Response To Motion For Preliminary Injunction PDF

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.,
Plaintiffs,
v.
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 elses birth certificate for
purposes of deception or to fraudulently identify ones self to obtain a certified copy of a birth
record. The VSUs 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
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).
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 drivers 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
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 drivers 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 States 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
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 Units 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 states birth registration system.
Id. The workgroup consisted of staff from the Governors 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
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. Ojedas 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.
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
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.
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 1114, 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 thatand 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.
McCraws 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:
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.
...
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.
Id. at. 149.
In its October 2003 newsletter, Tripwire, U.S. Immigration and Customs Enforcement
(ICE) observed:
10
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 nations 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 Mexicos 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
11
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 childs 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 Units database and can verify a childs birthdate. Id. This allows parents to continue
Medicaid benefits for the child without obtaining a certified copy of the childs birth record.
Id.
A birth certificate is not necessary for Medicaid. The Texas Health and Human Services
Commission (the Commission) administers the Childrens Health Insurance Program (CHIP)
and Childrens Medicaid. Exhibit 4, Declaration of Stephanie Muth, 3. These programs provide
12
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 incomeCHIP is designed for families who earn too much money to qualify for
Childrens 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 Childrens 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 Childrens 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 Childrens 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 childs birth certificate or other proof
of U.S. citizenship as part of the application for CHIP or Childrens Medicaid, except in instances
where the State cannot verify the information electronically. Id. at 8. If the child was born in
13
Texas, the citizenship and birthdate of the child generally may be verified through the VSUs
statewide database. Id. This allows applicants to apply for or to continue CHIP or Childrens
Medicaid benefits for the child without obtaining a certified copy of the childs birth record. Id.
The Commissions 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 childs 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 childs birth certificate
along with the other items we need to prove your income and expenses.
...
Q. Can I send something other than my childs 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 (5th Cir. 1997) provides clear guidance in the analysis of an equal protection claim.
Johnson provides the following overview:
14
The Fourteenth Amendment's promise that no person shall be denied the equal protection
of the laws must co-exist with the practical necessity that most legislation classifies for one
purpose or another, with resulting disadvantage to various groups or persons. Romer v.
Evans, 517 U.S. 620, , 116 S.Ct. 1620, 1627, 134 L.Ed.2d 855 (1996) (citations
omitted). Thus, a State does not violate the Equal Protection Clause merely because the
classifications made by its laws are imperfect. Dandridge v. Williams, 397 U.S. 471, 485,
90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970). Rather, as long as they do not burden a
fundamental right or target a suspect class, state agencies may pursue legitimate purposes
by any means having a conceivable rational relationship to those purposes. Stern v.
Tarrant County Hosp. Dist., 778 F.2d 1052, 1054 (5th Cir.1985) (en banc ), cert. denied,
476 U.S. 1108, 106 S.Ct. 1957, 90 L.Ed.2d 365 (1986).
110 F.3d at 306. The court then observes:
Even the deferential rational basis scrutiny which is applied to ordinary governmental
classifications is not appropriate, however, when the challenged law does not create any
classifications at all. As we have previously stated, if the challenged government action
does not appear to classify or distinguish between two or more relevant persons or groups,
then the actioneven if irrationaldoes not deny them equal protection of the laws.
Brennan v. Stewart, 834 F.2d 1248, 1257 (5th Cir.1988) (citation omitted). Thus, when we
are confronted with a state action which does not so classify or distinguish, we need not
consider whether there is a rational basis for that action because such state actions are
not subject to Equal Protection scrutiny. Vera v. Tue, 73 F.3d 604, 609610 (5th Cir.1996),
citing Brennan, 834 F.2d at 1257.
Id. Apart from the obvious distinction between applicants who can meet the requirements of
reliable identification set forth in the Rule and those who cannot, Rule 181 simply does not classify
or distinguish between two or more relevant persons or groups of persons. It most definitely does
not call out parents on their undocumented immigration status or children of applicants on any
such basis, which are the two classes upon which Plaintiffs rely in their in their equal protection
claims. (Application, Doc. 25, pp. 1, 8). The analysis may end there.
No Discriminatory Intent. Johnson further informs:
State actors may create classifications . . . de facto, through the enforcement of a facially
neutral law in a manner so as to disparately impact a discernible group. The Supreme Court
has instructed us time and again, however, that disparate impact alone cannot suffice to
state an Equal Protection violation; otherwise, any law could be challenged on Equal
Protection grounds by whomever it has negatively impacted. See Washington v. Davis, 426
U.S. 229, 246250, 96 S.Ct. 2040, 20512052, 48 L.Ed.2d 597 (1976). Thus, a party who
wishes to make out an Equal Protection claim must prove the existence of purposeful
15
discrimination motivating the state action which caused the complained-of injury.
McCleskey v. Kemp, 481 U.S. 279, 292293, 107 S.Ct. 1756, 1767, 95 L.Ed.2d 262 (1987)
(citation omitted); Arlington Heights v. Metropolitan Housing Development Corp., 429
U.S. 252, 264 266, 97 S.Ct. 555, 563, 50 L.Ed. 2d 450 (1977); Davis, 426 U.S. at 238
240, 96 S.Ct. at 2047. Discriminatory purpose in an equal protection con-text implies that
the decisionmaker selected a particular course of action at least in part because of, and not
simply in spite of, the adverse impact it would have on an identifiable group. Woods v.
Edwards, 51 F.3d 577, 580 (5th Cir. 1995), quoting United States v. Galloway, 951 F.2d
64, 65 (5th Cir. 1992).
Id. at 306-07. Plaintiffs have not made any such showing of discriminatory purpose, much less a
showing of substance sufficient to support the extraordinary issuance of a preliminary mandatory
injunction.
No Strict or Intermediate Scrutiny Based on Class. Because the Rule does not make
classifications and because Plaintiffs have failed to establish discriminatory intent as a motivation
for a de facto impact, the Court need not reach a determination of what level of scrutiny should
apply. But even if it does reach that issue, given that the Plaintiff parents are undocumented aliens,
the challenged rule is subject to rational basis review, not strict scrutiny or intermediate scrutiny
review. Plyler v. Doe, 457 U.S. 202, 223 (1982) (Undocumented aliens cannot be treated as a
suspect class because their presence in this country in violation of federal law is not a
constitutional irrelevancy.). In LeClerc v. Webb, 419 F.3d 405, 416, nn. 22, 23 (5th Cir. 2005),
the Fifth Circuit observed that [t]he Court has never applied strict scrutiny review to a state law
affecting any other alienage classifications, e.g., illegal aliens, the children of illegal aliens, or
nonimmigrant aliens. (emphasis added.). See also, Van Staden v. St. Martin, 664 F.3d 56, 58 (5th
Cir. 2011) (restating the holding in Le Clerc and observing that the Court has never applied to
strict scrutiny to illegal aliens or the children of illegal aliens). In analyzing the issue and with
reference to Plyler, the Fifth Circuit observed: the Court acknowledged that the immigration
status of the affected class of aliens precluded use of either intermediate or strict scrutiny review,
16
419 F.3d at 416. See also, 416 F.3d at 419-20 ([T]here is no precedential basis for the proposition
that nonimmigrant aliens are a quasi-suspect class or that state laws affecting them are subject to
intermediate scrutiny. . . . The decision in United States v. Virginia, 518 U.S. 515 . . . (1996) . . .
furnishes no authority for the application of intermediate Equal Protection analysis to alienage
classifications. . . . Again, we decline to move where the Supreme Court has not gone.). Thus,
the status of the Plaintiff parents precludes application of either strict scrutiny or intermediate
scrutiny.
From their Application (Doc. 25, p. 8), the Plaintiff children do not appear to argue that
their classchildren of illegal aliens (as used by the Fifth Circuit in LeClerc)triggers strict or
intermediate scrutiny. Rather, Plaintiff children claim that it is the nature of their affected rights
that triggers strict scrutiny. (Doc. 25, pp.8-9.) In any event, Plyler and LeClerc would preclude
strict or intermediate scrutiny as to the claims of the children. Indeed, in this case, as in Plyler, it
is their status as children of illegal aliens that defines their class (Doc. 25, 8) and in Plyler the
Court declined to apply strict or intermediate scrutiny. Instead, in Plyler, the Court applied a
heightened rational basis test to the claims of the plaintiff children of illegal aliens. Under this
test, the challenged law must further some substantial goal of the State. Plyler, 457 U.S. at 224,
230; LeClerc, 419 F.3d at 416. However, the reason the Court in Plyler elevated the rational basis
test that would otherwise apply, as it should here, to a heightened rational basis test was the
significance of a public education and the fact that the statute directly authorized local school
districts to deny enrollment in their public schools to children not legally admitted to the country.
Plyler, 457 U.S. at 205. The Plyler heightened rational basis test should have no application here
because Rule 181 says nothing at all about public education and certainly does not deny enrollment
to anyone.
17
Scrutiny Based on Claimed Fundamental Rights. Plaintiffs cannot establish a likelihood

