TN 12 (02-16)

PR 02805.007 Colorado

PR 16-010 Date of Birth Determination for Foreign Born Children Adopted by US Parents – M~ and A~ (PL16-04) – REPLY

Date: October 21, 2015

1. Syllabus

The Colorado State issued court orders and resulting U.S. foreign birth certificates changing the dates of birth of foreign born adopted children (A~ and M~) are acceptable evidence to establish a “new” date of birth for the children. Colorado law provides that a state court issuing an adoption decree concerning a person born in a foreign country must also make findings of fact as to that person’s place and date of birth based upon reliable evidence. The medical evidence of the children’s bone scans met the evidence requirements for changing the dates of birth under Colorado State law.

2. Opinion

Question Presented

You asked us to determine whether the Social Security Administration (SSA) can use the documents provided to establish a date of birth for M~ of May XX, 2000 and a date of birth for A~ of August XX, 2001. You also requested that we address the questions set forth in EM-14023, the agency’s instructions for processing Social Security Number (SSN) applications for foreign-born adoptees who are adopted by United States citizens:

  1. Whether the State of Colorado has the authority under State law to change a foreign-born individual’s date of birth through a U.S.-issued court order;

  2. What are the State legal requirements to change a date of birth;

  3. Whether the State court order needs to list the supporting documentation of the change of date of birth;

  4. If the State has the authority to change a date of birth, what are the documents the State issues as proof of the change of date of birth; and

  5. 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.

Short Answer

SSA can use the Certificates of Foreign Birth issued by the State of Colorado for M~ and A~ to establish a May XX, 2000 birthdate for M~ and an August XX, 2001 birthdate for A~. Colorado law provides that a state court issuing an adoption decree concerning a person born in a foreign country must also make findings of fact as to that person’s place and date of birth based upon reliable evidence. The state registrar then issues a Certificate of Foreign Birth using the date of birth established in the court order and findings of fact. Pursuant to the Accuracy for Adoptees Act, the agency must recognize those state findings. Thus, SSA can use the birthdates listed on M~’s and A~’s Certificates of Foreign Birth for purposes of processing their applications for a Social Security card.

Background

According to the information provided, A~ and M~ were born in Ethiopia and adopted by S~ and C~ (“parents”), both residents of Colorado. A~ Ethiopian Birth Certificate lists a date of birth of August XX, 2000. On October XX, 2014, A~ obtained a U.S. Certificate of Citizenship that lists his date of birth as August XX, 2000. M~’s Ethiopian Birth Certificate lists a date of birth of May XX, 1999. On October XX, 2014, M~ obtained a U.S. Certificate of Citizenship that lists her date of birth as May XX, 1999.

According to S~, A~ and M~ underwent bone scans which suggested that they were actually a year younger than the dates listed on their Ethiopian birth certificates and U.S. Certificates of Citizenship, and they went to a Colorado state court to have the dates of birth changed for both children. Thereafter, on June XX, 2015, the State of Colorado issued a Certificate of Foreign Birth for A~ showing an August XX, 2001 date of birth and a Certificate of Foreign Birth for M~ showing a May XX, 2000 date of birth.

S~ filed applications for initial Social Security Numbers on behalf of A~ and M~ on August XX, 2015. The applications use the birthdates listed on their Certificates of Foreign Birth.

Discussion

Social Security regulations provide that an applicant for an original SSN card must submit convincing evidence of age. 20 C.F.R. § 422.107(b) (2015). Examples of the types of evidence which may be submitted to establish age include a birth certificate, religious record showing age or date of birth, a hospital record of birth, or a passport. Id; see also id. § 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).

Effective January 16, 2014, the Accuracy for Adoptees Act provides that a Certificate of Citizenship shall reflect the child’s name and date of birth as indicated on a state court order, birth certificate, certificate of foreign birth, or other state vital records document issued by the child’s state of residence in the United States after the child has been adopted or readopted in that state. See Accuracy for Adoptees Act, Pub. L. No. 113-74, 127 Stat. 1212 (2014) (amending section 320 of the Immigration and Nationality Act, 8 U.S.C. § 1431(c)). Thus, federal agencies must recognize documents issued by the state as evidence of name and date of birth when issuing federal documents. See id.

