Decades after Being Overturned, Discriminatory Guyer Rule Leads to Deportation of Kevin Silva

WASHINGTON, D.C. – On February 15, Kelvin Silva, a 45-year-old North Carolina resident, was deported to the Dominican Republic by U.S. Immigration and Customs Enforcement (ICE) under an outdated and discriminatory immigration policy known as the Guyer Rule. The law did not allow U.S. citizenship to be passed from American fathers to their biological children if the parents were unmarried, even though citizenship automatically passed to the children of other American parents who came to the country under the exact same circumstances. Mr. Silva is currently defending his right to be recognized as a U.S. citizen in the U.S. Court of Appeals for the Eleventh Circuit.

Mr. Silva endured more than 30 months inside Georgia immigration detention centers, including the Stewart Detention Center, one of the deadliest ICE prisons in the U.S. While still fighting his case, ICE deported Mr. Silva to the Dominican Republic where he has no close family members and no permanent residence. His mother, children, siblings, and other relatives live in the U.S. He is now facing a health crisis in a country he has not lived in since he was a young child.

The Dominican Republic carries a level 4 COVID-19 travel advisory warning, with cases spiking dramatically in recent days. The deportation increases the likelihood that Mr. Silva, who has underlying medical conditions, would be exposed to the virus.

Mr. Silva obtained a green card and legally moved to the U.S. from the Dominican Republic when he was 11 years old, joining his father who was a naturalized U.S. citizen. For years, Mr. Silva believed he was a U.S. citizen through his father, but in fact, the Guyer Rule prevented citizenship from being passed to Mr. Silva from his father.

Enacted in 1940, the Guyer Rule is a racially discriminatory law that prevented U.S.-citizen fathers from passing their citizenship status to foreign-born children born outside of marriage. Mothers, however, did not have to meet the criteria of marriage to bestow citizenship on their children born abroad. The Guyer rule disproportionately restricted how Black and brown fathers could secure citizenship status for their children, and for decades was maintained for just that reason.

In 2000, Congress recognized that the Guyer Rule is discriminatory and unfair by repealing it in the Child Citizenship Act of 2000. Unfortunately, the new law did not apply to people over the age of 18, like Mr. Silva. For this reason, Mr. Silva and thousands of other similarly situated immigrants continue to suffer the discriminatory effects of the Guyer Rule.

Asian Americans Advancing Justice-Atlanta (Advancing Justice-Atlanta), the National Immigration Project of the National Lawyers Guild (NIPNLG) and the Southern Poverty Law Center (SPLC) are representing Mr. Silva in his federal case that claims the Guyer Rule is unconstitutional because it discriminates based on gender and race.

“The Guyer Rule exemplifies the same type of anti-father discrimination that the U.S. Supreme Court ruled unconstitutional in Sessions v. Morales-Santana in 2017,” said Meredyth Yoon, litigation director for Advancing Justice-Atlanta. “And although the Guyer Rule makes no explicit mention of race, historical records show the Guyer Rule has an unequivocally racially discriminatory purpose, and it has had a disproportionate impact on Black immigrants, not to mention the profound harm it has inflicted on generations to come.”

Peter Isbister, senior lead attorney for the SPLC said, “This unjust deportation not only separates Mr. Silva from his children here in the U.S. but it also puts his health and safety at risk due to the high rates of COVID-19 transmission currently in the Dominican Republic. We are deeply concerned for his well-being as he continues to fight for his right to be recognized as a U.S. citizen and be present in the nation where he was raised as an American and where he raised his American family.

Cristina Velez, supervising attorney for the National Immigration Project said, “Mr. Silva’s deportation is a devastating outcome that emphasizes the racist impact of a law that arbitrarily excludes unmarried fathers from passing on their citizenship and reflects harmful stereotypes about the bonds between fathers of color and their children. Mr. Silva should be home with his family instead of struggling alone in a country he hasn’t seen since he was 11 years old. We condemn ICE’s decision to remove him while he continues to fight for recognition of his U.S. citizenship, and on behalf of others like him.”