Case 1:15-cv RP Document 64-1 Filed 09/23/15 Page 1 of 26 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

Case 1:15-cv-00446-RP Document 64-1 Filed 09/23/15 Page 1 of 26 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION Maria Isabel Perales Serna, et al., Plaintiffs, Case No. 1:15-cv-00446-RP v. Texas Department of State Health Services, Vital Statistics Unit, et al., Defendants. AMICUS CURIAE BRIEF OF NATIONAL IMMIGRATION LAW CENTER IN SUPPORT OF PLAINTIFFS EMERGENCY APPLICATION FOR PRELIMINARY INJUNCTION

Case 1:15-cv-00446-RP Document 64-1 Filed 09/23/15 Page 2 of 26 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii IDENTITY AND INTERESTS OF AMICI... 1 INTRODUCTION AND SUMMARY OF ARGUMENT... 1 ARGUMENT... 3 I. The Texas Policy Violates the Fourteenth Amendment... 3 A. The Texas Policy Significantly Interferes with the Fundamental Right to Citizenship. 5 B. The Texas Policy is Not Closely Tailored to Address any Important Governmental Interest... 9 II. The Texas Policy Is Preempted... 11 A. The Texas Policy Frustrates Federal Objectives... 12 B. The Texas Policy Undermines U.S. Foreign Relations... 15 CONCLUSION... 18 CERTIFICATE OF SERVICE... 19 i

Case 1:15-cv-00446-RP Document 64-1 Filed 09/23/15 Page 3 of 26 TABLE OF AUTHORITIES Cases Afroyim v. Rusk, 387 U.S. 253 (1967)... 5-6 Am. Ins. Ass n. v. Garamendi, 539 U.S. 396 (2003)... 14 Arizona Dream Act Coalition v. Brewer, 757 F.3d 1053 (9th Cir. 2014)... 13-14 Arizona v. United States, 132 S. Ct. 2492 (2012)... passim DeCanas v. Bica, 424 U.S. 351 (1976)... 12 Duncan v. Louisiana, 391 U.S. 145 (1968)... 5 English v. Gen. Elec. Co., 496 U.S. 72 (1990)... 12 Examining Bd. of Eng rs v. Flores de Otero, 426 U.S. 572 (1976)... 3 Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861 (2000)... 12-13 Hines v. Davidowitz, 312 U.S. 52 (1941)... 13, 15 Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963)... 5 Lozano v. City of Hazelton, 724 F.3d 297 (3d. Cir. 2013)... 17 M.L.B. v. S.L.J., 519 U.S. 102 (1996)... 4 Movsesian v. Victoria Versicherung AG, 670 F.3d 1067 (9th Cir. 2012)... 15 ii

Case 1:15-cv-00446-RP Document 64-1 Filed 09/23/15 Page 4 of 26 Nyquist v. Mauclet, 432 U.S. 1 (1977)... 11 Obergefell v. Hodges, 135 S. Ct. 2584 (2015)... passim Palko v. Connecticut, 302 U.S. 319 (1937), overruled on other grounds by, Benton v. Maryland, 395 U.S. 784 (1969)... 5 Plyler v. Doe, 457 U.S. 202 (1982)... 10 Powell v. State of Alabama, 287 U.S. 45 (1932)... 5 Reno v. Flores, 507 U.S. 292 (1993)... 4 Romer v Evans, 517 U.S. 620 (1996)... 8 Saenz v. Roe, 526 U.S. 489 (1999)... 4-5 Takahashi v. Fish & Game Comm n, 334 U.S. 410 (1948)... 10-11 Ting v. A T & T, 319 F.3d 1126 (9th Cir. 2003)... 13 Toll v. Moreno, 458 U.S. 1 (1982)... 11, 17 Truax v. Raich, 239 U.S. 33 (1915)... 11 United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012)... 13, 17 United States v. Salerno, 481 U.S. 739 (1987)... 9 iii

Case 1:15-cv-00446-RP Document 64-1 Filed 09/23/15 Page 5 of 26 United States v. Windsor, 133 S. Ct. 2675 (2013)... 8 United States v. Wong Kim Ark, 169 U.S. 649 (1898)... 5, 12 Villas at Parkside Partners v. City of Farmers Branch, 726 F.3d 524 (5th Cir. 2013)... 17 Washington v. Glucksberg, 521 U.S. 702 (1997)... 3 Zablocki v. Redhail, 434 U.S. 374 (1978)... 4 Zschernig v. Miller, 389 U.S. 429 (1968)... 14 Rules 22 C.F.R. 53.2(b)(11)... 6 Statutes 22 U.S.C. 211a... 14 Cal. Health & Safety Code 103526... 10 Tex. Admin. Code 181.28(i)(11)(B)... 2 Tex. Admin. Code 181.28(i)(11)(D)(xv)... 2 Other Authorities Fees, U.S. Department of State Bureau of Consular Affairs, http://travel.state.gov/content/passports/en/passports/information/fees.html (last visited Sept. 23, 2015)... 6 First Time Applicants, U.S. Department of State Bureau of Consular Affairs, http://travel.state.gov/content/passports/en/passports/first-time.html (last visited Sept. 23, 2015)... 6, 13 I-9 Requirements Documents List, Texas Workforce Commission, http://www.twc.state.tx.us/news/efte/i_9_requirements_lists.html (last visited Sept. 23, 2015).... 7 iv

