A person can be a citizen, in fact, and some government actor may refuse to acknowledge the fact of citizenship unless suitable evidence is produced.
Let's say that the INS denies recognition of the U.S. citizenship of a person identifying themself with a driver's license identification card from the State of Illinois, Missouri, Texas, Washington, or perhaps some other state. Does that mean that the person is not, in fact, a citizen? Does citizenship depend on the government actor recognizing it?
Then there is the example of "Consular officers are diplomatic personnel from the Department of State. They have the authority to deny recognition of U.S. citizenship whether or not it was actually a right at birth." Is such a denial conclusive, or can it be appealed? Has a State Department or INS denial of certificate of citizenship ever been reversed by a judge? If so, citizenship depends on the circumstances of birth, not on recognition by a consular officer or INS agent.
I find recognition of citizenship-in-fact to be variable. My point is not on the recognition of citizenship, it is on the existence of it.
Kabar asserted that US citizenship flat out doesn't exist until it is recognized. IOW, if Cruz hadn't applied for some Certification of Citizenship, Cruz would not be a citizen of the US - notwithstanding the fact that 8 USC 1401 says Cruz is a US citizen at birth. Kabar says a person can elect, by inaction, to void the operation of 8 USC 1401. You intimated similar, saying one becomes a citizen "But only after securing U.S. diplomatic recognition of the U.S. citizenship."
I have to admit that it is possible for a person to "fly under the radar" and never seek recognition of citizenship (that goes for people born in the US too, say, hypothetically, without a birth certificate), and for practical purposes, their US citizenship is pointless. But should that person have a change of mind at any point in their life, and was able to produce suitable evidence, they could inform the US government and be noticed as a citizen. Were they a citizen before the government noticed?
First, as you surely know it is possible to find an attorney who will claim and argue just about anything for or without a price, including propositions which will end in the attorney’s own gruesome death. Accordingly, we must dispense with any notion that something an attorney argues must necessarily be authoritative and valid because of the attorney’s expertise or lack thereof.
“Kabar asserted that US citizenship flat out doesn’t exist until it is recognized. IOW, if Cruz hadn’t applied for some Certification of Citizenship, Cruz would not be a citizen of the US - notwithstanding the fact that 8 USC 1401 says Cruz is a US citizen at birth.”
Yes, that does happen in some cases and not in others. Remember, the U.S. Government does not officially recognize dual citizenship as being lawful under U.S. Federal laws. Claims of dual citizenship are being accommodated by the U.S. Government by turning a blind eye towards a person’s exercise of other citizenship in all but a few circumstances, and this id due to decisions by the Supreme Court of the United States. In some cases, however, the foreign state wherein the birth took place or the foreign state of the father’s citizenship does not permit the person to claim citizenship with any other state. In this circumstance the parents and/or the child upon reaching the age of majority must renounce any U.S. citizenship or right to claim U.S. citizenship. In these circumstances a child may never claim or secure the right to U.S. citizenship despite the willingness of the U.S. Government to grant such U.S. citizenship at birth.
It should also be remembered that this right to U.S. citizenship at birth is authorized by unnatural, manmade, and artificial statutory law as a means of administering the immigration and naturalization of foreign born persons and not by natural law. Consequently, the statutory laws can be changed in the near or the distant future to compel the Supreme Court of the United States and the Department of State to enforce the existing citizenship law that allows a person to declare allegiance only to the united States or only to a foreign state. Likewise the statutory law could return the naturalization laws to where it was before 1866, which denied U.S. citizenship to foreign born children of U.S. citizens and/or to U.S. born children of foreign or alien parents residing in the United States. Because natural born citizens acquire their U.S. citizenship by the operation of natural law and not by statutory law, no statutory law can deprive them of their U.S. citizenship at birth.
“Kabar says a person can elect, by inaction, to void the operation of 8 USC 1401. You intimated similar, saying one becomes a citizen “But only after securing U.S. diplomatic recognition of the U.S. citizenship.””
The U.S. Statute authorizes the right to claim and adopt U.S. citizenship at birth, but it cannot compel a foreign born person to adopt and give allegiance to the sovereignty of the United States required to actually practice and be a U.S. citizen. There is also the issue of the effect upon a person when the person’s parents choose to renounce the child’s U.S. citizenship or fails to claim and assert U.S. citizenship in accordance with the minimum requirements for residency. Under the Law of nations, such a child may or may not retain a right to declare a claim for U.S. citizenship or other foreign citizenship upon reaching the age of majority or after reaching the age of majority for some foreign states. This is/was true for descendants of Cuban citizens.