In cases where DHS/State Department validation is not available, a copy of the birth record showing the existence of a notarized deed of adoption is not sufficient to establish the validity of an adoption in Guatemala. The actual notarized deed should be obtained.

If the notarized deed is not available, other secondary evidence must be obtained and the case submitted to the RCC for evaluation.

INTRODUCTION

This memorandum is in response to your July 25, 2005 request for a legal opinion as to (1) whether a parent-child relationship exists between Janice H~ (referred to as "the Number Holder") and Lauren M. H~ (referred to as "the claimant"), a Guatemalan-born child adopted by the number holder in Guatemala; (2) the effective date of that relationship, if it exists; and (3) the date upon which benefits should be paid. We apologize for the delay in responding to your request; however, because an answer to your question required an interpretation of Guatemalan law, we were required to consult with the Law Library of Congress.

SUMMARY

The Number Holder and David A. H~, her husband, adopted a Guatemalan-born child, Lauren M. H~, in Caserio El Paraiso, Guatemala, on April 12, 1991. Based upon the documentation you provided and our review of the requirements of Guatemalan law in 1991, we have concluded that further evidence is required in order to determine if a parent-child relationship exists between the Number Holder and the minor claimant. Accordingly, we suggest that the agency obtain a copy of the notarized deed of adoption or additional evidence to verify that the adoption procedure utilized by the Number Holder and her Husband was in accordance with Guatemalan law.

BACKGROUND

The Number Holder applied for social security retirement benefits on May 24, 2005, and became entitled to such benefits beginning September 2005. The Number Holder also filed an application on her record for child's benefits on May 24, 2005, for the claimant. She filed an application on June 16, 2005, to be the representative payee for the claimant should child's benefits be granted.

The Number Holder and David A. H~, her husband, adopted a Guatemalan-born child, the claimant, in Caserio El Paraiso, Guatemala, on April 12, 1991. The claimant was born on October 16, 1990. The record contains a certified birth record which listed the Number Holder as the claimant's mother and the Number Holder's husband as the claimant's father. The social security number application (NUMI) completed on November 15, 1991, listed the Number Holder as the claimant's mother and the Number Holder's husband as the claimant's father.

As evidence of their parent-child relationship with the claimant, the H~s submitted two Spanish language documents. You provided us with a line-by-line verbatim English translation of these documents. The translator who interpreted these documents indicated that they were certified copies of a birth record executed on April 15, 1991, by the Civil Registrar of Esquipulas Palo Gordo San Marcus, Guatemala.

Translation of the document indicated that the Civil Registrar certifies that page 497 of the book of births No. 11, act no 920-91, recorded Maria M. R~ as being born to Juana I. R~ M~ (biological mother) on October 16, 1990, in Caserio El Paraiso. The document further provided that Public Record of Adoption No. 33, issued on April 12, 1991, by Notary, Oscar F. C~ M~, an attorney, and executed by Jose E. C~ S~, an attorney representing the H~s, recorded the adoption of Maria M. R~ by the H~s and her name change to Maria M. H~ K~ .

The claimant's name was changed to Lauren M. H~ on January 15, 1993, by petition filed with the United States District Court for the Western District of Pennsylvania. The United States District Court for the Western District of Pennsylvania also issued a Certificate of Naturalization for the claimant on September 15, 1993.

DISCUSSION

In order to be eligible for child's benefits on a wage earner's account, a claimant must show that he or she is the wage earner's "child" as that term is defined in the regulations. 42 U.S.C. §§ 402(d), 416(e); 20 C.F.R. § 404.350. The regulations define a child as a natural child, legally adopted child, stepchild, grandchild, step-grandchild, or equitably adopted child. 20 C.F.R. §§ 404.350-359. In order to determine whether a claimant is a legally adopted child, the Social Security Administration applies the adoption laws of the State or the foreign country where the adoption took place. 20 C.F.R. § 404.356. To be a legal adoption, the adoption must be valid under the law of the State or foreign country where it took place. Id. Accordingly, the claimant can qualify for benefits as the legally adopted child of the Number Holder, if the adoption was valid under the law of Guatemala, the foreign country where the adoption took place.

Guatemala's Civil Code provides two alternative adoption procedures. The first adoption procedure applies to contested adoptions and provides that a contested adoption becomes effective on the date when a Guatemalan court of first jurisdiction, or a Guatemalan Family Court, approves the formalities of the public instrument of adoption (such as a notarized deed of adoption and birth certificate).

The other adoption procedure applies to uncontested adoptions, or situations where the child in question has been declared abandoned by a Guatemalan court. When such circumstances apply, an adoption may be effectuated by a notary public without approval by a court. A notary public under Guatemala's civil law is an experienced attorney, and a Guatemalan citizen living in Guatemala, who serves as a public official. A notary public who effectuates an uncontested adoption must file a petition of adoption, supported by the child's birth certificate and the names and testimony of two witnesses who can attest to the moral and financial standing of the adoptive parents in regard to the fulfillment of their legal obligations. The biological parent(s) or guardian of the child must consent to the adoption petition, and must be present when the petition is executed. The adoptive parents must also be present when the petition is executed.

