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09. Department of State message re apostille issues


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United States Department of State

Washington. D.C. 20520

 

July 8, 2004

 

 

Dear Mssrs Ethridge and Reynolds:

 

A number of state Secretaries of State offices and state Nc’tary Public Administrators have contacted the U.S. Department of State requesting guidance about the propriety of authenticating or legalizing certain notarized documents related to citizenship, passports, immunity and allegiance. The purpose of this letter is to provide the state Secretaries of State and Notary Public Administrators with guidance about these questions.

 

The specific questions raised by various states concern the following:

 

      Notarized documents that purport to relate to relinquishment or renunciation of U.S. citizenship;

 

      Notarized or authenticated documents that support application for a World Service Authority “citizenship” document;

 

 

 

 

Bru Ethridge

President

Notary Public Administrators

National Association of State Secretaries of State

Secretary of State - Annex Office

202 N. Carson Street

Carson City, NV 8970 1-4201

 

Leslie Reynolds

Executive Director

National Association of Secretaries of State

Hall of States

444 N. Capitol St., NW

Suite 401

Washington, DC 20001

2

 

 

 

 

   Notarized documents which suggest that the affixing of an Apostille certificate under the Hague Convention Abolishing the Requirement for Legalization of Foreign Public Documents conveys some form of immunity to the bearer of the document.

 

   Documents not intended for use abroad.

 

Interpretation of the Hague Legalization Convention aud U.S. obIiQatiouls under that treaty:

 

The Apostille does not provide any form of immunity. It is inappropriate to place the Apostille certificate on a document that suggests that the Apostille has such an effect. Moreover, the Apostille should not be placed on any document by state Secretaries of State or Notary Public Administrators if the document is intended for use in the United States or in a country not party to the Hague Legalization Convention. It is only for documents to be used in countries that are party to the Convention. See the Hague Conference on Private International Law web site at htty;//www.hcch.net/e/conventionwmenul2ehtmj for a current list of countries where the Convention is in force.

 

Citizenshjn. Allegiance and Soverignty-rejated documents:

 

Documents concerning U.S. citizenship, allegiance to the United States or any U.S. state or otherjurisdiction, sovereignty, Actual Notice of In Itinere Status and World Service Authority (or similar) so called “citizenship” documents, have no force or validity, and could be used for fraudulent or criminal purposes. Accordingly, the U.S. Department of State Authentications Office and U.S. embassies and consulates abroad have been instructed to refuse to provide authentication or notarial services for such documents under the refusal authority provided in 22 CFR 92.9 and 22 CFR

131.2.    The Department of State recommends that state Secretaries of State and Notary Public Administrators refuse to notarize, authenticate, or affix the Hague Apostille to such documents.

 

Information about obtaining copies of passport records, and Foreign Service reports of birth or death, is available at httr’://travel.state.gov/yassport records.html and httm//travel.state.gov/vjtal records services.htmL Information about

Walter, Marguerite C

From:                               Gaw, Monica A

Sent:                                Wednesday, September 08, 2004 3:16 PM

To:                                   Kovar, Jeffrey 0: Trujillo, Reyna A’

Cc:                                   Crawford, Fernesia T

Subject:                           RE: From the office of the New Mexico Secretary of State

 

 

 

 

1111

DOS CACCSPfl DOS CAOCSPRI DOS LPIL Letter HLC Conclu&ons

 

 

From:    Kovar, Jeffrey D

Sent:     Wednesday, September 08, 2004 3:00 FM

Subject: RE: From the office of the New Mexico Secretary of State

 

 

Dear Ms. Trujillo:

 

Thanks for contacting me about the 1961 Hague Convention. You can find a copy of the Convention at the Hague Conference website, www.hcch.nl. I would recommend you pull it up if you don’t already have it; it is quite short to read.

 

The requirements for authorities issuing Hague apostilles are to include the specific elements contained in the model Apostille and comply with any other requirements of the Convention. The closer you follow the specific format of the model, the less likely that foreign judges and officials will raise questions about the authenticity of apostilles issued by your office. Recall that the purpose of the Apostille is to establish the authenticity of public documents -- in your case issued by the state of New Mexico or by New Mexico notaries. It is in your interest to make sure that New Mexico citizens get the benefit of the Convention for documents that they must send to other countries for some legal purpose.

 

In our experience, preparing the Apostille in the form of a square at least 9 centimeters on each side, with each of the 10 specific elements fully filled out, should suffice.

 

We have found that U.S. states often have very different approaches to preparing the Apostille. Many have had difficulties with foreign officials rejecting their Apostilles -- often because they have not securely fastened the Apostille, or because they use laser—printed seals and signatures, or do not otherwise use the traditional square—sided box Apostille. While the Department has sought and received official assurances from other Hague member states that variations of these kinds do not violate the Convention and should be permissible, the fact is that foreign officials are more likely to reject Apostilles as unfamiliar or potentially fraudulent the more they diverge from the model. If you want to look at the classical model, the Authentications Office here at the State Department follows the requirements very literally in all respects and has virtually never had a report of Apostilles being rejected on federal documents.

 

Thus, we recommend that however you prepare the Apostille you include any or all of the following special anti—fraud elements: specially watermarked paper, an embossed seal, and wet signature. The presence of the embossed seal and wet signature seem to assure the fewest problems. The document to be authenticated should also be securely and permanently bound together, and the Apostille must also be permanently attached in such a way that it is clear that it was placed there by your office and could not have been tampered with. Simply stapling the documents together can lead to problems because stapling(unless further sealed) can be easily undone and refastened.

 

Your specific questions:

 

1. There is no established retention period. We recommend that states all establish regular retention periods of at least a few years, consistent with their other record retention policies. Remember that the purpose of the retention is to be able to respond to foreign officials if they query whether an Apostille was actually issued for a particular document. We understand that most U.S. states now use an electronic registry, and this has been declared to be consistent with the Convention. Article 7 of the convention requires the record to include “a) the number and date of the certificate, b) the name of the person signing the public document and the capacity in which he has acted, or in the case of unsigned documents, the name of the authority which has affixed the seal or stamp.”

 

2. There should not be a problem with using all capital letters in the Apostille, or using different fonts or type faces, subject to the cautions that I outlined above.

 

We would be happy to discuss this with you further, or offer our views on specific drafts you are contemplating using, or other proposals you might be considering.

 

Please feel free to contact me or my colleague Monica Gaw (gawma@state.gov). Sincerely, Jeff Kovar

 

 

 

Jeffrey D. Kovar

Assistant Legal Adviser for Private International Law (L/PIL)

U.S. Department of State

South Building, Suite 203 2430 E St., NW

Washington DC 20520  



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