of success on the merits of their equal protection or due process claims because Rule 181 does not
burden a fundamental right. Because Rule 181 neither draws actionable classifications nor has
been demonstrated to have been motivated in part by discriminatory intent, the Court need not
reach the issue of whether strict scrutiny is triggered by the nature of the rights Plaintiffs claim are
at issue. If the Court reaches that issue, however, it should rule against strict scrutiny on the simple
fact (one wholly ignored by the Plaintiffs) that Rule 181 addresses, and only addresses the issuance
of a certified copy of a birth certificate. No provision in the Rule denies or abridges citizenship, a
public education, family integrity, travel, or any other right Plaintiffs would try to use to bootstrap
strict scrutiny.
Where fundamental rights have triggered strict or heightened scrutiny, the
challenged law actually did implicate the right in question. For confirmation, one need only look
to the cases the Plaintiffs cite: Romer v. Evans, 517 U.S. 620, 624 (1996) (Yet Amendment 2, in
explicit terms, does more than repeal or rescind these provisions. It prohibits all legislative,
executive or judicial action at any level of state or local government designed to protect the named
class, a class we shall refer to as homosexual persons or gays and lesbians); Plyler, 457 U.S. at
205 (statute directly authorized local school districts to deny enrollment in their public schools to
children not legally admitted to the country); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 146
(1963) (statutes divested an American of his citizenship for leaving or remaining outside the
United States at time of war and national emergency for purpose of evading military service);
Shapiro v. Thompson, 394 U.S. 618 (1969) (District of Columbia statutory provision denying
welfare assistance to residents of state or district who have not resided within their jurisdictions
for at least one year immediately preceding their applications for such assistance); Edwards v.
People of State of California, 314 U.S. 160 (1941) (statute making it a misdemeanor for a person
18
to bring or assist in bringing into state any indigent person who was not a resident of the state,
knowing him to be an indigent person); Dunn v. Blumstein, 405 U.S. 330 (1972) (durational
residence laws for voters); Troxel v. Granville, 530 U.S. 57 (1960) (statute permits [a]ny person
to petition for visitation rights at any time and authorizes state superior courts to grant such rights
whenever visitation may serve a child's best interest); and, Obergefell v. Hodges, 135 S.Ct. 2584
(2015) (Michigan Marriage Act prohibited same-sex marriage). These cases involved laws that
directly impact rights.
Rather than pointing to any part of the Rule itself that affects any fundamental right
(Plaintiffs actually ignore entirely the text of the Rule), Plaintiffs rely instead upon claimed
incidental effects of application of the ruleincidental effects, further, that are unique to each
Plaintiff. As shown above, the cases Plaintiffs cite involved statutes that directly affected the
claimed fundamental rights. Plaintiffs have made no such showing here.
Plaintiffs offer no authority for the proposition that legislation that is silent on a
fundamental right, but that might nevertheless have an incidental effect on that right, is subject to
strict scrutiny. Nor do they offer any limiting principle to any such proposition that would prevent
courts from being inundated with strict scrutiny challenges to nearly every form of legislation
addressing social or economic issues on the basis of incidental effects.1
Plaintiffs claim of the right of family integrity is a good example of the overbreadth of Plaintiffs position. To say
the right is less than clear would be an understatement. See, e.g., Hodorowski v. Ray, 844 F.2d 1210, 1217 (5th Cir.
1988) (The general right of family integrity is nebulous and unsuitab[le] . . . to fix liability in particularized
circumstances.); Frazier v. Bailey, 957 F.2d 920, 931 (1st Cir. 1992) (Plaintiff failed to show that the child care
workers conduct violated the nebulous and amorphous right of family integrity.); Doe v. Louisiana, 2 F.3d 1412,
1417 (5th Cir. 1993), cert. denied 510 U.S. 1164 (1994) (nebulous right of family integrity); Kiser v. Garrett, 67
F.3d 1166, 1172-73 (5th Cir. 1995)(amorphous,nebulous, ill-defined right to family integrity); Peters v. Lowrey,
1997 WL 255628 *4 (5th Cir. 1997)(right nebulous and not clearly established); Burney v. Carrick, 1999 WL 47014
*3 (5th Cir. 1999) (nebulous interest in family integrity); Brian T. v. Ward, 2000 WL 423409 (5th Cir. 2000) (where
plaintiff sues social workers whose primary duty is to investigate allegations of child abuse, the case in in the center
of the continuum and the right to family integrity may properly be characterized as nebulous); and, Doop V.
Chapman, 2006 WL 3147323 (5th Cir. 2006) (nebulous right to family integrity). Under Plaintiffs theory, a statute
19
Contrary to Plaintiffs incidental effect premise, the law requires far more before a
challenged law becomes subject to strict scrutiny. In Bowen v. Gilliard, 483 U.S. 587 (1987), the
Supreme Court analyzed which level of review should apply in an equal protection case involving
an amendment to the federal Aid to Families with Dependent Children program that was severely
impacting families. The plaintiffs claimed that some form of heightened scrutiny is appropriate
because the amendment interferes with a family's fundamental right to live in the type of family
unit it chooses. Id. at 601. The Court gave as an example one mother who stated that she had sent
a child to live with the childs father in order to avoid the requirement of including that child in
her family as would be required by the amendment. The Court held:
We conclude that the District Court erred in subjecting the DEFRA amendment to any form
of heightened scrutiny. That some families may decide to modify their living arrangements
in order to avoid the effect of the amendment, does not transform the amendment into an
act whose design and direct effect are to intrud[e] on choices concerning family living
arrangements. Moore v. East Cleveland, 431 U.S. 494, 499, 97 S.Ct. 1932, 1936, 52
L.Ed.2d 531 (1977).
Id. at 601-02.
On this point the Court noted If the DEFRA amendment's indirect effects on
family living arrangements were enough to subject the statute to heightened scrutiny, then the
entire AFDC program might also be suspect since it generally provides benefits only to needy
families without two resident parents. Id. at 602, n. 17. In reaching its conclusion, the Court
relied on its prior holdings in Lyng v. Castillo, 477 U.S. 635, 638 (1986) and Zablocki v. Redhail,
434 U.S. 374 (1978) to the effect that a classification must directly and substantially interfere
that is facially silent on family integrity would be subject to a strict scrutiny challenge solely on the basis that it had
an incidental effect, perhaps unique to a single litigant, on a nebulous and amorphous right.
Likewise, anyone who fails to obtain a certified copy of a birth certificate could make a strict scrutiny challenge to the
Rule on the basis he or she was denied citizenship.
Plaintiffs positions are untenable and unsupported by law.
20
with a right for it to constitute a burden on a fundamental right. Id. at 603. To the same effect is
the holding in Philadelphia Police and Fire Assn for Handicapped Children Inc. v. City of
Philadelphia, 874 F.2d 156 (3d Cir. 1989), which involved cuts in rehabilitative services to the
plaintiffs. There the class members contended that heightened scrutiny is appropriate because
their fundamental rights to family integrity and to freedom from unnecessary institutionalization
have been burdened by the cut of habilitative services. Id. at 165. The Third Circuit cited Bowen
for the proposition that not every burden on a fundamental right will give rise to heightened
scrutiny. If a burden is sufficiently indirect, scrutiny will not be heightened. Id. at 166. The
district court had found that [w]ithout continued support in the form of direct habilitative services
or family support services, it will be impossible for [some] members of the class to remain in the
family home. As to this point the Third Circuit stated:
The cut in habilitative services does not in itself require members of the class to leave
their family homes or enter institutions (although it may make it more likely that they will
do so). Because the burden on these fundamental rights is indirect, heightened scrutiny is
inappropriate on this ground as well.
Id. See also, League of United Latin American Citizens v. Bredesen, 500 F.3d 523, 535 (6th Cir.
2007) (A state law implicates the right to travel when it actually deters travel, when impeding
travel is its primary objective, or when it uses a classification that serves to penalize the exercise
of the right. . . . Something more than a negligible or minimal impact on the right to travel is
required before strict scrutiny is applied.).
No Showing of Lack of Rational Basis or (Arguendo Only) Heightened Rational Basis. As
demonstrated above, Rule 181 does not create classifications and thus rational basis review does
not even apply. Johnson v. Rodriguez, 110 F.3d 299 at 306 (Even the deferential rational basis
scrutiny which is applied to ordinary governmental classifications is not appropriate, however,
when the challenged law does not create any classifications at all.). Were it to apply, [i]f the
21
challenged classification bears a reasonable relationship to the accomplishment of some legitimate