The notary procedure further requires that the Solicitor General of Guatemala and a Family Court appointed social worker be given the opportunity to review and object to the adoption petition. If neither party files an objection to the adoption petition, then the notary public authorizes the adoption and records the deed of adoption as a public document. The notarized deed of adoption must be registered in the book of adoption registration in the Office of Civil Registry within fifteen days. According to the Law Library of Congress, a notarized deed of adoption, its civil registry record, and birth certificate, are public documents evidencing adoption. The validity and authenticity of these public documents under Guatemala's Public Document law are presumed unless successfully challenged before a court of law.

In this case, the adoption at issue appears uncontested because the information contained in the certified birth certificate demonstrated issuance of the public record of adoption by a notary public. The certified birth certificate documented the recording of the notarized deed of adoption in the Office of Civil Registry within fifteen days of issuance and a civil registry record number. A presumption regarding a valid adoption, however, cannot be established in this case because the evidence did not contain a copy of the notarized deed of adoption, which is one of the public documents necessary to establish the existence of a valid adoption under Guatemalan law. If the Number Holder presents the notarized deed of adoption, the deed, along with the evidence currently in the record would be sufficient to establish that a parent-child relationship exists.

In the event that the Number Holder does not have a copy of the notarized deed of adoption, the Agency should obtain additional evidence to determine whether the claimant's adoption satisfied the criteria of Guatemala's uncontested adoption procedures. This would include documentation regarding the witnesses who attested to the moral and financial standing of the adoptive parents, the consent of the biological parent, and evidence from the Solicitor General or a Guatemalan Family Court appointed social worker that they had no objection to the adoption petition.

With regard to the effective date of the parent-child relationship, the regulations provide that, if the insured is living and the child's first month of entitlement is September 1981 or later, the child is entitled to benefits beginning with the first month covered by the application in which she meets all other requirements for entitlement. 20 C.F.R. § 404.352(a)(2). In this case, should the Number Holder present the notarized deed of adoption, it is our opinion that a parent-child relationship would be effective as of the date of adoption. Hence, the claimant would be entitled to child's benefits and any appropriate retroactive benefits, provided you determine that all the other requirements for these benefits are met.

CONCLUSION

We suggest that the Agency seek additional evidence related to whether the claimant's adoption was valid under the laws of Guatemala. If the Number Holder produces a copy of the notarized deed of adoption, this document, along with the evidence currently in the record would be sufficient to establish that a parent-child relationship exists between the Number Holder and the claimant.

If the Number Holder cannot produce the notarized deed of adoption, we suggest that the additional evidence discussed above be secured and forwarded to the undersigned for further evaluation.

Donna C~
Regional Chief Counsel

By: _____________________
Connie H~
Assistant Regional Counsel

The issuance of an IR-2 or IR-3 visa to a child adopted in Guatemala is proof that the Department of Homeland Security-United States Citizenship and Immigration Services and the Department of State have determined that adoption to be valid according to the laws of that country. The DHS and State Department determinations are acceptable for SSA claims purposes in all foreign adoption cases regardless of the country involved.

Acceptance of the adoption by the domiciliary state is not an issue.

An application for surviving child's benefits was filed on behalf of Olga M. J~ (Olga) on the account of deceased wage earner Mary J~, who was domiciled in Michigan at the time of her death. You asked (1) whether Mary J~'s adoption of Olga in Guatemala would be valid in Guatemala, (2) whether Michigan would recognize such an adoption, and (3) whether there are guidelines for recognition of similar Guatemalan adoptions by Michigan residents.

Under federal regulations, the Social Security Administration (SSA) applies the adoption laws of the state or country where the child was adopted, not the intestate succession laws of the state in which the deceased wage earner was domiciled at death. Since Olga was adopted in Guatemala, we need only determine whether the adoption was valid under Guatemalan law. We need not determine whether Michigan also would recognize the adoption.

Here, Olga was issued an immigrant visa which classified her as an Immediate Relative-3 (IR3) and was subsequently admitted to the United States with IR3 status. Before an IR3 immigrant visa is issued, the Immigration and Naturalization Service (INS) and the Department of State must first determine that the child has been fully and finally adopted abroad in compliance with the laws of the country where the adoption took place. We conclude, therefore, that, in the absence of information that would cast doubt on the validity of Olga's adoption or her immigrant visa, SSA may consider Olga's IR3 status as sufficient evidence that a valid adoption took place under Guatemalan law.

We further conclude that, SSA generally may consider that a child who was lawfully admitted to the United States with IR3 status was fully and finally adopted in compliance with the laws of the country where the adoption took place, unless there is information or evidence indicating that the foreign adoption or visa may be invalid.

