this to people born to midwives in northern areas of the country. And it's a little discriminatory. Sure, there's the fraud they say happened with some midwives in the past, but they're holding me and others in my situation accountable for somebody else's mistake that had nothing to do with me."
After walking around the lot where his midwife's home used to sit, Hernandez heads over to the neighbor's house. The man in the driveway introduces himself as Carlos Gil and says his wife happens to be related to Pedraza. Gil says that after the midwife died, her home was abandoned and gutted by homeless people and drug users. When it was finally demolished, all of Pedraza's papers, proof that she delivered countless babies, had vanished.
In many ways, the Western Hemisphere Travel Initiative was the spark that lit the fire. A result of recommendations made by the 9/11 Commission and aimed at strengthening border security, the law will now require all U.S. citizens as of June 1, 2009, to carry a passport with them when traveling to nearby countries, including Mexico, that previously did not require a passport.
When the deadline was announced in March, the State Department was flooded with passport applications, many from residents along the border who previously never needed one. The issue began gathering national attention when applicants with Hispanic last names delivered by midwives started getting denied and the ACLU filed the lawsuit claiming discrimination.
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.
Father Michael Seifert is the pastor of San Felipe de Jesus Church in one of the poorest sections of Brownsville. When he became aware of the passport problems some of his parishioners were having, he called a meeting to discuss the issue.
"I thought we'd get 15 to 20 people," he says. "We had 60 people. They sat there for four hours telling these stories, everything from their child was selected to be in a chess tournament overseas and their parents couldn't get a passport to go, to a guy with a trucking business who was desperate and didn't know what to do. A lot more people are affected than I thought."
The practice of midwifery is as old as Texas, owing its deep roots to Mexican culture.
"Here on the border," says ex-council member Zavaleta, now an anthropology professor at the University of Texas at Brownsville, "being delivered by a midwife has been one of the most common modalities for delivery that's historically ever existed. When Mexican nationals, whether they were legal or illegal, would come to the United States, they'd see signs in almost every neighborhood that said, 'Se tendien partos,' or 'We deliver babies.' In fact, it was more common to be born by a midwife than in a hospital. The passport issue is very shortsighted of [the government], not understanding how the culture and society works here along the border."
Seifert points out that "it's not like the people here need a passport to go to France. Here, living near the border, it's everyday lives, it's jobs, it's family. It's sad to hear people say, 'Starting in June I'll never see my grandmother again. What's my crime? I did everything right. I'm a citizen. Why?'"
Ortiz is trying to answer these questions and fix the problem. He's introduced a bill in Congress that would forbid passport officials from considering the applicant's race, ethnicity or ancestry, would make a state-authorized birth certificate sufficient evidence to get a passport and would require that any denial letter must state the reason for the ruling.
The bill died in the last legislative session, but Ortiz vows he will resubmit it.
Meanwhile, other Texas politicians in Washington are keeping mum on the issue. Republican Senator John Cornyn's press office did not respond to a request for comment. Matt Mackowiak, the spokesman for Senator Kay Bailey Hutchison, also a Republican, e-mailed the Houston Press saying, "I think we'll decline, thanks though."
But now is not the time to turn a blind eye, says Guerrero.
"We're getting a fair amount of calls about this now," he says. "but next year, as the deadline gets closer, we're anticipating a lot more."
Marina Ramirez works the assembly line packaging turkeys at a processing plant 200 miles south of the Canadian border in Pelican Rapids, Minnesota, nearly a nation away from South Texas. She's lived there for more than 30 years and raised a son, Hector, who also works at the turkey plant. She says she was born in San Benito in 1946. Now 62, she thought she was finished with her past.
Soon after the Western Hemisphere Travel Initiative was announced, Ramirez wanted to make sure she'd be able to take her yearly trip to visit family in Mexico, so she sent her Texas birth certificate and $75 to the passport agency. Her application was denied.
More surprised than concerned, Ramirez went about trying to find additional documentation. She came up empty.
Her parents, witnesses to her birth, have died. School records do not exist because she did not go to school. The only supporting U.S. document she was able to find was her baptismal certificate.
In hindsight, Ramirez shouldn't have been surprised that her passport application didn't initially sail through. Her birth certificate is riddled with red flags: She wasn't delivered in a hospital; the only signatures on the birth certificate are of her father and a man she doesn't know; and it was filed late — around the same time she was baptized — more than three years after her birth date.
Ramirez never had any reason to doubt that she was born in Texas. But the State Department wrote her a letter in August saying Mexican records show that someone with Ramirez's name and her parents' common surnames (Jose Perez and Petra Hernandez) was born in Mexico one year to the day before the date stamped on her U.S. birth certificate. She didn't know what to do or think.
"She says she was confused," says Hector, translating for his mother, who only speaks Spanish. "She always believed that she was a U.S. citizen, so this made her feel very bad. She was losing hope and became afraid."
Problems similar to Ramirez's and Hernandez's are popping up all over the country. Newspapers from Oregon to Florida report stories of lawsuits and angry, confused passport applicants. The one thing in common: They were all born in Texas.
This, however, is where Ramirez's story differs from those of many others trying to get passports.
In February, the State Department notified the Texas Department of State Health Services not to issue Ramirez any copies of her birth certificate due to the fact, they said, that she had an earlier birth certificate on file in Mexico. The feds also refused to send Ramirez back the copy she'd sent them to get her passport. Her only choice was to request a hearing with Texas officials to try to prove her birth certificate was legitimate.