Case 1:15-cv-00446-RP Document 64-1 Filed 09/23/15 Page 6 of 26 2012 Republican Party of Texas, Report of the Platform Committee and Rules Committee... 9 Clare Foran, Ted Cruz Supports Amending the Constitution to End Birthright Citizenship, National Journal, Aug. 19, 2015... 9 Consular Identification Cards: Hearing before the Subcommittee on Immigration, Border Security, and Claims of the Committee on the Judiciary, House of Representatives, 108th Cong. 143 (2003)... 16 Hannah Arendt, The Origins of Totalitarianism 294 (1951)... 5 Identification Requirements, N.Y.C. Dep t of Health & Mental Hygiene, http://www.nyc.gov/html/doh/html/services/vr-id.shtml (last visited Sept. 23, 2015)... 10 New or Replacement Social Security Number and Card, Social Security Administration, http://www.ssa.gov/ssnumber/ss5doc.htm (last visited Sept. 23, 2015)... 7 The Pew Charitable Trusts, Deciding Who Drives: State choices surrounding unauthorized immigrants and driver s licenses 16 19 (Aug. 2015)... 10 U.S. Citizenship & Immigration Serv., I Am a U.S. Citizen: How Do I Get Proof of my Citizenship?... 6 Valid Government Issued Photo Identification, Ill. Dep t of Pub. Health, http://www.idph.state.il.us/vitalrecords/pages/vgipi.htm (last visited Sept. 23, 2015)... 10 v

Case 1:15-cv-00446-RP Document 64-1 Filed 09/23/15 Page 7 of 26 IDENTITY AND INTERESTS OF AMICI Amici files this brief in support of the Plaintiffs Emergency Application for Preliminary Injunction (Doc. No. 25) to provide additional analysis on the Fourteenth Amendment and federal preemption questions, including on how the analysis under both claims may be considered together, that may be helpful to the Court. The National Immigration Law Center ( NILC ) is a national nonprofit legal advocacy organization dedicated to advancing and promoting the rights of low-income immigrants and their family members. NILC uses multiple strategies to carry out this mission, including impact litigation, policy advocacy and education, and trainings and technical assistance. A major concern of the organization over the past six years has been the enactment of state laws and policies that unlawfully seek to regulate immigration and particularly threaten low-income immigrants, and NILC has served as co-lead counsel on several class action cases that have successfully challenged the various state efforts to criminalize immigrant communities and regulate immigration (e.g., in Alabama, Arizona, Georgia, South Carolina, and Utah). NILC also serves as co-lead counsel on the Fourteenth Amendment and preemption challenge to the State of Arizona s attempt to deny driver s licenses to individuals granted deferred action under the Deferred Action for Childhood Arrivals initiative. INTRODUCTION AND SUMMARY OF ARGUMENT U.S. citizen children born in Texas to immigrant parents who lack a preferred identification document are currently without means to obtain a certified copy of their birth certificate the very record that affirms their status as U.S. citizens by virtue of their birth within the United States. This, because, the State of Texas has unilaterally determined that consular identification documents issued by certain foreign governments will no longer be accepted as 1

Case 1:15-cv-00446-RP Document 64-1 Filed 09/23/15 Page 8 of 26 sufficient identification for applicants of a certified copy of a Texas birth certificate, yet it has not provided an alternative means for many undocumented parents of U.S. citizen children to obtain these records. The resulting harm to these U.S. citizen children is tremendous and well documented in the Plaintiffs request for preliminary injunction. See Pls. Emergency App. for Prelim. Inj. 3-5. Under Texas policy, which was not strictly enforced until about 2013, local records clerks are instructed to reject the use of a consular identification document as a secondary form of identification ( Texas Policy ). See Tex. Admin. Code 181.28(i)(11)(B), (D)(xv) (permitting applicants for a birth certificate to submit: (i) two forms of Acceptable Secondary Identification, of different types; or (ii) one form of Acceptable Secondary Identification, plus two forms of Acceptable Supporting Identification of different types and establishing as an acceptable secondary identification, Foreign Identification with identifiable photo of applicant ). Because the primary identification documents are per se unavailable to individuals who lack proof of authorized presence in the United States, and most of the acceptable secondary forms of identification are similarly unavailable to such individuals, many undocumented parents are completely unable to obtain acceptable identification documents in order to apply for their child s birth certificate. The result has been a de facto denial of birth certificates for Texas-born U.S. citizen children whose parents may be undocumented. The Plaintiffs motion for a preliminary injunction should be granted for at least two reasons. First, the Texas Policy deprives Plaintiff-children of a fundamental right under the Fourteenth Amendment, and the State cannot justify the deprivation by a showing that the restriction is closely tailored to serve an important state interest. Second, the Texas Policy is preempted because it conflicts with the federal government s sole authority to make 2

