THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

Case 1:15-cv-00446-RP Document 41 Filed 09/04/15 Page 1 of 37 THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION Perales Serna et al., v. Plaintiffs, Texas Department of State Health Services, 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 Defendants Response to Plaintiffs Emergency Application for Preliminary Injunction

Case 1:15-cv-00446-RP Document 41 Filed 09/04/15 Page 2 of 37 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 Texasborn 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). Defendants Response to Plaintiffs Emergency Application for Preliminary Injunction 2

Case 1:15-cv-00446-RP Document 41 Filed 09/04/15 Page 3 of 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 Defendants Response to Plaintiffs Emergency Application for Preliminary Injunction 3

Case 1:15-cv-00446-RP Document 41 Filed 09/04/15 Page 4 of 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 Defendants Response to Plaintiffs Emergency Application for Preliminary Injunction 4

Case 1:15-cv-00446-RP Document 41 Filed 09/04/15 Page 5 of 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 mailedin 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 Defendants Response to Plaintiffs Emergency Application for Preliminary Injunction 5

Case 1:15-cv-00446-RP Document 41 Filed 09/04/15 Page 6 of 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. Defendants Response to Plaintiffs Emergency Application for Preliminary Injunction 6

Case 1:15-cv-00446-RP Document 41 Filed 09/04/15 Page 7 of 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 Defendants Response to Plaintiffs Emergency Application for Preliminary Injunction 7

Case 1:15-cv-00446-RP Document 41 Filed 09/04/15 Page 8 of 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 the stated 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 and because 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 aliens who 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 to accept the Matricula. The patrol agent in charge explained that his office had arrested many Mexican 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, each bearing 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 foreign governments, 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, critics of 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. Defendants Response to Plaintiffs Emergency Application for Preliminary Injunction 8

Case 1:15-cv-00446-RP Document 41 Filed 09/04/15 Page 9 of 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 public acceptance 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 argue that 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 the real issue, which is either the use of underlying fraudulent documentation or the ability of individuals 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 a few 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 States banks 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 of Justice 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 Consular that allow criminals to fraudulently obtain the cards: Defendants Response to Plaintiffs Emergency Application for Preliminary Injunction 9

Case 1:15-cv-00446-RP Document 41 Filed 09/04/15 Page 10 of 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 a Mexican 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 and around 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 birth certificates 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 Consular by 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 their possession, 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 Customs Enforcement, 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.... Id. at. 149. 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 valid forms of identification. In its October 2003 newsletter, Tripwire, U.S. Immigration and Customs Enforcement (ICE) observed: Defendants Response to Plaintiffs Emergency Application for Preliminary Injunction 10

Case 1:15-cv-00446-RP Document 41 Filed 09/04/15 Page 11 of 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 difficult for 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 among identification 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-immigrationdocument-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 Defendants Response to Plaintiffs Emergency Application for Preliminary Injunction 11

Case 1:15-cv-00446-RP Document 41 Filed 09/04/15 Page 12 of 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 also required to present the same picture ID prior to leaving the visiting room. Acceptable form of identification is a valid state issued photo identification. Mexican consular identification 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 Defendants Response to Plaintiffs Emergency Application for Preliminary Injunction 12

Case 1:15-cv-00446-RP Document 41 Filed 09/04/15 Page 13 of 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 Defendants Response to Plaintiffs Emergency Application for Preliminary Injunction 13

Case 1:15-cv-00446-RP Document 41 Filed 09/04/15 Page 14 of 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 Texasborn 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 (5 th Cir. 1997) provides clear guidance in the analysis of an equal protection claim. Johnson provides the following overview: Defendants Response to Plaintiffs Emergency Application for Preliminary Injunction 14