The state's Vital Statistics unit held the hearing in May. Ramirez testified that she could not produce very much evidence more than 60 years after the fact, but did provide her baptismal certificate; her Mexico marriage record, which lists her place of birth as the United States; and U.S. tax records starting in 1971.
In the eyes of Texas, this was enough. Her birth certificate was validated.
According to state hearing officer Dan Meador's findings, "As the earlier record, the Mexican [birth certificate] is entitled to a presumption that it is the more correct record, absent other evidence. Other evidence [submitted, however]...creates a slight preponderance of the evidence that the Texas certificate is true and correct."
Relieved, Ramirez reapplied for her passport, confident of the results after her victory in Austin. But no. The State Department's passport division denied her again.
Ramirez hired an immigration attorney. She is now suing the State Department in Minnesota federal court to get her passport.
"I thought for sure that the passport agency would accept her after the Texas hearing, but they didn't, which is ridiculous," says Ramirez's lawyer, Sonseere Goldenberg. "For all the government's efforts to try to disprove a U.S. birth certificate, they certainly don't check into the ones in Mexico to the same extent that they do the U.S. birth certificates. I don't think anyone has a copy of it. It's just referenced in their letter and that's it."
Goldenberg is also arguing that the State Department is unlawfully questioning the validity of state-issued documents. Brodyaga agrees.
"If the state allows a midwife to sign the birth certificate," Brodyaga says, "and the state registers it and issues the parents a birth certificate, then 50 years later the State Department doesn't have the right to say, 'That's not a valid birth certificate.' It's totally retroactive hell."
Meador told the Press that he's seen a "sizable" increase in the number of birth certificate hearings he's presided over since the new travel initiative was announced. He says he can't account for why the State Department would have denied Ramirez after her birth certificate was validated.
"I can't talk about specific cases," he says. "[But] I don't know why they'd reject it."
Meador says Texas uses the 51-49 standard for evidence, the same one Ramirez and Hernandez are trying to get the State Department to use.
"It's the preponderance of whatever evidence is provided by the parties," Meador says.
Hector, who was born in Mexico, says he's optimistic about his mother's chances. But it's scary. And he wonders how her case might affect his citizenship. After all, he got his green card based on her being born in the States.
"She's been living here most of her life," he says, "paying taxes, working hard, and I feel bad. I suppose the government needs to check all the papers to make sure, but why didn't they do this or say anything when I was getting my green card based on her birth certificate? This whole thing is just so crazy."
Wearing a Dallas Cowboys cap and clutching the leather Cowboys steering-wheel cover in his maroon Monte Carlo, David Hernandez slowly maneuvers through the side streets of San Benito looking for a Hispanic grocery called Jimmie's. Hernandez got a tip that the store owner was delivered and then adopted by Hernandez's midwife and used to help her keep her books.
Hernandez is nervous. He's followed too many leads that later turned to dust.
Inside, Hernandez talks excitedly to the cashier in Spanish. It's the right man, but he doesn't remember what happened to the paperwork after the midwife died. Another dead end.
On the drive home to Harlingen, Hernandez stops in at St. Benedict's Church, where he was baptized. A cheerful-looking woman named Cindy Pena is manning the front desk. As Hernandez explains that he's one of the people delivered by midwives who's struggling to get a passport, Pena smiles and nods.
"More people than I can even count have been coming in to get baptismal certificates regarding passports," she says. "We used to get two or three people a week asking, but now it's every day."
She tells the story of a woman named "Gonzalez" who came into the church one day after being denied a passport. Pena says the woman said she called the State Department to ask why and was told it was because the name on her birth certificate ended in an "s," whereas it was spelled with a "z" on other documents.
"Just for one letter and they denied her passport," says Pena. "Every little thing has to match."
Suddenly, Hernandez blurts out, "Maybe that's one of the reasons I haven't gotten my passport. My birth certificate has my middle initial, 'B,' but my other records don't. I hadn't even thought about that."
"Any difference in the certificate can be a problem," says Pena.
"Would adding the 'B' to my baptismal certificate be a problem?" Hernandez asks.
"You would have to bring in your birth certificate," says Pena, "but we could do that."
"Well," says Hernandez, "this is great to know. This is something that I've never heard of because the State Department doesn't tell you anything, why you've been denied. They just send you on a wild-goose chase."
Hernandez says he will also go to a Texas Department of Public Safety office to re-sign his driver's license, this time with the "B."
Hernandez is the restaurant supervisor at the Courtyard Marriott hotel in Harlingen. He keeps things organized behind the bar like an army footlocker, and smiles professionally at customers. Yet he looks tired, with bags under his eyes.
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"I'm a sour person," he says. "My job is to be friendly and hospitable, but it's hard to show up and put on a happy face when you're fighting the government."
Most Americans don't know many more than the first few amendments to the U.S. Constitution — free speech, right to bear arms, the basics. Not so for Hernandez. He keeps a small, paperback copy of the Constitution next to the gear shifter in his car. His favorite is the 14th.
"It's about citizenship rights," says Hernandez, "and it starts out by saying that all persons born in the United States are citizens of the United States. Is San Benito not in America? It says in the Constitution that the government was put here to help its people. Well, the government sure isn't trying very hard for me. When I joined the army, I took an oath to defend the Constitution. In my opinion, I'm doing the same thing again. And I'm having to do it against the very government I love so much and gave my service to."