OPINION

Alberto Gonzales: Texas birth certificates and the future of immigration reform

LOS ANGELES, CA - AUGUST 15: Roberto Larios, 21, (R) holds Deferred Action for Childhood Arrival application as he waits in line with hundreds of fellow undocumanted immigrants at the Coalition for Humane Immigrant Rights of Los Angeles offices to apply for deportation reprieve on August 15, 2012 in Los Angeles, California. Under a new program established by the Obama administration undocumented youth who qualify for the program, called Deferred Action for Childhood Arrivals, can file applications from the U.S. Citizenship and Immigration Services website to avoid deportation and obtain the right to work  (Photo by Kevork Djansezian/Getty Images)

LOS ANGELES, CA - AUGUST 15: Roberto Larios, 21, (R) holds Deferred Action for Childhood Arrival application as he waits in line with hundreds of fellow undocumanted immigrants at the Coalition for Humane Immigrant Rights of Los Angeles offices to apply for deportation reprieve on August 15, 2012 in Los Angeles, California. Under a new program established by the Obama administration undocumented youth who qualify for the program, called Deferred Action for Childhood Arrivals, can file applications from the U.S. Citizenship and Immigration Services website to avoid deportation and obtain the right to work (Photo by Kevork Djansezian/Getty Images)  (2012 Getty Images)

The State of Texas recently amended its regulations to limit the types of identification that state officials may accept from parents who seek a birth certificate for a child born in the state.  This change makes it more difficult for some undocumented immigrants to obtain valid birth certificates when they give birth to children in Texas.

Texas officials contend this change is necessary to deter fraud and identity theft, and courts have historically recognized the broad authority of states to exercise power to protect the health, safety and welfare of its citizens. States have wide discretion in deciding what forms of ID will be acceptable for purposes of a valid birth certificate. Critics argue, however, that Texas has abused its discretion in this case.

No matter how much more difficult it may now be to obtain a birth certificate, most immigrants who are determined to have their child born as an American citizen will continue to cross our southern border, with or without documentation.

- Hon. Alberto Gonzales

Since anyone born in the United States is a citizen by virtue of the 14th Amendment of the Constitution, critics contend that the children born here of undocumented immigrants cannot be treated differently, nor denied a document fundamentally incidental to citizenship. Blacks Law Dictionary defines the birth certificate as “a formal document that records a person’s birthdate, birthplace and parentage.”  The document does not convey citizenship, it is the birth that does. A birth certificate serves as evidence of citizenship; it belongs to the child and is intended to facilitate (and sometimes necessary to facilitate) the health, welfare and education of a child. This document is indispensable in an ordered society, to be used and relied upon by a person throughout his life. 

This issue is now in the courts. Children born here of undocumented immigrants are American citizens and they are innocent of any wrongdoing. The State of Texas should not as a matter of law, and as a matter of fundamental fairness, place unreasonable barriers that would prevent these children from enjoying all the benefits of citizenship available to children born to American citizens. Nevertheless, while there may be legitimate questions regarding the evidence of fraud and abuse, a judge may disagree with the challengers and find that the new rules apply equally to every child born in Texas, no matter if the parents are citizens or noncitizens – documented or not. Furthermore, if the true purpose of the rule change is to eliminate fraud and identity theft, the court may find the new policy is reasonable. The law still recognizes common forms of ID such as driver’s licenses, electoral cards, foreign passports with valid American visas, green cards and border crossing permits. Mexican matriculas and other consular IDs on the other hand will no longer be accepted because they are considered unreliable according to Texas officials. Challengers may be better off encouraging the Mexican government to make such documents more secure instead of taking this matter before a judge.

Some who question the new policy suspect this is a backdoor way to limit birthright citizenship under the 14th Amendment. Unquestionably some undocumented immigrants come to the United States to give birth to their children as American citizens. A more effective way of course to halt birthright citizenship is to amend the 14th Amendment. Since this is unlikely to happen, those concerned about our immigration policies,  including expectant mothers crossing the border to give birth to their children, should support comprehensive immigration reform. Earlier this week a federal appeals court held that the power to make immigration policy resides primarily with Congress and that the President had exceeded his discretion in executing immigration laws by deferring deportations. The Speaker of the House recently said that in essence the Congress does not trust the President to enforce the law and will not consider immigration legislation during this administration. With respect to the new Speaker, the President’s failure to do his job does not excuse Congress from doing its job.

Americans should continue to press Congress and the President to work together to pass legislation. The correct comprehensive law will place a priority on secure borders, tougher workplace enforcement and a robust overhaul of our visa system to reduce substantially the number of visa over stayers. The correct comprehensive law will place qualified undocumented immigrants already here into some type of temporary legal status after paying a fine and back taxes – thus no amnesty. In short the correct comprehensive law is compassionate and fair to those who followed the rules, and will help secure our national security and promote our economy. 

The situation in Texas arguably is just another consequence of the failure of our federal leaders to step up and do their job on immigration. As the presidential election cycle moves forward it is important that Americans understand how each candidate intends to responsibly address our immigration challenges on a national level so that states do not feel compelled to act on their own for the protection of their citizens.

Alberto R. Gonzales is the former U.S. Attorney General and White House Counsel in the George W. Bush Administration. Presently he is the Dean and Doyle Rogers Distinguished Professor of Law at Belmont University College of Law.  

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