PR 02706.048:
Texas
Effective Dates: 02/03/2011 - Present- Effective Dates: 11/21/2017 - Present
TN 12 (01-11)- TN 15 (11-17)
- PR 02706.048 Texas
A. PR 11-030 Texas State Law Acceptability of Foreign Same-Sex Marriage Document as an Event for Legal Name Change (NH: Sandra K. G~; SSN ~)- A. PR 18-010 Mexico Same-Sex Marriage Certificate for Name Change
DATE: December 10, 2010- Date: October 19, 2017
1. SYLLABUS- 1. Syllabus
The Texas Constitution specifically prohibits same-sex marriage, stating that “marriage in this state shall consist only of the union of one man and one woman.” TEXAS CONST., Art. 1, § 32(a). The Texas Constitution further prohibits the state or any of its political subdivisions to create or recognize a same-sex legal status identical or similar to marriage.- On December 17, 2015, the Mexican State Congress of Nayarit passed Legislation legalizing same-sex marriage effective December 23, 2015. Marriage documents validly issued and executed by Mexico’s State of Nayarit Civil Registry to same-sex couples for marriages taking place on December 23, 2015 or later in the Mexican State of Nayarit are acceptable evidence of a name change.
§ 32(b). As such, Texas does not recognize any status for same-sex domestic partnership that is “essentially equivalent to marriage.” A Texas state appellate court recently upheld Article 1, § 32 of the Texas Constitution in In re Marriage of J.B. and H.B, ---S.W.3d ---, 2010 WL 3399074 (Tex. App.-Dallas Aug. 31, 2010). The court noted that the state’s constitutional ban on same-sex marriage was not contrary to the Equal Protection Clause of the Fourteenth Amendment or decisions handed down by the United States Supreme Court.- 2. Opinion
Moreover, in the same case, the Texas Court of Appeals noted that the constitutional provision banning same-sex marriage “contains no exceptions for marriages performed in other jurisdictions,” holding that any common-law principle recognizing same-sex marriages performed in other jurisdictions must yield to the Texas Constitution. In re Marriage of J.B. and H.B, 2010 WL ~ at *12. The Court further stated that Texas was not required to accept the other states’ laws if doing so would result in a violation of Texas public policy. We can therefore conclude that Texas would not recognize the Certification of Name Change, based on a German same-sex life partnership agreement, as a legal basis to allow an applicant’s name change.- QUESTION PRESENTED
2. OPINION- You asked whether the Social Security Administration (SSA) can rely on a Mexican Certificate of Marriage showing a same-sex marriage between the number holder J~ (NH) and J2~ in the State of Nayarit, Mexico on March XX, 2017, as an acceptable legal name change document evidencing a valid foreign same-sex marriage for purposes of changing the NH’s last name on his Social Security Number (SSN) record.
The purpose of this memorandum is to respond to your request for an opinion on whether the evidence that a person who is a foreign national working in Texas submitted to the Social Security Administration (agency) is sufficient to support a legal name change on her replacement Social Security card. Specifically, you asked whether a German “Certification of Name Change,” based on the “Life Partnership Law of the German State of Hesse,” is sufficient to support a legal name change, thus allowing the agency to issue a replacement card. In our opinion, the “Certification of Name Change” submitted in the instant case does not provide a sufficient basis to support a legal name change in order that the agency could issue a replacement Social Security card associating the changed name with the original number holder.- ANSWER
As we understand the facts, on December 2, 1994, the agency originally issued Social Security number ~ to Sandra K. (number holder). The agency’s records note Sandra K.’s birth date is June 6, 1985. On August 23, 2010, an individual, holding herself out as Sandra G~ (the applicant), submitted an application for a replacement Social Security card with the social security number ~, but requested the agency change her name to Sandra G~. To support her application, the applicant submitted, in addition to other documents further discussed below, a Certification of Name Change from Schwalmtal, Germany and a Department of Homeland Security Employment Authorization Card (I-766) showing her name as Sandra G~. The field office incorrectly granted her request based on these documents.- Yes. The NH’s March 2017 Mexican Certificate of Marriage is presumed valid under the laws of the State of Nayarit, which legalized same-sex marriage effective December 23, 2015. Therefore, for purposes of the NH’s name change request, this foreign same-sex marriage document is acceptable evidence of a legal name change event under SSA’s law and policy. See Program Operations Manual System (POMS) RM 10212.010, RM 10212.050.
