QUESTION
You asked whether a state court ordered delayed registration record of birth from
the State of Indiana is evidence of age for the purposes of processing Social Security
Number (SSN) applications under the Accuracy for Adoptees Act.
SHORT ANSWER
Although there is no law specifically authorizing Indiana to change a foreign-born
individual’s date of birth through a court order, the Indiana state department may
make corrections to birth certificates on receipt of adequate documentary evidence.
Also, for adopted individuals born outside of Indiana, the state department of health
will issue a delayed registration record of birth in the adoptive status ninety days
after failure of the place of birth’s registration authority to issue a certificate
of birth in the adoptive status. Taken together, we believe that these laws permitted
the issuance of the delayed registration record of birth in this case, and thus the
delayed birth record should be used for purposes of processing the applicant’s SSN
request.
BACKGROUND
According to the information provided, the Civil Registrar of Sidama, Ethiopia, issued
a birth certificate indicating SSN Applicant Terefe (Applicant) was born on March,
in Sidama, Ethiopia. The Ethiopian birth certificate lists Mark and Wendi as Applicant’s
adoptive parents. Applicant’s Ethiopian passport shows Applicant’s date of birth as
March. On December 18, 2013, the United States Government issued a Certificate of
Citizenship to Applicant, indicating he became a citizen of the United States on October
12, 2013. The Certificate of Citizenship shows Applicant’s date of birth as March.
On November 11, 2013, Applicant’s pediatrician issued a letter stating that Applicant’s
actual date of birth was much more likely to be October than March, based on Applicant’s
growth and development as observed by the pediatrician at an examination on October
16, 2013.
On December 10, 2013, based in part on the pediatrician’s letter, a Probate Judge
from the Marin County Superior Court, Indiana, issued a Judgment ordering that Applicant’s
foreign adoption would be recognized in Indiana, and that Applicant’s petitions to
change his name to Hudson and date of birth to October were granted. On April 10,
2014, The Indiana State Department of Health issued a Delayed Certificate of Birth
for Applicant, indicating his date of birth as October.
On April 23, 2014, Applicant’s adoptive parents, residents of Indiana, applied for
an original SSN card for Applicant, indicating his date of birth as reflected on his
Delayed Certificate of Birth.
DISCUSSION
Social Security regulations provide that an applicant for an original SSN card must
submit documentary evidence that the Commissioner of Social Security regards as convincing
evidence of, inter alia, age. 20 C.F.R. § 422.107(a), (b); Program Operations Manual
System (POMS) RM 10210.010. Examples of the types of evidence that an applicant may submit to establish age
are a birth certificate, a religious record showing age or date of birth, or a passport.
20 C.F.R § 422.107(b); 20 C.F.R. § 404.716 (stating the best evidence of age is a
birth certificate); POMS RM 10210.265 (listing kinds of documents that establish age for an SSN card).
In addition, the Accuracy for Adoptees Act requires Federal agencies to accept U.S.
issued documents as evidence of date of birth for foreign-born adoptees who are adopted
by U.S. citizen parents. Pub. L. No. 113-74, 127 Stat. 1212 (2014) (amending Section
320 of the Immigration and Nationality Act, 8 U.S.C. § 1431). Acceptable documents
include a State court order, birth certificate, certificate of foreign birth, certificate
of birth abroad, or similar State vital records document issued by the child’s State
of residence in the United States after the child’s adoption. Id.
SSA has issued instructions for processing SSN applications affected by the Accuracy
for Adoptees Act. See EM-14023 – Enumeration: Processing Name and Date of Birth Determinations for Foreign-Born
Adopted Children under the Accuracy for Adoptees Act – One Time Only Instructions.
These instructions provide that when a document issued by a State is presented as
evidence to establish a date of birth different from what is shown on the child’s
other evidence of age documents, as is the case here, the following determinations
must be made:
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whether the State has the authority under State law to change a foreign-born individual’s
date of birth through a court order;
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the State legal requirements to change a date of birth;
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whether the court order needs to list the supporting documentation of the change of
date of birth on the State court order;
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•
if the State has the authority to change a date of birth, the documents the State
issues as proof of the change of date of birth; and
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•
whether the State issues a Certificate of Foreign Birth, Certificate of Birth Abroad,
or other Bureau of Vital Statistics (BVS) document as proof of change of date of birth.
If the State issues the document under a different title, identify the name of the
document.
See id.
We first looked at Indiana adoption law to address the questions above because the
judgment changing Applicant’s date of birth was an order to recognize a foreign adoption
issued by an Indiana state probate court. We found no Indiana statute, regulation,
or court decision that authorizes courts to change a foreign-born individual’s date
of birth through a court order.
Indiana gives foreign adoptions the same legal force as those taking place in Indiana
when the adoption decree from the foreign jurisdiction is filed with the clerk of
the court of any county in Indiana and is entered upon the order book of the court
in open session. Ind. Code Ann. § 31-19-28-1 (West 2014). Once the adoption is recorded
by the court, the state department of health forwards the court’s record to the registration
authority in the place where the adoption took place, along with a request for a new
certificate of birth in the adoptive status. Id. § 31-19-12-4. If no new certificate is issued within ninety days of the request,
the Indiana state department of health will issue a delayed registration record of
birth upon request, which was apparently issued in the case under consideration. Id. However, while Indiana law allows courts recognizing foreign adoptions to grant requests
for name changes in the order recognizing the adoption, it is silent as to date of
birth changes. Id. § 31-19-28-1(3).
You also asked whether state court orders changing dates of birth need to list supporting
documentation of the change of date of birth. Because there is no specific authority
granting the Indiana courts authority to change dates of birth, there is no authority
in Indiana regarding what supporting documentation would be adequate for a court to
issue an order changing a date of birth. For the same reason, there is no authority
in Indiana regarding whether a court needs to list supporting documentation in an
order changing a date of birth.
You also asked about the state legal requirements to change a date of birth in Indiana.
Indiana grants the State Department statutory authority to make additions or corrections
to birth certificates upon receipt of “adequate documentary evidence.” Id. § 16-37-2-10(b). We found no Indiana statute, regulation, or case law defining “adequate
documentary evidence” for purposes of changing an individual’s age on a birth certificate.
However, it is reasonable that adequate documentary evidence includes the pediatrician’s
letter stating that the applicant’s true birth date was more likely October.
Finally, you asked what documents the state issues as proof of the change when it
changes a date of birth and whether the state issues a Certificate of Foreign Birth,
Certificate of Birth Abroad, or other Bureau of Vital Statistics document as proof
of the change of date of birth. When the state department of health issues the delayed
birth certificate for a foreign-born adoptee, we believe that it could also simultaneously
make corrections on that birth certificate upon the presentation of adequate documentary
evidence. Id. §§ 16-37-2-10(b), 31-19-12-4.
CONCLUSION
Indiana’s adoption statutes require creation of a new birth certificate for foreign-born
adoptees and Indiana allows the state department of health to correct birth certificates
upon presentation of adequate documentary evidence. Based on these laws, we believe
the state probably had the authority here to issue a delayed birth certificate with
a corrected birthdate of October..
Sincerely,
Kathryn Caldwell
Acting Regional Chief Counsel, Region V
By:______________
Elyse Sharfman
Assistant Regional Counsel