Response to Motion for Preliminary Injunction.pdf

8/20/2019 Response to Motion for Preliminary Injunction.pdf

1/37

Defendants’ Response to Plaintiffs’ Emergency Application for Preliminary Injunction

THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

Perales Serna et al.,

Plaintiffs,v.

Texas Department of State HealthServices, Vital Statistics Unit et al.,

Defendants.

§

§§§

§

§§

§

§

Civil Action No. 15-cv-00446 RP

DEFENDANTS’ RESPONSE TO PLAINTIFFS’ EMERGENCY APPLICATION

FOR PRELIMINARY INJUNCTION

TO THE HONORABLE U.S. DISTRICT JUDGE ROBERT PITMAN:

Texas Department of State Health Services, Vital Statistics Unit (“DSHS”), Interim

Commissioner Kirk Cole, in his official capacity, and State Registrar Geraldine Harris, in her

official capacity (collectively “Defendants”) respond to Plaintiffs’ Emergency Application for

Preliminary Injunction (“Plaintiffs’ Application”) (Doc. 25) as follows:

I.

Introduction

Ensuring that only properly qualified applicants are able to obtain a certified copy of a birth

record is of paramount importance to securing the identities of persons born in Texas. The Vital

Statistics Unit (“VSU”) of the Texas Department of State Health Services bears that responsibility.

The Legislature has recognized the risk a person faces if his or her birth certificate falls into the

wrong hands, and it has made it a third degree felony to obtain someone else’s birth certificate for

purposes of deception or to fraudulently identify one’s self to obtain a certified copy of a birth

record. The VSU’s identification requirements, set forth in 25 Texas Admin. Code § 181.28 (“Rule

181”) and associated policy set forth in a field manual, are designed to ensure that only those

Case 1:15-cv-00446-RP Document 41 Filed 09/04/15 Page 1 of 37


2/37

Defendants’ Response to Plaintiffs’ Emergency Application for Preliminary Injunction 2

persons who are entitled to a certified copy of a birth record are able to obtain it. Exhibit 1,

Declaration of Geraldine Harris at ¶¶ 2, 4. Despite challenging its constitutionality, Plaintiffs

virtually ignore the text of the Rule itself, which is facially neutral and non-discriminatory, and

instead assume the Rule is discriminatory and without valid purpose. Neither point is valid.

Plaintiffs have not and cannot meet the showing necessary for issuance of a preliminary

mandatory injunction. Further, the injunction they seek, which would require Defendants to reject

the current regulatory scheme and instead “to immediately identify at least two forms of

identification reasonably and actually accessible to undocumented immigrant parents of Texas-

born children; and to issue birth certificates to them forthwith for any Texas-born child upon

presentation of either form of parental identification,” (Doc. 25, p. 20.), is impermissibly vague,

would actually create a classification in the Rule (where none exists), is overbroad insofar as it

effectively seeks class-wide relief in a case that is not and could not be a class action, and, finally,

is wholly at odds with Plaintiffs’ contention that federal law has preempted state law on this point.

II. Standard for Issuance of Preliminary Injunction

To obtain preliminary injunctive relief, the applicant must show (1) a substantial likelihood

that he will prevail on the merits, (2) a substantial threat that he will suffer irreparable injury if the

injunction is not granted, (3) that his threatened injury outweighs the threatened harm to the party

whom he seeks to enjoin, and (4) that granting the relief will serve the public interest. See Planned

Parenthood of Houston & Southeast Tex. v. Sanchez, 403 F.3d 324, 329 (5th Cir. 2005). Relief in

the form of “federal injunctive decrees directing state officials” is an extraordinary remedy.

Morrow v. Harwell, 768 F.2d 619, 627 (5th Cir. 1985). A court should not grant such relief “unless

the party seeking it has clearly carried the burden of persuasion on all four requirements.” PCI

Transp. Inc. v. Fort Worth & Wstrn R.R. Co., 418 F.3d 535, 545 (5th Cir. 2005).



3/37


Mandatory preliminary relief, which goes well beyond simply maintaining the status quo

pendente lite, is particularly disfavored, and should not be issued unless the facts and law clearly

favor the moving party. Martinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir. 1976); Exhibitors

Poster Exch., Inc. v. National Screen Serv. Corp., 441 F.2d 560, 561 (5th Cir. 1971) (per curiam).

Because they impose affirmative obligations on parties at the very beginning of a case and before

full discovery or a trial on the merits, mandatory injunctions require a higher level of proof than

prohibitory injunctions. They are “particularly disfavored,” not granted unless “extreme or very

serious damage will result,” and “not issued in doubtful cases.” Park Village Apt. Tenants Ass'n

v. Mortimer Howard Trust , 636 F.3d 1150, 1160 (9th Cir. 2011); Marlyn Nutraceuticals, Inc. v.

Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009). “Only in rare instances is the

issuance of a mandatory preliminary injunction proper.” Harris v. Wilters, 596 F.2d 678, 680 (5th

Cir. 1979).

III. Relevant Facts

A. The Requirements of Rule 181.

A certified copy of a birth record can be used to obtain numerous identification documents,

such as a passport or driver’s license, as well as to commit identity theft. Exhibit 2, Declaration

of Victor Farinelli, ¶3. Therefore, in Texas, birth certificates are not treated as open records, and

the Vital Statistics Unit must ensure that access to birth certificates is restricted to qualified

applicants possessing valid proof of identity. Id. A properly qualified applicant is one that has a

certain relationship with the person named in the record or is seeking the certified copy for a

specific purpose. Id. at ¶4. To prove that the applicant is a person who meets these requirements,

the applicant must present documentation sufficient to prove his or her identity. Id. The

requirements regarding acceptable identification are contained in 25 TEX. ADMIN. CODE §



4/37


181.28(i), and they apply equally to all applicants. Id .

There are forty-two forms of acceptable identification listed in 25 TEX. ADMIN. CODE §

181.28(i). Id. at ¶5. These forms of identification are divided into three categories: primary,

secondary, and supporting documents. Id. An applicant may obtain a certified copy of a birth

record with only one primary document; with two secondary documents of different types; or with

one secondary document and two supporting documents of different types. Id. Examples of a

primary document include, among other things, a driver’s license from any U.S. state, a military

identification card, a U.S. Department of State-issued border crossing card, or United States

Passport. Id. Examples of secondary documents include, among other things, any primary

identification document that is expired, a signed Social Security card, a Medicaid or Medicare

card, current student identification, a medical insurance card, a private company employee

identification card, and a Mexican voter registration card. Id. Examples of acceptable supporting

documents include, among other things, a recent utility bill, a current pay stub, a bank account

statement, a public assistance letter, an official school transcript, a voter registration card, an

automobile insurance card or title, and a social security letter. Id. This extensive list of acceptable

identification provides applicants with a variety of ways to prove their identity, while also ensuring

that certified copies of birth records do not fall into the wrong hands. Id .

One of the secondary forms of identification the Vital Statistics Unit accepts is a foreign

passport with a visa or from a country included in the U.S. Department of State’s visa waiver

program. Id. at ¶6. The requirement for a visa or a visa waiver helps the Vital Statistics Unit

ensure that the foreign passport is authentic and issued to the person named on the passport. Id.

This is particularly important because the Vital Statistics Unit accepts applications for certified

copies of birth records through the mail as well as in person. Id. While an in-person inspection of



5/37


a passport provides the Vital Statistics Unit an opportunity to examine the passport for the presence

of certain security features, the Vital Statistics Unit does not have that same ability for a mailed-

in photocopy of a passport. Id. Additionally, even if a passport is authentic, that does not

necessarily indicate that the foreign government verified the authenticity of the source documents

used to obtain the passport. Id. However, if a visa was issued, the U.S. State Department

conducted inquiries during the visa issuance process that would confirm the identity of the passport

holder. Id. Or, in the case of a visa waiver, the State Department has determined that there is

minimal risk from accepting the passport without any further investigation into the holder of the

passport. Id. These safeguards help the Vital Statistics Unit determine that a foreign passport is

both authentic and issued to the correct person, and that the holder of the passport is a person

entitled to a certified copy of the birth record. Id .

