Charlotte father thought he was a US citizen. Now, he’s facing deportation.
Kelvin Silva saw the signs and suspected the worst.
His commissary account at the Stewart Detention Center in Lumpkin, Georgia — one of the facilities where Immigration and Customs Enforcement has detained him over the past two years — was showing zero. He was taken in for a coronavirus test. Then at 1 a.m. the next day, on Jan. 15, he was woken up and told to pack his things.
A few hours later, Silva found himself in handcuffs and shackles inside a plane in Atlanta. He suspected that he was about to be sent to another immigration facility in Louisiana, his last stop before being deported to the Dominican Republic — a country he had not seen since leaving for the U.S. over 30 years ago.
“Is this really happening?” the 44-year-old Silva thought.
He had just spoken to his children over the detention center phone earlier that week, and now he was on his way to a country he knew nothing about, with no clothes other than what he was wearing.
Then, someone took Silva off the plane. There were about 32 other people onboard, Silva told The Charlotte Observer in an interview from the detention center, but he was the only one who was taken off.
Behind the scenes, advocates and attorneys at the Southern Poverty Law Center and the National Immigration Project of the National Lawyers Guild had been lobbying for Silva. Meredyth Yoon, an SPLC attorney representing Silva, said that in the final days of the Trump administration, immigration attorneys have suspected that ICE had rushed to deport Black immigrants.
Although it’s unclear why agents removed him from the plane, Silva’s still not in the clear. He wonders if he’ll ever be able to make up for lost time with his three children, two of whom are now in their 20s, and return to Charlotte and restart his tattoo shop.
“People don’t know how hard it is being away from your loved ones, especially your kids,” he said.
Permanent resident, not a citizen
Silva immigrated to the U.S. when his father brought him to New Jersey from the Dominican Republic when he was 11. His father became a naturalized U.S. citizen that same year, and Silva grew up with the belief he also was a U.S. citizen — except he wasn’t.
In 1988, the year Silva moved, federal law allowed only unmarried American mothers — not unmarried fathers — to automatically pass their citizenship to their children, said Rick Su, a UNC School of Law professor. Citizenship could only be claimed for the child if the father went through some process — such as marrying the mother, proving paternity or signing an affidavit agreeing to support the child, he said.
Silva thought he had no reason to doubt his citizenship. He was a minor, and his father and full-time caretaker was a U.S. citizen. Silva also thought he was a citizen when he signed up for an intensive drug abuse treatment program — only available to citizens — that shortened his 10-year prison sentence for a drug conviction.
However, Silva only learned the truth in 2018 when ICE put a hold on his case, the day before he thought he would be released from prison, Yoon said. Authorities soon transferred Silva to a new facility for deportable non-citizens.
Yoon said Silva was placed in deportation proceedings because he was a permanent resident who had been convicted of a crime.
Cristina Velez, a National Lawyers Guild attorney who is also representing Silva, said that his deportation is in effect a “double punishment” because he has already served prison time.
U.S. Citizenship and Immigration Services deferred to an ICE spokeswoman, who wouldn’t comment because litigation is pending.
The law changed in 2001 so that those who came to the U.S. under circumstances similar to Silva’s would automatically gain citizenship if they had lived in the U.S. long enough.
What happened to Silva — assuming he had citizenship when he was a permanent resident — is common, Su said.
“These things don’t hit you until it hits you,” he said. “People think ‘Oh, legal permanent resident, he’s fine,’ but they don’t realize how easily you can be removed.”
Missing Charlotte and family
Moving to Charlotte in the early 2000s was a breath of fresh air for Silva — literally. After living in New York City and New Jersey, Silva loved how friendly people were in Charlotte and saw how the city grew. Silva said he liked to go to casinos in North Carolina and take his children to Carowinds.
His sister Jasmine Pena said Silva would often encourage her to visit from New York, bragging about how good the chicken tasted. Silva said he ran some businesses, including a tattoo shop in northern Charlotte, and employed 18 people at two Mexican bakeries under the name Panaderia Mayo.
However, Silva was also selling drugs — a path he said he was set on after his father died in an accident when Silva was 17.
“When my father passed, my life became a roller coaster,” Silva told The Observer. “I started making the wrong choices and making mistakes.”
In 2011, Silva pleaded guilty to a non-violent drug offense, and he was sentenced to more than 10 years in prison, Yoon said. Public records show Silva was charged with trafficking cocaine.
In prison, Silva got his GED and taught parenting classes. He was looking forward to being with his children again and restarting his businesses, until he found himself in an immigration battle.
He said being in prison and his immigration issues have strained his family relationships.
Silva said that around the time he thought he would be released from prison, he promised one of his sons that he would be at his basketball game. Since then, Silva hasn’t heard from that son. Silva said that before his incarceration, he was someone who made sure the family held a reunion every year. Now, he worries that some relationships are splintering without him around.
“It’s a life experience that I wish nobody goes through – being away from your loved ones. That’s the worst,” he said.
Are U.S. citizenship laws racist?
The Southern Poverty Law Center is hoping to challenge the immigration laws that were in place when Silva came to the U.S. — specifically a part of the Nationality Act of 1940 that prevents unwed citizen fathers like Silva’s from passing down citizenship. The SPLC is calling this provision “The Guyer Rule.”
Su, who is an immigration law professor, said the 1940 law codified that when citizenship is transferred to children from parents, the marital status of the parents would matter, and women and men would be treated differently.
Yoon and Velez argue that the provision that establishes that unwed fathers should be treated differently than unwed mothers had anti-Black intentions and has disproportionately affected Black immigrants, particularly those from Caribbean countries.
Su said that race is encoded in immigration law, by design, since the laws concern one’s nationality and ethnicity, which act as a proxy for race and religion.
“Are these laws based in part on race? The answer is yes, clearly yes,” he said.
However, courts have been historically taken a hands-off approach when it comes to race and sex discrimination in immigration law, Su said.
Silva’s case is in Circuit Court, though his attorneys are hoping to move the case to District Court for a trial. Velez, one of his attorneys, said they hope the court will recognize the law that affected Silva’s citizenship discriminates against gender and race and, as a result, help others in similar situations.
In the meantime, Silva is thinking of his family — particularly Pena, his sister, who just had her first child.
“I’m hoping they’ll give me a chance (and let me) show the tools I’ve learned and give back to the community instead of taking,” he said.
This story was originally published January 29, 2021 at 11:00 AM.