governmental objective, the statute must be upheld. Anderson v. Winter, 631 F.2d 1238, 1240-41
(5th Cir. 1980). Accordingly, a classification must be upheld against equal protection challenge
if there is any reasonably conceivable state of facts that could provide a rational basis for the
classification, and the burden is on the challenger to negative every conceivable basis which
might support [the classification]. El Paso Apartment Ass'n v. City of El Paso, 415 F. App'x
574, 578 (5th Cir. 2011) (quoting Heller v. Doe, 509 U.S. 312, 320 (1993)).
Plaintiffs challenge of Rule 181 fails to meet this standard. They have not met their burden
to negative every conceivable basis which might support Rule 181. Nor have Plaintiffs offered
any evidence or argument to rebut what is evident from the face of Rule 181--it rationally serves
the States interest in protecting the identity of its citizens by ensuring that only eligible applicants
who offer sufficient, reliable proof of identity may obtain certified copies of birth certificates.
Exhibit 1, Declaration of Geraldine Harris; Exhibit 2, Declaration of Victor Farinelli. This
purpose is also served by the States refusal to accept matriculas, whose reliability as evidence of
identity has not been established. Finally, there is no evidence or argument to rebut the fact that
the States interest in protecting the identities of is citizens is substantial, were the Court to apply
a heightened rational basis standard.
b. Plaintiffs have failed to show a likelihood of success on the merits of their
substantive due process claim.
Plaintiffs putative substantive due process claim is not cognizable because it duplicates their
Equal Protection claim. [W]here a particular Amendment provides an explicit textual source of
constitutional protection against a particular sort of government behavior, that Amendment, not
the more generalized notion of substantive due process, must be the guide for analyzing these
claims. Lindquist v. City of Pasadena, 525 F.3d 383, 387-88 (5th Cir. 2008) (quoting County of
22
Sacramento v. Lewis, 523 U.S. 833, 842 (1998)); see also Calhoun v. Hargrove, 312 F.3d 730,
735 (5th Cir. 2002) (claims that are covered by such specific constitutional provisions must be
analyzed under the standard appropriate to that specific provision and not under the rubric of
substantive due process) (citing Graham v. Connor, 490 U.S. 386, 395 (1989).
Even if the merits of the substantive due process claim are reached, because the contested
rule passes minimum scrutiny rational basis review, as discussed above, it is, as a matter of law,
not arbitrary and capricious. Brennan v. Stewart, 834 F.2d 1248, 1258-59 (5th Cir. 1988).
2. Plaintiffs have failed to show a likelihood of success on the merits of their preemption
claim.
Defendants have set forth at length and re-urge here their arguments as to preemption in
their Amended Motion to Dismiss, filed immediately preceding the filing of this response and in
their prior Reply in Support of Motion to Dismiss (Doc. 18). The burden of persuasion in
preemption cases lies with the party seeking annulment of the state statute. AT&T Corp. v. Public
Utility Comn of Texas, 373 F.3d 641, 645 (5th Cir. 2004). Plaintiffs have failed to show a
likelihood of success on the merits on both of their preemption theories.
Field Preemption. The Supreme Court has stated that field preemption arises when [t]he
intent to displace state law altogether can be inferred from a framework of regulation so pervasive
. . . that Congress left no room for the States to supplement it or where there is a federal interest
. . . . so dominant that the federal system will be assumed to preclude enforcement of state laws on
the same subject. Arizona v. United States, 132 S.Ct. 2492, 2501 (2012)(citations omitted). In
preemption analysis, courts should assume that the historic police powers of the States are not
superseded unless that was the clear and manifest purpose of the Congress. Id. Further guidance
as to immigration is found in LeClerc v. Webb, 419 F.3d 405, 423 (5th Cir. 2005), rehg en banc
denied, 444 F.3d 428 (2006), which draws upon DeCanas v. Bica, 424 U.S. 351 (1976):
23
Despite the federal government's primacy over the regulation of immigration, not every
state enactment which in any way deals with aliens is a regulation of immigration and thus
per-se preempted .... De Canas, 424 U.S. at 355, 96 S.Ct. at 936. The Constitution, by
committing regulation of immigration to the federal government, did not deprive the states
of all power to legislate regarding aliens. Id. Nevertheless, ostensibly harmonious state
regulation may run afoul of the Supremacy Clause if it, in effect, interferes with the goals
of federal policy. Id. Yet, even in this context, [f]ederal regulation ... should not be deemed
preemptive in the absence of persuasive reasonseither that the nature of the regulated
subject matter permits no other conclusion, or that the Congress has unmistakably so
ordained. Id. at 356, 96 S.Ct. at 937 (internal citation omitted).
Under these authorities, courts should assume that the historic police powers of the
States are not superseded unless that was the clear and manifest purpose of the Congress.
Arizona, 131 S.Ct. at 2501. Here, a States police power2 to determine to whom and upon what
showing the State should issue a certified copy of a birth certificate (including whether an applicant
has provided reliable evidence of identity) enjoys a presumption of validity and [f]ederal
