Birtherism is back. According to reporting last week from The Washington Post, the Trump administration is denying passports to Hispanic Americans in South Texas based on suspicions about where they were born. One man, who served in the Army, the Border Patrol, and as a state prison guard, applied to renew his passport and was told the government did not believe he was a citizen.
Some passport applicants with U.S. birth certificates are being sent to immigration detention. The Post says that “hundreds, and possibly thousands” of Latinos along the southern border are being accused of fraud by authorities as part of a “widespread crackdown.”
This Trump administration policy raises serious legal and constitutional questions. It is an assault on the civil rights of Latinos. Worse, it represents Trump’s bigotry towards Hispanics being carried to a noxious extreme.
{mosads}To be clear, this controversy is not about immigrants, legal or otherwise. It is about the administration going after U.S. citizens of Hispanic descent.
There is a backstory here. Between the 1950s and the 1990s, some midwives in South Texas allegedly signed U.S. birth certificates for children who had actually been born in Mexico. The George W. Bush administration cracked down on such scattered instances of fraud, winning convictions against some midwives. The Bush administration then began denying passports to people delivered by midwives in the area. This was followed by a class-action lawsuit by the ACLU against the federal government on behalf of Mexican-Americans, a 2009 settlement, and a subsequent decline in passport denials.
Fast forward to today. Now the government is reviving efforts to go after birth certificate fraud. The problem is that there is no reliable way to tell the real birth certificates from fraudulent ones. The fact that this all occurred decades ago makes things even harder. That reality has not deterred the Trump administration; The Post notes that passport revocations and denials in South Texas are “surging.” Government officials are demanding that some Hispanics prove their citizenship by submitting all sorts of documentation – and then denying their passport applications anyway.
Such action amounts to racial profiling of Latinos, who are being required to establish their citizenship in a way that other Americans are not. It is likely a violation of Texas Latinos’ due process and equal protection rights. It could violate the Administrative Procedure Act, which protects citizens from “arbitrary and capricious action” by government agencies. The Trump administration’s efforts also conflict with the terms of the 2009 settlement, whereby the State Department agreed to new procedures for fair review of passport applications by Mexican Americans in South Texas.
This policy embodies the worst of the Trump administration in two ways. First, it echoes their hardline immigration agenda, which includes ramped-up immigration enforcement, attempts to limit legal immigration, restrictions on refugees, limits on asylum seekers, and efforts to de-naturalize U.S. citizens. Second, it targets Latinos, the one group for which the president has demonstrated particular antipathy, whether they happen to be politicians, journalists, or immigrants. From his indifference to the 3,000 deaths in Puerto Rico to his abhorrent family separation policy, Trump has made no secret of his lack of regard for Hispanics. The passport denials occurring in South Texas combine both of these disturbing trends into one xenophobic policy.
In a statement, the State Department told The Post that it “has not changed policy or practice regarding the adjudication of passport applications.” Not only is this contradicted by The Post’s reporting, the 2009 settlement laid out guidelines for “fair and prompt” resolution of such cases – guidelines that apparently are not being following today. While the ACLU is exploring the possibility of mounting another legal challenge, Hispanic Americans are being forced to spend time and money fighting the government. They are being placed in deportation proceedings, or they are being stranded in Mexico when they attempt to come home from a family visit.
Yet in cases of birth certificate fraud, it was the midwife and/or a parent who committed an illegal act. It is not fair to punish people who have lived here their whole lives for something that happened when they were literally a newborn. And who feels safer knowing that some people are being rendered, in effect, stateless by having their passports revoked?
The Trump administration’s practice of denying passports to Latinos in South Texas is, in my opinion, unlawful, unwarranted, and unconstitutional. There is no sound basis for this assault on the identity and birthright of our fellow citizens.
Raul A. Reyes is an immigration attorney and member of the USA Today Board of Contributors. A graduate of Harvard University and Columbia Law School, he is also a contributor to NBCNews.com and CNN Opinion. You can follow him on Twitter at @RaulAReyes, Instagram: raulareyes1.