The applicant is a German foreign national currently working in Texas. On October 17, 2007, while residing in Germany, and while holding herself out as Sandra A~, the applicant changed her name from Sandra A~ to Sandra G~, as evidenced by the Certification of Name Change from Schwalmtal, Germany. The applicant requested the name change from A~ to G~ because the Life Partnership Law of the German State of Hesse allowed her to enter into a life partnership agreement with Melissa G~. The Certification of Name Change indicated that the applicant’s birth name was Sandra A~, that Sandra A~’s birth date was June 6, 1985, and that Sandra A~’s birth place was Lauterbach (Hessen).- BACKGROUND
On August 10, 2010, the Department of Homeland Security authorized the applicant to work in the United States, under the name Sandra G~, until August 9, 2011. After arriving in the United States, the applicant requested a replacement Social Security card with the number holder’s Social Security number of ~, indicating that she wished to change her name from Sandra K. to Sandra G~. The applicant represented that the agency issued her an original Social Security card and number in 1994 under the name Sandra K..- According to the information provided, the NH, a U.S. citizen and resident of Texas, reported to an SSA district office requesting a name change to his SSN record to the surname of A~. The NH requested the name change based on his purported marriage to J2~.
In support of her request for a replacement Social Security card bearing the name Sandra G~, the applicant submitted an I-766 Employment Authorization Card bearing the name “Sandra G~,” her photograph, her signature, United States alien number ~, and the birth date June 6, 1985. The applicant also provided a print out from the Department of Homeland Security, U.S. Citizenship and Immigration Services indicating it authorized “Sandra G~” for temporary employment under alien number ~, as well as an I-797 Notice of Action Document from the Department of Homeland Security, U.S. Citizenship and Immigration Services, indicating that it authorized “Sandra G~’s” application for employment under alien number ~. Finally, the applicant submitted the Certification of Name Change indicating that the German state of Hesse allowed her to change her name from “Sandra A~” to “Sandra G~.” The Certification of Name Change did not include “Sandra A~’s” photograph or physical description, signature, or parents’ names. The field office handling the applicant’s request incorrectly processed the name change using these documents without following agency policy. 1 See id.- In support of the requested name change, the NH provided SSA with a Mexican Certificate of Marriage issued and executed by the Civil Registry of the State of Nayarit, Mexico indicating that he entered into a marriage with J2~ on March XX, 2017 in the district of S~, located in the municipality of B~, State of Nayarit, Mexico. In addition to stating the date and place of marriage, the Certificate of Marriage provided by the NH contains the personal information (name, age, place of birth, nationality, and occupation) of the persons who married and the names of their respective parents, and it indicates that the couple married under the rules of separate ownership (régimen matrimonial de separación de bienes). The Certificate of Marriage also contains the signature of a Civil Registry official, the Civil Registry’s official seal, and the coat of arms of Mexico and the State of Nayarit.
