Castellano v. Clinton (CA M-0805) (S.D.Tex.)
The parties have reached a proposed class settlement regarding passport applications from individuals born to midwives. The ACLU, Hogan & Hartson, and Lisa Brodyaga pursued a class action for individuals whose passport applications were delayed or effectively denied because they had been born to midwives. Some midwives have engaged in fraud (some have pled guilty), which has apparently led DHS and DOS to suspect midwives as a class. The DOS wasn't actually denying applications; it was more commonly "filing" the applications without action, declaring them abandoned, or simply asking for more and more information. The most basic result of this lawsuit is that DOS will approve or deny applications (where applications are denied, the applicant can seek judicial review in District Court, under 8 USC 1503). A rough outline of the Settlement Agreement is this:
1. A SBA is a "Suspected Birth Attendant"; DOS maintains a SBA list, which it keeps secret (and isn't sharing with class counsel in this lawsuit). The SBA list includes:
the names of midwives and/or birth attendants ... who have been convicted of birth certificate fraud and/or who the Department has a reasonable suspicion of having engaged in birth certificate fraud, based on: a) a conviction or plea agreement involving a crime of document fraud; b) an admission, confession, or statement of implication made by the birth attendant, a client, or a witness pertaining to birth certificate fraud by the birth attendant; c) information received from a law enforcement agency regarding the birth attendant and his/her involvement in birth certificate fraud; d) documents or other information supporting a reasonable suspicion that the birth attendant has engaged in birth certificate fraud; or e) disciplinary action taken by the Texas Midwifery Board or other state licensing agency for falsely registering births or falsely filing birth records. The Department will continuously review, revise, and maintain the SBA list. The SBA list will not be disseminated in any form to Class Counsel. For purposes of this paragraph, reasonable suspicion shall mean that there is an articulable and reasonable basis for the belief that an individual has engaged in birth certificate fraud. Mere guesses or hunches are insufficient.
While the DOS isn't providing any actual info to class counsel or the public, it does undertake to review its list and tell us how many many names are on it, whether any are removed, etc. (Para 53)
An authorized official shall certify on behalf of the Department: (1) the number of midwives or birth attendants on the SBA List as of the Effective Date of Settlement; (2) the number of midwives or birth attendants added, if any, to the SBA List during that period of the Stipulation; (3) the number of midwives or birth attendants removed, if any from the SBA List during that period of the Stipulation; and (4) that this information is true, correct, and complete as of the date of certification. The certification shall also attest that the Department has maintained, reviewed, and, if applicable, modified the list according to the standards set forth in the Definition section.
While the DOS hasn't provided any list, class counsel filed an old INS list as an exhibit in the lawsuit, which is reproduced below.
2. The class definition is:
[A]ll persons who filed an application, domestically, for a U.S. passport between April 8, 2003 and the Effective Date of Settlement, and who: (1) submitted a birth certificate indicating a domestic, non-institutional birth; (2) that was certified, filed, or registered by a midwife or other birth attendant within the state of Texas; and (3)(a) were issued a letter stating that their application was filed without further action, abandoned, or closed or (b) were not sent a decision on their application and filed such application prior to September 15, 2008. Persons shall be excluded from the Class (i) who were issued a passport; (ii) who were sent a passport denial letter; (iii) who have a pending application which was filed on or after September 15, 2008; (iv) who re-file passport applications overseas; (v) who previously dismissed lawsuits, with prejudice, brought under 8 U.S.C. § 1503, or had judgment entered against them in § 1503 proceedings; or (vi) who had applications filed without further action based on one of the following reasons: Insufficient/no photograph; Insufficient/no signature; Insufficient/no fees; Insufficient/no identification; Incomplete application form; Failure to apply in person at a passport agency/center or acceptance facility; Delayed birth certificate; 22 C.F.R. § 51.60; or 22 C.F.R. § 51.61.
3. The DOS acknowledged that where the applicant shows by a preponderance that they're a citizen, that a passport should issue. (Para 20)
The Department will issue a passport when the applicant has demonstrated U.S. citizenship or nationality by a preponderance of the evidence, the applicant’s identity is not reasonably in question, the applicant has complied with all requirements, procedures, and instructions for filing a passport application, and there are no statutory, regulatory, or other legally sufficient reasons not to issue.
4. The DOS will grant or deny, unless the applicant withdraws the application in writing (Para 25).
The Department no longer issues “filed-without-further-action” letters and shall no longer designate any passport application as abandoned. The final disposition of all fee-paid passport applications, as of September 15, 2008, is: (a) issuance of a passport; (b) denial in writing; or (c) withdrawal of the application in writing by the applicant.
5. The DOS will readjudicate all class members, without fee, so long as they request a fee-free adjudication before 11:59PM on 6/1/10. Once DOS agrees to adjudicate without fee, then the class member can resubmit the passport application.
6. DOS agrees not to deny simply because of the SBA, but the parties acknowledge that individuals with birth certificates signed by SBAs may be required to supply additional information regarding the birth. (Para 34)
A Class Member who submits a birth certificate that otherwise complies with 22 C.F.R. § 51.42(a) will not be denied a passport solely on the basis that the birth certificate was executed by a birth attendant whose name appears on the SBA List. However, the Class Member will be required to provide additional evidence of birth in the United States. The Parties acknowledge that such requests for evidence, as set forth herein, are reasonable and not unduly burdensome.
7. Under the Settlement Agreement, para 50, there is a new procedure created for both class members and non-class members (i.e., future applicants). The DOS will have an "SBA Panel" to review denials of passports due to SBAs. The panel is only brought in where the SBA adjudicator cannot approve the application; the SBA panel will permit more evidence to be introduced, including after the passport is denied (if more evidence is received, the panel will reopen the case). (Paras 43-46) Applicants abroad will not have the benefit of the SBA panel, but will have a senior adjudicator and some other consular officer.
8. The DOS agrees to provide reports to class counsel regarding a variety of things.
Read Settlement Agreement here:
Read Midwife List: