TN 7 (11-14)
PR 02805.017 Indiana
A. PR 14-145 Legal Precedent Opinion—IN Birth Record and the Accuracy for Adoptees Act
DATE: August 8, 2014
Accept an Indiana State-issued court order or Delayed Certificate of Birth that indicates documentary evidence was submitted that supports the new date of birth (such as medical records from the child’s physician) when prepared as acceptable evidence to either establish or change an individual’s date of birth in our Numident record if the individual is a foreign born adopted child. If the court order or delayed birth certificate does not indicate that documentary evidence supporting the new date of birth was used to prepare the court order or delayed birth certificate, then accept the court order or delayed birth certificate only if submitted with documentary evidence (such as medical records from the child’s physician) to support the new date of birth.
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.
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.
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.
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:
whether the State has the authority under State law to change a foreign-born individual’s date of birth through a court order;
the State legal requirements to change a date of birth;
whether the court order needs to list the supporting documentation of the change of date of birth on the State court order;
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
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.
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.
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..
Acting Regional Chief Counsel, Region V
Assistant Regional Counsel