The Intelligence Reform and Terrorism Prevention Act requires the agency to “establish minimum standards for verification of documents or records submitted by an individual to establish eligibility for an original or replacement Social Security card.” See Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, § 7213(a)(1)(B). The Social Security Act (Act) empowers the agency to make rules and regulations and to establish procedures, not inconsistent with the Act’s provisions, which are necessary to carry out such provisions. 42 U.S.C. § 405(a). Agency procedures are promulgated in the Policy Operations Manual System (POMS).- ANALYSIS
“SSA must be certain the individual is who he/she claims to be;” namely that the person existed and continues to exist, and that any person applying for a replacement social security number card is the record number holder to whom the agency originally assigned the Social Security number. See Policy Operations Manual System (POMS) Records Maintenance (RM) 00203.200A. Thus, the agency requires that an applicant for a replacement Social Security card, who presents a document indicating that her name has changed, submit convincing documentary evidence that she is the record number holder. 20 C.F.R. § 422.107; see also POMS RM 00203.200B. Documentary evidence of identity may consist of a driver’s license, identity card, school record, medical record, marriage record, passport, Department of Homeland Security document, or other similar document serving to identify the individual.” 20 C.F.R. § 422.107(c). This documentary evidence also must contain sufficient evidence of identity, which includes the applicant’s name, “(1) the applicant’s age, date of birth, or parents’ names; and/or (2) a photograph or physical description of the individual.” 20 C.F.R. § 422.107(c).2 After the applicant submits evidence that the agency regards as convincing documentary evidence of identity and legal name change, the agency may issue a replacement card bearing the same Social Security number and the applicant’s new name. 20 C.F.R. § 422.110(a).- A. Federal Law and Agency Policy: Name Changes under the Social Security Act (Act)
Turning to the specific facts in this case, the agency’s numident record for the number holder shows that it issued an original Social Security card to Sandra K. on December 2, 1994. Accordingly, we can conclude that “Sandra K.” is the record number holder who previously held a Social Security card bearing the Social Security number ~. We cannot, however, conclude from the evidence the applicant submitted that the agency ever authorized a name change from Sandra K. to Sandra A~, the “birth name” listed on the Certification of Name Change.- For SSA enumeration purposes, a legal name consists of a first name and a last name. See POMS RM 10212.001(A). In general, the legal name of a person born in the United States (U.S.) is the name shown on his or her U.S. birth certificate unless the person’s name has changed based on certain events, such as a marriage. See POMS RM 10212.001(B)(1).
On August 23, 2010, the applicant applied for a replacement Social Security card, indicating that she wished to change the name on her Social Security card from “Sandra K.” to “Sandra G~.” As discussed above, to support this application, the applicant submitted evidence of identity indicating she was Sandra G~, including an employment authorization card the Department of Homeland Security issued. This employment authorization card, which bears Sandra G~’s name, photograph, signature, and corresponding alien numbers, constitutes primary documentary evidence establishing the identity of the applicant. See 20 C.F.R.- When a number holder applies for a replacement SSN card to reflect a name change, SSA must determine whether the name change request is valid pursuant to federal law and agency policy. SSA amended its regulations and policy to be more restrictive in its requirements for changes to the SSN record due to the agency’s efforts to comply with the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA). Pub. L. 108-458; see also POMS RM 10210.001 (explaining the history of the strengthening of SSN evidence requirements in response to misuse of the SSN and related fraud); SSA EM-06064 (effective Oct. 2, 2006, archived April 13, 2010) (outlining new policy for name changes based on marriage and setting out three evidence requirements for a name change). The IRTPA required the agency to “establish minimum standards for the verification of documents or records submitted by an individual to establish eligibility for an original or replacement social security card, other than for purposes of enumeration at birth.” Pub. L. 108-458, § 7213(a)(1)(B). “The integrity of the SSN is a matter of great importance to Social Security.” POMS RM 10210.200. “SSA is strongly committed to strengthening and improving the integrity of the enumeration process.” POMS RM 10210.205. Accordingly, Social Security law and policy provide specific evidentiary requirements for a name change to an individual’s SSN record.