Since 2013, the requirements regarding acceptable identification have been contained in

25 TEX. ADMIN. CODE § 181.28(i). Id. at ¶7. Prior to that, the requirements were contained in the

Vital Statistics Unit’s Local Registrar Handbook, which provides instructions for the issuance of

documents. Id. The identification requirements were put into rule upon recommendation of the

Rider 72 workgroup, which was commissioned by the 2011 Legislature to develop

recommendations to improve the security and effectiveness of the state’s birth registration system.

Id. The workgroup consisted of staff from the Governor’s office, the U.S. Department of

Homeland Security, the U.S. Department of State, local registrars, and other local, state, and

federal agencies. Id. Specifically, the Rider 72 workgroup recommended that the Vital Statistics

Unit “consider amending administrative rule [25 TAC Section 181.1(13)] to strengthen the

controls related to the identification required to issue a birth certificate.” Id. In the same vein, the

Rider 72 workgroup recommended that the Vital Statistics Unit reduce the number of forms of



6/37


acceptable identification. Id. The workgroup reported, “By reducing the number of accepted

forms of identification, the state can reduce its exposure to the presentation of fraudulent

documents.” Id. In response to these recommendations, the Vital Statistics Unit reduced the

number of acceptable forms of identification from the 58 that were listed in the Local Registrar

Handbook to the current number. Id .

B. DSHS Restricts The Use of a Matricula Due to its Unreliability

In 2008, the Vital Statistics Unit was contacted by Ms. Rosalba Ojeda, Consul General of

Mexico at the time. Exhibit 1, Declaration of Geraldine R. Harris, ¶3; Exhibit 3, Declaration of

Marc Allen Connelly, ¶3. Ms. Ojeda inquired as to the reasoning for why the Vital Statistics Unit

did not accept the Mexican Consular ID (also known as a matricula). Exhibit 1, Declaration of

Geraldine R. Harris, at ¶3. In response to Ms. Ojeda’s inquiry, the Vital Statistics Unit conducted

research on the reliability of the matricula. Id. This research revealed that matriculas are issued

by individual Mexican Consulates in the United States, and that the Consulates do not maintain a

centralized database that keeps track of persons who have been issued a matricula and which

consular office issued the person a matricula. Id. Also of great concern was that Mexican

Consulates did not verify the authenticity of the documents presented by persons seeking a

matricula. Id. This coincided with accounts of persons found with several matriculas, all in

different names but with a photo of the same person. Id. As part of the research into the matricula,

the Registrar surveyed other state registrars regarding their acceptance of the matricula. Of the 20

who responded, only four states reported accepting the matricula as stand-alone identification. Id.

These states reported that their staff received training from the Mexican Consulates regarding how

to identify fraudulent cards. However, the states had not looked into the issue of whether source

documents used to obtain the card were authenticated. Id .



7/37


In conducting its own research, Department learned that the United States Government had

already performed extensive research on the Matricula due to concerns over its viability and

vulnerability to fraud. Exhibit 3, Declaration of Marc Allen Connelly, at ¶4. For example, the

Department learned that Steve McCraw, Assistant Director of Intelligence for the Federal Bureau

of Investigation (FBI), had testified in congressional hearings that neither the FBI nor the

Department of Justice (DOJ) recognized the Matricula as a valid form of identification due to the

non-existence of any means of verifying the true identity of the card holder. Id. Likewise, the

Department learned that the United States Immigrations and Custom Enforcement (ICE) did not

recognize the Matricula as proper identification. Id .

As a result of the research, the Department concluded that the Matricula was not a secure

or reliable form of identification meeting the standards required by the Department. Id. at ¶ 7.

After learning of these security concerns, the Vital Statistics Unit sent Ms. Ojeda a letter

stating that the Vital Statistics Unit concluded that the matricula was not a secure form of

identification and therefore, would not accept it as proof of identity for persons seeking a certified

copy of a birth record. Exhibit 1, Declaration of Geraldine Harris, ¶3; Exhibit 3, Declaration of

Marc Allen Connelly, ¶8.

Consular ID cards, and the Mexican Matricula Consular in particular, became the subject

of scrutiny after the events of 9/11/2001, including hearings conducted on June 19 and 23, 2003,

before the House Judiciary Subcommittee on Immigration, Border Security, and Claims on

Consular ID Cards. Views varied, with serious concerns expressed by members of the

subcommittee and by witnesses. Excerpts of the opening remarks of Representative John

Hostettler, Subcommittee Chair, include:

Over the past 2 years, more than a million and a half Matriculas have been issued by

Mexican Government agencies in the United States. Mexico's success in promoting its



8/37


consular identification document has prompted other countries to follow its lead.

Guatemala has begun to issue consular identification cards to its citizens in our country,and several other countries are planning to do the same.

As the issuance and acceptance of those documents has become more widespread,

however, criticism of the documents and of domestic acceptance of the documents has

increased.

. . .

It has also been argued that domestic acceptance of consular identification cards in the U.S.Possess a law enforcement and national security risk because the documents themselves

are not reliable or secure. These critics assert that the processes that foreign governments

have instituted for issuing consular identification cards are susceptible to fraud and that thestated procedures for issuance of the documents are not uniformly followed.

Critics have also argued that there are no safeguards in place to ensure that multiple

cards are not issued to the same individual and that there is no centralized database of the

cards that foreign government agents have issued in our country.

. . .

Because the issuance process for consular identification cards are not always followed andbecause the absence of safeguards on those processes, critics have argued that cards have

been issued to applicants who have few, if any, identifying documents. There appears to

be some merit to these claim. This Subcommittee has received credible reports about alienswho have been arrested carrying multiple consular identification cards bearing their own

pictures but different names.

Of particular note is a memo sent by the Border Patrol agent in charge in Riverside, CA,

to the sheriff of San Bernardino County, who was considering allowing his deputies toaccept the Matricula. The patrol agent in charge explained that his office had arrested manyMexican aliens who had in their possession multiple valid Matriculas in different names.

These arrestees included one known alien smuggler with an extensive criminal history

found in a house with 25 of the smuggled. He had seven Matriculas in his possession, eachbearing his picture and each in a different name.

. . .

They also argue that because States, localities and the Federal Government do not have

access to consular information, the duty of verifying that a document is valid is improperly

taken away from U.S. Authorities and given to agents of foreign powers who reside in the

United States. This places U.S. Law enforcement at the mercy of those foreigngovernments, whose interests, particularly with respect to illegal aliens, may not be the

same as ours.

. . .

Because there is no method for regulating issuance of consular identification cards, criticsof those cards assert that there is no way to ensure that issuance procedures for the cards

are followed and that cards are not improperly issued in exchange for bribes.



9/37


In light of the aforementioned concerns, a growing number of localities have opted not

to accept consular identification card. In May, the State of Colorado restricted publicacceptance of the documents; and the American Association of Motor Vehicle

Administrators issued a resolution stating that it was, quote, premature to recommend the

use of any foreign consular ID, end quote, in issuing a driver's license or State ID.

http://commdocs.house.gov/committees/judiciary/hju87813.000/hju87813_0f.htm , at pages 11-

14, Segment 1 of 2.

Opening remarks of Rep. Lamar Smith of Texas, included:

The second point, Mr. Chairman, is that I just don't think it is credible for anyone to arguethat these are secure documents, these consular identification cards. There is no check made

on their validity. There is no check made with any database in Mexico to make sure these

individuals are the people that they say that they are.

To say that they are tamperproof and that they can be duplicated, of course, ignores thereal issue, which is either the use of underlying fraudulent documentation or the ability ofindividuals to get multiple consular identification cards. And the fact that they are

tamperproof says nothing at all about how secure they are underneath that veneer of

tamperproof.

The other point to make, I think Mr. Chairman, is that—and one of our witnesses in afew minutes is going to make the point that the major banks in Mexico themselves do not

use the consular identification card in any way, shape or form as a legitimate card for the

bank accounts of Mexican citizens. What in the world does that say that the United Statesbanks are now being told that it is okay to use this identification card when the banks in

Mexico themselves don't use this identification card? I mean, clearly this is the world

turned upside down.

Id. at pp. 31-32.

One witness to testify before that Subcommittee was Steven C. McCraw, Assistant

Director, Office of Intelligence, Federal Bureau of Investigation. Relevant excerpts of Mr.

