TN 8 (02-15)

PR 02805.049 Utah

A. PR 15-063 Utah Birth Record – M~

DATE: December 31, 2014

1. SYLLABUS

Accept a Utah State-issued court order or Delayed Certificate of Birth that indicates:

  • the order and birth certificate are based on a court petition stating that no birth certificate has been registered or a copy of the registered birth certificate cannot be obtained; or

  • documentary evidence was submitted that supports the new date of birth (such as the court petition stating the birth wasn’t registered or the copy cannot be obtained or 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.

2. OPINION

QUESTION PRESENTED

You asked us to review the Utah birth record of M~ and determine the following:

1. Whether the State 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

Utah does not have a specific law providing authority to “change” a foreign-born individual’s date of birth, but it does have laws regarding establishing a date of birth where a birth-certificate is not available. Under those laws, the Court determines the date of birth based on available evidence, and Court orders and state birth certificates are issued which establish the date of birth. Pursuant to the Accuracy for Adoptees Act, the agency must recognize those state findings. Thus, Utah had the authority to establish or “change” M~’s date of birth for purposes of processing his application for a Social Security Number (SSN) card.

BACKGROUND

According to the information you provided, M~ was born in Ethiopia, and adopted by A~ and L~ (“parents”), both residents of Utah. See Order of Registration of Foreign Adoption (“Order of Adoption”); Social Security Administration Application for a Social Security Card (“Application”). On January 24, 2013, M~ obtained a U.S. Certificate of Citizenship (“Certificate of Citizenship”) which lists his date of birth as September 2000. M~ and his parents received an Order of Registration and Foreign Adoption from the Second Judicial District Court, County of D~, Utah on August 28, 2013. See Order of Adoption. The Order of Adoption provides that M~’s date of birth is March 1998. See Order of Adoption, ¶ 4. Thereafter, on October 8, 2013, the state of Utah issued a Court Ordered Delayed Birth Certification, which again stated that M~’s date of birth was March 1998. See Certificate. M~ applied for a SSN card on May 1, 2014, listing March 1998, as his date of birth. See Application, § 4.  

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). 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. IdSee also 20 C.F.R. § 404.716 (2014) (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 provided 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 providing final instructions for processing SSN card applications pursuant to the Accuracy for Adoptees Act, and noting 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 Utah law: 

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

    Utah law does not specifically grant courts the authority to “change” a foreign-born adoptee’s date of birth. However, under state law, courts have the authority to “establish” a foreign-born individual’s date of birth through court order. In order to do so, an interested person must petition the court for an order establishing the date, time, and place of birth. Utah Code Ann. §§ 26-2-15(2)(a)-(b), 26-2-28 (West, Westlaw through 2014 General Sess.). The petition must allege the date, time and place of the birth, and state that no certificate of birth has been registered, or that a copy of the registered certificate cannot be obtained. Id.  The Court will set a hearing for five to 10 days after the filing of the petition, and if the time and place of birth are in question, the court shall hear available evidence and make a determination. Id. at § 26-2-15(4)(a).  In conjunction with this determination, the Court may order a Court Ordered Delayed Registration of Birth to be issued reflecting the date, time, and place of birth in the Court’s findings of fact. See Utah Amin. Code r. 436-6-1 (West, Westlaw through Nov. 1, 2014).  Thus, if there is no certificate of birth from the foreign country available, the Court may take evidence and make its own finding regarding the date of birth.Further, a Utah resident who adopts a child in a foreign country may register the foreign adoption order in Utah, which then recognizes and enforces the order as if it were rendered by a court in the state. Utah Code Ann. § 78B-6-142 (West, Westlaw through 2014 General Sess.).  As part of the registration process, a court shall order the state registrar to file a certificate of birth for the child; if the court is unable to establish the fact, time and place of birth from the documentation provided, an interested party may petition the court for an order establishing the date of birth pursuant to the process described above. Utah Code Ann. §§ 78B-6-142(2)-(3); 26-2-15.As noted above, the Utah statute allowing courts to establish a date of birth specifically applies when no birth certificate has been issued, or where a birth certificate cannot be obtained. Utah Code Ann. § 26-2-15(2)(b). This limitation raises a question regarding the court’s authority to “change” a date of birth in cases where a foreign birth certificate is, in fact, available. Nonetheless, Utah law generally permits birth certificates to be amended to correct errors or omissions. Utah Code Ann. § 26-2-7 (West, Westlaw through 2014 General Sess.); Utah Admin. Code r. 436-3-3 (West, Westlaw through Nov. 1, 2014).  In addition, Utah district courts generally have very broad jurisdiction over all civil matters. Utah Code Ann. §§ 78A-5-101, 78A-5-102 (West, Westlaw through 2014 General Sess.). Taken together, we think these provisions indicate that Utah courts have the authority to establish a date of birth that is different from that indicated on a foreign birth certificate.As applied to the facts available here, M~’s parents petitioned a Utah district court to register their foreign adoption, pursuant to Utah Code Ann. § 78B-6-142. As part of the registration process, the court entered an order establishing M~’s date of birth as March 1998, and a Delayed Birth Certification reflecting that birthdate was issued on October 8, 2013.  However, because M~’s United States Certificate of Citizenship lists a conflicting date of September 2000 as his date of birth, additional analysis is required. See Certificate of Citizenship. Pursuant to the Accuracy for Adoptees Act, Certificates of Citizenship are now required to reflect the “date of birth as indicated on a State court order [or] birth certificate . . . after the child has been adopted or readopted in that State.” See 8 U.S.C. § 1431(c). Here, however, M~’s Certificate of Citizenship was issued prior to the effective date of the Accuracy for Adoptees Act, and prior to his Order of Adoption. See Certificate of Citizenship (January 24, 2013); Order of Adoption (August 28, 2013); 8 U.S.C. § 1431(c) (effective January 16, 2014). The Accuracy for Adoptees Act provides a mechanism for M~ to obtain a replacement Certificate of Citizenship that will reflect the birthdate on the Utah Order of Adoption, thus indicating that the Act applies even though M~ obtained his Certificate of Citizenship prior to its enactment. 1 However, because the Act indicates that the State court’s Order regarding M~’s birthdate should control, amendment of his Certificate of Citizenship is not necessary for the agency’s purposes in establishing his date of birth. See 8 U.S.C. § 1431(c). 

