Charlotte Man in Deportation Limbo Due to Obsolete Immigration Law

When 44-year-old Kelvin Silva, a detainee at Stewart Detention Center since summer 2020, saw that all the money had been removed from his commissary account on Jan. 14, he worried that his time for deportation had arrived. When he was sent for a COVID-19 test that afternoon, he was sure of it. 

The next day, Silva was driven the three hours from Stewart, located in Lumpkin, Georgia, to the Hartsfield-Jackson Atlanta International Airport. He knew where he was most likely headed from there: the ICE staging facility in Alexandria, Louisiana, then to the Dominican Republic, where he was born but hadn’t been since arriving in America as a child 33 years ago.

As he later reported to his attorneys, Silva was sitting shackled on the plane just before takeoff when he saw a group of guards looking at him while deep in discussion. They approached him and said, “Alright, let’s go,” and pulled him off the plane. Though to this day he is unsure as to why, Silva was removed from the plane and returned to Stewart Detention Center. 

ICE would not comment on Silva’s near-deportation, telling Queen City Nerve that, for operational security reasons, the agency does not discuss the movement of detainees. 

“Generally, an alien is only removed after all due process measures have been exhausted and an immigration judge orders them removed,” a spokesperson wrote in response to inquiries about Silva’s case. 

His lawyers will now continue arguing their case against Silva’s deportation, which was only made possible through the enforcement of an immigration law that’s been off the books since 2000. While they say the litigation surrounding Silva’s case will be an “uphill battle,” Friday’s false start was a remarkable occurrence amid what human-rights advocates had called a last sweep of Black migrants in the final days of the Trump administration.

An immigrant gets caught in the system

In 1988, Kelvin Silva came to America from the Dominican Republic as an 11-year-old boy with his father, a U.S. citizen. Silva grew up believing he was a natural citizen, but unbeknownst to him, an obsolete immigration law from 1940 preventing the children of unmarried parents from gaining citizenship through their fathers prevented that from happening. 

When his father was killed in an accident six years after their arrival in the states, Silva’s life was turned upside down. His mother had abandoned him as a baby and he had nobody left to turn to for guidance. 

Living in Charlotte, he eventually fell into selling drugs, and was charged and convicted for possession with intent to distribute marijuana and cocaine in 2013. He was sentenced to 127 months in prison, but after completing an intensive cognitive-behavioral therapy program and being recognized by his peers for his “exceptional demonstration of the attitude of caring and willingness,” his sentence was reduced.

It wasn’t until July 5, 2019, two days before Silva was scheduled to be released from prison, that his new nightmare began. That’s when he was informed ICE had placed a retainer on him and started deportation proceedings against him.

Silva was transferred from the Federal Correctional Institution in Jesup, Georgia, to the D. Ray James Correctional Institution, a Criminal Alien Requirement prison in Folkston, Georgia. When his appeal to the Board of Immigration Appeals was denied in summer 2020, he was moved to Stewart Detention Facility, where reports of bad conditions have only worsened during the COVID-19 pandemic. 

When first informed of ICE’s intentions, Silva and his family were dumbfounded. According to his sister Jasmine Pena, who was born in the United States and currently lives in New Jersey, Silva had always lived under the assumption that he was a naturalized citizen. 

“When ICE took him into custody, I was like, ‘Why would ICE take him? He’s a citizen,’” she told Queen City Nerve. “That’s when we started to learn about the laws, when he got a letter about them denying his citizenship.”

An old immigration law still in effect

The Guyer Rule, first codified in the Nationality Act of 1940, prevented U.S. citizen fathers from passing citizenship to children who were born out of wedlock. The rule disproportionately restricted how non-white parents could secure citizenship for their children — and for decades was maintained for just that reason. 

The Child Citizenship Act of 2001 (CCA) replaced the citizenship statute at issue with a new version of the immigration law that omits the racially discriminatory Guyer Rule. However, the CCA was not given retroactive effect, meaning Silva and many other similarly situated Black immigrants who have resided in the U.S. since before 2001 and would otherwise be recognized as U.S. citizens were not.  

The immigration judge in Silva’s case held that, under the Guyer Rule, because Kelvin’s parents never legally married, they could not have achieved a “legal separation,” and therefore, Silva did not automatically derive U.S. citizenship through his father.