regulation . . . should not be deemed preemptive in the absence of persuasive reasonseither that
the nature of the regulated subject matter permits no other conclusion, or that the Congress has
unmistakably so ordained. DeCanas, 96 S.Ct. at 937. Plaintiffs have simply failed to make any
showing of this type of field preemption. Rather, Plaintiffs are still arguing for some type of per
se preemption based on immigration alonea concept rejected in LeClerc, 419 F.3d at 423, and
DeCanas, 424 U.S. at 355. The doctrine of field preemption is not nearly as expansive as Plaintiffs
would have it. Only a demonstration that complete ouster of state powerincluding state power
to promulgate laws not in conflict with federal lawswas the clear and manifest purpose of
Congress would justify th[e] conclusion that Congress intended to oust state authority to regulate
Historically, the police power extends to whatever measures a polity chooses to enact to protect, preserve and enhance
the lives of its citizens. See Gonzales v. Oregon, 546 U.S. 243, 270 (2006).
24
... in a manner consistent with pertinent federal laws. De Canas, 424 U.S. at 357 (quotations
omitted).
Conflict Preemption. For conflict preemption to apply, state laws must conflict with
federal laws. This may occur two ways. [Conflict preemption] includes cases where compliance
with both federal and state regulations is a physical impossibility, . . . and those instances where
the challenged law stands as an obstacle to the accomplishment and execution of the full purposes
and objectives of Congress. Arizona, 132 S.Ct. at 2501; Villas at Parkside Partners v. City of
Farmers Branch, 726 F.3d 524, 528 (5th Cir. 2013)(en banc), cert. denied, 134 S.Ct. 1491 (2014).
No Direct Conflict. Plaintiffs set up no conflict between state law and any identified federal
law, much less demonstrate that compliance with both is a physical impossibility.
Congressional Purposes and Objectives. Conflict preemption may also be found where
the challenged law stands as an obstacle to the accomplishment and execution of the full purposes
and objectives of the Congress." Arizona, 132 S.Ct. at 2501. What is a sufficient obstacle is a
matter of judgment, to be informed by examining the federal statute as a whole and identifying its
purpose and intended effects. Id. (quoting Crosby v. Natl Foreign Trade Council, 530 U.S. 363,
372 (2000)). See also, Villas at Parkside Partners v. City of Farmers Branch, 726 F.3d 524, 528
(5th Cir. 2013)(en banc), cert. denied, 134 S.Ct. 1491 (2014). Additional guidance comes from the
Supreme Court in Chamber of Commerce of the United States v. Whiting, 131 S.Ct. 1968 (2011),
in which the Court stated:
Implied preemption analysis does not justify a freewheeling judicial inquiry into whether
a state statute is in tension with federal objectives; such an endeavor would undercut the
principle that it is Congress rather than the courts that preempts state law. Gade v.
National Solid Wastes Management Assn., 505 U.S. 88, 111, 112 S.Ct. 2374, 120 L.Ed.2d
73 (1992) (KENNEDY, J., concurring in part and concurring in judgment); see Silkwood
v. KerrMcGee Corp., 464 U.S. 238, 256, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984). Our
25
precedents establish that a high threshold must be met if a state law is to be preempted for
conflicting with the purposes of a federal Act. Gade, supra, at 110, 112 S.Ct. 2374.
Plaintiffs do not even identify the federal statute, the full purposes or objective of which
are obstructed by 25 Texas Admin. Code 181.28. They thus fail at the very threshold of this type
of conflict analysis.
De Facto Removal. Plaintiffs rely on a de facto removal theory of preemption that,
although urged, could not garner a majority of the en banc Fifth Circuit. Villas at Parkside
Partners v. City of Farmers Branch, 726 F.3d 524 (5th Cir. 2013)(en banc), cert. denied, 134 S.Ct.
1491 (2014). The Court in Villas, however, made clear that it was not deciding the case on the
basis of field preemption. Villas, 726 F.3d at 529, n.4. Field preemption based on de facto removal
is not the law in the Fifth Circuit.
Nothing in 25 Texas Admin. Code 181.28 even remotely purports to remove anyone from
the United States. A voluntary decision to leave the United States, even if caused by a State
denying benefits accorded to citizens or legal immigrants, is not a de facto removal because the
State is not physically removing anyone. Plaintiffs expansive notion of removal, if accepted,
would apply equally to the California law in De Canas and the Arizona law in Whiting, based on
the contention that denying aliens employment inevitably has the same effect of removing some
of them from the State. Yet the Supreme Court upheld the validity of these laws in both cases.
The issue in De Canas was whether a California law imposing fines on employers who knowingly
employed unlawfully present aliens was an unconstitutional attempt by the State to regulate
immigration. As the Court framed the issue:
Power to regulate immigration is unquestionably exclusively a federal power. But the Court
has never held that every state enactment which in any way deals with aliens is a regulation
of immigration and thus per se pre-empted by this constitutional power, whether latent or
exercised.... [T]he fact that aliens are the subject of a state statute does not render it a
26
regulation of immigration, which is essentially a determination of who should or should

