A Sad Story (with some hope)

Over 25 million Italians have emigrated between 1861 and 1960 with a migration boom between 1871 and 1915 when over 13,5 million emigrants left the country for European and overseas destinations.
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hellosquire
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A Sad Story (with some hope)

Postby hellosquire » 06 Mar 2007, 07:08

I've been diligently collecting the documents I need for Italian Citizenship since January. One of the members here, suanj, helped me obtain my great grandparents' birth and marriage certificates from Italy. They arrived far quicker than I expected, and everything seemed to be going well.

The problem I have is New York State refuses to give me, or even my father, my grandmother's birth certificate, and my great grandparents' death certificates. Even worse, the name on my grandmother's birth certificate is entirely wrong.

I visited a lawyer today. The lawyer told me that she'd be able to force the city of New Rochelle to give me the documents through a court order. However, she said it would be extremely unlikely that NYS will allow a change in my grandmother's birth certificate - even when the name is spelled correctly on her death certificate. And to top it all off, the order and the lawyer's time amounts to $1,800 dollars! :(

I'm really worried that even if I get the certificates, the embassy will have a problem with the gross mis-spelling of my grandmother's name. It makes me very upset that the state can make a mistake in the spelling on the birth certificate, for reasons I can only imagine to be negligence on their part because my great grandfather did not speak English, and was probably illiterate. Why should they care how to spell a poor immigrant's child's name? And now her own son, my dad, can't get her birth certificate? They're using "September 11th" as an excuse - even with the burden of proof entirely in my favor, giving me a birth certificate from 1911 is a security risk? Nonsense.

I don't know what to do with myself. Has anyone had any experience with mis-spellings? Would a simple attached affidavit as to the correct spelling be enough for the NY Italian consulate? If I spend 1800 dollars for nothing, I'll be at my wits end.

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Re: A Sad Story (with some hope)

Postby wldspirit » 06 Mar 2007, 11:58

I do not have any experience with obtaining vital records from New York,
but that is horrible.....there have been numerous concerns brought up with regard to restrictions on all public records due to homeland security...despite the fact that we have privacy laws already in place.

We had a thread on the matter here:
http://italiangenealogy.tardio.com/Foru ... 26940.html

One option....perhaps you could contact a local representative or
senator?? :?
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Re: A Sad Story (with some hope)

Postby mler » 06 Mar 2007, 12:43

I do believe it is possible for you to get a birth certificate from NYS if you provide documentation that it is necessary for a specific legal purpose. Some posters have been told that a letter from the Italian consulate indicating that the birth certificate is a requirement for dual citizenship will suffice. I don't know if the NY consulate will supply one, but since more and more people are running into this problem, it may be a possibility.

The death certificates should be available to you, and I can't understand why they are making this difficult.

How big a discrepancy is on the birth certificate? Problems with birth certificates were not unusual. My own birth certificate had a first and middle name that were entirely different from the ones my parents intended me to have. They simply used the name they wanted on all my records and ignored the birth certificate (and both my parents were born in the U.S.).

These errors were not the result of gross negligence, but rather the result of communication difficulties, not uncommon even today. Unfortunately, many parents, like my own, were not too concerned about the accuracy of official records even if they bothered to check. A child was born; the birth was recorded; that was enough.

I did go through the amending process, but you may try to present to the consulate a signed affidavit (from as many close family members as possible) indicating that the name on the birth certificate is an error and that the person named on that certificate is the same person named on the other records. This approach has worked for some.

BTW, I would not go the lawyer route yet. Check to see if you can obtain a letter from the consulate. With a little research, you may also be able to get a court order for the release of records on your own.

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Re: A Sad Story (with some hope)

Postby Poipuo4 » 06 Mar 2007, 16:40

Why won't NY give you the death certificate? I have gotten several old and relatively new ones (1994, 1911, 1947), albeit from New York City, as opposed to NY state. What if you submit an affidavit to the state, swearing as to your identity, that you are next of kin, and that you will be using the document for purposes of obtaining your dual citizenship? Have your atty. prepare it for you and sign it in front of a notary. You could prepare it yourself, if you get the standard language from a form affidavit. Usually they begin with your name and a statement that I am over eighteen and understand the obligations of an oath.

I did not have to go through these lengths, but with my 1994 certificte, I included a photo i.d. and a signed statement that I am a relative. The birth certificate may be another story.