McCraw’s testimony on June 23 follow:

The U.S. Government has done an extensive amount of research on the Matricula

Consular, to assess its viability as a reliable means of identification. The Department ofJustice and the FBI have concluded that the Matricula Consular is not a reliable form

of identification, due to the non-existence of any means of verifying the true identity

of the card holder. The following are the primary problems with the Matricula Consularthat allow criminals to fraudulently obtain the cards:



10/37


First, the Government of Mexico has no centralized database to coordinate the

issuance of consular ID cards. This allows multiple cards to be issued under the same name,the same address, or with the same photograph.

Second, the Government of Mexico has no interconnected databases to provide

intra-consular communication to be able to verify who has or has not applied for or received

a consular ID card.

Third, the Government of Mexico issues the card to anyone who can produce aMexican birth certificate and one other form of identity, including documents of very low

reliability. Mexican birth certificates are easy to forge and they are a major item on the

product list of the fraudulent document trade currently flourishing across the country andaround the world. A September 2002 bust of a document production operation in

Washington state illustrated the size of this trade. A huge cache of fake Mexican birth

certificates was discovered. It is our belief that the primary reason a market for these birthcertificates exists is the demand for fraudulently-obtained Matricula Consular cards.

Fourth, in some locations, when an individual seeking a Matricula Consular is

unable to produce any documents whatsoever, he will still be issued a Matricula Consularby the Mexican consular official, if he fills out a questionnaire and satisfies the official that

he is who he purports to be.

. . . Individuals have been arrested with multiple Matricula Consular cards in theirpossession, each with the same photograph, but with a different name. . . . Federal officials

have arrested alien smugglers who have had as many as seven different Matricula Consular

cards in their possession. . . .

Id ., pp. 138-39, Segment 2 of 2 (emphasis added).

Another witness, C.Stewart Verdery, Assistant Secretary for Policy and Planning, Border

Transportation Security Directorate, Department of Homeland Security, observed:

[T]he Federal Protective Service within the Bureau of Immigration and CustomsEnforcement, which is also part of BTS, does not accept the Matricula Consular or other

foreign consular identification cards as identification for entry into secure Federal

buildings.

. . .

We believe that individuals have been able to obtain multiple cards under multiple names,

an occurrence which poses a significant security issue and impacts the reliability as validforms of identification.

Id . at. 149.

In its October 2003 newsletter, Tripwire, U.S. Immigration and Customs Enforcement

(ICE) observed:



11/37


The major security issue surrounding the cards is the use of a Mexican birth certificate as

the principal document to obtain a matricula. Mexican birth certificates are often difficultfor authorities to authenticate and may be issued based upon unverifiable information, such

as statements of witnesses to the birth, baptismal records, etc. To compound the issue, the

U.S. Government lacks regulatory oversight over the standards, documents and data

utilized by Mexico to issue the card.. . . . Further, the U.S. Department of Justice has concluded that the matricula is not a

reliable form of identification. This said, 74 of our nation’s 9,000 banks now accept the

card as a form of identification. No major bank in Mexico lists the card amongidentification it accepts, and only 10 of Mexico’s 32 states and districts recognize the card

as a valid identification document.

http://www.ice.gov/doclib/news/library/reports/cornerstone/cornerstone1-1.pdf , at p. 2

Other actions of the federal government call into question the reliability of matriculas. ICE

has also included on its website, an article on a “prolific and nationwide fraudulent document

ring,” and observed that convict “Castorena-Ibarra also counterfeited Republic of Mexico

identification documents, such as the ‘Matricula Consular’ identification card for illegal aliens and

others for a fee.” http://www.ice.gov/news/releases/leader-international-counterfeit-immigration-

document-ring-sentenced

The Department of Homeland Security does not accept the matricula as proof of identity

for Form I-9, which DHS uses to document verification of the identity and employment

authorization of employees. The Official Website of DHS includes in a questions and answers

section:

Is a Mexico Consular ID Card an acceptable document for the Form I-9?

No. The Mexican government issues consular ID cards to Mexican nationals living in the

United States. These cards are not acceptable proof of identity for Form I-9.

Last Reviewed/Updated: 03/27/2014

http://www.uscis.gov/faq-page/i-9-central-list-b-documents-identity#t17079n46989



12/37


The Federal Bureau of Prisons, within the Justice Department, in a December 22, 2011

Institution Supplement for FMC Lexington, had visiting regulations that provide:

“All visitors (16 years and older) are required to present acceptable means of picture

identification, prior to being admitted into the institution for a visit. Visitors are alsorequired to present the same picture ID prior to leaving the visiting room. Acceptable form

of identification is a valid state issued photo identification. Mexican consularidentification cards (Matricula Consular) will not be accepted as a valid form of

identification.”

http://www.bop.gov/locations/institutions/lex/LEX_visit_hours.pdf

C. The Lack of a Certified Copy of a Birth Certificate Does Not Prevent a Child From

Attending School or Qualifying for Medicaid.

Although the plaintiffs’ pleading states that they have had difficulties enrolling their

children in school and continuing Medicaid coverage, there are avenues to accomplish these things

for any individual who may lack a form of identification required in 25 TEX. ADMIN. CODE §

181.28(i). Exhibit 2, Declaration of Victor Farinelli, ¶8. For example, pursuant to TEX. HEALTH

& SAFETY CODE § 191.0046(a), the Vital Statistics Unit is statutorily required, and does, issue a

certificate necessary for admission to school or to secure employment. Id. This certificate is

limited to a statement of the child’s date of birth, and the state registrar issues the school certificate

without a fee. Id. Because the information on the school certificate is public record, identification

is not required in order to obtain the school certificate. Id. Similarly, the Health and Human

Services Commission, which administers the Medicaid program, has a gateway to the Vital

Statistics Unit’s database and can verify a child’s birthdate. Id. This allows parents to continue

Medicaid benefits for the child without obtaining a certified copy of the child’s birth record. Id .

A birth certificate is not necessary for Medicaid. The Texas Health and Human Services

Commission (the “Commission”) administers the Children’s Health Insurance Program (CHIP)

and Children’s Medicaid. Exhibit 4, Declaration of Stephanie Muth, ¶3. These programs provide



13/37


low cost or free health coverage for more than 4 million children in Texas without health insurance

who meet certain family income guidelines. Id. The difference between CHIP and Medicaid is

based on family income—CHIP is designed for families who earn too much money to qualify for

Children’s Medicaid, but still cannot afford to buy private health coverage. Id. In State Fiscal

Year 2014, these two programs together covered approximately 57 percent of all children in the

State of Texas. Id. CHIP and Children’s Medicaid services are delivered primarily through

managed care health plans under contract with the state. Id. at ¶4. Both programs cover office

visits, regular checkups, access to medical specialists and mental health care, hospital care and

services, medical supplies, x-rays, lab tests, prescription drugs, dental care, eye exams, glasses,

and much more. Id .

To qualify for CHIP or Children’s Medicaid, a child must be: (1) age 18 or younger

(although children up to age 20 can qualify for Medicaid in some cases); (2) a Texas resident; and

(3) a U.S. citizen or legal permanent resident. Id . at ¶ 5.

To qualify for CHIP or Children’s Medicaid, a child must, among other things, meet age

and income eligibility requirements; be a citizen or qualified alien of the United States; and be a

Texas resident. Id. at ¶5. It is not a requirement under either program for the parent to be a U.S.

citizen or legal permanent resident. Id. at ¶6. Only the child must meet the citizenship and alienage

requirements for the program to which application is made. Id. The Commission does not require

verification of the citizenship or alienage status of the parent or other adult as part of the application

process for the child. Id .

The applicant does not need to provide a copy of the child’s birth certificate or other proof

of U.S. citizenship as part of the application for CHIP or Children’s Medicaid, except in instances

where the State cannot verify the information electronically. Id. at ¶8. If the child was born in



14/37


Texas, the citizenship and birthdate of the child generally may be verified through the VSU’s

statewide database. Id. This allows applicants to apply for or to continue CHIP or Children’s

Medicaid benefits for the child without obtaining a certified copy of the child’s birth record. Id .