not be admitted into the country, and the conditions under which a legal entrant may
remain.
424 U.S. at 35455 (citations omitted). While acknowledging that the California law may have
some indirect impact on immigration, the Court held that it was not constitutionally preempted.
Id. at 35556.
Plaintiffs' broad notion of preemption is also inconsistent with the Supreme Court's
decision in Whiting, 131 S.Ct. at 1987, upholding an Arizona law that mandated the use of E
Verify and revoked the licenses of employers who knowingly employed aliens lacking work
authorization. The Court gave no hint that the Arizona law constituted impermissible state
regulation of immigration based on the suggestion that it may have the effect of causing certain
aliens to leave the State. Instead, the Court carefully analyzed whether the Arizona law was either
expressly preempted by IRCA, or was impliedly preempted because it conflicted with federal law.
Id. at 197784. This analysis would have been unnecessary if the Arizona law was a
constitutionally proscribed regulation of immigration that Congress itself would be powerless to
authorize or approve. De Canas, 424 U.S. at 356.
Sanctions and Benefits.
Plaintiffs further argue in support of preemption in their
Application for Preliminary Injunction under the heading Sanctions and Benefits (Doc. 25, p.
19) and conclude with the assertion Defendants denial of birth certificates to Texas-born children
constitutes a gross intrusion into this pervasive, carefully balanced scheme of benefits and
sanctions. (Id. at 20.) Plaintiffs citations to statutes that impose restrictions on persons who enter
the United States unlawfully establish no field in conflict with a Texas rule on what an applicant
must show to obtain a childs birth certificate. Plaintiffs citations to statutes they characterize as
preventing inhumane local treatment of undocumented individuals likewise do not lay out a
27
defined exclusive federal field nor do they include any federal statute that preempts the State from
requiring reliable evidence of an applicants identity in order to obtain a certified copy of a birth
certificate. In short, Plaintiffs concluding section fails to show preemption of any nature.
3. Plaintiffs cannot show they will suffer irreparable harm if injunctive relief does not
issue.
The Fifth Circuit has made clear that for injunctive relief, [s]peculative injury is not
sufficient; there must be more than an unfounded fear on the part of the applicant for injunctive
relief. Holland Am. Ins. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir. 1985). See also Winter
v. NRDC, Inc., 555 U.S. 7, 22 (2008) (plaintiff must demonstrate that irreparable injury is likely
in the absence of an injunction). Far from clearly establishing that imminent irreparable harm is
likely, Plaintiffs affidavits by their very terms demonstrate that the harms they do allege a) have
not occurred, but are instead hypothetical and speculative, and b) are unique to each affiant.
Plaintiffs have submitted affidavit proof from only 11 of the 28 parent plaintiffs and,
understandably, none from the children plaintiffs. For the 17 parents who have not submitted
affidavits3 and for the children on whose behalf they sue, Plaintiffs have failed to establish either
a likelihood of success on the merits or irreparable harm. A preliminary injunction as to those
plaintiffs should be denied.
As to the 11 Plaintiffs who have filed affidavits:4
--Nancy Garcia (p. 8)
Fails to establish that the affiant lacks and is unable to obtain documents sufficient
to establish identity under Rule 181.
Luisa Ines Barragan Gutierrez, Rosa Isela Garcia Naranjo, Diana Hernandez, Javier Reyes, Nancy Hernandez, Marta
Ibarra Luna, Juan Carlos Rodriguez Velasquez, Katerine Johana Portillo, Marcelina Rangel Martinez, Antonia
Rodriguez, Damaris Romero Hernandez de Reyes, Brizeida Sanchez, Yveth Vega Diaz, Fany Ventura, Eloina Palafoz,
Giovanna Castro, and Yesenia Cortez.
4
These affidavits appear in Doc. 25-1, pages 1 to 52 of 52. Page references herein are to the range of 1-52 and are to
the English translation, where provided.
28
Rather than establishing imminent denial of Medicaid benefits and school