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Re: A Sad Story (with some hope)

Postby mler » 06 Mar 2007, 16:45

Unfortunately, NYS does not use the same procedure as NYC. There are fewer hurdles for documents originating within the five boroughs.

However, the affidavit you suggest may offer a possibility. You can accompany it with the web page of instructions from the consulate.

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Re: A Sad Story (with some hope)

Postby Poipuo4 » 06 Mar 2007, 16:51

I do not practice law in NY, but I found this NY statute, governing death certificates:

It looks like if you invoke 4174 1. (a) (6), it applies to a specific request by a child, spouse or parent for a death certificate. My take on (5) would be that a statment from the Italian consulate may not cut it. You may need someone from a American federal government agency to make a statement that you need the document. I hope this helps!

S 4174. Records; transcripts and certifications by commissioner; fees.
1. The commissioner or any person authorized by him shall:
(a) upon request, issue to any applicant either a certified copy or a
certified transcript of the record of any death registered under the
provisions of this chapter (1) when a documented medical need has been
demonstrated, (2) when a documented need to establish a legal right or
claim has been demonstrated, (3) when needed for medical or scientific
research approved by the commissioner, (4) when needed for statistical
or epidemiological purposes approved by the commissioner, (5) upon
specific request by municipal, state or federal agencies for statistical
or official purposes, (6) upon specific request of the spouse, children,
or parents of the deceased or the lawful representative of such persons,
or (7) pursuant to the order of a court of competent jurisdiction on a
showing of necessity; except no certified copy or certified transcript
of a death record shall be subject to disclosure under article six of
the public officers law;
http://www.celenzaheritage.com

dedicated to the people of Celenza Valfortore, Province of Foggia

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Re: A Sad Story (with some hope)

Postby wldspirit » 06 Mar 2007, 16:52

There is info here regarding access to various records and the laws governing them:

http://www.archives.nysed.gov/a/researc ... html#vital

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Re: A Sad Story (with some hope)

Postby mler » 06 Mar 2007, 17:53

Poipuo4, I agree that 5 would not apply.

Number 2, however, would work. Jure sanguinis citizenship falls into the category of "legal right or claim."

Also, since hellosquire's dad is still living, he can make the request as the son of the deceased (Number 6).

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Re: A Sad Story (with some hope)

Postby johnmilano » 07 Mar 2007, 15:31

number 2 seems like the best bet. I've heard NYS is a bit of a pain when it comes to this... but, at least we can say it's not like california, of which there, i've heard the wait is horrendous. NYC i think is as easy as it gets, i believe if you go in person, you can walk in and walk out with the documents.

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Re: A Sad Story (with some hope)

Postby mler » 07 Mar 2007, 18:56

Not quite THAT easy. Generally a two-month wait in NYC (a bit longer for older documents). But you're right, John, the process is considerably easier within the five boroughs.

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Re: A Sad Story (with some hope)

Postby hellosquire » 08 Mar 2007, 04:24

I'm going to try and get a signed affidavit from my aunt and uncles as to the correct spelling of the name. I guess it's the best I can do. I don't see what the big deal is in correcting her name on her birth certificate when I have the death certificate and a gazillion other things with her name on it spelled correctly.

It makes me really upset that they can get away with this, when I have no difficulty proving it. For them to call it a security risk is absurd, I can justify it and prove it. Now I know how a new immigrant feels when they can't get a drivers license. Security and vigilance is one thing, but I hate to see the paranoid direction this state is heading in.

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Re: A Sad Story (with some hope)

Postby mler » 08 Mar 2007, 13:13

Correcting a birth certificate has always been a legal process. I had my NYC birth certificate amended recently and needed a court order to do so. Changes in official documents need to be made as soon as the error is discovered. If this is not done, it causes difficulty later.

I sympathize with your problem, but frankly, it is not the government's problem; it is your problem. Both I and my father had been using names that were not consistent with the names on our birth certificates. I was even able to get a U.S. passport with this (technically illegal) name. The government, however, has become more diligent in ensuring that people use their legal names, and I think it's about time they did so.

Unfortunately, it then becomes considerably difficult to modify documents after a person has died, and I understand your frustration; but your anger is misplaced. Your family should have corrected that document (as I should have) a long time ago. The government is finally doing what it should have always been doing. This is not a situation that's unique to the U.S. Try to amend a birth certificate of a deceased person in Italy, and see how far you get.

