TN 6 (09-14)

PR 02805.036 North Carolina

A. PR 14-160 Authority of the State of North Carolina to Change a Foreign-born Individual’s Date of Birth Through a State Court Order

1. SYLLABUS

North Carolina does not give its courts the authority to issue an adoption decree with a date of birth that is different from the date of birth on the adoptee’s foreign birth certificate or one of the other specified documents if the document already includes the exact date of birth.

2. OPINION

QUESTION

For purposes of processing Social Security Number (SSN) applications affected by the Accuracy for Adoptees Act, you asked whether the State of North Carolina has the authority to change a foreign-born individual’s date of birth through a court order.1

OPINION

North Carolina courts do not have the legal authority to change a foreign-born individual’s date of birth through a court-issued adoption decree unless the exact date of birth is unknown.

BACKGROUND

According to the information provided, the City Government of Addis Ababa, Ethiopia, issued a birth certificate on December 12, 2011, indicating SSN Applicant E~ (Applicant) was born on October 3, 2007, in Wolayta, Ethiopia. The Ethiopian birth certificate lists Thomas and Dawn as Applicant’s adoptive parents. Applicant’s Ethiopian passport and a visa issued by the U.S. Embassy in Ethiopia show Applicant’s date of birth as October 3, 2007. On February 21, 2012, the United States Government issued a Certificate of Citizenship to Applicant, indicating she became a citizen of the United States of America on February 4, 2012. The Certificate of Citizenship shows Applicant’s date of birth as October 3, 2007. On June 14, 2013, the Clerk of the Superior Court of New Hanover County, North Carolina, issued a Decree of Adoption ordering that Applicant — now named Abbagail — would be declared adopted for life by the petitioners, Applicant’s adoptive parents, and that her date of birth is February 5, 2009. On December 4, 2013, the North Carolina Department of Health and Human Services, N.C. Vital Records (State Registrar), issued a Certificate of Identification for Child of Foreign Birth for Applicant, identifying her date of birth as February 5, 2009.

On April 1, 2014, Applicant’s adoptive parents, residents of North Carolina, applied for a new SSN card for Applicant, indicating her date of birth as reflected on her Certificate of Identification for Child of Foreign Birth. On the form, Applicant’s adoptive parents indicated Applicant had previously received an SSN card indicating her name and date of birth as reflected on her Ethiopian birth certificate.

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. See 20 C.F.R. § 422.107(a), (b) (2014);2 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. See 20 C.F.R § 422.107(b); see also 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). 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 a U.S. citizen parent. See Pub. L. No. 113-74, 127 Stat. 1212, 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 a similar State vital records document issued by the child’s State of residence in the United States after the child has been adopted. See 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 where an SSN applicant presents a document issued by a State as evidence to establish a date of birth different from what is shown on the child’s evidence of age document, as is the case here, SSA adjudicators must determine:

  • whether the State has the authority under State law to change a foreign-born individual’s date of birth through a State 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.

See id.

We looked to North Carolina adoption law to address the questions above because North Carolina is Applicant’s post-adoption state of residence and the court judgment changing Applicant’s date of birth was a decree of adoption issued by the Clerk of the Superior Court of New Hanover County, North Carolina. In North Carolina, adoption is wholly statutory, and therefore courts must give North Carolina’s adoption statutes their “plain and definite meaning.” Boseman v. Jarrell, 704 S.E.2d 494, 498, 500 (N.C. 2010) (internal quotations omitted). North Carolina’s adoption statutes state that when a court issues an adoption decree for an adoptee born outside the United States, the court must “[e]nter the date and place of birth as stated in the certificate of birth from the country of origin, the United States Department of State’s report of birth abroad, or the documents of the United States Immigration and Naturalization Service.” See N.C. Gen. Stat. Ann. § 48-2-606(b)(1) (West 2013).3 Only if the exact date of birth is unknown may a court then look to other evidence to determine a date of birth. See N.C. Gen. Stat. Ann. § 48-2-606(b)(3). Thus, North Carolina does not give its courts the authority to issue an adoption decree with a date of birth that is different from the date of birth on the adoptee’s foreign birth certificate or one of the other specified documents if the document already includes the exact date of birth.4

You also asked about the legal requirements to change a date of birth in North Carolina. Although North Carolina courts lack the authority to change a foreign-born individual’s date of birth via an adoption decree, an individual may ask the State Registrar to correct the date of birth on an item registered with the State. See N.C. Gen. Stat. Ann. § 130A-118(a); 10A N.C. Admin. Code 41H.0903. As discussed below, foreign-born adoptees may register with the State via a Certificate of Identification for Individual of Foreign Birth. To correct a date of birth on a registered item, the State Registrar requires a written request and at least one piece of documentary evidence. 10A N.C. Admin. Code 41H.0903. “Examples of documentary evidence which may be used to support vital record amendment requests are: early school records, census records, marriage certificates, birth certificates of family members, rolls of federal or state recognized Indian tribes, [and] baptismal records.” 10A N.C. Admin. Code 41H.0910(c). However, “[t]he existence of inconsistent or conflicting evidence may be considered cause for denying any request for correction . . . .” 10A N.C. Admin. Code 41H.0903. Corrections to a date of birth are at the discretion of the State Registrar. See 10A N.C. Admin. Code 41H.0910(a).

Finally, you asked us to identify 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. Although North Carolina courts do not have the authority to change a foreign-born adoptee’s date of birth via an adoption decree, the State does issue a certificate of identification for foreign-born adoptees: “In the case of an adopted individual born in a foreign country and residing in [North Carolina] at the time of application, the State Registrar shall, upon the presentation of a certified copy of the original birth certificate from the country of birth and a certified copy of the final order of adoption signed by the clerk of court or other appropriate official, prepare a certificate of identification for the individual.” N.C. Gen. Stat. Ann. § 130A-108(a). A Certificate of Identification for Individual of Foreign Birth shall contain the same information that is required for a new birth certificate for a U.S.-born adopted individual, which includes the adoptee’s date of birth. N.C. Gen. Stat. Ann. §§ 48-9-107(a), 130A-108(a).

CONCLUSION

Because North Carolina’s adoption statutes specifically instruct the county superior courts to enter on an adoption decree the date of birth from a foreign-born adoptee’s foreign birth certificate, North Carolina courts do not have the legal authority under State law to change a foreign-born individual’s date of birth through a court-issued adoption decree.

Sincerely,

Mary Ann Sloan

Regional Chief Counsel

By: _______________

Owen Keegan

Assistant Regional Counsel


Footnotes:

[1]

You also asked what the State’s legal requirements for changing a date of birth are; whether a State court order changing a date of birth needs to list the supporting documentation of the change of date of birth; what the documents the State issues as proof of the change of date of birth are; 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. We address these questions below.

[2]

All citations to the Code of Federal Regulations are to the 2014 version.

[3]

All citations to West’s North Carolina General Statutes Annotated are to the 2013 version.

[4]

You also asked whether a State court order needs to list the documentation that supports a change of date of birth. As discussed above, North Carolina law does not give its courts the authority to change the date of birth via a court order. Nevertheless, the adoption statutes do not require an adoption decree to list supporting documentation used to determine the date of birth for an adoptee born outside the United States. See N.C. Gen. Stat. Ann. § 48-2-606(a)(5), (b).


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PR 02805.036 - North Carolina - 09/09/2014
Batch run: 09/09/2014
Rev:09/09/2014