    In sum, Utah had the authority to establish M~’s date of birth under state law, and the agency must recognize the Utah court order and Delayed Birth Certificate as acceptable evidence of age in processing M~’s SSN application. See 8 U.S.C. § 1431(c); 20 C.F.R. § 422.107(b).

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

    As noted above, Utah law does not specifically grant courts authority to “change” a date of birth.

    However, to establish the date of birth of a foreign-born individual when the birth is not registered, Utah law requires a petition for a court order. See Utah Code Ann. § 26-2-15(2) (1981). The petition must allege the time and place of birth, and it must state that no other certificate of birth has been registered, or a copy cannot be obtained. Id. at § 26-2-15(b).  If there is any question, the Court will hear available evidence, make a determination, and issue an order establishing same. Id. at § 26-2-15(4)-(5). 2 Alternatively, a court may order the state registrar to file a birth certificate for a foreign-born adoptee when the foreign adoption is registered in Utah. Utah Code Ann. § 78B-6-142(2)(b). There are no specific legal requirements for such an order, except that the court be able to establish the fact, time and place of birth from the documentation provided. Id.

      

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

    Utah law does not require that supporting documentation of the newly established date of birth be listed on the court order. Pursuant to Utah Code Ann. § 26-2-15, the court may hear available evidence to support the date, time, and place of birth alleged, however, the statute does not indicate that the Court must list the supporting evidence it relied upon in making the determination. See id.     

  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

    As proof of the newly established date of birth, the state will issue an order establishing the date, time, and place of birth. See Utah Code Ann. § 26-2-15; Utah Code Ann. § 78B-6-142. The order may be on a prescribed form titled “Order Establishing Fact of Birth,” or may be issued as part of an order registering a foreign adoption. The order becomes effective upon the filing of a certified copy of the order with the state registrar. Id. The Court shall order that the state registrar file a certificate of birth for the child. See Utah Code Ann. § 26-2-28; Utah Admin. Code r. 436-6-1. The state issues a Court Ordered Delayed Birth Certification for foreign born children who are becoming residents of Utah through adoption proceedings, and who have no original birth certificate on file or are unable to obtain a certified copy of their birth certificate. Utah Admin. Code r. 436-6-1 (1989). 

  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

    Utah does not issue a Certificate of Foreign Birth or Certificate of Birth Abroad. However, as noted above, Utah issues some type of court order establishing the date, time and place of birth, as well as a Delayed Birth Certification.  Either of these documents are acceptable evidence of age pursuant to the Accuracy for Adoptees Act.

CONCLUSION

While Utah law does not specifically provide for “changing” the date of birth for a foreign-born adoptee, it does provide that the Court may “establish” the adoptee’s date of birth based on available evidence.  Here, it appears that the Court determined that, based on the available evidence, M~’s birth date was March 1998, and issued the appropriate documents reflecting that date. Pursuant to the Accuracy for Adoptees Act, the agency must recognize the Utah state documents establishing M~’s date of birth, even though they conflict with the United States Certificate of Citizenship.  The Act indicates that the state’s determination controls, and M~ may obtain an amended Certificate of Citizenship to correlate with the Utah findings, though that is not necessary for the agency’s purposes in processing his SSN card application.  

John Jay Lee

Regional Chief Counsel

By: ____________

Keeya Jeffrey

Assistant Regional Counsel


Footnotes:

[1]

See USCIS, Certificate of Citizenship for Your Internationally Adopted Child, available at http://www.uscis.gov/adoption/bringing-your-internationally-adopted-child-united-states/certificate-citizenship-your-internationally-adopted-child (last visited November 24, 2014) (discussing the process for correcting erroneous birthdates on Certificates of Citizenship).

[2]

Utah Law also provides that a birth date may be changed on a birth certificate through the submission of an affidavit under oath, supported by the affidavit of a credible person, indicating the corrections needed. See Utah Admin. Code r. 436-3-3.  Because M~’s Delayed Birth Certificate appears to list the correct birthdate, it is not necessary for him to obtain an amendment.   


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PR 02805.049 - Utah - 02/18/2015
Batch run: 02/18/2015
Rev:02/18/2015