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NC man argues outdated, discriminatory law led to deportation

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Southern Poverty Law Center
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Submitted
Kelvin Silva spent 30 months in immigration detention, including at the Stewart Detention Center in Georgia.

Kelvin Silva says he doesn’t really understand the Spanish spoken to him in the Dominican Republic. He hadn’t heard it in 30 years — not until February, when he was deported to the island, where he says he doesn’t have family or friends.

“They could send me anywhere, China, any country. It'd be the same,” Silva said. “I barely go out. It's hard to trust. Just since I've been here, I've been robbed twice.”

The 45-year-old moved to New Jersey at age 11 to live with his father, a naturalized U.S. citizen.

In most cases, someone in Silva’s situation would have automatically received citizenship through his father. But United States citizenship law is complex and it comes with a lot of restrictions.

The complicating factor for Silva? His parents weren’t married.

“It's not right. It's not fair for a person that has lived their whole life in a country and then just to get kicked out, not to get a chance,” Silva said. “They keep just breaking families apart.”

Silva’s immigration trouble began in 2017. While in prison on drug charges, he received an immigration detention order and spent another 30 months in Immigration and Customs Enforcement custody.

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Southern Poverty Law Center
Kelvin Silva holds his daughter in the United States.

To challenge his deportation, Silva has a legal team with lawyers from the Southern Poverty Law Center, Asian Americans Advancing Justice and the National Immigration Project.

Attorney Bacardi Jackson with the Southern Poverty Law Center says Silva’s dilemma stems from historic immigration discrimination that modern laws have failed to address.

“There is a long-standing history of discrimination in our immigration laws, both race discrimination and in Mr. Silva's case, in this particular law, gender discrimination that has affected a subset of people who are children of folks who are not married,” Jackson said.

The specific legal issue Jackson refers to has come to be known as the Guyer Rule — a term coined by Boston University Law Professor Kristin Collins.

“It's really a restriction on citizenship transmission to the non-marital children of American fathers,” Collins said.

Civil War-era precedent

The policy evolved from an 1864 property rights case in Maryland. Whether the children of U.S. citizen John Guyer could inherit his property hinged on their ability to prove they were U.S. citizens.

They had been born in then-Swedish Saint Barthelemy to John and his partner Margaret, described as a woman of "African descent." While the Guyer family lived together, the parents were never legally married.

“The citizenship statute didn't say anything about whether the parents had to be married in order for children to take the father's citizenship,” Collins said. “But the Maryland court interpreted the statute so that it only applied to the legitimate children of American fathers, even where, as in the case of the Guyer sons, they were part of a family unit.”

Immigration officials repeated that language in the following decades. Collins says while the rule never explicitly mentions race, it has been used disproportionately to deny citizenship to people of color, like the children born abroad to U.S. servicemen.

“We've had this very strong tradition of restricting both naturalization and immigration on the basis of race and ethnicity. And it's against that backdrop that the Guyer Rule is deployed,” Collins said.

The rule became law in 1940, establishing distinct legal treatment between the non-marital children of U.S. fathers versus mothers.

'Fundamental fairness'

Some of these children found relief through the Child Citizenship Act of 2000, which applied to those under 18. But Silva was already an adult, says his lawyer Bacardi Jackson.

“This is fundamental fairness,” Jackson said. “Why have we decided as a nation that we can carve out a class of humans and treat them differently and less favorably, tear them away from their families, put them out of the only country they have really ever known in their whole adult lives, simply because of the status of their parents, as to whether or not they were married?”

The Southern Poverty Law Center identified 31 cases similar to Silva’s, where a deportation challenge was denied despite a claim to citizenship through an unmarried father. More than 70% of those cases relate to Caribbean countries with a majority-Black population.

“We know for a fact that it is used against Black and brown people in a disproportionate way, not only from its discriminatory roots but from its current discriminatory effect,” Jackson said.

Meanwhile, Silva says he’s struggling to assimilate to life in the Dominican Republic. Before his legal problems, he had operated bakeries and worked as a tattoo artist in Charlotte. Now he worries about supporting his children and grandchildren, who are still in the U.S.

“It's really complicated and hard for me just knowing and thinking that I cannot do nothing to help them out or just be there, if there's anything that they need because they’re sick or whatever,” Silva said. “My life is over there, not here.”

For the Guyer Rule to finally end, Collins says there are two possible remedies — either an act of Congress or a ruling in federal court.

Silva has appealed his case to the federal appeals court in Atlanta.

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Kayla Young is a Report for America corps member covering issues involving race, equity, and immigration for WFAE and La Noticia, an independent Spanish-language news organization based in Charlotte.