This memorandum responds to your request for a opinion as to whether Sheena, on behalf
                  of her minor son, Brandon , submitted sufficient documentation in support of Brandon’s
                  application for an original Social Security Number (SSN) card (enumeration) as a person
                  over the age of 12. Your office previously sought an opinion on this issue from the
                  Social Security Administration’s (agency) Office of Income Security Programs (OISP),
                  following a request for assistance from the agency’s Beaumont, Texas Field Office.
                  OISP opined that Brandon’s documentation did not provide convincing evidence of his
                  U.S. citizenship. As set forth below, we concur with OISP’s opinion that Brandon has
                  not provided convincing evidence of his U.S. citizenship. [1]
               Background
               In support of his application for an SSN card, Brandon produced the following: documents
                  submitted in support of a petition for delayed birth certificate and order from a
                  county court issuing a delayed birth certificate; selected school records related
                  to his primary and secondary education, including a Tae Kwon Do certificate; selected
                  medical records and related health insurance claims; divorce decree and documents
                  related to Ms. T~-L~ and the alleged father’s divorce; signed affidavits attesting
                  under oath and subject to penalty for making a false statement that Ms. T~-L~ gave
                  birth to Brandon on May, with the assistance of a mid-wife, Sherrill; and, partial
                  copies of income tax returns for tax years 1996, 2005, 2007, and 2011 listing Brandon’s
                  siblings as dependents for the years in which they qualified as dependents, but which
                  do not include Brandon’s name.
               
               Ms. T~-L~ asserted that she delivered at least two of her three other children with
                  Ms. B~’s assistance, but that Ms. B~ died approximately two years after Brandon’s
                  birth. Ms. T~-L~ claims that Ms. B~ filed all necessary paperwork with the Texas Department
                  of Health’s Bureau of Vital Statistics (State Bureau) to allow for the issuance of
                  birth certificates for two of her four children within five years of their respective
                  births, but that Ms. B~ did not do the same for Brandon. Conversely, Ms. T~-L~ made
                  a separate claim to the agency that the State Bureau mishandled Brandon’s paperwork,
                  thus implying that the mid-wife submitted the paperwork to the State Bureau and that
                  the Bureau erred. In any event, neither Ms. T~-L~ nor Brandon sought his enumeration
                  from the agency until May 2012, on or near Brandon’s alleged seventeenth birthday.
                  Ms. T~-L~ submitted a letter to U.S. Senator John Cornyn on June 19, 2012, complaining
                  that the agency had not issued a SSN. We address these issues below.
               
               Analysis
               The Commissioner of Social Security (Commissioner) administers the social security
                  program pursuant to the Social Security Act (“Act”), 42 U.S.C. §§ 401et seq. The Act provides for the assignment of SSNs to qualified individuals for maintenance
                  of accurate wage earnings records in the administration of various social security
                  programs, for identification, for administration of any tax, to verify eligibility
                  for public benefits, to obtain drivers licenses, and to show employment authorization.
                  42 U.S.C. § 405(c)he Act authorizes the Commissioner to promulgate rules and regulations
                  necessary to implement the provisions of the Act. 42 U.S.C. § 405(a)see 20 C.F.R. §§ 422.1012.140neral procedures). Specifically, the Commissioner may take
                  affirmative measures to assure that SSNs are appropriately assigned, and require applicants
                  to produce evidence of identification. 42 U.S.C. § 405(c)B)(ii).
               
               Effective December 2005, the Intelligence Reform and Terrorism prevention Act of 2004
                  (IRTPA), Public Law 108-458, imposed changes in the evidence used for SSN applications
                  as follows: the agency verifies birth records for all United States born individuals
                  requesting an original SSN and revised acceptable evidence of identity and how the
                  agency accepts those documents. POMS RM 10210.001, [2] citing 20 C.F.R. § 422.107. Public Law 108-458, section 7213, provides that the Commissioner “establish minimum standards for the verification
                  of documents or records submitted by an individual to establish eligibility for an
                  original … social security card, other than for purposes of enumeration at birth;
                  and … require independent verification of any birth record submitted by an individual
                  to establish eligibility for a social security account number, other than for purposes
                  of enumeration at birth, except that the Commissioner may allow for reasonable exceptions
                  from the requirement for independent verification under this subparagraph on a case
                  by case basis in compelling circumstances.”
               
