By Sarah Rosenberg
The federal government has denied or revoked passports of hundreds, if not thousands, of citizens who were born near the Texas-Mexico border in the 1980s. These individuals have United States birth certificates, but their citizenship is now being questioned due to the revocation of their passports. While, so far, federal courts have upheld this practice as within the State Department’s legal powers, it has led to problematic results, and cases have been brought that argue it is a violation of substantive due process. The practice has resulted in the jailing and deportation proceedings of passport applicants with official United States birth certificates, while other United States citizens are stuck in Mexico due to passport revocation.
The State Department claims it has not changed its policy on passport renewal or approval. However, the Trump administration has revitalized the policy of passport denials, at least in practice. The Department stated, “The U.S.- Mexico border region happens to be an area of the country where there has been a significant incidence of citizenship fraud.” The State Department is referring to the government’s allegations that from the 1960s to 1990s, some midwives and physicians practicing in the border regions forged United States birth certificates for babies who were really born in Mexico. In a series of federal court cases in the 1990s, a few midwives did admit to forging birth documents. In 2009, the government settled with litigants represented by the American Civil Liberties Union and agreed that it would halt the arbitrary denial of passports of individuals born on the Texas-Mexico border region, but the practice has since been revived.
A major part of this settlement was the creation of a review process for passport denials to prevent arbitrary denials. Part of this review process includes a request for more information from the applicant. Examples of documents that have been requested for proof of United States citizenship include early school records, health records from the first year after birth, baptismal records, parents’ tax payments, and parents’ rent or employment records. To get around the settlement, the State Department has often repeated this review process, requested the same documents multiple times, and failed to formally deny people’s requests for passports. Often these individuals are never formally denied a passport or renewal by the State Department, but they are denied in practice.
The State Department is statutorily empowered to grant, issue, and verify passports; however, that power is discretionary. The State Department has passed regulations based upon this statutory grant of authority that provide it with the power to revoke passports under certain circumstances. One of these circumstances is fraud, which would include incidences of fraudulent birth certificates. By depriving individuals of passports due to a potentially fraudulent birth certificate, the State Department not only restricts their travel, but it also brings their citizenship into question. Further, this suspected non-citizenship status complicates the process of challenging the denial. The Code of Federal Regulations does provide for an administrative hearing to review the basis of passport denials, but this protection does not apply to non-nationals.
Plaintiffs have challenged these practices for lack of due process. The Department of State revoked the passport of SebastianMartinez, who was born in Mexico, but whose birth certificate stated he was born in the United States. Martinez challenged the administrative process involved in the passport denial because the State Department did not hold a hearing before revoking his passport. The Eleventh Circuit held there was no denial of due process to individuals like Martinez because 8 U.S.C. § 1503(a) provides a method of challenging administrative denials of United States passports. 8 U.S.C. § 1503(a) allows for a person who has been denied a right or a privilege of a United States national to challenge the head of the federal department involved to declare he is a United States national through litigation in an Article III court. Therefore, Martinez had a chance to present his own evidence and cross-examine the government’s evidential presentation at trial if he so chose. One potential concern with this holding is that 8 U.S.C. § 1503(a) explicitly states that it does not apply to people in removal proceedings; as a consequence of passport revocation, some individuals are placed in removal proceedings, so they have no litigation remedy. Additionally, due process is effectively limited only to those who can afford to pay for an attorney and other expenses involved in filing a lawsuit in federal court.
Another concern is that the revocation of passports results in an unconstitutional restriction on travel. InKent v. Dulles, the Supreme Courtheld that the right to travel cannot be denied without due process; however, subsequent cases have clarified that such a holding does not mean the right to travel is not subject to regulation. International travel can be restricted by a compelling interest of the federal government, within the bounds of due process. As discussed, courts have held that the State Department’s processes provide sufficient procedural due process.
The practice of revoking passports without proof of fraud is extremely problematic. Midwives in border counties did deliver thousands of children in the United States, meaning there are individuals whose citizenship is being questioned who were actually born in the United States. Further complicating the matter, it is extremely difficult to distinguish between fraudulent and real birth certificates. If the Trump Administration is going to continue to implement this policy, it is important that a challenge process be implemented that is more accessible to individuals of all income levels, even if it is not currently mandated under due process. Otherwise, the United States is potentially depriving citizens of this country the right to travel, or even simply to remain in this country.
 Kevin Sieff, U.S. is Denying Passports to Americans along the Border, Throwing Their Citizenship into Question, Wash. Post (Sept. 13, 2018), https://www.washingtonpost.com/world/the_americas/us-is-denying-passports-to-americans-along-the-border-throwing-their-citizenship-into-question/2018/08/29/1d630e84-a0da-11e8-a3dd-2a1991f075d5_story.html?noredirect=on&utm_term=.e97e9ab37bb4.
 Villarreal v. Horn, 203 F. Supp. 3d 765, 773 (S.D. Tex. 2016) (declining to hear the plaintiff’s arguments that the revocation of her passports were a violation of due process); Martinez v. Sec’y of the United States, No. 15-10666, 2016 U.S. App. LEXIS 10353, at *17 (11th Cir. June 8, 2016) (finding no issue with the State Department’s revocation of Martinez’ passport).
 Dara Lind, Trump’s Stripping of Passports from Some Texas Latinos, Explained, Vox (Aug. 30, 2018, 5:30 PM), https://www.vox.com/2018/8/30/17800410/trump-passport-birth-certificate-hispanic-denial-citizens.
 Debbie Weingarten, My Children Were Denied Passports Because They Were Delivered by a Midwife, N.Y. Times (Sept. 3, 2018), https://www.nytimes.com/2018/09/03/opinion/weingarten-homebirth-border-passports.html.
 Legal Servs. Corp., The Justice Gap: Measuring the Unmet Civil Legal Needs of Low-income Americans 30 (June 2017), https://www.lsc.gov/sites/default/files/images/TheJusticeGap-FullReport.pdf (finding eight-six percent of the civil legal problems reported by low-income Americans in the past year received inadequate or no legal help).