The Commission’s website makes clear that birth certificates are not required for Texas-

born children:

Q. Do I need to send a copy of my child's birth certificate with the application?

A. If your child was born in Texas, you do not need to send a copy of the child’s birth

certificate. We can find a copy of the certificate in our system. If the child was born in

another state or another country, you will need to send a copy of the child’s birth certificate

along with the other items we need to prove your income and expenses.

. . .

Q. Can I send something other than my child’s birth certificate to prove that he or

she is a U.S. citizen?

A. You do not need to prove your child's citizenship if the child was born in Texas. We

can look up Texas birth certificates in our system. . . .

https://chipmedicaid.org/en/Get-Help/Filling-Out-the-Application-Form

IV. Mandatory Preliminary Injunction Standard Applied

A. Plaintiffs have failed to prove they will prevail on the merits.

1. Plaintiffs Have Failed to Show a Likelihood of Success on their Fourteenth

Amendment Claims.

a. Plaintiffs have failed to show a likelihood of success on the merits of their equal

protection claims.

No Actionable Classifications. Plaintiffs’ equal protection claims fail at the very threshold.

As evident in the plain language of Rule 181, the State has not created the type of classification

necessary to support an equal protection claim. The Fifth Circuit case Johnson v. Rodriguez, 110

F.3d 299 (5th Cir. 1997) provides clear guidance in the analysis of an equal protection claim.

Johnson provides the following overview:



15/37


“The Fourteenth Amendment's promise that no person shall be denied the equal protection

of the laws must co-exist with the practical necessity that most legislation classifies for onepurpose or another, with resulting disadvantage to various groups or persons.” Romer v. Evans, 517 U.S. 620, ––––, 116 S.Ct. 1620, 1627, 134 L.Ed.2d 855 (1996) (citations

omitted). Thus, “a State does not violate the Equal Protection Clause merely because the

classifications made by its laws are imperfect.” Dandridge v. Williams, 397 U.S. 471, 485,90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970). Rather, as long as they do not burden a

fundamental right or target a suspect class, “state agencies may pursue legitimate purposesby any means having a conceivable rational relationship to those purposes.” Stern v.

Tarrant County Hosp. Dist ., 778 F.2d 1052, 1054 (5th Cir.1985) (en banc ), cert. denied ,

476 U.S. 1108, 106 S.Ct. 1957, 90 L.Ed.2d 365 (1986).

110 F.3d at 306. The court then observes:

Even the deferential “rational basis” scrutiny which is applied to ordinary governmentalclassifications is not appropriate, however, when the challenged law does not create any

classifications at all. As we have previously stated, “if the challenged government actiondoes not appear to classify or distinguish between two or more relevant persons or groups,then the action––––even if irrational––––does not deny them equal protection of the laws.”

Brennan v. Stewart , 834 F.2d 1248, 1257 (5th Cir.1988) (citation omitted). Thus, when we

are confronted with a state action which does not so classify or distinguish, we need notconsider whether there is a “rational basis” for that action because such state actions are

not subject to Equal Protection scrutiny. Vera v. Tue, 73 F.3d 604, 609–610 (5th Cir.1996),citing Brennan, 834 F.2d at 1257.

Id . Apart from the obvious distinction between applicants who can meet the requirements of

reliable identification set forth in the Rule and those who cannot, Rule 181 simply does not classify

or distinguish between two or more relevant persons or groups of persons. It most definitely does

not call out parents on their “undocumented immigration status” or children of applicants on any

such basis, which are the two “classes” upon which Plaintiffs rely in their in their equal protection

claims. (Application, Doc. 25, pp. 1, 8). The analysis may end there.

No Discriminatory Intent . Johnson further informs:

State actors may create classifications . . . de facto, through the enforcement of a facially

neutral law in a manner so as to disparately impact a discernible group. The Supreme Courthas instructed us time and again, however, that disparate impact alone cannot suffice to

state an Equal Protection violation; otherwise, any law could be challenged on Equal

Protection grounds by whomever it has negatively impacted. See Washington v. Davis, 426U.S. 229, 246–250, 96 S.Ct. 2040, 2051–2052, 48 L.Ed.2d 597 (1976). Thus, a party who

wishes to make out an Equal Protection claim must prove “the existence of purposeful



16/37


discrimination” motivating the state action which caused the complained-of injury. McCleskey v. Kemp, 481 U.S. 279, 292–293, 107 S.Ct. 1756, 1767, 95 L.Ed.2d 262 (1987)(citation omitted); Arlington Heights v. Metropolitan Housing Development Corp., 429

U.S. 252, 264– 266, 97 S.Ct. 555, 563, 50 L.Ed. 2d 450 (1977); Davis, 426 U.S. at 238–

240, 96 S.Ct. at 2047. “Discriminatory purpose in an equal protection con-text implies that

the decisionmaker selected a particular course of action at least in part because of, and notsimply in spite of, the adverse impact it would have on an identifiable group.” Woods v.

Edwards, 51 F.3d 577, 580 (5th Cir. 1995), quoting United States v. Galloway, 951 F.2d64, 65 (5th Cir. 1992).

Id . at 306-07. Plaintiffs have not made any such showing of discriminatory purpose, much less a

showing of substance sufficient to support the extraordinary issuance of a preliminary mandatory

injunction.

No Strict or Intermediate Scrutiny Based on Class. Because the Rule does not make

classifications and because Plaintiffs have failed to establish discriminatory intent as a motivation

for a de facto impact, the Court need not reach a determination of what level of scrutiny should

apply. But even if it does reach that issue, given that the Plaintiff parents are undocumented aliens,

the challenged rule is subject to rational basis review, not strict scrutiny or intermediate scrutiny

review. Plyler v. Doe, 457 U.S. 202, 223 (1982) (“Undocumented aliens cannot be treated as a

suspect class because their presence in this country in violation of federal law is not a

‘constitutional irrelevancy.’”). In LeClerc v. Webb, 419 F.3d 405, 416, nn. 22, 23 (5th Cir. 2005),

the Fifth Circuit observed that “[t]he Court has never applied strict scrutiny review to a state law

affecting any other alienage classifications, e.g., illegal aliens, the children of illegal aliens, or

nonimmigrant aliens.” (emphasis added.). See also, Van Staden v. St. Martin, 664 F.3d 56, 58 (5th

Cir. 2011) (restating the holding in Le Clerc and observing that the Court has never applied to

strict scrutiny to illegal aliens or the children of illegal aliens). In analyzing the issue and with

reference to Plyler , the Fifth Circuit observed: “the Court acknowledged that the immigration

status of the affected class of aliens precluded use of either intermediate or strict scrutiny review,”



17/37


419 F.3d at 416. See also, 416 F.3d at 419-20 (“[T]here is no precedential basis for the proposition

that nonimmigrant aliens are a quasi-suspect class or that state laws affecting them are subject to

intermediate scrutiny. . . . The decision in United States v. Virginia, 518 U.S. 515 . . . (1996) . . .

furnishes no authority for the application of intermediate Equal Protection analysis to alienage

classifications. . . . Again, we decline to move where the Supreme Court has not gone.”). Thus,

the status of the Plaintiff parents precludes application of either strict scrutiny or intermediate

scrutiny.

From their Application (Doc. 25, p. 8), the Plaintiff children do not appear to argue that

their class—children of illegal aliens (as used by the Fifth Circuit in LeClerc)—triggers strict or

intermediate scrutiny. Rather, Plaintiff children claim that it is the nature of their affected rights

that triggers strict scrutiny. (Doc. 25, pp.8-9.) In any event, Plyler and LeClerc would preclude

strict or intermediate scrutiny as to the claims of the children. Indeed, in this case, as in Plyler , it

is their status as children of illegal aliens that defines their class (Doc. 25, 8) and in Plyler the

Court declined to apply strict or intermediate scrutiny. Instead, in Plyler , the Court applied a

heightened rational basis test to the claims of the plaintiff children of illegal aliens. Under this

test, the challenged law must further some “substantial” goal of the State. Plyler , 457 U.S. at 224,

230; LeClerc, 419 F.3d at 416. However, the reason the Court in Plyler elevated the rational basis

test that would otherwise apply, as it should here, to a “heightened” rational basis test was the

significance of a public education and the fact that the statute directly authorized local school

districts to deny enrollment in their public schools to children not legally admitted to the country.