               The U. S. Citizenship and Immigration Services Department of Homeland Security (USCIS), a bureau of the (DHS), determines citizenship. See http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=a2ec6811264a3210VgnVCM100000b92ca60aRCRD&vgnextchannel=a2ec6811264a3210VgnVCM100000b92ca60aRCRD.  A U.S. Citizen is, among other things, a native-born person (based on the doctrine
                  of jus soli [3] ) or, a person who was born in a foreign county, but derives his citizenship through
                  his parent’s U. S. citizenship (based on the doctrine of jus sanguinis [4] ) See United States v. Wong Kim Ark, 169 U.S. 649, 702-03 (1998). We agree that if Ms. T~-L~ submitted proof that Brandon
                  was born in the U.S. or proof of his birth elsewhere, along with proof of her citizenship,
                  Brandon may be a U.S. citizen. See 8 U.S.C. § 1401; see also POMS RM 10210.500(B)(3) (referencing the Immigration and Nationality Act in defining “U.S. citizen”
                  as a native-born, foreign-born, or naturalized person who owes allegiance to the U.S.
                  and who is entitled to protection); POMS RM 10210.020 (discussing that the number of documents the agency requires to obtain a new SSN
                  depends on the factors the applicant is trying to establish and the probative value
                  of the documents submitted).
               
               An applicant for a SSN such as Brandon however, must prove citizenship – the agency
                  will not presume citizenship on an applicant’s statements alone. See 20 C.F.R. 404.704 (when evidence is needed to prove an individual’s eligibility for
                  benefits, it is up to him to obtain and give the evidence to the agency). To obtain
                  an SSN based on citizenship as a native-born person or by a blood relationship, the
                  agency’s regulations require an applicant to prove U.S. citizenship by birth by submitting
                  documentary evidence of citizenship, such as a birth certificate. See 20 C.F.R. § 422.107(d); POMS RM 10210.500; see also POMS RM 10210.210 (the reviewer must determine whether the document is acceptable evidence and of the
                  highest probative value available). Moreover, because Brandon is over 12 years of
                  age, the agency requires additional documentation. POMS RM 10210.010A; see POMS RM 10205.110 (mandatory in-person interview for SSN applicants over 12). In this
                  case, Brandon has failed in his burden to prove his citizenship.
               
               The agency considers four levels of evidence when reviewing documentation to establish
                  U.S. citizenship: primary-, secondary-, third-, and fourth-level evidence. [5] See POMS RM 10210.505, RM 10210.510, RM
                     
                     10210.520, RM 10210.525. Primary-level evidence of U.S. citizenship is an original document with the highest
                  probative value that conclusively establishes U.S. citizenship. See POMS RM 10210.505. Primary-level documents include: a U.S. birth record/certificate established prior
                  to the applicant turning age five; a U.S. Passport; a Certification of Report of Birth;
                  a Consular Report of Birth Abroad; and other records.
               
               Secondary-level evidence of U.S. citizenship is an original document that is a non-SSA
                  document established for a reason other than to establish U.S. citizenship, and is
                  of satisfactory probative value only when primary level evidence is not readily available.
                  [6] See POMS RM 10210.510; see also RM 10210.515 (foreign-born applicant). Secondary-level documents include: a U.S. religious record
                  that shows a U.S. place of birth, a recordation date of within three months of the
                  applicants birth and either the date of birth or the applicant’s age at the time the
                  record was made; a final adoption decree; an early U.S. school record showing a U.S.
                  place of birth, the date of admission to the school, the name and place of birth of
                  the applicant’s parent, and either the date of birth or age of the applicant at the
                  time the record was made; and other records.
               
               Third-level evidence of U.S. citizenship is an original document that is a non-SSA
                  document established for a reason other than to establish U.S. citizenship that shows
                  a U.S. place of birth. Third-level evidence is satisfactory only when primary- and
                  secondary-level evidence are not readily available, the applicant alleges being born
                  in the U.S., and there is nothing indicating that the applicant is not a U.S. citizen
                  (e.g., lost U.S. citizenship).  See POMS RM 10210.520. Third-level documents include: U.S. hospital birth records established at the time
                  of birth; U.S. medical records from a midwife which show a place of U.S. birth and
                  the issue date; a U.S. life or health insurance record with an issue date shortly
                  after birth; and other records. Id.  However, an immunization record is not considered a medical record for purposes of
                  establishing U.S. citizenship.  Id.
               Fourth-level evidence of U.S. citizenship is an original document that is a non-SSA
                  document established for a reason other than to establish U.S. citizenship, which
                  also shows a U.S. place of birth and is satisfactory only when primary-, secondary-,
                  and third-level evidence are not readily available; the applicant alleges being born
                  in the U.S.; and there is nothing indicating that the applicant is not a U.S. citizen
                  (e.g., lost U.S. citizenship). See POMS RM 10210.525. Fourth-level documents include: U.S. public birth records amended after the age
                  of five; and other documents.
               