Meredyth Yoon, an attorney with the Southern Poverty Law Center (SPLC) who serves on the team representing Silva, said because their case hinges on the argument that the Guyer Rule itself was unconstitutional, they knew it wouldn’t be resolved in immigration court. 

Currently in the United States Court of Appeals for the 11th Circuit, Silva’s lawyers have submitted a petition for his case to be transferred to the U.S. District Court for the Western District of North Carolina, where they can present their full argument that the Guyer Rule — the portion of the statute that affected Silva — was discriminatory based on race, gender, legitimacy, and marital status, all of which are protected classes under U.S. constitutional law.

“When you’re challenging racial discrimination in a federal statute that on its face is race neutral but has a racially discriminatory purpose and a racially disparate impact on Black people, particularly from Caribbean countries, when you’re making this sort of argument in court, it’s always an uphill battle,” Yoon said, “which in some ways is really silly, because you’re having to prove something that everybody already knows is true, which is that our U.S. immigration laws and citizenship laws are very racist and are rooted in racism. Exposing this truth that everybody already knows is nevertheless an uphill battle in court.” 

A new president brings cautious optimism

Recalling her phone call form Silva on the Friday that he was nearly deported, Yoon said she was shocked as he filled her in on what had just occurred. 

“I’ve heard some miraculous stories of last-minute interventions, but to my knowledge it’s not something that commonly occurs, that last call for anybody who might have a reason not to be deported,” Yoon said. “I’ve never heard of that happening before.” 

Pena, who had spoken to Silva just two days prior to the incident and had no reason to believe deportation was imminent, said she was alarmed at the fact that he would have been sent to the Dominican Republic in the middle of a pandemic without anyone in his direct family — not Pena nor Silva’s three now-grown children — being made aware of it. She only found out about the close call when Yoon called her later that day. 

“It was like out of a movie, I couldn’t believe it,” Pena said. “Usually once you’re on that plane, you’re gone. I am so thankful for his lawyers and the team … If it wasn’t for them he wouldn’t be here right now, he would be somewhere in Dominican Republic stranded. We don’t have any family over there. We have no one, we have no property, if he goes there what are we going to do?” 

In a release from SPLC on the day before his near-deportation, Silva asked for a chance to stay with his family. 

“That’s who I am fighting this case for: my family, and for other families like mine, other people like me,” Silva said. “I have taken responsibility for my choices and served my sentence. All I want is to be with my family. If I’m deported, I don’t know when or if I will see them again.”  

Adding to the dramatics of the moment was the fact that it occurred with just five days left in Donald Trump’s presidency. His successor, President Joe Biden, ordered a moratorium on most deportations for the first 100 days of his presidency just before midnight on Jan. 20, his first day in office. 

Earlier on Wednesday, Biden signed a number executive orders, including five related to immigration: extending protections for DACA Dreamers, restricting the so-called “Muslim Ban,” reversing Trump’s expansion of immigration enforcement within the United States, halting construction of the border wall, and extending an existing moratorium on deportations for Liberians with safe haven in the United States until June 2022. 

Yoon is entering the Biden era with a sense of cautious optimism. She emphasized that a Democratic administration doesn’t necessarily mean all the immigration issues will be fixed. After all, Trump’s predecessor Barack Obama was often called “deporter-in-chief” by his critics in the immigration advocacy field. 

“While we’re hopeful about some of the things that we’re hearing and seeing, we don’t want a return to the old way of doing things when it comes to immigration, because things were already unacceptable prior to Trump taking office,” she said. “Trump made them much, much worse, but what we really need is a true solution for the many, many people who are living in the United States without documentation or who are facing deportation and separation from their families, as well as a solution for the asylum seekers who are fleeing terrible conditions and violence in their countries.”

Pena said she’s optimistic that the recent transfer in power will be helpful in gaining her brother’s freedom. 

“I really do hope so, especially knowing the vice president [Kamala Harris] comes from immigrants,” she said. “I think a lot is going to change for immigrants and people going through these changes. If Trump hadn’t come in, whatever my brother is going through right now wouldn’t be happening. He’s been incarcerated for so long, I’m just hoping they will give him the chance to stay here and hopefully prove that he can make better choices than he did before.” 

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