And, BTW, a new immigrant has no problem getting a driver's license in the U.S. as long as he can prove his identity and demonstrate, with a green card, visa etc., that he is in this country legally. Why is that a problem?

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Re: A Sad Story (with some hope)

Postby hellosquire » 08 Mar 2007, 14:49

My great grandfather was illiterate. They had to of had difficulty understanding him when transcribing information, as his name is not spelt correctly on many documents.

I have no problem with the country having strict rules on dissemination of certified documents, however I feel that when a person can provide a substantial wealth of proof, proof provided by the state in regards to my father's own birth certificate, issued in the same city, showing that his mother is indeed his mother, and has indeed consistently used a particular name, then that person should have no difficulty obtaining a document without paying $2000 for legal aid.

Federalism has its great benefits, but is also the cause of great inconsistencies between states. I see no reason why a son in Pennsylvania can get his mother's birth certificate, and a son in New York cannot. We are both US citizens, and we do not choose where we are born.

As someone who works in law enforcement, I find increased security to be of vital importance, and I am in no way criticizing the steps this state has taken in combating potential acts of terrorism. Our measures have drawn great success. Yet the issue of not issuing a document from 1911 to a son who has overwhelming proof of his relationship to his mother and her name used, is absolutely ridiculous and in no way constitutes a threat to security.

I know this isn't a debate forum, but I strongly believe that the difficulty immigrants have in obtaining legal status costs the taxpayers money in the end. We often arrest people who cannot obtain US identification, and who subsequently cannot get out of jail as easily. This subsequently costs our department a lot of money. I can't imagine what it is costing New York.

Anyway, I just think the state is going overboard in their decision not to release the document to my father, correction or not. Especially when we have proof attesting to her identity that the state itself provided for us. My dad can make a fraudulent claim with my birth certificate as easily as he could with his mother's.

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Re: A Sad Story (with some hope)

Postby mler » 08 Mar 2007, 15:44

"Yet the issue of not issuing a document from 1911 to a son who has overwhelming proof of his relationship to his mother and her name used, is absolutely ridiculous and in no way constitutes a threat to security."
___________

Hellosquire, I don't want to debate with you either although I think we disagree on what rights should be accorded to legal vs. illegal immigrants.

But you will notice that you have overwhelming proof of your father's relationship to his mother and the name she used. Yet, you are worried that the Italian Consulate will not accept that "overwhelming proof." I don't doubt that the two names represent the same person; and I'm certain that anyone who looks at those documents will agree, whether he be a NYS official or a consular official.

Yet the NYS official will not change the document because rules prohibit doing so; and the consular official may or may not accept those documents based on his interpretation of the rules established by his government. That's simply the way it works.

As someone in law enforcement, you should be well aware that rules are not always equitable and that law is not always synonymous with justice. You probably also realize that people who enforce those rules and laws must do so regardless of the inconvenience or difficulty they may sometimes cause. I doubt that, when you are enforcing the laws you enforce, you are persuaded to avoid exercising your responsibility because someone tells you the law is unfair or unreasonable.

Many people, some who have contributed to this forum, have been "victimized" by rulings they consider to be unfair--the 1948 ruling and the naturalization of minors among them. What I am simply saying is that laws are made for society, not for individuals, and they don't always work the way we might like them to work. We have to deal with that fact.

I see that you had some good news today, and maybe this is a signal that things will work out. BTW, I do think the consulate will accept the affidavits. Also, according to the statute quoted above, it seems that you and your father can demonstrate eligibility to receive those documents you need.

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Re: A Sad Story (with some hope)

Postby Gildone » 18 Mar 2007, 14:28

It seems to me that one of the following conditions should apply:

(2) when a documented need to establish a legal right or
claim has been demonstrated,

(6) upon specific request of the spouse, children,
or parents of the deceased or the lawful representative of such persons,


It's probably condition #2 that has allowed those who have used a letter from the Consulate to obtain the documents.

Seems to me that NYS is over the top. I was annoyed with Pennsylvania because they require a photocopy of your driver's license (which they say they shred once your identity is confirmed) in order to get birth/death certificates. I guess that's not so bad after all...

In Ohio, you can make a request through the courts to amend a record and depending upon the nature of the request and the document, it doesn't always require a lawyer. I amended my great-grandfather's marriage record through the local Probate Court without a lawyer. They required my identification and such, but it wasn't that difficult.


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