Plyler , 457 U.S. at 205. The Plyler heightened rational basis test should have no application here

because Rule 181 says nothing at all about public education and certainly does not deny enrollment

to anyone.



18/37


Scrutiny Based on Claimed Fundamental Rights. Plaintiffs cannot establish a likelihood

of success on the merits of their equal protection or due process claims because Rule 181 does not

burden a fundamental right. Because Rule 181 neither draws actionable classifications nor has

been demonstrated to have been motivated in part by discriminatory intent, the Court need not

reach the issue of whether strict scrutiny is triggered by the nature of the rights Plaintiffs claim are

at issue. If the Court reaches that issue, however, it should rule against strict scrutiny on the simple

fact (one wholly ignored by the Plaintiffs) that Rule 181 addresses, and only addresses the issuance

of a certified copy of a birth certificate. No provision in the Rule denies or abridges citizenship, a

public education, family integrity, travel, or any other right Plaintiffs would try to use to bootstrap

strict scrutiny. Where fundamental rights have triggered strict or heightened scrutiny, the

challenged law actually did implicate the right in question. For confirmation, one need only look

to the cases the Plaintiffs cite: Romer v. Evans, 517 U.S. 620, 624 (1996) (“Yet Amendment 2, in

explicit terms, does more than repeal or rescind these provisions. It prohibits all legislative,

executive or judicial action at any level of state or local government designed to protect the named

class, a class we shall refer to as homosexual persons or gays and lesbians); Plyler , 457 U.S. at

205 (statute directly authorized local school districts to deny enrollment in their public schools to

children not legally admitted to the country); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 146

(1963) (statutes divested an American of his citizenship for leaving or remaining outside the

United States at time of war and national emergency for purpose of evading military service);

Shapiro v. Thompson, 394 U.S. 618 (1969) (District of Columbia statutory provision denying

welfare assistance to residents of state or district who have not resided within their jurisdictions

for at least one year immediately preceding their applications for such assistance); Edwards v.

People of State of California, 314 U.S. 160 (1941) (statute making it a misdemeanor for a person



19/37


to bring or assist in bringing into state any indigent person who was not a resident of the state,

knowing him to be an indigent person); Dunn v. Blumstein, 405 U.S. 330 (1972) (durational

residence laws for voters); Troxel v. Granville, 530 U.S. 57 (1960) (statute permits “[a]ny person”

to petition for visitation rights “at any time” and authorizes state superior courts to grant such rights

whenever visitation may serve a child's best interest); and, Obergefell v. Hodges, 135 S.Ct. 2584

(2015) (Michigan Marriage Act prohibited same-sex marriage). These cases involved laws that

directly impact rights.

Rather than pointing to any part of the Rule itself that affects any fundamental right

(Plaintiffs actually ignore entirely the text of the Rule), Plaintiffs rely instead upon claimed

incidental effects of application of the rule—incidental effects, further, that are unique to each

Plaintiff. As shown above, the cases Plaintiffs cite involved statutes that directly affected the

claimed fundamental rights. Plaintiffs have made no such showing here.

Plaintiffs offer no authority for the proposition that legislation that is silent on a

fundamental right, but that might nevertheless have an incidental effect on that right, is subject to

strict scrutiny. Nor do they offer any limiting principle to any such proposition that would prevent

courts from being inundated with strict scrutiny challenges to nearly every form of legislation

addressing social or economic issues on the basis of incidental effects.1

1 Plaintiffs’ claim of the right of family integrity is a good example of the overbreadth of Plaintiffs’ position. To say

the right is less than clear would be an understatement. See, e.g., Hodorowski v. Ray, 844 F.2d 1210, 1217 (5th Cir.

1988) (The general right of family integrity is “nebulous” and “unsuitab[le] . . . to fix liability in particularizedcircumstances.”); Frazier v. Bailey, 957 F.2d 920, 931 (1st Cir. 1992) (Plaintiff failed to show that the child care

worker’s conduct violated the “nebulous” and “amorphous” right of family integrity.); Doe v. Louisiana, 2 F.3d 1412,

1417 (5th Cir. 1993), cert. denied 510 U.S. 1164 (1994) (“nebulous” right of family integrity); Kiser v. Garrett , 67

F.3d 1166, 1172-73 (5th Cir. 1995)(“amorphous,”“nebulous, ill-defined right to family integrity”); Peters v. Lowrey,

1997 WL 255628 *4 (5th Cir. 1997)(right “nebulous and not clearly established”); Burney v. Carrick , 1999 WL 47014

*3 (5th Cir. 1999) (“nebulous” interest in family integrity); Brian T. v. Ward , 2000 WL 423409 (5th Cir. 2000) (where

plaintiff sues social workers whose primary duty is to investigate allegations of child abuse, the case in in the center

of the continuum and the right to family integrity may properly be characterized as “nebulous”); and, Doop V.

Chapman, 2006 WL 3147323 (5th Cir. 2006) (“nebulous right to family integrity”). Under Plaintiffs’ theory, a statute



20/37


Contrary to Plaintiffs’ incidental effect premise, the law requires far more before a

challenged law becomes subject to strict scrutiny. In Bowen v. Gilliard , 483 U.S. 587 (1987), the

Supreme Court analyzed which level of review should apply in an equal protection case involving

an amendment to the federal Aid to Families with Dependent Children program that was severely

impacting families. The plaintiffs claimed that “some form of ‘heightened scrutiny’ is appropriate

because the amendment interferes with a family's fundamental right to live in the type of family

unit it chooses.” Id . at 601. The Court gave as an example one mother who stated that she had sent

a child to live with the child’s father in order to avoid the requirement of including that child in

her family as would be required by the amendment. The Court held:

We conclude that the District Court erred in subjecting the DEFRA amendment to any form

of heightened scrutiny. That some families may decide to modify their living arrangements

in order to avoid the effect of the amendment, does not transform the amendment into anact whose design and direct effect are to “intrud[e] on choices concerning family living

arrangements.” Moore v. East Cleveland , 431 U.S. 494, 499, 97 S.Ct. 1932, 1936, 52

L.Ed.2d 531 (1977).

Id . at 601-02. On this point the Court noted “If the DEFRA amendment's indirect effects on

family living arrangements were enough to subject the statute to heightened scrutiny, then the

entire AFDC program might also be suspect since it generally provides benefits only to needy

families without two resident parents.” Id . at 602, n. 17. In reaching its conclusion, the Court

relied on its prior holdings in Lyng v. Castillo, 477 U.S. 635, 638 (1986) and Zablocki v. Redhail,

434 U.S. 374 (1978) to the effect that a classification must “directly and substantially” interfere

that is facially silent on family integrity would be subject to a strict scrutiny challenge solely on the basis that it had

an incidental effect, perhaps unique to a single litigant, on a nebulous and amorphous right.

Likewise, anyone who fails to obtain a certified copy of a birth certificate could make a strict scrutiny challenge to the

Rule on the basis he or she was denied “citizenship.”

Plaintiffs’ positions are untenable and unsupported by law.



21/37


with a right for it to constitute a burden on a fundamental right. Id. at 603. To the same effect is

the holding in Philadelphia Police and Fire Ass’n for Handicapped Children Inc. v. City of

Philadelphia, 874 F.2d 156 (3d Cir. 1989), which involved cuts in rehabilitative services to the

plaintiffs. There the class members contended “that heightened scrutiny is appropriate because

their fundamental rights to family integrity and to freedom from unnecessary institutionalization

have been burdened by the cut of habilitative services.” Id. at 165. The Third Circuit cited Bowen

for the proposition that “not every burden on a fundamental right will give rise to heightened

scrutiny. If a burden is sufficiently indirect, scrutiny will not be heightened.” Id . at 166. The

district court had found that “[w]ithout continued support in the form of direct habilitative services

or family support services, it will be impossible for [some] members of the class to remain in the

family home.” As to this point the Third Circuit stated:

“The cut in habilitative services does not in itself require members of the class to leave

their family homes or enter institutions (although it may make it more likely that they will

do so). Because the burden on these fundamental rights is indirect, heightened scrutiny isinappropriate on this ground as well.”

Id . See also, League of United Latin American Citizens v. Bredesen, 500 F.3d 523, 535 (6th Cir.

