Several readers (among the thousands who submitted comments) have forwarded copies of the email message the State Department is sending as an auto-response to all mail to the point of contact for their proposed new “Biographical Questionnaire” for passport applicants, Form DS-5513.

For your entertainment, and so we won’t be accused of quoting out of context, we’ve copied the State Department’s statement in full below the fold.

The good news is that the State Department seems to have realized that they’ve gone too far, and “may very well” revise the proposal.  The bad news is that they are still talking about trying to get Office of Management and Budget approval for a “revised version” of the proposed form, rather than scrapping the idea entirely.  And they make no mention of the (illegal) unapproved form that the public comments revealed they are already using.

But rather than admit they have gone too far, much less done anything wrong, the State Department lies about what the proposed form says, and tries to attribute the surge of outrage to “misperceptions regarding this form.”

The State Department says that, “Many of these questions may not apply to the majority of applicants.” But both proposed Form DS-5513 and the current (unapproved and illegal) Supplemental Worksheet state that the respondent must “Complete this form in its entirety” and under penalty of perjury. Proposed Form DS-5513 says that, “failure to provide the information requested may result in … the denial of your U.S. passport application.”

That’s not a “misperception.”  That’s the plain and unambiguous language of the form.

The State Department claims that the proposed new form will be required  “only when the applicant submits citizenship or identity evidence that is insufficient to meet his/her burden of proving citizenship or identity.”  But despite that lovely word, “only,” in the press release, there are no such restrictions and no standards for use of this form in the proposal itself or in any State Department regulations.  If OMB approved this form, the State Department could require anyone they choose to complete it.  As we said in our comments to the State Department:

The proposed form reminds us unpleasantly of the invidious historic “Jim Crow” use of a literacy or civics test of arbitrary difficulty, required as a condition of registering to vote and administered in a standardless manner. By making the test impossible to pass, voter registrars could use it as an arbitrary and discriminatory – but facially neutral – excuse to prevent any applicant to whom they chose to give a sufficiently difficult test from registering to vote, on the ostensible basis of their having “failed” the test.

In a similar way, choosing to require an applicant for a passport to complete the proposed Form DS-5513, which few if any applicants could complete, would amount to a de facto decision to deny that applicant a passport. And that decision would be standardless, arbitrary, and illegal.

The press release continues, “The Department estimates that such supplemental information will only be requested for a small number of applicants, perhaps less than .5% of the applications we receive annually.” We’re appalled at the suggestion that we’re supposed to think that discrimination is OK as long as it doesn’t affect us, and only affects a small minority.

The State Department underestimates the percentage of people likely to be affected, by at least an order of magnitude.  As numerous commenters pointed out, most adoptees have birth certificates that were “amended” at the time of their adoption, and don’t satisfy the State Department’s requirement’s for a birth certificate recorded within a year of birth.  By law, in most states, they cannot find out any of the requisite information about their birth mother, so if they get the new form, they will be unable to complete it and will be denied passports. Adoptees are about 5%, not 0.5%, of the U.S. population. And they aren’t the only group affected. Everyone born at home (more common in the living past, and still common in many poorer communities and for those who prefer to be attended by a midwife) would also be affected.

We’d welcome a chance to discuss the proposal with the State Deapartment, to help them understand just why it is so wrong, and why it needs to be withdrawn and not merely revised. But lets talk about what the proposal actually says and does, not the reassuring lies in their press release.

Here’s the State Department statement, in full:

Subject: Out of Office AutoReply

From: “Garcia, Alexys A” <garciaaa@state.gov>

Thank you for your e-mail.

If you are e-mailing regarding the proposed DS-5513, Biographical Questionnaire for a U.S. Passport, we appreciate your interest. We are seriously considering the comments that we continue to receive and may very well incorporate several of the suggestions into a revised version. We would also like to take this opportunity to clarify a few common misconceptions regarding this form.

The Biographical Questionnaire for a U.S. Passport, form DS-5513, is not designed to replace the standard DS-11, Application for a U.S. Passport, but rather to supplement the DS-11 only when the applicant submits citizenship or identity evidence that is insufficient to meet his/her burden of proving citizenship or identity. The Department estimates that such supplemental information will only be requested for a small number of applicants, perhaps less than .5% of the applications we receive annually.

The Department understands that some of the information requested is quite detailed. However, in those instances where an applicant cannot provide sufficient proof of citizenship or identity, it is important for the applicant to provide additional information which will help establish the applicant’s United States citizenship or identity.

The Department asks a wide range of questions related to an applicant’s birth on the DS-5513, Biographical Questionnaire for a U.S. Passport form in order to accommodate the wide range of birth circumstances of U.S. citizens. Many of these questions may not apply to the majority of applicants; however, for cases where the information may apply, it gives an opportunity to provide additional information that may then support passport issuance.

For information on what documentation is required when submitting a DS-11, please refer to page two of the instructions.

We hope the above information addresses any concerns you may have.

Thank you!

Update: Here’s more from the State Department, as reported in the trade journal Travel Weekly:

Rebecca Dodds, a spokeswoman for the department’s Bureau of Consular Affairs, said the bureau has been “working to clarify” the purpose of the questionnaire, saying it was designed “to help people establish their citizenship” in cases when the supporting documents are “insufficient or of questionable authenticity.” She re-emphasized that fewer than 0.5% would be affected.

Under the current system, when an application is deemed deficient, the bureau sends a letter requesting further information or documents. The proposed questionnaire, she said, would supplement that process….

When asked who will decide if an applicant needs to provide further information, Dodds said existing adjudicators, trained to handle passport applications, would continue to do so.

Now that the comment period has ended, Dodds said the bureau will review the comments, make any necessary revisions to the questionnaire and resubmit any changes to the OMB for further review, triggering another solicitation for public comments.

Given the history of how those trained “adjudicators” have already been using their “discretion” to require more information from passport applicants, we aren’t reassured.