‘Cruel, Unfair and Racist’: Black immigrants whose fathers are U.S. citizens push to overturn law that keeps them from obtaining citizenship

By Liz Vinson

Behind the steel gates of a remote immigrant prison in Georgia lies a visitation room where detained people speak to visitors through a plexiglass window. There are messages etched on the visitor’s side – words the detained men and women sitting opposite can’t see.

“Be anxious for nothing,” one message reads. “I’m sorry,” “Jesus,” and “No Borders” read others. They’re messages of hope – a feeling lost for many Black people who are detained at the Stewart Detention Center in Lumpkin, Georgia.

The message with the most power, however, is in Spanish, and it speaks volumes: “Sí, se puede.” The English translation: Yes, it’s possible. Yes, you can.

But this message is pierced with doubt, as people at Stewart and in other immigrant detention facilities across the country fight an uphill legal battle for their release.

Kelvin Silva – one of many Black men held at Stewart – is facing deportation because of an archaic and racially inequitable law known as the Guyer Rule that prevented him from becoming a U.S. citizen as a child, even though his father was a naturalized U.S. citizen. Were it not for the Guyer Rule, Silva – who was born in the Dominican Republic but grew up in the United States – would have automatically gained citizenship when he was just 11 years old.

Enacted in 1940, the Guyer Rule prevented U.S.-citizen fathers, but not U.S.-citizen mothers, from passing their citizenship status to foreign-born, nonmarital children – in other words, children who were born “out of wedlock.” The rule disproportionately restricted how nonwhite parents could secure citizenship for their children – and for decades was maintained for just that reason.

The Southern Poverty Law Center and its co-counsel are representing Silva in a federal court challenge 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, a lead attorney with the SPLC’s Southeast Immigrant Freedom Initiative, which is representing Silva. “And although the law Mr. Silva is challenging 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.”

The racist Guyer Rule originates from an 1864 Maryland court decision, Guyer v. Smith, in which the court ruled that two sons born overseas of a white U.S.-citizen father and a Black mother from St. Barthélemy were “not born in lawful wedlock” and thus were not U.S. citizens. The Guyer Rule was subsequently incorporated into federal nationality laws, first through administrators’ policies and practices, and later by Congress through the Nationality Act of 1940.

Although Black immigrants were eligible for naturalization starting in 1870, historical and legislative records show that lawmakers nevertheless worked to limit the number of people of color who could become U.S. citizens. Across decades when white supremacy, segregation and eugenics undergirded the entire American legal system, administrators and legislators accomplished this goal in a variety of ways, including literacy tests, a racially discriminatory quota system and immigration preference categories that prioritized the “marital” family over other forms of familial arrangement, notably at a time when interracial marriage was illegal in most U.S. states.

In treating marriage as a prerequisite for U.S.-citizen fathers, but not U.S.-citizen mothers, to pass their citizenship status on to their foreign-born children, lawmakers were relying on the outdated stereotype that mothers have closer bonds with their nonmarital children than fathers do.

“These false stereotypes have disproportionally harmed Black communities by preventing fathers from passing citizenship to their children,” said Neyissa Desir, an SPLC outreach paralegal.

Congress repealed and replaced the discriminatory Guyer Rule in the Child Citizenship Act of 2000. But the new law did not apply to children over 18. That means Silva and many other similarly situated immigrants who were prevented from becoming U.S. citizens under the Guyer Rule continue to suffer its discriminatory effects simply because of the year they were born. Had Silva been born on or after Feb. 27, 1983, he would have been under 18 when the 2000 law was passed and thus his citizenship would not be in question.

“Fairness is all I’m asking for,” said Silva, 44. “This is my country – the only country I know.”

 ‘Immoral and unconscionable’  

Silva, who identifies as both Black and Latino, has been detained since July 16, 2019, and he is facing possible deportation to a country he no longer remembers.

But his legal fight is not over.

As the SPLC fights in court and urges Congress to overturn the rule, the longtime resident of Charlotte, North Carolina, has the support of his representative in Congress.