2007) (“A state law implicates the right to travel when it actually deters travel, when impeding

travel is its primary objective, or when it uses a classification that serves to penalize the exercise

of the right. . . . Something more than a negligible or minimal impact on the right to travel is

required before strict scrutiny is applied.”).

No Showing of Lack of Rational Basis or (Arguendo Only) Heightened Rational Basis. As

demonstrated above, Rule 181 does not create classifications and thus rational basis review does

not even apply. Johnson v. Rodriguez, 110 F.3d 299 at 306 (“Even the deferential ‘rational basis’

scrutiny which is applied to ordinary governmental classifications is not appropriate, however,

when the challenged law does not create any classifications at all.”). Were it to apply, “[i]f the



22/37


challenged classification bears a reasonable relationship to the accomplishment of some legitimate

governmental objective, the statute must be upheld.” Anderson v. Winter , 631 F.2d 1238, 1240-41

(5th Cir. 1980). Accordingly, “‘a classification must be upheld against equal protection challenge

if there is any reasonably conceivable state of facts that could provide a rational basis for the

classification,’ and the burden is on the challenger to ‘negative every conceivable basis which

might support [the classification].’” El Paso Apartment Ass'n v. City of El Paso, 415 F. App'x

574, 578 (5th Cir. 2011) (quoting Heller v. Doe, 509 U.S. 312, 320 (1993)).

Plaintiffs’ challenge of Rule 181 fails to meet this standard. They have not met their burden

to negative every conceivable basis which might support Rule 181. Nor have Plaintiffs offered

any evidence or argument to rebut what is evident from the face of Rule 181--it rationally serves

the State’s interest in protecting the identity of its citizens by ensuring that only eligible applicants

who offer sufficient, reliable proof of identity may obtain certified copies of birth certificates.

Exhibit 1, Declaration of Geraldine Harris; Exhibit 2, Declaration of Victor Farinelli. This

purpose is also served by the State’s refusal to accept matriculas, whose reliability as evidence of

identity has not been established. Finally, there is no evidence or argument to rebut the fact that

the State’s interest in protecting the identities of is citizens is substantial, were the Court to apply

a heightened rational basis standard.

b. Plaintiffs have failed to show a likelihood of success on the merits of their

substantive due process claim.

Plaintiffs’ putative substantive due process claim is not cognizable because it duplicates their

Equal Protection claim. “[W]here a particular Amendment provides an explicit textual source of

constitutional protection against a particular sort of government behavior, that Amendment, not

the more generalized notion of substantive due process, must be the guide for analyzing these

claims.” Lindquist v. City of Pasadena, 525 F.3d 383, 387-88 (5th Cir. 2008) (quoting County of



23/37


Sacramento v. Lewis, 523 U.S. 833, 842 (1998)); see also Calhoun v. Hargrove, 312 F.3d 730,

735 (5th Cir. 2002) (“claims that are covered by such specific constitutional provisions must be

analyzed under the standard appropriate to that specific provision and not under the rubric of

substantive due process”) (citing Graham v. Connor , 490 U.S. 386, 395 (1989).

Even if the merits of the substantive due process claim are reached, because the contested

rule passes minimum scrutiny rational basis review, as discussed above, it is, as a matter of law,

not arbitrary and capricious. Brennan v. Stewart , 834 F.2d 1248, 1258-59 (5th Cir. 1988).

2. Plaintiffs have failed to show a likelihood of success on the merits of their preemption

claim.

Defendants have set forth at length and re-urge here their arguments as to preemption in

their Amended Motion to Dismiss, filed immediately preceding the filing of this response and in

their prior Reply in Support of Motion to Dismiss (Doc. 18). The burden of persuasion in

preemption cases lies with the party seeking annulment of the state statute . AT&T Corp. v. Public

Utility Com’n of Texas, 373 F.3d 641, 645 (5th Cir. 2004). Plaintiffs have failed to show a

likelihood of success on the merits on both of their preemption theories.

Field Preemption. The Supreme Court has stated that field preemption arises when ‘[t]he

intent to displace state law altogether can be inferred from a framework of regulation ‘so pervasive

. . . that Congress left no room for the States to supplement it’ or where there is a ‘federal interest

. . . . so dominant that the federal system will be assumed to preclude enforcement of state laws on

the same subject.” Arizona v. United States, 132 S.Ct. 2492, 2501 (2012)(citations omitted). “In

preemption analysis, courts should assume that ‘the historic police powers of the States’ are not

superseded ‘unless that was the clear and manifest purpose of the Congress.” Id . Further guidance

as to immigration is found in LeClerc v. Webb, 419 F.3d 405, 423 (5th Cir. 2005), reh’g en banc

denied , 444 F.3d 428 (2006), which draws upon DeCanas v. Bica, 424 U.S. 351 (1976):



24/37


Despite the federal government's primacy over the regulation of immigration, not “every

state enactment which in any way deals with aliens is a regulation of immigration and thusper-se preempted ....” De Canas, 424 U.S. at 355, 96 S.Ct. at 936. The Constitution, by

committing regulation of immigration to the federal government, did not deprive the states

of all power to legislate regarding aliens. Id . Nevertheless, ostensibly harmonious state

regulation may run afoul of the Supremacy Clause if it, in effect, interferes with the goalsof federal policy. Id . Yet, even in this context, “[f]ederal regulation ... should not be deemed

preemptive in the absence of persuasive reasons—either that the nature of the regulatedsubject matter permits no other conclusion, or that the Congress has unmistakably so

ordained.” Id. at 356, 96 S.Ct. at 937 (internal citation omitted).

Under these authorities, “courts should assume that ‘the historic police powers of the

States’ are not superseded ‘unless that was the clear and manifest purpose of the Congress.’”

Arizona, 131 S.Ct. at 2501. Here, a State’s police power2 to determine to whom and upon what

showing the State should issue a certified copy of a birth certificate (including whether an applicant

has provided reliable evidence of identity) enjoys a presumption of validity and “[f]ederal

regulation . . . should not be deemed preemptive in the absence of persuasive reasons—either that

the nature of the regulated subject matter permits no other conclusion, or that the Congress has

unmistakably so ordained.” DeCanas, 96 S.Ct. at 937. Plaintiffs have simply failed to make any

showing of this type of field preemption. Rather, Plaintiffs are still arguing for some type of per

se preemption based on immigration alone—a concept rejected in LeClerc, 419 F.3d at 423, and

DeCanas, 424 U.S. at 355. The doctrine of field preemption is not nearly as expansive as Plaintiffs

would have it. “Only a demonstration that complete ouster of state power—including state power

to promulgate laws not in conflict with federal laws—was the clear and manifest purpose of

Congress would justify th[e] conclusion” that Congress “intended to oust state authority to regulate

2 Historically, the police power extends to whatever measures a polity chooses to enact to protect, preserve and enhance

the lives of its citizens. See Gonzales v. Oregon, 546 U.S. 243, 270 (2006).



25/37


... in a manner consistent with pertinent federal laws.” De Canas, 424 U.S. at 357 (quotations

omitted).

Conflict Preemption. For conflict preemption to apply, state laws must conflict with

federal laws. This may occur two ways. “[Conflict preemption] includes cases where ‘compliance

with both federal and state regulations is a physical impossibility,” . . . and those instances where

the challenged law “stands as an obstacle to the accomplishment and execution of the full purposes

and objectives of Congress.” Arizona, 132 S.Ct. at 2501; Villas at Parkside Partners v. City of

Farmers Branch, 726 F.3d 524, 528 (5th Cir. 2013)(en banc), cert. denied , 134 S.Ct. 1491 (2014).

No Direct Conflict . Plaintiffs set up no conflict between state law and any identified federal

law, much less demonstrate that compliance with both is a physical impossibility.

Congressional Purposes and Objectives. Conflict preemption may also be found where

the challenged law “stands as an obstacle to the accomplishment and execution of the full purposes

and objectives of the Congress." Arizona, 132 S.Ct. at 2501. “What is a sufficient obstacle is a

matter of judgment, to be informed by examining the federal statute as a whole and identifying its

purpose and intended effects.” Id. (quoting Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363,

372 (2000)). See also, Villas at Parkside Partners v. City of Farmers Branch, 726 F.3d 524, 528

(5th Cir. 2013)(en banc), cert. denied , 134 S.Ct. 1491 (2014). Additional guidance comes from the

Supreme Court in Chamber of Commerce of the United States v. Whiting, 131 S.Ct. 1968 (2011),

in which the Court stated:

Implied preemption analysis does not justify a “freewheeling judicial inquiry into whether

a state statute is in tension with federal objectives”; such an endeavor “would undercut the

principle that it is Congress rather than the courts that preempts state law.” Gade v.