enrollment, the affidavit fails to establish that the affiant must in fact have birth
certificates for these to continue.
The affidavit also fails to establish, for a fact, that she must have birth certificates
for section 8 housing and fails to establish she has in fact been denied housing for
lack of birth certificates.
The affiants statement about baptism of her child is a conclusion for which no
supporting facts are provided.
Her concerns about travel in paragraph 11 are speculative and hypothetical.
--Flavia Garcia (p. 52)
Fails to establish that the affiant lacks documents sufficient to establish identity
under Rule 181.
The affiant fails to establish as a fact that she has been denied Head Start for lack
of a birth certificate.
Her statements undermine rather than establish that she has been unable to enroll
her child in school.
Her statements about SSI do not establish that any such benefit has been denied
for lack of a birth certificate and her concerns are conjectural, not concrete.
Her statements undermine, rather than establish as a fact that her child has been
denied Medicaid due to lack of a birth certificate.
--Cynthia Ibarra (p. 16)
Her conclusions in paragraph 8 are based on hearsay and provide no supporting
facts. The affiant has failed to prove (and cannot prove) that she must have a birth
certificate for a Texas-born child to obtain Medicaid benefits.
Her concerns in paragraph 10 are speculative, not concrete.
--Paulina Nieto Ibarra (p. 19)
29
Paragraph 11 is a conclusion for which the affiant offers no supporting facts, such
was whether she has tried to bring her grandson into the country and was turned
away for lack of a birth certificate and whether she in fact must have a birth
certificate in order to bring her grandchild into the country.
Any inference of imminent harm to her grandson is speculative.
--Estrella de Jesus Cedillo Nieto (p. 2)
Paragraph 8 is a conclusion for which the affiant offers no supporting facts, such as
whether she has tried to bring her son into the country and was turned away for lack
of a birth certificate and whether she in fact must have a birth certificate in order to
bring her child into the country.
Any inference of imminent harm to her child is speculative, not concrete.
--Quenia Perez (p. 30)
Her observations undermine rather than conclusively establish any contention that
she has been unable to enroll her child in school.
Her concerns about Medicaid are speculative, not concrete. The affiant has failed
to prove (and cannot prove) that she must have a birth certificate for a Texas-born
child to obtain Medicaid benefits.
Her concerns about travel are speculative and hypotehetical.
--Maria Isabel Perales Serna (p. 27)
Her conclusion in paragraph 4 about daycare is conclusion with no supporting facts.
The affiant has failed to prove for a fact that a day care center has in fact denied
enrollment due to lack of a birth certificate. She fails to prove for a fact that lack
of a birth certificate for her child has resulted in her failing to find employment.
Her observations undermine rather than conclusively establish any contention that
she has been unable to travel without a birth certificate for her child.
30
The affiant has failed to prove (and cannot prove) that she must have a birth
certificate for a Texas-born child to obtain Medicaid benefits.
Any inference of imminent harm to her or her child is speculative, not concrete.
--Leticia Torres (p. 39)
under Rule 181.
She has failed to establish (and cannot) that her child was turned down on Medicaid
for lack of a birth certificate.
Her concerns about travel are conjectural, not concrete.
--Maria Del Rosario Teran Uriegas (p. 36)
under Rule 181.
The affiants concerns in paragraphs 8 and 9 are conjectural, not concrete.
The affiant does not state that she has in fact been turned down for WIC, Medicaid
and food stamps.
for lack of a birth certificate.
Her harms are speculative, not concrete.
--Violeta Vega (p. 45)
under Rule 181.
She fails to establish as a fact that she lost section 8 housing because she lacked a
birth certificate for her child.
for lack of a birth certificate. Her concerns about Medicaid are conjectural, not
concrete.
Her harms are speculative, not concrete.
--Juana Gomez Ybarra (p. 10)
31
under Rule 181.
The affiants statement about baptism of her child is a conclusion for which no
supporting facts are provided.
The affiants conclusion that lack of a birth certificate has precluded Head Start and
daycare is a conclusion, based on hearsay and is one for which no supporting facts
are provided. The affiant has failed to prove, for a fact, that she cannot obtain these
services without a birth certificate and that she lacks other documents of identity to
obtain these services.
Her concerns in paragraphs 11 and 12 are conjectural, not concrete.
Plaintiffs submit two other affidavits. The Affidavit of Juanita Valdez-Cox is not in fact
an affidavit, because it is unsworn and unsigned, and it is not a declaration, because in violation
of 28 U.S.C. 1746, it has not been signed by the declarant. As such, it is not proper proof in
support of the Application. The Affidavit of Dr. Marsha Griffin does not support the Application
insofar as: 1) it does not pertain directly to any of the Plaintiffs, 2) her generic opinions (in
paragraphs 8 and 9) are qualified on the basis that denial of birth certificates can (not will or has)
cause harm, and 3) her opinions about Medicaid (To the extent that denial . . . , paragraph 9) and
public housing and education (Any interference . . . , paragraph 12) are qualified and thus
conjectural. Her affidavit does not establish imminent irreparable harm to any Plaintiff caused by
the lack of a certified copy of a birth certificate.
Plaintiffs affidavit proof is insufficient to support a preliminary injunction because the
injuries they recite are speculative and conjectural and they fail to establish that irreparable injury
is likely in the absence of an injunction. Holland Am. Ins., 777 F.2d at 997; Winter v. NRDC, Inc.,
555 U.S. at 22. Further, each Plaintiff must establish his or her own entitlement to preliminary
injunctive relief. For most of the Plaintiffs, there is no proof. For the balance, it is insufficient.
4. Plaintiff cannot show that less harm will result to Defendants if the injunction issues
than to Plaintiffs if the injunction does not issue, and the public interest weighs in
32
favor of denying the sweeping injunctive relief requested by Plaintiffs.