Case 1:15-cv-00446-RP Document 64-1 Filed 09/23/15 Page 9 of 26 determinations and classifications regarding United States citizenship and intrudes in the field of foreign relations. In fact, these two independent bases for concluding that the Texas Policy is unconstitutional are interconnected and the Court may properly consider federalism concerns similar to those employed in a preemption inquiry in examining the state s purported interest under the Fourteenth Amendment. See, e.g., Examining Bd. of Eng rs v. Flores de Otero, 426 U.S. 572, 602 (1976) (explaining that one of the two underpinnings of the Court s constitutional decisions defining the circumstances under which state and local governments may... deny[] lawfully admitted aliens equal rights and opportunities is grounded in the Supremacy Clause, and in the naturalization power and recognizes the Federal Government s primary responsibility in the field of immigration and naturalization ) (internal citations omitted). ARGUMENT I. The Texas Policy Violates the Fourteenth Amendment The Texas Policy denies birth certificates for many Texas-born U.S. citizen children whose parents are undocumented, infringing on their ability to demonstrate their citizenship, significantly burdening this fundamental right. Under the Due Process Clause of the Fourteenth Amendment, no State shall deprive any person of life, liberty, or property, without due process of law. Obergefell v. Hodges, 135 S. Ct. 2584, 2597 (2015). Where a fundamental right is implicated, [t]he [Due Process] Clause... provides heightened protection against government interference, Washington v. Glucksberg, 521 U.S. 702, 720 (1997), forbid[ding] the government [from] infring[ing on] certain fundamental liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state 3

Case 1:15-cv-00446-RP Document 64-1 Filed 09/23/15 Page 10 of 26 interest. Reno v. Flores, 507 U.S. 292, 302 (1993) (emphasis in original); see also M.L.B. v. S.L.J., 519 U.S. 102, 124-25 (1996) (applying heightened scrutiny in striking down appeal fee that would prohibit indigent parents from appealing the termination of their parental rights upon finding that the right was fundamental); Zablocki v. Redhail, 434 U.S. 374, 388 (1978) (where a law significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests ) (emphasis added). Texas attempts to defend its policy by arguing that it should not be subject to heightened scrutiny because it does not directly ban Plaintiff-children from being U.S. citizens, and instead that it, at most, has an incidental effect on Plaintiff-children s fundamental rights. Def. Resp. to Prelim. Inj. 19. However, the Supreme Court has instructed that heightened scrutiny applies to impingements on rights derived from the Citizenship Clause. 1 In Saenz v. Roe, the Court struck down a California law that restricted the amount of welfare available to new state residents for a year to that which would have been available to them in the state that they had moved from. 526 U.S. 489 (1999). There, the Court found that the State's argument that its welfare scheme affects the right to travel only incidentally is beside the point and determined that neither mere rationality nor some intermediate standard of review should be used. Id. at 504. As described below, a birth certificate serves as the foundational document used to unlock many of the central aspects of the fundamental right to citizenship. Accordingly, a restriction that unduly and discriminatorily denies access to that document should be evaluated under heightened scrutiny a standard Texas cannot meet. 1 In Saenz v. Roe, the Court located the fundamental right to travel, in part, in the Citizenship Clause. 526 U.S. 489, 502-03 (1999). 4

Case 1:15-cv-00446-RP Document 64-1 Filed 09/23/15 Page 11 of 26 A. The Texas Policy Significantly Interferes with the Fundamental Right to Citizenship The fundamental liberties protected pursuant to the Due Process Clause include most of the rights enumerated in the Bill of Rights, and will include those rights that instantiate the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions. See Duncan v. Louisiana, 391 U.S. 145, 147-49 (1968) (quoting Powell v. State of Alabama, 287 U.S. 45, 67 (1932). Among this schedule of rights, [c]itizenship is a most precious right, and it is expressly guaranteed by the Fourteenth Amendment to the Constitution. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 159 (1963). Here, it is undisputed between the parties that U.S. born children of undocumented immigrants are U.S. citizens pursuant to the Fourteenth Amendment nor could it be. See United States v. Wong Kim Ark, 169 U.S. 649 (1898) (holding that the children of Chinese immigrants born in the United States were citizens under Section 1 of the Fourteenth Amendment, even though their parents were not eligible for naturalization under then-existing law). Indeed, the loss or impingement of this right is more than the loss of a specific right, it entails the loss of a community willing and able to guarantee any rights whatsoever. Mendoza-Martinez, 372 U.S. at 161 (quoting Hannah Arendt, The Origins of Totalitarianism 294 (1951). Thus, recognition of citizenship, and its attendant rights, is the essence of a scheme of ordered liberty and an impingement would intrude on a principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental. Palko v. Connecticut, 302 U.S. 319, 325 (1937) overruled on other grounds by Benton v. Maryland, 395 U.S. 784 (1969). Indeed, the Citizenship Clause of the Fourteenth Amendment was passed specifically to preclude the states from abridging the rights of national citizenship. See Saenz, 526 U.S. at 503 n.15; see also Afroyim v. 5