National Solid Wastes Management Assn., 505 U.S. 88, 111, 112 S.Ct. 2374, 120 L.Ed.2d

73 (1992) (KENNEDY, J., concurring in part and concurring in judgment); see Silkwood

v. Kerr–McGee Corp., 464 U.S. 238, 256, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984). Our



26/37


precedents “establish that a high threshold must be met if a state law is to be preempted for

conflicting with the purposes of a federal Act.” Gade, supra, at 110, 112 S.Ct. 2374.

Plaintiffs do not even identify the federal statute, the full purposes or objective of which

are obstructed by 25 Texas Admin. Code § 181.28. They thus fail at the very threshold of this type

of conflict analysis.

De Facto Removal. Plaintiffs rely on a de facto removal theory of preemption that,

although urged, could not garner a majority of the en banc Fifth Circuit. Villas at Parkside

Partners v. City of Farmers Branch, 726 F.3d 524 (5th Cir. 2013)(en banc), cert. denied , 134 S.Ct.

1491 (2014). The Court in Villas, however, made clear that it was not deciding the case on the

basis of field preemption. Villas, 726 F.3d at 529, n.4. Field preemption based on de facto removal

is not the law in the Fifth Circuit.

Nothing in 25 Texas Admin. Code § 181.28 even remotely purports to remove anyone from

the United States. A voluntary decision to leave the United States, even if caused by a State

denying benefits accorded to citizens or legal immigrants, is not a de facto removal because the

State is not physically removing anyone. Plaintiffs’ expansive notion of removal, if accepted,

would apply equally to the California law in De Canas and the Arizona law in Whiting, based on

the contention that denying aliens employment inevitably has the same effect of “removing” some

of them from the State. Yet the Supreme Court upheld the validity of these laws in both cases.

The issue in De Canas was whether a California law imposing fines on employers who knowingly

employed unlawfully present aliens was an unconstitutional attempt by the State to regulate

immigration. As the Court framed the issue:

Power to regulate immigration is unquestionably exclusively a federal power. But the Court

has never held that every state enactment which in any way deals with aliens is a regulation

of immigration and thus per se pre-empted by this constitutional power, whether latent or

exercised.... [T]he fact that aliens are the subject of a state statute does not render it a



27/37


regulation of immigration, which is essentially a determination of who should or should

not be admitted into the country, and the conditions under which a legal entrant may

remain.

424 U.S. at 354–55 (citations omitted). While acknowledging that the California law may have

some “indirect impact on immigration,” the Court held that it was not constitutionally preempted.

Id . at 355–56.

Plaintiffs' broad notion of preemption is also inconsistent with the Supreme Court's

decision in Whiting, 131 S.Ct. at 1987, upholding an Arizona law that mandated the use of E–

Verify and revoked the licenses of employers who knowingly employed aliens lacking work

authorization. The Court gave no hint that the Arizona law constituted impermissible state

regulation of immigration based on the suggestion that it may have the effect of causing certain

aliens to leave the State. Instead, the Court carefully analyzed whether the Arizona law was either

expressly preempted by IRCA, or was impliedly preempted because it conflicted with federal law.

Id . at 1977–84. This analysis would have been unnecessary if the Arizona law was “a

constitutionally proscribed regulation of immigration that Congress itself would be powerless to

authorize or approve.” De Canas, 424 U.S. at 356.

Sanctions and Benefits. Plaintiffs further argue in support of preemption in their

Application for Preliminary Injunction under the heading “Sanctions and Benefits” (Doc. 25, p.

19) and conclude with the assertion “Defendants’ denial of birth certificates to Texas-born children

constitutes a gross intrusion into this pervasive, carefully balanced scheme of benefits and

sanctions.” (Id. at 20.) Plaintiffs’ citations to statutes that impose restrictions on persons who enter

the United States unlawfully establish no “field” in conflict with a Texas rule on what an applicant

must show to obtain a child’s birth certificate. Plaintiffs’ citations to statutes they characterize as

preventing “inhumane local treatment of undocumented” individuals likewise do not lay out a



28/37


defined exclusive federal field nor do they include any federal statute that preempts the State from

requiring reliable evidence of an applicants’ identity in order to obtain a certified copy of a birth

certificate. In short, Plaintiffs’ concluding section fails to show preemption of any nature.

3. Plaintiffs cannot show they will suffer irreparable harm if injunctive relief does not

issue.

The Fifth Circuit has made clear that for injunctive relief, “[s]peculative injury is not

sufficient; there must be more than an unfounded fear on the part of the applicant” for injunctive

relief. Holland Am. Ins. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir. 1985). See also Winter

v. NRDC, Inc., 555 U.S. 7, 22 (2008) (plaintiff must “demonstrate that irreparable injury is likely

in the absence of an injunction”). Far from clearly establishing that imminent irreparable harm is

likely, Plaintiffs’ affidavits by their very terms demonstrate that the harms they do allege a) have

not occurred, but are instead hypothetical and speculative, and b) are unique to each affiant.

Plaintiffs have submitted affidavit proof from only 11 of the 28 parent plaintiffs and,

understandably, none from the children plaintiffs. For the 17 parents who have not submitted

affidavits3 and for the children on whose behalf they sue, Plaintiffs have failed to establish either

a likelihood of success on the merits or irreparable harm. A preliminary injunction as to those

plaintiffs should be denied.

As to the 11 Plaintiffs who have filed affidavits:4

--Nancy Garcia (p. 8)

Fails to establish that the affiant lacks and is unable to obtain documents sufficientto establish identity under Rule 181.

3 Luisa Ines Barragan Gutierrez, Rosa Isela Garcia Naranjo, Diana Hernandez, Javier Reyes, Nancy Hernandez, Marta

Ibarra Luna, Juan Carlos Rodriguez Velasquez, Katerine Johana Portillo, Marcelina Rangel Martinez, Antonia

Rodriguez, Damaris Romero Hernandez de Reyes, Brizeida Sanchez, Yveth Vega Diaz, Fany Ventura, Eloina Palafoz,

Giovanna Castro, and Yesenia Cortez.4 These affidavits appear in Doc. 25-1, pages 1 to 52 of 52. Page references herein are to the range of 1-52 and are to

the English translation, where provided.



29/37


Rather than establishing imminent denial of Medicaid benefits and schoolenrollment, the affidavit fails to establish that the affiant must in fact have birth

certificates for these to continue.

The affidavit also fails to establish, for a fact, that she must have birth certificatesfor section 8 housing and fails to establish she has in fact been denied housing for

lack of birth certificates.

The affiant’s statement about baptism of her child is a conclusion for which no

supporting facts are provided.

Her concerns about travel in paragraph 11 are speculative and hypothetical.

--Flavia Garcia (p. 52)

Fails to establish that the affiant lacks documents sufficient to establish identityunder Rule 181.

The affiant fails to establish as a fact that she has been denied Head Start for lack

of a birth certificate.

Her statements undermine rather than establish that she has been unable to enroll

her child in school.

Her statements about “SSI” do not establish that any such benefit has been denied

for lack of a birth certificate and her concerns are conjectural, not concrete.

Her statements undermine, rather than establish as a fact that her child has been

denied Medicaid due to lack of a birth certificate.

--Cynthia Ibarra (p. 16)

Fails to establish that the affiant lacks and is unable to obtain documents sufficient

to establish identity under Rule 181.

Her conclusions in paragraph 8 are based on hearsay and provide no supporting

facts. The affiant has failed to prove (and cannot prove) that she must have a birthcertificate for a Texas-born child to obtain Medicaid benefits.

Her concerns in paragraph 10 are speculative, not concrete.

--Paulina Nieto Ibarra (p. 19)





30/37


Paragraph 11 is a conclusion for which the affiant offers no supporting facts, suchwas whether she has tried to bring her grandson into the country and was turned

away for lack of a birth certificate and whether she in fact must have a birth

certificate in order to bring her grandchild into the country.