It is well settled that because a preliminary injunction is an extraordinary remedy never
awarded as of right, the Court is required to balance the competing claims of injury and must
consider the effect on each party of the granting or withholding of the requested relief. See
Winter, 555 U.S. at 24 (internal quotations and citations omitted). Plaintiffs shortchange the
potential harm to Defendants in their Application. (Doc. 25, pp. 5-6.) What they overlook is that
the potential harm is not to Defendants per se, but to Texas citizens to whom Defendants owe a
duty to maintain the confidentiality of their personal identity. Plaintiffs acknowledge that identity
theft has increased in the U.S. over the years, yet they fail to recognize or account for the risks of
identity theft that increase as self-identification requirements are loosened.
IV. The Requested Preliminary Injunction is Overbroad and Impermissibly Vague
Plaintiffs seek a mandatory preliminary injunction that would require Defendants to
immediately identify at least two forms of identification reasonably and actually accessible to
undocumented immigrant parents of Texas-born 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.)
Rule 65 of the Federal Rules of Civil Procedure requires an injunction to be specific in
terms; [and] describe in reasonable detail the act or acts sought to be restrained. The court must
narrowly tailor an injunction to remedy the specific action which gives rise to the order. Fiber
Systems Intern., Inc. v. Roehrs, 470 F.3d 1150, 1159 (5th Cir. 2006); John Doe #1 v. Veneman, 380
F.3d 807, 818 (5th Cir. 2004) [T]he scope of injunctive relief is dictated by the extent of the
violation established . . . , Veneman, 380 F.3d at 818, citing Califano v. Yamasaki, 442 U.S. 682,
702 (1979). An injunction fails to meet these standards when it is overbroad or vague. Venemen,
33
380 F.3d at 818. Vagueness is a question of notice and broadness is a matter of substantive law.
Id; U.S. Steel Corp. v. United Mine Workers, 519 F.2d 1236, 1246 n. 19 (5th Cir.1975).
The requested relief is overbroad because it is not narrowly tailored to address the
demonstrated imminent harm to any of the Plaintiffs. As shown above, most of the Plaintiffs have
presented no proof of a substantial likelihood of recovery on the merits or of harm, whether
irreparable, imminent or otherwise. Those Plaintiffs are not entitled to any preliminary injunction.
Nor are any of the unnamed, non-party other undocumented immigrant parents of Texas-born
children covered by the requested preliminary injunction. This is not a class action, yet Plaintiffs
effectively seek relief on behalf of an entire class without affording to Defendants any of the
procedural protections provided by Fed.R.Civ.P. 23.
The requested relief is also impermissibly vague because it requires Defendants to
determine at least two forms of identification [that are] reasonably and actually accessible to
undocumented immigrant parents of Texas-born children. This type of injunction is vague
because it assumes that there are indeed two such forms available to all such undocumented parents
and then encumbers Defendants with determining what they are. See, e.g., Venemen, 380 F.3d at
820 (Although the definition of personal information includes reasonable detail, it is not specific
in its terms because it encumbers the federal defendants with determining what combination of
information might enable API, or others for that matter, to determine the name, address, ranch or
location of a Cooperator.)
Defendants deny that any of the Plaintiffs will prevail on the merits or that they have
demonstrated irreparable harm sufficient to warrant preliminary injunctive relief. If the Court
determines, however, that a preliminary injunction should issue, it should be one that is narrowly
tailored to those Plaintiffs who have put on proof to support their claims and the injunction should
34
be to issue those Plaintiffs, and only those Plaintiffs, a certified copy of a birth certificate for their
Texas-born, Plaintiff children.
For the foregoing reasons, Defendants request the Court to deny Plaintiffs application for
preliminary injunction.
Respectfully Submitted,
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
JAMES E. DAVIS
Deputy Attorney General for Civil
Litigation
ANGELA V. COLMENERO
Chief, General Litigation Division
/s/ Thomas A. Albright
THOMAS A. ALBRIGHT
Texas Bar No. 00974790
Attorney-in-Charge
Assistant Attorney General
General Litigation Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
(512) 463-2120
(512) 320-0667 (Fax)
ATTORNEYS FOR DEFENDANTS
35
CERTIFICATE OF SERVICE
I hereby certify that on this, the 4th day of September, 2015, a true and correct copy of the
foregoing document has been filed with the courts CM/ECF electronic case management system,
thus providing service to the following participants:
Efren Carlos Olivares
Texas Civil Rights Project
P.O. Box 219
Alamo, TX 78516
956-787-8171 ext. 108
Fax: 956-787-6348
James C. Harrington
Texas Civil Rights Project
1405 Montopolis Drive
Austin, TX 78741
(512) 474-5073
Fax: (512) 474-0726
Jennifer K. Harbury
Texas Rio Grande Legal Aid, Inc.
TRLA, 300 S. Texas Blvd.
Weslaco, TX 78596
956-447-4800
Fax: 956-968-8823
ATTORNEYS FOR PLAINTIFFS
Service has been made electronically via email to the following non CM/ECF participants:
Virginia Marie Raymond
Law Office of Virginia Raymond
1006 East Cesar Chavez Street
Austin, TX 78702
Cheryl R. Drazin
Anti-Defamation League
12800 Hillcrest Road
Suite 219
Dallas, TX 75230
Lauren Jones
36
605 Third Avenue