Case 1:15-cv-00446-RP Document 64-1 Filed 09/23/15 Page 12 of 26 Rusk, 387 U.S. 253, 263 (1967) ( [I]t seems undeniable from the language [the Framers of the Fourteenth Amendment] used that they wanted to put citizenship beyond the power of any governmental unit to destroy. ). The ability to receive a United States birth certificate is imbricated with the fundamental right to citizenship because birth certificates serve as the foundational evidence of national citizenship for individuals born in this country. The centrality of the birth certificate to demonstrate national citizenship can be discerned in the process to apply for a U.S. passport. Per the U.S. Department of State requirements, the only two forms of primary identification available to U.S. citizens born in the United States 2 to establish eligibility for a U.S. passport are a previously issued, undamaged, and fully valid U.S. passport or a certified birth certificate. 3 Absent this documentation, an individual must to go through an onerous process to demonstrate their citizenship that involves having a third party verify the individual s birth in the United States and paying an additional fee. 4 Also, a United States birth certificate is a legally valid form of identification for border crossings for children under 16, or for children under 19 if travelling with a school or religious group. See 22 C.F.R. 53.2(b)(11). However, under this policy, many 2 The other documents, a Consular Report of Birth Abroad or Certification of Birth, Naturalization Certificate, Certificate of Citizenship, would not be available to these individuals because these documents would only be available to non-native born and naturalized citizens. See First Time Applicants, U.S. Department of State Bureau of Consular Affairs, http://travel.state.gov/content/passports/en/passports/first-time.html (last visited Sept. 23, 2015) (describing requirements for applying for a U.S. passport); see also U.S. Citizenship & Immigration Serv., I Am a U.S. Citizen: How Do I Get Proof of my Citizenship?, http://www.uscis.gov/sites/default/files/uscis/resources/a4en.pdf. 3 See First Time Applicants, U.S. Department of State Bureau of Consular Affairs, http://travel.state.gov/content/passports/en/passports/first-time.html (last visited Sept. 23, 2015). 4 The additional cost for obtaining an original U.S. passport if an individual does not have a birth certificate is $25. See Fees, U.S. Department of State Bureau of Consular Affairs, http://travel.state.gov/content/passports/en/passports/information/fees.html (last visited Sept. 23, 2015). 6

Case 1:15-cv-00446-RP Document 64-1 Filed 09/23/15 Page 13 of 26 undocumented parents of U.S. citizen children would be barred from obtaining this document. The inability to obtain a birth certificate and attendant problems obtaining a passport also present significant hurdles in the ability to get the documents that would suffice for a U.S. citizen to establish employment eligibility. 5 Accordingly, receipt of a birth certificate is the sort of keystone of our social order that, under Obergefell, should be accorded constitutional protection. 135 S. Ct. at 2601 (noting that restrictions on state recognition of same sex marriage created barriers to accessing other rights and benefits because marriage under state law is also a significant status for many provisions of federal law). Indeed, Texas has placed birth certificates at the center of so many facets of the legal and social order by making them an essential tool to accessing the schedule rights available to U.S. citizens and Texas residents. Id. (noting that the states decisions to accord a constellation of benefits on the basis of marriage contributed to the fundamental character of the marriage right ). For example, Texas only accepts two forms of identification (U.S. Passport or a Birth Certificate) as proof of citizenship in applications for a driver s license. 6 Similarly, proof of U.S. citizenship is required for certain Texas state jobs. For instance, proof of U.S. citizenship is a requirement for employment with Texas Department of Public Safety, and a certified copy of an 5 For U.S. citizens born in the United States who do not have a U.S. passport, the only available proof of work authorization is a Social Security Card. See I-9 Requirements Documents List, Texas Workforce Commission, http://www.twc.state.tx.us/news/efte/i_9_requirements_lists.html (last visited Sept. 23, 2015). If a child was not given a social security number at the hospital, they face difficulties obtaining one later because the Social Security Administration requires submission of a birth certificate in applications for a Social Security Card. See New or Replacement Social Security Number and Card, Social Security Administration, http://www.ssa.gov/ssnumber/ss5doc.htm (last visited Sept. 23, 2015). Individuals without a birth certificate are subject to the agency s discretion with regards to whether they have submitted sufficient evidence to establish U.S. citizenship. Id. 6 United States Citizenship or Lawful Permanent Residence Requirement, Texas Department of Public Safety, http://www.txdps.state.tx.us/driverlicense/lawfulstatusdlid.htm (last visited Sept. 23, 2015). 7

Case 1:15-cv-00446-RP Document 64-1 Filed 09/23/15 Page 14 of 26 individual s birth certificate is one of limited documents that suffice to satisfy this requirement. 7 Additionally, Texas has imposed onerous voter identification requirements, and lack of a birth certificate can similarly cause a major impediment to obtaining this identification. 8 In light of the close tie between issuance of a birth certificate and the ability to establish citizenship, including the attendant rights of securing a passport, proving eligibility to work, and voting, the Texas Policy clearly has a direct impact on the ability of individuals to exercise their fundamental right to citizenship in a manor equal to other citizens. Thus, the policy unduly burdens the fundamental rights of Plaintiffs and others similarly situated. See Obergefell, 135 S. Ct. at 2601-02 (describing how the state policy implicated a fundamental right because by virtue of their exclusion from [the] institution [of marriage], same-sex couples are denied the constellation of benefits that the States have linked to marriage ). Finally, the Supreme Court s recent decisions regarding same sex marriage instruct vigorous protection against impingements on fundamental rights that operate to accord unequal treatment and those that serve[] to disrespect and subordinate a disfavored group are not to be tolerated. Id. at 2604; see also United States v. Windsor, 133 S. Ct. 2675, 2692 (2013) (quoting Romer v Evans, 517 U.S. 620, 633 (1996)) ( [d]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional 7 See Employment/Career Opportunities, Texas Department of Public Safety, http://agency.governmentjobs.com/txdps/default.cfm (last visited Sept. 23, 2015). 8 Texas currently requires identification at the polls. While the State makes an Elections Identification Card (EIC) available to individuals who lack other forms of identification, applicants for an [EIC] ordinarily must present a certified birth certificate to obtain one. Veasey v. Perry, 135 S. Ct. 9, 11 (2014) (J. Ginsberg, dissenting from denial of vacation of stay); see also Veasey v. Abbott, 796 F.3d 487, 509 (5th Cir. 2015) (upholding district court s finding that Texas voter identification law disproportionately impacts Hispanic and African American voters because of their disproportionate lack of identification documents). 8