“Mr. Silva has an existing petition for review in the Eleventh Circuit, which involves a nationality claim and equal protection challenges to a discriminatory citizenship law, but for which he would stand recognized as a U.S. citizen,” U.S. Rep. Alma Adams wrote in a letter to Immigration and Customs Enforcement (ICE) in April. “It would be immoral and unconscionable, and potentially illegal, for ICE to deport Mr. Silva before the Court has ruled on the merits of his nationality claim.”

The ‘cruelest part’

When Joe Biden was elected president, Silva hoped his dreams of being reunited with his family might come true. He was praying for a “miracle,” Silva told ABC News in December.

But eight months after the inauguration, Silva remains imprisoned at Stewart.

Silva, whose parents were not married, joined his father in the U.S. in April of 1988, when he was 11 years old. Before ICE initiated deportation proceedings against him, he believed he was a U.S. citizen because his father was a citizen. He has only distant memories about his childhood in the Dominican Republic, where his grandmother took him to church on the weekends.

When Silva was 17 years old, his father passed away. Without his father, Silva said, his life became a “roller coaster,” and he soon found himself in the streets.

“I’m going to be honest,” he said. “I regret it. I regret every [one] of the things I did in my past.”

In 2010, Silva was arrested. He completed a 120-month federal prison sentence, earning his GED certificate along the way, and took a drug treatment program that would have made him eligible for early release. But just two days before Silva’s planned release date, ICE placed a detainer on him instead, and he was transferred to the now-shuttered D. Ray James Correctional Facility in Folkston, Georgia, a federal prison that housed non-citizens facing deportation. Silva was subsequently transferred to the Folkston ICE Processing Center, and later to Stewart.

Silva said the “cruelest part” of his detention is being separated from his children. Fearing the worst, he sleeps with his shoes on in case ICE deports him in the middle of the night.

“It’s like I’m waiting for a life sentence,” Silva said. “I don’t know what’s going to happen.”

Silva has deep roots and extensive ties to the U.S. When he lived in Charlotte, he owned his own bakery and a tattoo parlor, where he used his airbrushing skills to promote his businesses. As a father and grandfather, he is extremely close to his children and family.

Should Silva be deported to the Dominican Republic, he would likely find himself homeless, he said, sleeping on the streets of a country that has long since faded from his memory.

“I have no family there,” Silva said. “I would never again be able to give my kids a hug or be there with them when I talk to them about their day and ask them how they’re feeling. It would feel like I’m in the desert, completely stranded.”

Silva is now up against an immigration system that is particularly harsh for Black immigrants. For example, while 7% of noncitizens in the U.S. are Black, they comprise 20% of those facing deportation on criminal grounds, even though there is no evidence they commit crimes at a higher rate, according to the Black Alliance for Just Immigration. Black immigrants are also six times more likely to be locked up in solitary confinement while in detention.

The racial disparities are not lost on Franco Clements, another Black man detained at Stewart because of the Guyer Rule.

“I haven’t seen any Blacks be released,” Clements said. “The system is racist and prejudiced. When it comes to Blacks, it’s deportation. Something’s not right; it doesn’t add up.”

Treated like an outsider

Clements, 50, came to the U.S. from Liberia when he was 15. Living in Newark, New Jersey, he took general studies in college before working in construction and owning a car lot in Charlotte.

Clements’ father, like Silva’s father, was a naturalized U.S. citizen. But because Clements’ parents never married and because he was born in 1971 – putting him past the age of 18 when the Child Citizenship Act of 2000 was enacted – he, too, was prevented from becoming a citizen by the Guyer Rule. Clements has been locked up at Stewart since March 12, 2020. At Stewart, an immigration judge ruled that due to his parents’ “situation,” Clements was a noncitizen and subject to imminent deportation.

More than anything, Clements said, he misses his two children and eight brothers and sisters. Due to the stress of detention, he has begun to take medication.  At Stewart, he said he’s treated as if he were an “alien” due to his skin color. He said that being detained under the Guyer Rule is “unjust, cruel, unfair and racist.”

Clements fears his life will be in danger if he is deported to Liberia.