The agency issued EM-14023, which provides final instructions for processing SSN card applications pursuant to the Accuracy for Adoptees Act and notes that the law is intended to make it easier for families of foreign-born adopted children to correct their records. See EM-14023. Pursuant to the instructions in EM-14023, you asked us to address the following questions under Colorado law:

  1. Whether the State of Colorado has the authority under State law to change a foreign-born individual’s date of birth through a U.S.-issued court order;

    Colorado law grants courts the authority to “make findings of fact as to the date and place of birth” of a foreign-born adopted individual residing in Colorado. See Colo. Rev. Stat. § 25-2-113(1)(b). In proceedings for the adoption of a person who was born in a foreign country, the court will issue a final decree of adoption and, upon evidence from reliable sources, also make findings of fact as to the date, place of birth, and parentage of the adoptee. Id. When the state registrar receives a certified copy of the final decree of adoption and the findings of fact, a new birth certificate shall be prepared. Id.

  2. What are the State legal requirements to change a date of birth;

    Depending on the circumstances of the adoption, an individual would need to petition the court either for a Final Decree of Adoption or for a Decree Validating Foreign Adoption. See id. §§ 19-5-205, 19-5-208. Because adoption proceedings involving a child born in a foreign country require the court to make findings of fact as to the date and place of birth based upon “evidence from reliable sources,” the petitioner would need to present documentation or other evidence supportive of a change to the date of birth. See id. § 25-2-113(1)(b).1

    As noted above, the state registrar would then prepare a new certificate of birth based on receipt of a certified copy of the final decree of adoption and a certified copy of the findings of fact. See id.

  3. Whether the State court order needs to list the supporting documentation of the change of date of birth;

    Colorado law does not expressly require that the court order establishing a new date of birth list the documentation supporting the change. See id. The statute does require the court to make findings of fact as to the date of birth, which must be sent to the state registrar along with the final decree of adoption, but it does not specify the information to be included in the findings of fact.

  4. If the State has the authority to change a date of birth, what are the documents the State issues as proof of the change of date of birth; and

    As proof of the newly established date of birth, a state court will issue a final decree of adoption and findings of fact. See id. Certified copies of the adoption order and findings of fact are then sent to the state registrar. Id.; Colo. Rev. Stat. § 19-5-212. The state registrar then issues a new birth certificate called a Certificate of Foreign Birth. Colo. Rev. Stat. § 25-2-113(1)(b). The registrar also seals the court order and findings of fact, which are confidential subject to a few statutory exceptions. See id.; Colo. Rev. Stat. § 19-5-301 et seq.

  5. 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.

    Colorado issues a Certificate of Foreign Birth. Either the Certificate of Foreign Birth or the final decree of adoption (a court order) is sufficient to establish the adopted child’s date of birth pursuant to the Accuracy for Adoptees Act.

Conclusion

Colorado law provides that a state court issuing an adoption decree concerning a person born in a foreign country must also make findings of fact as to that person’s place and date of birth based upon reliable evidence. The state registrar then issues a Certificate of Foreign Birth based on the information established by the court order and findings of fact. Here, it appears that the court had reliable evidence to establish a May XX, 2000 date of birth for M~ and an August XX, 2001 date of birth for A~. Pursuant to the Accuracy for Adoptees Act, the agency must recognize those state findings. Thus, the SSA can use the birthdates listed on M~’s and A~’s Certificates of Foreign Birth for purposes of processing their applications for a Social Security card.


Footnotes:

[1]

Colorado law also provides that an individual may seek corrections or changes to a Colorado

(continued . . . )

Birth Certificate by submitting a form and supporting evidence to the state registrar. See Colo. Rev. Stat. § 25-2-115; see also Colo. Dep’t of Pub. Health & Env’t, Form to Correct or Change a Colorado Birth Certificate, https://www.colorado.gov/pacific/sites/default/files/
CHED_Form_birthcertificatechangeEnglish_1014.pdf (last visited October 13, 2015). But a change to the year of birth must be done via court order. See Colo. Dep’t of Pub. Health & Env’t, Form to Correct or Change a Colorado Birth Certificate; see also Colo. Rev.
Stat. § 19-4-124. Because A~’s and M~’s Colorado Certificates of Foreign Birth appear to list the correct birthdate, no such amendment was necessary here.


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PR 02805.007 - Colorado - 02/02/2016
Batch run: 02/02/2016
Rev:02/02/2016