§ 422.107(c) (Department of Homeland Security documents are documentary evidence that may establish identity); POMS RM 00203.200E.6 (describing documents an alien may provide to establish identity). We can therefore conclude that “Sandra G~” is the individual seeking a replacement social security number card bearing the Social Security number ~.- An applicant requesting a name change to the SSN record must submit documentary evidence that SSA regards as convincing evidence of the applicant’s identity and must submit evidence verifying a legal name change. See 20 C.F.R. §§ 422.103(e)(2), 422.107(a), (c), 422.110(a). SSA’s POMS more specifically instruct that an individual who is seeking to change his or her name on the SSN record must show evidence of:
But, based on the evidence submitted, we cannot conclude that the applicant, Sandra G~, is the original number holder, Sandra K., to whom the agency issued the original Social Security card and number ~. As stated above, in support of her request for a replacement Social Security card bearing the name “Sandra G~,” the applicant provided a copy of a Certification of Name Change that she obtained pursuant to the Life Partnership Law of the German State of Hesse. This document indicated that Sandra A~ changed her name to Sandra G~ after entering into a life partnership agreement. The translated copy of the Certification of Name Change indicated that the applicant’s birth name was “Sandra A~.” However, the Certification of Name Change offers no documentation that Sandra A~ was previously Sandra K., or that Sandra K., to whom the agency assigned Social Security number ~was previously Sandra A~. Moreover, the agency considers evidence documenting a new name to be sufficient evidence of identity when the name change document – here, the Certification of Name Change – shows a prior name that agrees with the latest numident record. POMS RM 10212.020B. Accordingly, to permit a name change from Sandra K. to Sandra G~, the agency’s numident record must document the name “Sandra A~” as the applicant’s prior name. But, the agency’s numident record does not mention the name “Sandra A~,” and no evidence exists that the agency previously permitted Sandra K. to change her name to Sandra A~ or issued a replacement social security number card in Sandra A~’s name.- A name change event that complies with the agency’s evidence requirements detailed for each event in RM 10212.010;
Turning to other possible identity evidence, we note that, on her application for replacement Social Security card, the applicant provided a date of birth, place of birth, and parents’ names consistent with Sandra K.’s personal information. However, the Certification of Name Change the applicant submitted neither includes the number holder’s legal birth name “Sandra K.,” nor her parents’ names, photograph, or her physical description. See 20 C.F.R.- The number holder’s identity; and
§ 422.107(c); POMS 00203.200H.2a (document presented to establish identity must contain sufficient information that identifies the applicant). Indeed, the only other identifying evidence included on the Certification of Name Change is Sandra A~’s date of birth, listed as June 6, 1985. This date of birth corresponds with the number holder’s date of birth in the agency’s numident record. But, the agency is generally not inclined to use birth record evidence as identifying information because, while a birth record establishes the fact of birth, it is not sufficient evidence to establish identity for agency purposes because it does not establish a person’s continued existence. See POMS 00203.200C.4; see also POMS RM 00203.200A (stressing that the agency must be certain that the person in question existed, continues to exist, and is the record number holder to whom the agency originally assigned the social security number). Accordingly, while we are able to establish that the agency assigned an original Social Security card and number to Sandra K., we cannot, from the evidence provided, determine that Sandra K. is now Sandra G~. Therefore, we conclude that the Certification of Name Change does not constitute adequate evidence of identity under the Intelligence Reform and Terrorism Prevention Act to allow the agency to issue a replacement Social Security card bearing the name Sandra G~.- The new name.
We believe that, because the German Certification of Name Change was inconclusive evidence showing the identity of the record number holder, Sandra K., we have sufficiently addressed the question of whether such a document constituted adequate evidence to allow the agency to issue a replacement Social Security card with a changed name. However, we note that the Regional Office posed a second question, as guidance for future cases, asking whether a foreign same-sex marriage document would be acceptable evidence of a name change under Texas law. The agency’s policy provisions require a legal opinion from our office to determine whether a foreign same-sex marriage document is acceptable evidence of name change in the applicant’s state of residence. POMS RM 10212.050B. Therefore, although we find it is not particularly relevant to the instant inquiry, given the inconclusive evidence of identity discussed above, we will next look to whether Texas would recognize the Certification of Name Change based on a German same-sex life partnership agreement as a legal basis to allow an applicant’s name change. Agency policy and procedures provide that “domestic partnership documents are acceptable evidence of a name change event for purposes of obtaining a name change on the Social Security card where either: (1) state law specifically allows partners in a domestic partnership to change their names; or (2) under state law, a domestic partnership is essentially equivalent to a marriage.” POMS PR 02707.055 (PR 09-169) (citing POMS PR 02705.016 (PR08-026).- See POMS RM 10212.015.
The Texas Constitution specifically prohibits same-sex marriage, stating that “marriage in this state shall consist only of the union of one man and one woman.” TEXAS CONST., Art. 1, § 32(a). The Texas Constitution further prohibits the state or any of its political subdivisions to create or recognize a same-sex legal status identical or similar to marriage. See TEXAS CONST. Art. 1,- The present request focuses on the first element, as you specifically asked whether the foreign same-sex marriage document (the Mexican Certificate of Marriage) provided by the NH is sufficient evidence of a name change event. We turn next to SSA’s policy regarding acceptable name change events. See POMS RM 10212.010.