“Liberia is always at war,” he said. “They could poison me, murder me. … I live in fear of the unknown, and [the U.S.] – my country – is the only country I’ve ever known.”

Meanwhile, Clements’ younger sister is fighting a brain tumor.

“How am I supposed to take care of my sister in this place?” he said. “I want to help my sister. She doesn’t want to die. It hurts my feelings and breaks my heart that ICE has taken me away from my family.”

A ‘shameful legacy’

Stewart Detention Center is operated by the for-profit, privately owned prison company CoreCivic under a contract with the federal government. Founded in 1983 and formerly known as the Corrections Corporation of America, CoreCivic is the world’s largest private prison company. It owns and operates more than 100 prisons and detention centers across the country and has nearly $2 billion in revenue each year.

“The people who want to fight their cases get deported,” Silva said. “And, at the same time, there are people who are asking to be deported who just sit here, making money for this place.”

In 2020, CoreCivic earned a net income of $54.2 million.

“Prison and detention corporations like CoreCivic and the GEO Group have positioned themselves at the top of a longstanding power differential that extracts profit from the bodies and labor of Black and Brown people for the financial benefit of a few,” Yoon said. “This shameful legacy dates back to slavery and should be abolished.”

‘Shocked’

Robert Lodge – a 42-year-old Black man who suffers from extreme chronic health problems for which he is not receiving care at Stewart – came to the U.S. from Jamaica to live with his naturalized U.S.-citizen father in 1992, when he was 12. He said he has only “bad” memories of a country where he was threatened with gang violence.

As a child new to the U.S., he grew to love American football. In his free time, he enjoyed working with his father in an automobile shop and later found a trade by working for a company that moved furniture for United Airlines. But he found himself homeless and got in trouble with the police while living in Atlanta. While in prison in Georgia, he learned that ICE had placed a “hold” on him, and that he would be transferred to ICE custody after his sentence.

“I was shocked,” Lodge said, as he had always believed himself to be a U.S. citizen. “I became really depressed. This has taken a serious toll on me. I want to see my family, my friends, work. But I can’t do any of that. I’m just laid up every day, wondering if I’ll ever get released.”

Lodge’s demeanor is somber and gentle. The sadness in his eyes and his downcast expression make it clear that life in detention has been difficult. At Stewart, Lodge said he sleeps the day away and he feels like he’s wasting his life.

“I should be a U.S. citizen today,” said Lodge, whose parents never married. “I feel cheated in here, because I’ve been in the United States all of my life.”

If not for the Guyer Rule, Lodge would stand recognized as a U.S. citizen, and he would not be facing deportation.

He can’t even imagine what deportation would look like.

“I have no family there, no support,” he said. “There would be no way I’d be able to start a life in Jamaica.”

‘Freedom for Everyone’

As the court battle over the Guyer Rule proceeds and civil rights advocates press Congress to change the law, these men are pleading for the opportunity to be reunited with their families in the United States.

“Everybody needs a second chance,” Lodge said. “I’ve been through a lot. I’m not a bad person; I’m a good person. You only get one life, and I want to be happy.”

Silva wants a second chance to make amends where he knows he caused harm more than 11 years ago.

“I messed up,” he said. “But I’ve changed. I’ve learned. I’m not the person I used to be, and I want to show that to the world.”

“I am human,” Clements said. “I have a family that loves me and children to take care of. I cannot go back to a country I don’t know. I want to do the best I can with the little time left I have here on earth.”

Yoon said that ICE’s continued imprisonment and deportation of people who have already finished serving their sentences for criminal convictions constitutes a form of double punishment.

“They deserve the chance to rebuild their lives, and if it weren’t for the Guyer Rule, these men would have that chance – just like any other U.S. citizen who has completed their sentence.”

On the window in the visitation room at Stewart is a final etching: “Freedom for Everyone.”

That freedom, Yoon said, would come through action from the Biden administration.

“The administration has the opportunity to make good on the president’s promise to enact racial justice,” she said. “The administration should do so by declining to detain, deport or seek the deportation of individuals who would have become U.S citizens as children if not for the arcane, unfair and discriminatory Guyer Rule.”