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relevant government does not recognize a person’s claim to citizenship. 164
This definition emphasizes the government’s view as to whether the
person is its citizen. In referring to “the operation of its law,” the definition
emphasizes, moreover, government practice rather than nationality law or
even a broader body of legislation. This definition is not just a matter of
customary international law; 165 it also makes excellent policy sense,
because a person who is entitled to citizenship but whose state rejects
them as a citizen cannot access the benefits of citizenship in practice.
The UNHCR states that
To establish whether a State considers an individual to be its national, it
is necessary to identify which institution(s) is/are the competent authority(ies) for nationality matters in a given country with which he or she
has relevant links. Competence in this context relates to the authority
responsible for conferring or withdrawing nationality from individuals,
or for clarifying nationality status where nationality is acquired or withdrawn automatically. The competent authority or authorities will differ
from State to State and in many cases there will be more than one competent authority involved. 166
In the United States, there is no central form of national identification, nor
one agency with exclusive authority in determining who is a national. 167
As seen above in Part II.B.3, many authorities are competent to assess
claims to citizenship, including the Department of State, for purposes of
issuing passports; 168 the Department of Justice, for determining whether a
person has naturalized or is a U.S. citizen in removal proceedings;169
federal courts, to issue declaratory judgments of citizenship; 170 and many
others.
A person is stateless when they have sought and been denied a
document or benefit incident to citizenship because of questions about
their citizenship status and lack of any other citizenship. Thus, if a person
whose birth is unregistered is denied access to registration in school
164. See Fisher, ‘The Operation of Law’, supra note 25, at 260.
165. Int’l L. Comm’n, Rep. on the Work of its Fifty-Eighth Session, at 49, U.N. Doc. A/61/10
(2006) (noting that the Stateless Convention’s definition of a stateless person can “no doubt be
considered as having acquired a customary nature.”).
166. UNHCR, Guidelines on Statelessness, supra note 160, at ¶ 27 (citation omitted).
167. Russell Berman, The Obvious Voting-Rights Solution That No Democrat Will Propose, THE
ATLANTIC (Aug. 30, 2021) https://www.theatlantic.com/politics/archive/2021/08/voting-rightsnational-id-card/619772/.
168. 22 C.F.R. § 51.40 (2007).
169. U.S. DEPT’ OF JUST., EXEC. OFF. OF IMMIGR. R EV., IMMIGRATION C OURT P RACTICE
MANUAL,
Limited
Proceedings,
7.4(f)
(last
updated
June
21,
2023),
https://www.justice.gov/eoir/reference-materials/ic/chapter-7/4 [https://perma.cc/V8F4-86TZ].
170. 8 U.S.C. § 1503(a).
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