§ 32(b). As such, Texas does not recognize any status for same-sex domestic partnership that is “essentially equivalent to marriage.” A Texas state appellate court recently upheld Article 1,- B. Agency Policy: Evidence of a Name Change Based on a Foreign Same-Sex Marriage
§ 32 of the Texas Constitution in In re Marriage of J.B. and H.B, ---S.W.3d ---, 2010 WL 3399074 (Tex. App.-Dallas Aug. 31, 2010). The court noted that the state’s constitutional ban on same-sex marriage was not contrary to the Equal Protection Clause of the Fourteenth Amendment or decisions handed down by the United States Supreme Court. See id. at *13.- SSA’s POMS at RM 10212.010 sets forth an exclusive list of name change events for purposes of changing the legal name on the SSN record. Of relevance here, a foreign marriage or foreign recognized same-sex marriage is listed as an acceptable name change event to support a name change on the SSN record. See POMS RM 10212.010, RM 10212.050. The POMS instructs that SSA is to “[a]ccept a foreign marriage document involving a same-sex couple issued by a foreign government that permits same-sex marriages” as evidence of a legal name change. POMS RM 10212.050(B).
Moreover, in the same case, the Texas Court of Appeals noted that the constitutional provision banning same-sex marriage “contains no exceptions for marriages performed in other jurisdictions,” holding that any common-law principle recognizing same-sex marriages performed in other jurisdictions must yield to the Texas Constitution. In re Marriage of J.B. and H.B, 2010 WL 3399074 at *12. The Court further stated that Texas was not required to accept the other states’ laws if doing so would result in a violation of Texas public policy. See id. We can therefore conclude that Texas would not recognize the Certification of Name Change, based on a German same-sex life partnership agreement, as a legal basis to allow an applicant’s name change.- Here, the NH has presented SSA with a marriage certificate issued by the State of Nayarit, Mexico. SSA’s POMS provides a list of foreign countries and the date that same-sex marriage was permitted in such countries, but has not yet addressed same-sex marriage in the State of Nayarit, Mexico. See POMS RM 10212.050(B) (“We recognize that other jurisdictions permitting same-sex marriage may exist and that the chart is not intended to be exhaustive.”). The POMS instructs that “[i]f a foreign same-sex marriage document from a foreign country or jurisdiction is not listed in the chart above, the RO should request a legal opinion from the Regional Chief Counsel on whether the foreign same-sex marriage document is acceptable evidence for a name change. The RCC opinion should provide the date the foreign country or jurisdiction began permitting same-sex marriages for a name change.” Id. Thus, we turn to the State of Nayarit’s laws on same-sex marriage and sufficient evidence of marriage to determine whether the marriage is proper and if so, whether the certificate comports with Nayarit’s laws for establishing a valid marriage between the NH and J2~.
In summary, the Certification of Name Change the applicant provided to support her request for a replacement Social Security card documenting a name change from Sandra A~ to Sandra G~ is not sufficient proof of identity to allow the agency to grant her request. While we are able to establish that the agency assigned an original Social Security card and number to “Sandra K.,” we cannot, from the evidence provided, determine that “Sandra K~” is now “Sandra G~.” In response to your inquiry asking for guidance in future cases, we note that Texas would not recognize the Certification of Name Change based on a same-sex life partnership agreement as a legal basis to allow the applicant to change her name because Texas does not permit same-sex marriage or recognize same-sex marriages performed in other jurisdictions. While the field office already processed the name change, we believe that they took this action in error, as the Certification of Name Change does not constitute sufficient evidence of the number holder’s identity and would not be acceptable evidence under Texas state law. Thus, Sandra G~ has not presented satisfactory evidence to support her request for a legal name change in a replacement Social Security card.- C. Foreign Law: Valid Same-Sex Marriage Under State of Nayarit, Mexico’s Law
Michael M~ Regional Chief Counsel By: __________________ Nicole D~ Assistant Regional CounselFootnotes:- 1. State of Nayarit, Mexico’s Law: Same-Sex Marriage Was Legalized December 23, 2015
[1]- Nayarit is a state in Mexico headed by a governor and unicameral legislature. A decree promulgated in December 2015 amended the Civil Code of Nayarit, making same-sex marriage legal in the State of Nayarit. Article 135 of the Code, as amended, states as follows: “Marriage is civil contract by which two people unite in a social relationship to achieve life in common, seeking between both respect, equality, and mutual aid.” The amending Decree making same-sex marriage legal was published in Nayarit’s official gazette on December 22, 2015. The amending Decree came into force the following day, December 23, 2015. The Decree also amended a number of articles of the Code related to domestic relations, replacing the previous terms of “man and woman” with the term “persons” and substituting the terms “husband and wife” with the term “spouses”. Thus, effective December 23, 2015, same-sex marriage is legal in the State of Nayarit, Mexico.