Any inference of imminent harm to her grandson is speculative.

--Estrella de Jesus Cedillo Nieto (p. 2)

Fails to establish that the affiant lacks and is unable to obtain documents sufficientto establish identity under Rule 181.

Paragraph 8 is a conclusion for which the affiant offers no supporting facts, such as

whether she has tried to bring her son into the country and was turned away for lackof a birth certificate and whether she in fact must have a birth certificate in order to

bring her child into the country.

Any inference of imminent harm to her child is speculative, not concrete.

--Quenia Perez (p. 30)



Her observations undermine rather than conclusively establish any contention that

she has been unable to enroll her child in school.

Her concerns about Medicaid are speculative, not concrete. The affiant has failed

to prove (and cannot prove) that she must have a birth certificate for a Texas-born

child to obtain Medicaid benefits.

Her concerns about travel are speculative and hypotehetical.

--Maria Isabel Perales Serna (p. 27)



Her conclusion in paragraph 4 about daycare is conclusion with no supporting facts.

The affiant has failed to prove for a fact that a day care center has in fact deniedenrollment due to lack of a birth certificate. She fails to prove for a fact that lack

of a birth certificate for her child has resulted in her failing to find employment.

Her observations undermine rather than conclusively establish any contention that

she has been unable to travel without a birth certificate for her child.



31/37


The affiant has failed to prove (and cannot prove) that she must have a birthcertificate for a Texas-born child to obtain Medicaid benefits.

Any inference of imminent harm to her or her child is speculative, not concrete.

--Leticia Torres (p. 39)

Fails to establish that the affiant lacks documents sufficient to establish identity

under Rule 181.

She has failed to establish (and cannot) that her child was turned down on Medicaid

for lack of a birth certificate.

Her concerns about travel are conjectural, not concrete.

--Maria Del Rosario Teran Uriegas (p. 36)


under Rule 181.

The affiant’s concerns in paragraphs 8 and 9 are conjectural, not concrete.

The affiant does not state that she has in fact been turned down for WIC, Medicaid

and food stamps.


for lack of a birth certificate.

Her harms are speculative, not concrete.

--Violeta Vega (p. 45)


under Rule 181.

She fails to establish as a fact that she lost section 8 housing because she lacked a

birth certificate for her child.


for lack of a birth certificate. Her concerns about Medicaid are conjectural, not

concrete.

Her harms are speculative, not concrete.

--Juana Gomez Ybarra (p. 10)



32/37



under Rule 181.

The affiant’s statement about baptism of her child is a conclusion for which no

supporting facts are provided.

The affiant’s conclusion that lack of a birth certificate has precluded Head Start and

daycare is a conclusion, based on hearsay and is one for which no supporting factsare provided. The affiant has failed to prove, for a fact, that she cannot obtain these

services without a birth certificate and that she lacks other documents of identity to

obtain these services.

Her concerns in paragraphs 11 and 12 are conjectural, not concrete.

Plaintiffs submit two other affidavits. The Affidavit of Juanita Valdez-Cox is not in fact

an affidavit, because it is unsworn and unsigned, and it is not a declaration, because in violation

of 28 U.S.C. § 1746, it has not been signed by the declarant. As such, it is not proper proof in

support of the Application. The Affidavit of Dr. Marsha Griffin does not support the Application

insofar as: 1) it does not pertain directly to any of the Plaintiffs, 2) her generic opinions (in

paragraphs 8 and 9) are qualified on the basis that denial of birth certificates “can” (not will or has)

cause harm, and 3) her opinions about Medicaid (“To the extent that denial . . . ,” paragraph 9) and

public housing and education (“Any interference . . . ,” paragraph 12) are qualified and thus

conjectural. Her affidavit does not establish imminent irreparable harm to any Plaintiff caused by

the lack of a certified copy of a birth certificate.

Plaintiffs’ affidavit proof is insufficient to support a preliminary injunction because the

injuries they recite are speculative and conjectural and they fail to establish that irreparable injury

is likely in the absence of an injunction. Holland Am. Ins., 777 F.2d at 997; Winter v. NRDC, Inc.,

555 U.S. at 22. Further, each Plaintiff must establish his or her own entitlement to preliminary

injunctive relief. For most of the Plaintiffs, there is no proof. For the balance, it is insufficient.

4. Plaintiff cannot show that less harm will result to Defendants if the injunction issues

than to Plaintiffs if the injunction does not issue, and the public interest weighs in



33/37


favor of denying the sweeping injunctive relief requested by Plaintiffs.

It is well settled that because a “preliminary injunction is an extraordinary remedy never

awarded as of right,” the Court is required to “balance the competing claims of injury and must

consider the effect on each party of the granting or withholding of the requested relief.” See

Winter, 555 U.S. at 24 (internal quotations and citations omitted). Plaintiffs shortchange the

potential harm to Defendants in their Application. (Doc. 25, pp. 5-6.) What they overlook is that

the potential harm is not to Defendants per se, but to Texas citizens to whom Defendants owe a

duty to maintain the confidentiality of their personal identity. Plaintiffs acknowledge that “identity

theft has increased in the U.S. over the years,” yet they fail to recognize or account for the risks of

identity theft that increase as self-identification requirements are loosened.

IV. The Requested Preliminary Injunction is Overbroad and Impermissibly Vague

Plaintiffs seek a mandatory preliminary injunction that would require Defendants “to

immediately identify at least two forms of identification reasonably and actually accessible to

undocumented immigrant parents of Texas-born children; and to issue birth certificates to them

forthwith for any Texas-born child upon presentation of either form of parental identification,”

(Doc. 25, p. 20.)

Rule 65 of the Federal Rules of Civil Procedure requires an injunction to be “specific in

terms; [and] describe in reasonable detail the act or acts sought to be restrained.” The court must

narrowly tailor an injunction to remedy the specific action which gives rise to the order. Fiber

Systems Intern., Inc. v. Roehrs, 470 F.3d 1150, 1159 (5th Cir. 2006); John Doe #1 v. Veneman, 380

F.3d 807, 818 (5th Cir. 2004) “[T]he scope of injunctive relief is dictated by the extent of the

violation established . . . ,” Veneman, 380 F.3d at 818, citing Califano v. Yamasaki, 442 U.S. 682,

702 (1979). “An injunction fails to meet these standards when it is overbroad or vague.” Venemen,



34/37


380 F.3d at 818. Vagueness is a question of notice and broadness is a matter of substantive law.

Id ; U.S. Steel Corp. v. United Mine Workers, 519 F.2d 1236, 1246 n. 19 (5th Cir.1975).

The requested relief is overbroad because it is not narrowly tailored to address the

demonstrated imminent harm to any of the Plaintiffs. As shown above, most of the Plaintiffs have

presented no proof of a substantial likelihood of recovery on the merits or of harm, whether

irreparable, imminent or otherwise. Those Plaintiffs are not entitled to any preliminary injunction.

Nor are any of the unnamed, non-party “other undocumented immigrant parents of Texas-born

children” covered by the requested preliminary injunction. This is not a class action, yet Plaintiffs

effectively seek relief on behalf of an entire class without affording to Defendants any of the

procedural protections provided by Fed.R.Civ.P. 23.

The requested relief is also impermissibly vague because it requires Defendants to

“determine at least two forms of identification [that are] reasonably and actually accessible to

undocumented immigrant parents of Texas-born children.” This type of injunction is vague

because it assumes that there are indeed two such forms available to all such undocumented parents

and then encumbers Defendants with determining what they are. See, e.g., Venemen, 380 F.3d at

820 (“Although the definition of personal information includes ‘reasonable detail,’ it is not specific

in its terms because it encumbers the federal defendants with determining what combination of

information might enable API, or others for that matter, to determine the name, address, ranch or

location of a Cooperator.”)

Defendants deny that any of the Plaintiffs will prevail on the merits or that they have

demonstrated irreparable harm sufficient to warrant preliminary injunctive relief. If the Court

determines, however, that a preliminary injunction should issue, it should be one that is narrowly

tailored to those Plaintiffs who have put on proof

Response to Motion for Preliminary Injunction.pdf

Documents