Case 1:15-cv-00446-RP Document 64-1 Filed 09/23/15 Page 15 of 26 provision at issue). Here, not only does the Texas Policy result in unequal treatment, but there is ample evidence of societal hostility against the U.S.-born children of undocumented immigrants. One of Texas U.S. senators has advocated amending the U.S. Constitution to end birthright citizenship citizenship based on birth within the territorial United States. 9 Similarly, the 2012 official platform of the Texas Republican Party rejected the notion that U.S.-born children of undocumented immigrants were entitled to birthright citizenship. 10 Given this overt disapproval of these children s fundamental right to citizenship under the Fourteenth Amendment, impingements on their ability to claim the rights of this citizenship works a grave and continuing harm, and therefore cannot be permitted. Obergefell, 135 S. Ct. at 2604. B. The Texas Policy is Not Closely Tailored to Address any Important Governmental Interest Here, the Texas Policy is not sufficiently tailored to address its asserted governmental interests. Importantly, no evidence has been presented to show that consular identifications have been or are being used to fraudulently identify one s self to obtain a certified copy of a birth record. Cf. Def. Resp. to Prelim. Inj. 1. Indeed there is no evidence that this is a problem at all, much as less an acute problem, for which the [g]overnment[al] interests are overwhelming. United States v. Salerno, 481 U.S. 739, 750 (1987) (upholding a no-bail provision against a substantive due process challenge where there was sufficient evidence that the closely circumscribed provision was narrowly tailored to address an acute problem). Nor is there 9 See Clare Foran, Ted Cruz Supports Amending the Constitution to End Birthright Citizenship, National Journal, Aug. 19, 2015, http://www.nationaljournal.com/twentysixteen/2015/08/19/tedcruz-supports-amending-constitution-end-birthright-citizenship (describing Senator Ted Cruz s proposal to amend the Constitution to end birthright citizenship). 10 See 2012 Republican Party of Texas, Report of the Platform Committee and Rules Committee 21, available at http://www.tfn.org/site/docserver/2012-platform-final.pdf?docid=3201. 9

Case 1:15-cv-00446-RP Document 64-1 Filed 09/23/15 Page 16 of 26 evidence that any other state has experienced any problems related to the use of consular identifications for purposes of obtaining a birth certificate. 11 Finally, there is no evidence that Texas attempted to determine what kinds of identification or procedure might be satisfactory to ensure that all U.S. citizen children born in Texas will have access to their birth certificate. Further, the Supreme Court has also made clear that when engaging in Fourteenth Amendment analysis, the Court may properly take into account whether the state s pursuit of its interest is in tension with the federal immigration scheme. See, e.g., Plyler v. Doe, 457 U.S. 202, 224-26 (1982) (rejecting state s interest in imposing special disabilities on unlawfully present noncitizen children because the classification reflected in [the state law] does not operate harmoniously within the federal program ); Takahashi v. Fish & Game Comm n, 334 U.S. 410, 419 (1948) ( State laws which impose discriminatory burdens upon the entrance or residence of aliens lawfully within the United States conflict with th[e] constitutionally derived federal power 11 Indeed, several states with large immigrant populations accept consular identification cards both directly and indirectly as a form of identification for requests for certified copies of birth certificates and other legal benefits, such as driver licenses. See, e.g., Valid Government Issued Photo Identification, Ill. Dep t of Pub. Health (listing a consular identification card as a proper form of identification), http://www.idph.state.il.us/vitalrecords/pages/vgipi.htm (last visited Sept. 23, 2015); Identification Requirements, N.Y.C. Dep t of Health & Mental Hygiene (listing the IDNYC Municipal ID, which can be obtained by presenting a consular identification card, as an acceptable form of identification for birth certificate requests), http://www.nyc.gov/html/doh/html/services/vr-id.shtml (last visited Sept. 23, 2015); The Pew Charitable Trusts, Deciding Who Drives: State choices surrounding unauthorized immigrants and driver s licenses 16 19 (Aug. 2015) ( Consular identification cards are a common substitute [for proof of identity], accepted by all 11 jurisdictions issuing licenses to unauthorized immigrants. ), http://www.pewtrusts.org/~/media/assets/2015/08/deciding-whodrives.pdf?la=en. In certain circumstances, other states with large immigrant populations, like California, do not require any form of government-issued identification to obtain a birth certificate. Cal. Health & Safety Code 103526 ( If a request for a certified copy of a birth record is made in person, the official shall take a statement sworn under penalty of perjury that the requester is signing his or her own legal name and is an authorized person, and that official may then furnish a certified copy to the applicant. ). 10

Case 1:15-cv-00446-RP Document 64-1 Filed 09/23/15 Page 17 of 26 to regulate immigration, and have accordingly been held invalid. ); Nyquist v. Mauclet, 432 U.S. 1, 10 (1977) (finding that the state s proffered interest, to offer an incentive for noncitizens to become naturalized, was not a permissible state interest by examining preemption principles); Truax v. Raich, 239 U.S. 33, 42 (1915) (same); Toll v. Moreno, 458 U.S. 1, 11 n. 16 (1982) (recognizing that pre-emption played a significant role in the Court s analysis in Takahashi, although the actual basis for invalidation of the California statute was apparently the Equal Protection Clause ). Here, as described below, Texas de facto denial of birth certificates to many U.S. born children of undocumented parents is in tension with the federal scheme. Accordingly, because Texas policy places significant burdens on the fundamental right to citizenship, its policy must be subject to heightened scrutiny. Here, Texas cannot meet this hurdle because there is no evidence that it seeks to address an acute problem and because the state s pursuit of its purported interest violates principles of federalism. II. The Texas Policy Is Preempted Texas unilateral decision to reject official identity documents issued by foreign sovereigns conflicts with the federal government s broad, undoubted power over the subject of immigration and the status of aliens, and raises precisely the sort of foreign relations concerns that federal supremacy over immigration matters was meant to avoid. Arizona v. United States, 132 S. Ct. 2492, 2498 (2012); see also Amicus Brief of the United Mexican States 14-17 (Doc. No. 36) (describing the diplomatic considerations raised by the Texas Policy) ( Mexico Amicus ). The Supremacy Clause of the U.S. Constitution establishes that state laws related to immigration are preempted if they are expressly preempted by federal law or if they are impliedly preempted either because they (1) intrude in a field occupied by federal law ( field preemption ) or (2) conflict with federal law, including by stand[ing] as an obstacle to the 11

Case 1:15-cv-00446-RP Document 64-1 Filed 09/23/15 Page 18 of 26 accomplishment and execution of the full purposes and objectives of Congress ( conflict preemption ). 12 Arizona, 132 S. Ct. at 2500-01; see also DeCanas v. Bica, 424 U.S. 351 (1976). The Texas Policy is impliedly preempted. It is a fundamental principle of our federal system that only the federal government is authorized to make determinations and classifications regarding immigration status, including determinations regarding U.S. citizenship. See Wong Kim Ark, 169 U.S. at 668 ( [I]t is the inherent right of every independent nation to determine for itself, and according to its own constitution and laws, what classes of persons shall be entitled to its citizenship. ). Through the Fourteenth Amendment the federal government has affirmed the rule of citizenship by birth within the territorial United States. See id. at 693. The Texas Policy stands as an obstacle to the accomplishment and execution of the full purposes of Congress by frustrating the federal government s ability to make determinations regarding U.S. citizenship and to administer its inherent privileges and rights. The Texas Policy also interferes with the federal government s ability to speak with one voice on matters affecting relations with foreign sovereigns. Any one of these bases is sufficient for the Court to find the Texas Policy preempted. A. The Texas Policy Frustrates Federal Objectives By unilaterally determining not to recognize official identity documents from certain foreign governments and consequently denying U.S. citizen children the very proof of their citizenship, the Texas Policy constitutes an obstacle to federal authority over immigration and the conduct of foreign affairs. It is therefore preempted. See Geier v. Am. Honda Motor Co., Inc., 12 The Court could find either field or conflict preemption present here, as indeed the Supreme Court has observed, field preemption may be understood as a species of conflict pre-emption: A state law that falls within a pre-empted field conflicts with Congress intent. English v. Gen. Elec. Co., 496 U.S. 72, 79 n. 5 (1990). 12

Case 1:15-cv-00446-RP Document 64-1 Filed 09/23/15 Page 19 of 26 529 U.S. 861, 873 (2000) (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941) (explaining that conflict preemption is present when the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress whether that obstacle goes the by the name of conflicting; contrary to; interference, or the like. ); Arizona, 132 S. Ct. at 2501. As has been repeatedly recognized by courts across the country, preemption analysis must contemplate the practical result of the state law, not just the means that a state utilizes to accomplish the goal. United States v. Alabama, 691 F.3d 1269, 1296 (11th Cir. 2012); see also Arizona Dream Act Coalition v. Brewer, 757 F.3d 1053, 1062-63 (9th Cir. 2014) ( ADAC ). Thus the Texas Policy can be found preempted regardless of the fact that it does not explicitly govern determinations regarding U.S. citizenship if the practical result of the policy in fact frustrates the federal government s ability to do so. See Ting v. A T & T, 319 F.3d 1126, 1137 (9th Cir. 2003) (discussing how in considering whether the state law is preempted, the court consider[s] the relationship between state and federal laws as they are interpreted and applied, not merely as they are written. ) (internal citations omitted); cf. Def. Resp. to Prelim. Inj. 19 (arguing the policy survives constitutional scrutiny because it presents at most incidental effects on the citizenship rights of Plaintiff-children). Throughout their briefing, Plaintiffs have repeatedly demonstrated the link between obtaining a certified copy of a birth certificate and the ability to exercise the privileges and rights of citizenship. Pls. Emergency App. for Prelim. Inj. 3-5; see also supra discussion I.A. To take but one example, as discussed above, in administering the issuance of U.S. passports, the State Department requires a certified copy of a birth certificate. 13 In restricting the ability of 13 First Time Applicant, U.S. Department of State Bureau of Consular Affairs, http://travel.state.gov/content/passports/en/passports/first-time.html (last visited Sept. 23, 2015). 13