FACTS

Mary J~, an unmarried, United States citizen, died on September 26, 2000, while domiciled in Michigan. An application for surviving child's benefits was filed on behalf of her three adopted children: Edwin C. J~, who was born in Texas and adopted in the United States; Olga M. J~, who was born and adopted in Guatemala; and Edwin D. J~ who was born and adopted in El Salvador.

Olga M. J~ (whose original surname was T~) was born on February 18, 1986, in Guatemala. She was adopted by Mary J~ in a private proceeding in Guatemala on February 18, 1993. On May 11, 1993, after Olga's adoption, Olga was lawfully admitted to the United States as a permanent resident pursuant to an IR3 immigrant visa issued by the State Department.

DISCUSSION

20 C.F.R. § 404.356 governs the determination of whether an adopted child is the deceased wage earner's child for purposes of entitlement to child's insurance benefits. Under this regulation, SSA applies the adoption laws of the state or country where the child was adopted, not the intestate succession laws of the state in which the deceased wage earner was domiciled at death. Therefore, we must determine whether Olga's adoption was valid under Guatemalan law.

The information you sent shows that Olga was admitted to the United Stated with IR3 status. Our research indicates that before an IR3 immigrant visa is issued, INS and the State Department must first determine that the adoption was conducted in full compliance with both the laws of the U.S. and the foreign country. INS states that its "regulations require that all foreign adoptions undergo an investigation to guarantee compliance with the laws of both the United States and foreign sending country." INS, The Immigration of Adopted and Prospective Adoptive Children (M-249) 2 (2000), available at <http://www.ins.gov/graphics/services/ index2.htm#adopthereinafter M-249]. The State Department also specifies that adoptive parent(s) "must fulfill the requirements set by…the foreign country in which the child resides," and "[q]uestions concerning legal custody or proper documentation for the child must be resolved in accordance with the law of the country of the child's nationality or residence." State Department, International Adoption Safeguards (visited Oct. 9, 2001) <http://travel.state.gov/ safeguards.htmlerefore, SSA should be able to rely on Olga's IR3 status as evidence that a full and final adoption occurred under Guatemalan law.

Adoptive parent(s) must file a petition with INS to have an immigrant visa issued to a child who has been adopted in a foreign country. As part of the process, the adoptive parent(s) must provide a certified copy of the adoption decree, if the child has been the subject of a full and final adoption abroad. See 8 C.F.R. § 204.3(d)(1)(iv)(A). This requirement has been in place since the regulations implementing the Immigration and Nationality Act became effective in 1965. Once INS determines that these and other requirements have been satisfied, INS approves the petition, grants immediate relative classification to the child, and notifies the U.S. embassy or consulate in the foreign country where the child is located for visa processing. See 8 U.S.C. § 1151(b)(2)(A)(i); 8 C.F.R. §§ 204.3(h)(8)-(10).

The adoptive parent(s) must also attend a visa interview with a consular officer, who conducts an overseas orphan investigation. See 22 C.F.R. § 42.62; 8 C.F.R. § 204.3(k)(1); see also International Adoptions, supra. This consists of a review of the facts and documents provided concerning the child, including the final adoption decree. If the officer comes across any information which casts doubt on the validity of the adoption, the officer will refer the petition back to INS for further investigation. Once a case has been referred to INS for additional investigation, INS will either (1) review the documentation and reaffirm approval of the orphan petition, (2) review the documents and request that the consular officer conduct a field investigation to ensure that no fraud or illegal activity was involved, or (3) deny the petition. See International Adoptions, supra. Otherwise, if the investigation is satisfactory, the consular officer will proceed with final visa processing. A child who has been fully adopted abroad is issued an immigrant visa with an IR3 classification. See 22 C.F.R. § 42.11 (defining IR3 classification as "Orphan Adopted Abroad by U.S. Citizen"); State Department, International Adoptions (visited Aug. 27, 2001) <http://travel.state.gov/intladoption.htmlhildren fully adopted overseas receive IR-3 visas.").

Therefore, as a general rule, SSA may find that a foreign adoption was full and final when an IR3 immigrant visa was issued and when there is no reason to question the validity of the adoption or visa. Accordingly, a child's IR3 status can generally be considered sufficient evidence to support a finding of childhood status under 20 C.F.R. § 404.356. However, if any evidence raises a question about the validity of the adoption or visa, SSA may need to determine, on a case-by-case basis, whether the foreign adoption, in fact, complied with the adoption laws of the foreign country where the adoption occurred. In Olga's case, we are not aware of any evidence that would suggest that either her adoption or her visa was invalid.

CONCLUSION

We conclude that SSA may consider Olga's IR3 status as sufficient evidence that her adoption was final and valid according to Guatemalan law. We also conclude that, as a general rule, SSA may find that a foreign adoption was valid upon evidence that the adopted child was admitted to the U.S. with IR3 status, unless other available information raises a question regarding the validity of the adoption or immigrant visa.

Sincerely yours,

Thomas W. C~
Regional Chief Counsel

By: ________________________
Kathryn A. B~
Assistant Regional Counsel