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Posted on Aug 14th, 2009
Federal Judge Approves Passport Case Settlement
Final Settlement Ensures Fair Passport Adjudication Process for U.S. Citizens Whose Births Were Assisted by Midwives
 McAllen -- A federal judge today gave final approval to the settlement of a class action lawsuit that charged the U.S. Department of State (DOS) with violating due process and equal protection rights of virtually all U.S. citizens delivered by midwives along the Texas-Mexico border.
The settlement, approved by Judge Randy Crane following a hearing in McAllen, brings to an end the lawsuit brought by the American Civil Liberties Union (ACLU), the ACLU of Texas, the law firm of Hogan & Hartson LLP, and Refugio del Rio Grande, Inc.
While the settlement does not guarantee those in the affected class will be issued a passport, it does ensure DOS will process applications fairly and equally, regardless of whether the applicant's birth was attended by a midwife. Effectively, no eligible applicant should be denied a passport.
"We're pleased that Judge Crane approved the settlement," said Lisa Graybill, Legal Director for the ACLU of Texas. "As a result of this litigation, individuals born to midwives in the border region will receive equal consideration of their passport applications, and the stigma of discrimination they have experienced should be alleviated."
The settlement comes at a particularly crucial time. The Western Hemisphere Travel Initiative (WHTI) went into effect June 1, requiring every American who wishes to exit or enter the United States to have a valid U.S. passport or passport card.
Although midwifery has been a common practice for more than a century -- particularly in rural and other traditionally underserved communities -- DOS had asked midwife-birthed applicants to provide an excessive number of documents normally not required to prove citizenship. Then, even after the applicants supplied further proof of their citizenship, DOS responded by summarily closing their applications without explanation.
The lawsuit charged that the Department's practices were violating the Administrative Procedure Act, which was enacted as a safeguard against arbitrary and capricious government agency procedures. During the course of the litigation, most of the plaintiffs were granted passports even though they had been denied previously on the very same showing of evidence of citizenship.
DOS will train its staff on how to fairly weigh all the evidence provided in passport applications and how to avoid improperly subjecting people whose births were assisted by midwives in Texas and along the U.S.-Mexico border to heightened scrutiny. All denials will be automatically reviewed by a three-member panel of experienced DOS staff members. And if that panel also denies an application, DOS must communicate the specific reasons for the denial. The applicant can then challenge the denial and ask DOS to reconsider its decision.
Additionally, anyone birthed by a midwife who filed an application for a passport between April 2003 and September 15, 2008 and, with a few exceptions, whose application was not expressly "denied," can re-apply for free. DOS will be setting up mobile units across the border on specific dates to assist those reapplying.
DOS has also agreed to restrictions on a list it maintains of suspect midwives and other birth attendants, which it purported to use to justify its discriminatory policies. Importantly, DOS will not deny a passport application simply because the applicant's birth attendant or midwife is on the list. Furthermore, DOS will conduct regular reviews of the list to ensure that no one is included unless DOS has a reasonable, lawful basis to do so. These measures will help ensure that DOS does force passport applicants to take unnecessary measures to prove their citizenship and does not arbitrarily deny passports merely because the individual was born to a suspect midwife.
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