Case 1:15-cv-00446-RP Document 64-1 Filed 09/23/15 Page 20 of 26 these U.S. citizen children to obtain a certified copy of a birth certificate, the Texas policy stands as an obstacle to the federal government s issuance of U.S. passports. The situation created is not unlike that examined by the Ninth Circuit in ADAC wherein the court observed that if the practical result of Arizona s policy of denying driver s licenses to certain recipients of deferred action was to obstruct their ability to work, it would conflict with the federal government s determination that these individuals are work authorized, and would therefore, be preempted. See ADAC, 757 F.3d at 1063. Similarly, the United States government has determined that all U.S. citizens are entitled to apply for and receive a U.S. passport. See 22 U.S.C. 211a (authorizing the Secretary of State to grant and issue passport). For a first-time applicant for a U.S. passport, a certified copy of a birth certificate is required in applying. See supra discussion I.A. Texas de facto denial of certified copies of birth certificates to U.S. citizen children whose parents lack certain preferred identifications, thus conflicts with the federal government s determination that passports be available to these individuals in the same way that the ADAC Court discussed how Arizona s denial of driver s licenses could be viewed as conflicting with the federal government s determination that the ADAC plaintiffs are authorized to work. Texas proposes that preemption can occur only where there is state law that interferes or conflicts with a specific federal law or statute. Def. Resp. to Prelim. Inj. at 25. But federal preemption is not so restrictive. There are numerous cases in which courts, including the Supreme Court, have analyzed preemption claims finding both for and against preemption in the absence of a specific federal statute. See, e.g., Zschernig v. Miller, 389 U.S. 429, 437 41 (1968) (finding that an Oregon law requiring reciprocal inheritance rights in other countries before a nonresident could claim property in the state was preempted because it intruded into the field of foreign relations); Am. Ins. Ass n. v. Garamendi, 539 U.S. 396, 416-19 (2003) 14

Case 1:15-cv-00446-RP Document 64-1 Filed 09/23/15 Page 21 of 26 (preempting a California statute because it interfered with a valid executive agreement thus impairing the effective exercise of the Nation s foreign policy ) (internal citation omitted); Movsesian v. Victoria Versicherung AG, 670 F.3d 1067, 1072 (9th Cir. 2012) (concluding that a state law may be preempted even in the absence of any treaty, federal statute, or executive order if it disturbs foreign relations or establishes its own foreign policy. ) (emphasis added) (internal quotation omitted). As these cases make clear, courts are particularly apt to find a state law or policy preempted in the absence of a specific federal statute or law where foreign relation concerns are implicated. B. The Texas Policy Undermines U.S. Foreign Relations There can be no doubt that Texas decision to refuse acceptance of consular identification cards interferes with the federal power to control and conduct relations with foreign nations. The clear relationship between immigration and foreign affairs, and exclusivity of federal power in this realm, has often been recognized by the Supreme Court. See Arizona, 132 S. Ct. at 2498 ( Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad. ); Hines, 312 U.S. at 64 ( One of the most important and delicate of all international relationships has to do with the protection of the just rights of a country s own nationals when those nationals are in another country. Experience has shown that international controversies of the gravest moment, sometimes even leading to war, may arise from real or imagined wrongs to another s subjects inflicted, or permitted, by a government. ). The foreign relations concerns raised by the Texas Policy are made even clearer by the filing of an amicus brief by the Government of Mexico. See Mexico Amicus at 16 (describing how expressions of doubt about the integrity of documents issued by a friendly country introduce a troublesome and discordant element into bi-national or transnational relations ). The 15

Case 1:15-cv-00446-RP Document 64-1 Filed 09/23/15 Page 22 of 26 Governments of El Salvador, Guatemala, and Honduras have been granted leave to join Mexico s brief. See Text Order Granting Motion to Join (Sept. 18, 2015). Moreover, during the very same hearings that Defendants point to in support of their claim regarding the security concerns surrounding consular identification cards, the U.S. State Department s testimony underscores the foreign relations considerations raised by Texas unilateral action to deny consular identification cards: The complexity and diversity of the issue, which extends well beyond the purview of the Department of State, argues for a thorough development of any policy and underscores the need for a coordinated approach [to the acceptance of consular identification cards] The Department... believes that the U.S. Government must carefully avoid taking action against consular identification cards that would foreclose our options to document or assist Americans overseas. The Department itself issues documentations other than passports for U.S. citizens abroad and at times issues similar identity cards or travel documents. Should a foreign country decide to limit acceptance of such documentation or other traditional documentation such as State-issued IDs or driver s licenses, the actions of American citizens abroad could be seriously restricted. The Department s goal is a single, uniform policy that is applicable to all countries that issue consular identifications. Consular Identification Cards: Hearing before the Subcommittee on Immigration, Border Security, and Claims of the Committee on the Judiciary, House of Representatives, 108th Cong. 143 (2003) (Statement of Roberta Jacobson, Acting Deputy Assistant Secretary of State for the Bureau of the Western Hemisphere Affairs). A state s unilateral policy vis-à-vis consular identifications only heightens the foreign relations concerns expressed by the State Department representative. Indeed, were all of the 50 states to develop their own policies regarding acceptance of consular identifications as Texas has elected to do, the resulting impact on U.S. foreign relations would be completely untenable. 16

