Minnesota man and Marine vet born in U.S. files legal challenge to passport denial

Raised in a small southern Minnesota town, Mark Esqueda grew to love his country.

"I just wanted to give something back to her," he said.

He served about eight years in the military, obtaining high-level security clearance and fighting in combat zones. The gunfire deprived him of part of his hearing.

Yet, the United States government — or at least the State Department — doesn't believe he's a citizen. For the past six years Esqueda, 30, has been trying to get a passport to visit family overseas, but he has been repeatedly denied.

"If they just used a little common sense this would not be happening," he said.

A State Department official declined to comment, citing pending litigation.

Esqueda, backed by the Minnesota ACLU, filed a federal lawsuit Thursday against Secretary of State Mike Pompeo, asking a judge to declare that he was born in this country.

"Mark was born here and bravely served our country in the military," attorney Jenny Gassman-Pines said in a statement. "What the government has demanded from Mark goes well beyond its own requirements to prove his citizenship. We look forward to holding the government accountable and getting Mark the recognition he deserves as a citizen and patriot."

Lynette Kalsnes, communications director for the ACLU of Minnesota, said that while hard numbers aren't available, the ACLU is hearing from an increasing number of attorneys regarding circumstances like Esqueda's, especially along the southern border.

The Washington Post reported last year that the Trump administration is pursuing a crackdown aimed at Hispanics with fraudulent birth certificates along the border. The State Department challenged the allegation, saying its policy has not changed from previous administrations. But a Houston attorney told the Post that the number of passport denials and revocations for people born along the border had been "skyrocketing."

The evidence Esqueda collected over the years to show the judge includes a certified copy of a birth certificate showing that he was born in Hidalgo, Texas. That certificate was signed by a police officer who witnessed the birth. Kalsnes said police officers often served as witnesses to prevent such citizenship issues from occurring.

The problem is the midwife who attended the birth and who also signed the certificate, Robert Nunez, "is not reliable," according to a letter the State Department sent to Esqueda.

"There is reason to believe that the birth attendant who filed your birth certificate did so fraudulently," Timothy Wiesnet, a State Department director, wrote to Esqueda in January 2017.

Esqueda knew none of that after his family moved from Texas to Minnesota to work on farms and raised him in the Marshall and Lake Heron area, about an hour southwest of Mankato. He read "Flags of Our Fathers" and was inspired to join the Marines in 2007. He was deployed to Iraq, where he served for seven months, then later to Afghanistan, where he served another seven months.

The Navy granted him its second-highest form of security clearance, according to the lawsuit he filed Thursday. To get that clearance, he passed a military background check.

He was honorably discharged from the Marines in 2011 and returned to Minnesota with a partial disability for his hearing loss.

"The guy who gave me the test said I had the ears of a 60-year-old man," he said.

He signed up with the National Guard and, in 2012, applied for a passport, hoping to travel to see his family.

That's when the State Department first denied him, and when Esqueda learned about the doubt about his birth in the country.

"It just didn't make sense to me," he said.

The State Department asked for more documentation of his citizenship. After several years, he was able to gather the signed birth report from the police officer, documents outlining the security clearance he was granted and records showing that his family received government health and food benefits.

He wanted to visit family in Germany in 2015 as his sister was expecting her first child. He again applied for a passport, supplying the new documents, but was again denied. The State Department wanted more information.

Esqueda complied, gathering affidavits from family and friends swearing that he was born in America. In January 2017, the State Department again denied him.

"You have not submitted sufficient early records to support your birth in the United States," it wrote to him.

According to the ACLU, the government's standard for proof in these passport cases is a preponderance of the evidence, which means something is more likely than not.

By demanding even more proof, they said, the government is "violating its own standards and rules."

In a prepared statement issued late Thursday, the State Department said policies on how to handle passport applications haven't changed since 2009, and that denial rates are at their lowest in six years.

Esqueda, who now works as a millwright on grain elevators, said he filed the lawsuit Thursday as a last resort. He missed the opportunity to see his niece born in Germany, but he wants to see her now.

"I want to make up for missing that and make that trip," he said.