               As stated, in support of his application for an SSN card, Brandon produced the following
                  documents: a petition for delayed birth certificate and an order from the Bell County
                  Texas county court issuing a delayed birth certificate; selected school records related
                  to his primary and secondary education, including a Tae Kwon Do certificate; selected
                  medical records and related health insurance claims; divorce decree and documents
                  related to Ms. T~-L~ and the alleged father’s divorce; signed affidavits attesting
                  under oath and subject to penalty for making a false statement that Ms. T~-L~ gave
                  birth to Brandon in May, with the assistance of a mid-wife, Sherri; and, partial copies
                  of income tax returns for tax years 1996, 2005, and 2007 listing Brandon’s three siblings
                  as dependents for the years in which each of them qualified as dependents, but which
                  do not include Brandon’s name.[7] Brandon has produced no primary-, secondary-, third-, or fourth-level evidence to
                  support his application for a SSN.
               
               U.S. birth records can constitute primary-evidence of citizenship. See POMS RM 10210.505 (primary-level evidence of U.S. citizenship is an original document with the highest
                  probative value that conclusively establishes U.S. citizenship). However, the court-ordered,
                  delayed certificate of birth that the County Court of Bell County Texas issued on
                  March 1, 2012, when Brandon was 16 years old, does not constitute primary-evidence
                  of citizenship as the agency requires a U.S. public birth record to be issued before
                  the applicant’s fifth birthday in order to constitute primary evidence in support
                  of U.S. citizenship. See POMS RM 10210.505 (birth records can constitute primary evidence).
               
               Moreover, the court-ordered, delayed birth certificate is not even convincing fourth-level
                  evidence under our rules inasmuch as there is no indication that Ms. T~-L~ filed the
                  petition for the delayed birth certificate “for a reason other than to establish U.S.
                  citizenship.” See POMS RM 10210.525 (while an applicant may use fourth-level evidence to bolster secondary-level evidence,
                  for instance, such evidence is generally insufficient, by itself, to establish convincing
                  evidence of U.S. citizenship unless all of the following are true: (1) the evidence
                  is an original document; (2) the evidence is a non-SSA document established for a
                  reason other than to establish U.S. citizenship; (3) the evidence shows a U.S. place
                  of birth; (4) primary, secondary, and third level evidence are not readily available;
                  (5) the applicant alleges being born in the U.S.; and (6) there is nothing indicating
                  the person is not a U.S. citizen). Because Ms. T~-L~ has not provided any explanation
                  why she waited until Brandon was 16 to obtain an SSN for him, the strong possibility
                  exists that she petitioned the court for a delayed birth certificate only for the
                  purpose of obtaining a SSN. The 1997 Hardin County Texas divorce decree shows that
                  Ms. T~-L~ obtained SSNs for her other three children and, thus, knew how to apply
                  for an SSN for Brandon. We also note that the court-ordered, delayed birth certificate
                  indicates that supporting records, other than Ms. T~-L~’s affidavit, show no place
                  of birth, no name or other information regarding Brandon’s father, and that one of
                  the documents shows no information for Brandon’s mother.
               
               Early U.S. school records may constitute secondary-level evidence of citizenship,
                  but do not in this case. See POMS RM 10210.510. Brandon’s withdrawal form from kindergarten dated
               
               August 10, 2000, fails to meet the criteria of secondary-level evidence of U.S. citizenship
                  because it does not show the name and place of birth for either of Brandon’s parents.
                  See POMS RM 10210.510 (listing “early school record” as secondary level evidence if the record shows a
                  “U.S. place of birth, and the date of admission to the school, and the name(s) and
                  place(s) of
               
               birth of the applicant’s parent, and either the date of birth or age of the applicant at the time the record was made”). In fact, it shows only Ms.
                  T~-L~’s name and no information for Brandon’s father.
               
               In addition, the Read Turrentine Elementary School, Laura Reeves Elementary, Edwards-Johnson
                  Memorial Silsbee Middle School, and the Taekwondo records through Lumberton School
                  do not constitute secondary-level evidence. They do not indicate Brandon’s U.S. place
                  of birth, date of admission to the schools, the name(s) and place(s) of birth of his
                  parent, and either Brandon’s date of birth or age at the time the record was made. See POMS RM 10210.510. Notably, the school evidence is questionable as Brandon’s parent(s) appear to have
                  supplied much of the information. See POMS RM 10210.430(B)(3) (which states that documents completed by applicant, such as a blank immunization
                  form where parent or applicant completes information identifying applicant, among
                  long list of “questionable” documents for review). Thus, this school record evidence
                  is questionable and does not amount to convincing second-level evidence.
               
               The Silsbee High School records also do not constitute secondary-level evidence. While
                  the Silsbee High School Student Enrollment Form indicates that Brandon was born in
                  Belton, Texas, on May, and that Ms. T~-L~ was born on January, it does not indicate
                  the place of Ms. T~-L~’s birth. See POMS RM 10210.510. Moreover, a school employee stated that the documents were based on information
                  Ms. T~-L~ gave the high school. As stated, school records that Brandon or his parent
                  completed constitute “questionable” evidence under our rules. See POMS RM 10210.430(B)(3) (including documents completed by applicant, such as a blank immunization form
                  where parent or applicant completes information identifying applicant, among long
                  list of “questionable” documents for review). Thus, the high school record evidence
                  submitted is questionable and does not amount to convincing second-level evidence.
               
               Brandon’s medical and insurance records do not amount to third-level evidence. See POMS RM 10210.520 (U.S. hospital birth records, U.S. medical records from a midwife that show a place
                  of U.S. birth and the issue date, and a U.S. life or health insurance record with
                  an issue date shortly after birth may constitute third-level evidence, but an immunization
                  record is not considered a medical record for purposes of establishing U.S. citizenship).
                  The first medical record submitted in support of Brandon’s application for a SSN are
                  immunization records dated in July 1995, two months after his May birth. These records
                  are not contemporaneous with his birth. Other than the immunization records, there
                  are two treating records from 2012 that do not constitute third-level evidence. See POMS RM 10210.520. With regard to the insurance records, the information we received states that Ms.
                  T~-L~ married David when Brandon was six years old and that the Blue Cross Blue Shield
                  health insurance records indicate that Ms. T~-L~ or Mr. L~ provided the insurance
                  company with a false SSN for Brandon in order to obtain health insurance coverage
                  for him. c.f., 42 U.S.C. § 405(c)(5)(E)d 42 U.S.C. § 408(a) (7) (the Commissioner is not required
                  to accept records that have been used or filed fraudulently). The medical and insurance
                  evidence is not convincing evidence to support his application for a SSN.
               
               We also considered the 1997 Hardin County divorce decree, which ended Ms. T~-L~’s
                  marriage to Brandon’s father, and two signed and notarized Affidavits of Birth Facts.
                  While the Final Divorce Decree lists the four minor children of the marriage, including
                  Brandon, and their dates and places of birth, there is no indication that the Court
                  required the parties to submit documentary evidence to prove that Brandon was born
                  in the U.S. [8] Moreover, the divorce decree shows that Ms. T~-L~ knew to obtain SSNs for her other
                  three children, but did not do so for Brandon. She has provided no explanation why
                  she also did not timely seek an SSN for Brandon. With regard to the affidavit evidence,
                  Ms. T~-L~ signed an affidavit in 2004, nine years after Brandon’s birth, stating she
                  gave birth to Brandon in May. Ms. T~-L~’s friend signed the other affidavit in 1997,
                  two years after Brandon’s birth. The affidavits are also not convincing as they are
                  not contemporaneous or even close in time with Brandon’s birth. See 20 C.F.R. 404.708. Thus, neither the divorce decree nor the affidavits support issuance
                  of a SSN. See POMS RM 10210.505, RM 10210.510, RM 10210.520, RM 10210.525.
               
               Finally, Ms. T~-L~ submitted partial copies of income tax returns for tax years 1996,
                  2005, 2007, and 2011 listing Brandon’s three siblings as dependents for the years
                  in which they qualified as dependents, but which do not include Brandon’s name. These
                  records do not support the issuance of a SSN. See POMS RM 10210.505, RM 10210.510, RM 10210.520, RM 10210.525.
               
               In sum, we concur with OISP that Brandon’s documentation fails to establish convincing
                  evidence of his U.S. citizenship. It is the applicant’s burden to prove he is a U.S.
                  citizen. See 20 C.F.R. § 422.107(d); POMS RM 10210.500; see also POMS RM 10210.210 (the reviewer must determine whether the document is acceptable evidence and of the
                  highest probative value available). Brandon has not done so in this case.
               
               We next address the Constitutional claims that Ms. T~-L~ raised in her June 19, 2012
                  letter to Senator John Cornyn. Ms. T~-L~ claims that Brandon was born in the U.S.,
                  and that the agency has violated Article II of the United States Constitution and
                  the Fourteenth Amendment in refusing to give Brandon a SSN. Article II states that
                  “No Person except a natural born Citizen, or a Citizen of the United States, shall
                  be eligible to the Office of President,” but left it up to Congress to define citizenship,
                  including citizenship by reason of birth. See Rogers v. Bellei, 401 U.S. 815, 828-30 (1971). The Fourteenth Amendment states that persons “born
                  or naturalized in the United States, and subject to the jurisdiction thereof, are
                  citizens of the United States and of the State wherein they reside.” U.S. Const. amend
                  XIV, § 1
               
               Congress authorized the Commissioner to promulgate rules and regulations necessary
                  to implement the provisions of the Act. See 42 U.S.C. § 405(a) C.F.R. §§ 422.1012.140 U.S.C. § 405(c) Specifically, the Commissioner
                  may take affirmative measures to assure that SSNs are appropriately assigned, and
                  require applicants to produce evidence of identification. B)(ii). To protect against
                  false claims by non-citizens who want the privileges of a U.S. citizen, the agency
                  may issue original SSNs to U.S. citizens only after they bear their burden to prove
                  citizenship. 20 CFR § 422.107(d); POMS RM 10210.500; cf. Miller v. Albright, 523 U.S. 420, 436 (1998), citing Trimble v. Gordon, 430 U.S. 762, 770–771 (1977)suring reliable proof of a biological relationship between
                  the potential citizen and its citizen parent is an important governmental objective).
                  In this case, Ms. T~-L~ has not borne her burden to prove that Brandon is a citizen,
                  and she has not established a Constitutional violation.
               
               You also asked whether the proposed rule text, section 104.23 “Evidence of U.S. Nationality,”
                  Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L.104-193,
                  as amended by section 504 of the Illegal Immigration Reform and Immigrant Responsibility
                  Act of 1996, provides the agency the discretion to accept any of the documents Ms.
                  T~-L~ submitted in this case to prove U.S. citizenship. The explanatory notes to the
                  proposed rule state that the rule’s procedures for verifying U.S. nationality rely
                  on the examination of documents and are not meant to “exclude any reasonable evidence.”
                  63 FR 41662, 41669, 1998 WL 435746. The proposed text of section 104.23 “Evidence
                  of U.S. Nationality,” at section 104.23(b)(6) “is a ‘catch-all’ category intended
                  to cover such reasonable documentary evidence” not specified elsewhere in the rules
                  and is not “meant to exclude any reasonable evidence of U.S. nationality.” Id. We first note that these are merely proposed rules, which DHS never finalized. Moreover,
                  as explained above, we find, in considering the totality of the evidence, that Ms.
                  T~-L~ has not established convincing reasonable evidence that Brandon is a U.S. citizen.
                  We especially note information provided showing that Ms. T~-L~ and David procured
                  health insurance for Brandon through a false SSN, that Ms. T~-L~ obtained SSNs for
                  her other children, but not for Brandon, and that Ms. T~-L~ and David did not claim
                  Brandon as a dependent on their tax returns in 1996, 2005, 2007, and 2011, even though
                  they listed Ms T~-L~’s other children in certain years. The totality of the evidence
                  is not convincing.
               
               CONCLUSION
               We concur with OISP’s opinion that Brandon’s documentation does not constitute convincing
                  evidence of his U.S. citizenship. We do not comment on whether he established his
                  age or true identity. If Brandon obtains a passport from DHS, he can submit a new
                  application for a SSN. Please note that we based the foregoing opinion on the specific
                  set of facts and documentation presented to us in Brandon’s case. Each application
                  for an original SSN card is unique and, thus, our opinion in Brandon’s case may not
                  be applicable to other applications for an original SSN card.
               
               Michael McGaughran
 Regional Chief Counsel
               
               By:_________________
               Scott T. Morris
Assistant Regional Counsel