Case 1:15-cv-00446-RP Document 64-1 Filed 09/23/15 Page 23 of 26 The fact that the Texas Policy arises in the context of an area traditionally within the state s power issuance of birth certificates does not shield it from preemption inquiry. Courts have routinely rejected as preempted state laws concerning areas of traditional state power when those laws conflict with federal objectives. Toll, 458 U.S. at 14-17 (striking down a state s instate tuition policy because it mischaracterized noncitizens immigration status); Villas at Parkside Partners v. City of Farmers Branch, 726 F.3d 524, 536 (5th Cir. 2013) (finding a housing eligibility ordinance preempted because it allows state courts to assess the legality of a non-citizens presence opening the door to conflicting state and federal rulings ); Lozano v. City of Hazelton, 724 F.3d 297, 317 (3d. Cir. 2013) (finding a municipal housing law that forbid renting to unauthorized immigrants preempted because the law amounted to a regulation of immigration); Alabama, 691 F.3d at 1292-97 (holding that Alabama had regulated immigration when it limited the rights of unauthorized immigrants to enter into contracts). The Texas Policy cannot stand in the face of the federal government s supremacy over matters relating to citizenship and the conduct of foreign affairs. In denying U.S. citizen children the ability to obtain a birth certificate and in declaring unacceptable official government identifications from certain foreign governments, Texas frustrates federal policies and objectives and intrudes on a field that is preempted. // // // // // 17

Case 1:15-cv-00446-RP Document 64-1 Filed 09/23/15 Page 24 of 26 CONCLUSION The National Immigration Law Center respectfully requests that the preliminary injunction be granted. Texas rejection of consular identification cards issued by certain foreign governments deprives U.S. citizen children of the fundamental right to citizenship and cannot pass constitutional muster because the state s purported interest is in tension with federal policy objectives. The Texas policy conflicts with federal law, frustrates federal administration of foreign affairs and is therefore, preempted. Dated: September 23, 2015 Respectfully Submitted, NATIONAL IMMIGRATION LAW CENTER /s/ Melissa S. Keaney Melissa S. Keaney Nicholas Espíritu, SBN 237665 Melissa S. Keaney, SBN 265306 National Immigration Law Center 3435 Wilshire Blvd., Suite 2850 Los Angeles, CA 90010 espiritu@nilc.org keaney@nilc.org Telephone: 213.639.3900 Facsimile: 213.639.3911 Daniel M. Kowalski, SBN 24073723 The Fowler Law Firm Citizenship & Visa Law Section 919 Congress Avenue, Suite 900 Austin, TX 78701 dkowalski@thefowlerlawfirm.com Telephone: 512.441.1411 Facsimile: 512.469.2975 18

Case 1:15-cv-00446-RP Document 64-1 Filed 09/23/15 Page 25 of 26 CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing AMICUS CURIAE BRIEF OF NATIONAL IMMIGRATION LAW CENTER IN SUPPORT OF PLAINTIFFS EMERGENCY APPLICATION FOR PRELIMINARY INJUNCTION with the Clerk of the Court for the United States District Court by using the CM/ECF system which will send notification of the filing to the following CM/ECF participants: Efren Carlos Olivares Texas Civil Rights Project P.O. Box 219 Alamo, TX 78516 Telephone: 956.787.8171 ext. 108 Facsimile: 956.787.6348 efren.c.olivares@gmail.com James C. Harrington Texas Civil Rights Project 1405 Montopolis Drive Austin, TX 78741 Telephone: 512.474.5073 Facsimile: 512.474.0726 jch@mail.utexas.edu Jennifer K. Harbury Texas Rio Grande Legal Aid, Inc. TRLA, 300 S. Texas Blvd. Weslaco, TX 78596 Telephone: 956.447.4800 Facsimile: 956.968.8823 jharbury@trla.org Marinda Van Dalen Texas RioGrande Legal Aid 531 E St. Francis Brownsville, TX 78520 Telephone: 956-982-5540 Facsimile: 956-541-1410 mvandalen@trla.org Thomas A. Albright Office of the Attorney General General Litigation Division P. O. Box 12548, Capitol Station Austin, TX 78711-2548 Telephone: 512.463.2120 Facsimile: 512.320.0667 thomas.albright@texasattorneygeneral.gov Daniel M. Kowalski The Fowler Law Firm Citizenship & Visa Law Section 919 Congress Avenue, Suite 900 Austin, TX 78701 Telephone: 512.441.1411 Facsimile: 512.469.2975 dkowalski@thefowlerlawfirm.com Virginia Marie Raymond Law Office of Virginia Raymond 1006 East Cesar Chavez Street Austin, TX 78702 Telephone: 512.472.6270 Facsimile: 512.472.8263 virginiaraymond@austin.rr.com 19

Case 1:15-cv-00446-RP Document 64-1 Filed 09/23/15 Page 26 of 26 I further certify that on the 23rd day of September, 2015, a true and correct copy of the foregoing document was sent by First-Class Mail, to the following non CM/ECF participants: Cheryl R. Drazin Anti-Defamation League 12800 Hillcrest Road Suite 219 Dallas, TX 75230 Telephone: 972.960.0342 Facsimile: 972.960.0591 Email: cdrazin@adl.org Lauren Jones Steve Freeman Anti-Defamation League 605 Third Avenue New York, NY 10158 R. James George, Jr. Gary L. Lewis George Brothers Kincaid & Horton, LLP 114 W. Seventh Street, Suite 1100 Austin, Texas 78701 rjgeorge@gbkh.com gllewis@gbkh.com Telephone: 512.495.1400 Facsimile: 512.499.0094 Peter D. Kennedy David P. Lein Graves, Dougherty, Hearon & Moody, P.C. 401 Congress Avenue, Suite 2200 Austin, Texas 78701 pkennedy@gdhm.com dlein@gdhm.com Telephone: 512 480.5764 Facsimile: 512.536.9908 DATED: September 23, 2015 /s/ Melissa S. Keaney Melissa S. Keaney 20