New York, NY 10158
Steve Freeman
605 Third Avenue
New York, NY 10158
/s/ Thomas A. Albright
THOMAS A. ALBRIGHT
Assistant Attorney General
37

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Case 1:15-cv-00446-RP Document 41 Filed 09/04/15 Page 1 of 37

THE UNITED STATES DISTRICT COURT

Civil Action No. 15-cv-00446 RP

DEFENDANTS RESPONSE TO PLAINTIFFS EMERGENCY APPLICATION

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

Defendants Response to Plaintiffs Emergency Application for Preliminary Injunction

Case 1:15-cv-00446-RP Document 41 Filed 09/04/15 Page 3 of 37

A. The Requirements of Rule 181.

requirements regarding acceptable identification are contained in 25 TEX. ADMIN. CODE

Defendants Response to Plaintiffs Emergency Application for Preliminary Injunction

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.

Defendants Response to Plaintiffs Emergency Application for Preliminary Injunction

Case 1:15-cv-00446-RP Document 41 Filed 09/04/15 Page 5 of 37

Defendants Response to Plaintiffs Emergency Application for Preliminary Injunction

Case 1:15-cv-00446-RP Document 41 Filed 09/04/15 Page 6 of 37

Defendants Response to Plaintiffs Emergency Application for Preliminary Injunction

Case 1:15-cv-00446-RP Document 41 Filed 09/04/15 Page 7 of 37

Excerpts of the opening remarks of Representative John

Hostettler, Subcommittee Chair, include:

Defendants Response to Plaintiffs Emergency Application for Preliminary Injunction

Case 1:15-cv-00446-RP Document 41 Filed 09/04/15 Page 8 of 37

Defendants Response to Plaintiffs Emergency Application for Preliminary Injunction

Case 1:15-cv-00446-RP Document 41 Filed 09/04/15 Page 9 of 37

Defendants Response to Plaintiffs Emergency Application for Preliminary Injunction

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

Defendants Response to Plaintiffs Emergency Application for Preliminary Injunction

Case 1:15-cv-00446-RP Document 41 Filed 09/04/15 Page 11 of 37

Defendants Response to Plaintiffs Emergency Application for Preliminary Injunction

Case 1:15-cv-00446-RP Document 41 Filed 09/04/15 Page 12 of 37

Defendants Response to Plaintiffs Emergency Application for Preliminary Injunction

Case 1:15-cv-00446-RP Document 41 Filed 09/04/15 Page 13 of 37

CHIP and Childrens Medicaid services are delivered primarily through

Defendants Response to Plaintiffs Emergency Application for Preliminary Injunction

Case 1:15-cv-00446-RP Document 41 Filed 09/04/15 Page 14 of 37

Defendants Response to Plaintiffs Emergency Application for Preliminary Injunction

Case 1:15-cv-00446-RP Document 41 Filed 09/04/15 Page 15 of 37

Defendants Response to Plaintiffs Emergency Application for Preliminary Injunction

Case 1:15-cv-00446-RP Document 41 Filed 09/04/15 Page 16 of 37

Defendants Response to Plaintiffs Emergency Application for Preliminary Injunction

Case 1:15-cv-00446-RP Document 41 Filed 09/04/15 Page 17 of 37

Defendants Response to Plaintiffs Emergency Application for Preliminary Injunction

Case 1:15-cv-00446-RP Document 41 Filed 09/04/15 Page 18 of 37

Scrutiny Based on Claimed Fundamental Rights. Plaintiffs cannot establish a likelihood

Where fundamental rights have triggered strict or heightened scrutiny, the

Defendants Response to Plaintiffs Emergency Application for Preliminary Injunction

Case 1:15-cv-00446-RP Document 41 Filed 09/04/15 Page 19 of 37

Defendants Response to Plaintiffs Emergency Application for Preliminary Injunction

Case 1:15-cv-00446-RP Document 41 Filed 09/04/15 Page 20 of 37

Defendants Response to Plaintiffs Emergency Application for Preliminary Injunction

Case 1:15-cv-00446-RP Document 41 Filed 09/04/15 Page 21 of 37

Defendants Response to Plaintiffs Emergency Application for Preliminary Injunction

Case 1:15-cv-00446-RP Document 41 Filed 09/04/15 Page 22 of 37

challenged classification bears a reasonable relationship to the accomplishment of some legitimate

Defendants Response to Plaintiffs Emergency Application for Preliminary Injunction

Case 1:15-cv-00446-RP Document 41 Filed 09/04/15 Page 23 of 37

Defendants Response to Plaintiffs Emergency Application for Preliminary Injunction

Case 1:15-cv-00446-RP Document 41 Filed 09/04/15 Page 24 of 37

Defendants Response to Plaintiffs Emergency Application for Preliminary Injunction

Case 1:15-cv-00446-RP Document 41 Filed 09/04/15 Page 25 of 37