TN 1 (09-12)

PR 08610.048 Texas

A. PR 12-129 Legal Opinion – Documentation Requirements for Proof of U.S. Citizenship (Brandon) – REPLY

DATE: August 23, 2012

1. SYLLABUS

A parent of a minor child filed an application for an original Social Security Number (SSN) on her son’s behalf, alleging his U.S. citizenship. The applicant presented a court issued delayed birth certificate and several additional documents in support of the citizenship allegation. SSA regulations require an applicant for an original SSN alleging U.S. citizenship as a native-born person or by a blood relationship to prove U.S. citizenship by submitting documentary evidence of citizenship. The applicant was unable to establish convincing evidence of his U.S. citizenship with the court issued delayed birth certificate and additional evidence.

2. OPINION

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


Footnotes:

[1]

The information we received suggests that the agency is satisfied that Brandon produced convincing evidence of his age and identity. We do not comment on this issue.

[2]

The Program Operational Manual System (POMS) are policies the agency issues to assist employees in processing claims. Although the POMS does not have the force of law, which would entitle it to the high level of deference described in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)ost courts have treated the POMS as interpretive rules entitled to some level of deference. See Wash. State Dept. of Soc. and Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 385-86 (2003)OMS may be treated with deference even though it was not the product of formal rulemaking) (citing Skidmore v. Swift & Co., 323 U.S. 134, 139-140 (1944)Davis v. Secretary of Health and Human Services, 867 F.2d 336, 340 (6th Cir.1989)lthough the POMS is a policy and procedure manual that employees … use in evaluating Social Security claims and does not have the force and effect of law, it is nevertheless persuasive.”); McNamar v. Apfel, 172 F.3d 764, 766 (10th Cir. 1999)urt should defer to the POMS provisions unless it determines they are arbitrary, capricious, or contrary to law); Bubnis v. Apfel, 150 F.3d 177, 181 (2d Cir. 1998)OMS deserves “substantial deference, and will not be disturbed as long as ... reasonable and consistent with the statute”); Davis v. Secretary of Health & Human Servs., 867 F.2d 336, 340 (6th Cir. 1989)hough POMS lacks force of law, it is persuasive).

[3]

)Jus soli is the rule that a child’s citizenship is determined by place of birth, as affirmed the Fourteenth Amendment to the Constitution. Black’s Law Dictionary 868 (7th ed. 1999).

[4]

Jus sanguinis is the rule that a child’s citizenship is determined by the parent’s citizenship. Black’s Law Dictionary 868 (7th ed. 1999).

[5]

Where an applicant claims to be born in the U.S. but has no evidence or submits other evidence of U.S. citizenship that does not qualify under one of the four levels of evidence, the agency will issue an SSN only where the individual provides documentation of entitlement to a federally funded benefit or a State or local public assistance benefit and an SSN is required by law as a condition of receiving such benefit. POMS RM 10210.535. Here, there is no evidence that Brandon claimed entitlement to any federally funded, State, or local public assistance benefit.

[6]

The agency defines “readily available” as meaning that the evidence exists and can be obtained in 10 working days. POMS RM 10210.500(C)(2)(a).

[7]

Ms. T~-L~ also lists her mother’s bible recording of birth as a document she submitted in support of her request for a SSN for Brandon. A family bible is not a document the agency considers to establish citizenship. See POMS GN 00302.560 Family Bible or Other Family Record.

[8]

The Commissioner is not bound by a state court order unless: 1) an issue in a claim for Social Security benefits previously has been determined by a state court of competent jurisdiction; 2) the issue was genuinely contested before the state court by parties with opposing interests; 3) the issue falls within the general category of domestic relations law; and 4) the resolution by the state trial court is consistent with the law enunciated by the highest court in the state. See Social Security Ruling 83-37c, 1983 WL 31272 (adopting Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1974), as agency policy).


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PR 08610.048 - Texas - 09/18/2012
Batch run: 11/29/2012
Rev:09/18/2012