Agency policy requires a field office to consult the Regional Chief Counsel Precedents to determine whether the foreign same-sex marriage document is acceptable evidence for a name change. See Policy Operation Manual System (POMS) Record Maintenance (RM) 10212.050. When, as here, there is no legal opinion for a foreign same-sex marriage document from the issuing country, the field office should, through the regional office, request a legal opinion from the Regional Chief Counsel on whether the foreign same-sex marriage document is acceptable evidence for a name change in the number holder’s State of residence.- 2. State of Nayarit Law on Establishing a Valid Marriage and Marriage Registration
[2]- The State of Nayarit’s regulations on marriage registration are contained in its Civil Code. The Civil Code of Nayarit provides that the civil status of individuals may only be proved by certifications issued by the State of Nayarit’s Civil Registry. No other document or evidence is admissible to prove the civil status of people, except those cases expressly stated in the law. The Civil Code of Nayarit also grants the records of the Civil Registry a legal presumption of validity unless those records are successfully challenged in court.
These requirements also apply to marriage documents that an applicant presents to the agency to establish a change of name. See POMS 00203.200H.2a.- Similarly, a provision of the State of Nayarit’s Code of Civil Procedure grants a legal presumption of authenticity to public documents, defined as those documents whose creation is entrusted by the law to public servants covered with legal authority and those issued by public servants in the exercise of their functions—for instance, the certificates of the Civil Registry.
- 3. The NH’s Mexican Marriage Certificate is Evidence of a Valid Marriage
- As discussed above, SSA accepts foreign recognized same-sex marriages as the basis for a name change. See POMS RM 10212.010. Additionally, for name change requests to the SSN record, SSA will accept foreign marriage documents involving same-sex couples issued by a foreign government that permits same-sex marriages. See POMS 10212.050(B). As established, the State of Nayarit began permitting same-sex marriages in December 2015. Thus, the pertinent remaining question is whether the March 2017 Mexican Certificate of Marriage provided by the NH comports with the State of Nayarit’s laws for marriage registration and establishing a valid marriage.
- The Certificate of Marriage was issued March XX, 2017, and identifies the bride and groom as J2~ and J~. The Certificate of Marriage was issued and executed by the State of Nayarit’s Civil Registry, and it specifically includes the signature of an official of the Civil Registry as well as the Civil Registry’s official seal. As discussed above, under Nayarit law, the civil status of people is proved solely by such certifications issued by the Civil Registry. In addition, both the Civil Code of Nayarit and the State of Nayarit’s Code of Civil Procedure grant a legal presumption of validity/authenticity to public documents, including certificates of the Civil Registry such as the NH’s Certificate of Marriage.
- Thus, the NH’s March 2017 Mexican Certificate of Marriage is presumed valid under the laws of the State of Nayarit and therefore, we believe that the agency may find that it is acceptable as a name change document evidencing a legal name change event under SSA’s law and policy.
- CONCLUSION
- The NH’s March 2017 Mexican Certificate of Marriage is valid under the laws of the State of Nayarit, Mexico, which legalized same-sex marriage effective December 23, 2015. Thus, for purposes of the NH’s name change request, this foreign same-sex marriage document is an acceptable name change document evidencing a legal name change event under SSA’s law and policy for name changes to the SSN record.
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