Earlier this year, 44 year-old Kelvin Silva found himself detained by ICE in Stewart Detention. Silva faces deportation back to the Dominican Republic, a country that he does not know. He has been living in Charlotte, North Carolina most of his life after he was brought to the United States at the age of 11 by his father who was a U.S. citizen.
Unfortunately, Silva was unaware of his legal status, and only found out after getting arrested in 2010. He was given a 120-month federal prison sentence, earned his GED along the way, and took a drug-treatment program that would have made him eligible for early release.
Two days before Silva was scheduled to be released, ICE placed a detainer on him, and he was transferred to D. Ray James Correctional Facility in Folkston, Georgia. Soon after, he was transferred to the Stewart Detention Center in Lumpkin, Georgia. This case is important because it tells the story of someone who became a victim to the racially discriminatory law known as the Guyer Rule.
The Nationality Act of 1940 was the first statute that explicitly mentioned citizenship for foreign-born children of American parents. However, the Guyer Rule was the law that would go on to place marriage as a requirement for patrilineal citizenship transmission. This law prevents U.S. citizen fathers from passing their citizenship status to non-citizen children born out of wedlock.
This law came to be from the 1864 court case Guyer v. Smith, where two sons were born overseas to a white U.S. citizen father and a black mother from St. Barthélemy. This case was initially about property in which the Maryland court of appeals would decide if the two sons born outside the United States could inherit their fathers property even if their parents were not married.
Although the statute jus sanguinis, (Latin for law relating to blood) said that fathers could transmit citizenship to children born abroad, the Guyer court required their parents to have been married, therefore citizenship transmission from the father would not be allowed.
Kelvin Silva would have become a U.S. citizen through the Child Citizenship Act of 2001 (CCA). The Child Citizenship Act had been written to omit the Guyer Rule. Unfortunately, “the CCA was not given retroactive effect” claims the Southern Poverty Law Center. This meant many black immigrants that resided permanently and lawfully in the U.S. for decades would not be recognized as U.S. citizens.
Eligibility for the Child Citizenship Act is listed in the following conditions:
- Have at least one U.S. citizen parent by birth or naturalization
- Be admitted to the United States as an immigrant for lawful permanent residence
- After admission to the United States, reside in the country in the legal and physical custody of a U.S. citizen parent
- If the child is adopted, his or her adoption must be full and final so that the adoption process is legally complete and fully recognized by the U.S. state where the child is residing.
Franco Clements is another black man detained in Stewart as a result of the Guyer rule. He came to the United States from Liberia when he was 15, and lived in Newark, New Jersey. Clements had been taking general studies in college before owning his own car lot in Charlotte. Since being in the detention center, Clements has stated,
“I haven’t seen any Blacks be released… The system is racist and prejudiced. When it comes to Blacks, it’s deportation. Something’s not right; it doesn’t add up.”
Similar to Silva, Clement’s father was a U.S. citizen, but never married his mother. In Stewart, he describes being treated like an alien due to his skin color and “that being detained under the Guyer Rule is “unjust, cruel, unfair and racist.”
Laws like this are especially detrimental to people of color when 7% of non-citizens in the U.S. are Black, and yet “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.”
Laws limiting access to citizenship are the reason why citizenship or any form of protective status is not a linear path. Researchers like Dr. Kristin A. Collins have connected these immigration laws to the ingrained nativism that exists in the United States. Dr. Collins’ scholarship is on citizenship and immigration law, and has had the supreme court extensively draw from her scholarship in regard to gender discriminatory citizenship in Morales v. Santana.
In one of her earlier research papers in The Yale Law Journal, “Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation” she dissects the Latin term Jus Sanguinis, the principle that the nationality of children born is the same as of their parents, regardless of place of birth.
Despite the Guyer case saying little about race, Dr. Collins saw it as a way for the United States to maintain “slavery and the denial of citizenship for persons of African descent: laws that recognized the unmarried mother as the source of status for her children, including slave status.”
As a response to obscure immigration laws like this one, activists like Jose Antonio Vargas have worked extensively to teach others about the immigrant experience with the United States. He is known for founding the organization Define America, and his best-selling memoir, Dear America. Vargas has been very vocal about how being undocumented means being “in a toxic, abusive, codependent relationship with America.”
Similar to Franco Clements and Kelvin Silva, Jose Antonio Vargas was not aware of his undocumented status. In his memoir Dear America, he describes going to the DMV expecting a driver’s license and instead learning that he does not have a social security number.
With new immigration reform being promised in the $3.5T Reconciliation Package, it is important to highlight these discriminatory laws that continue to exist. It has been decades since the introduction of the Guyer Rule, and immigration reform allowing easier pathways to citizenship are long overdue as many immigrants in the United States are essentially “American without papers.”
Flor Chavez Barriga is an undergraduate student at Oglethorpe University in Atlanta, GA studying History and Sociology with a focus on research. She was born in Michoacan, Mexico, and grew up in Atlanta surrounded by the rich history of Martin Luther King’s legacy. She previously attended Freedom University where she was given the opportunity to achieve higher education, while also learning about collective action and human rights. Flor is passionate about the south’s reaction to immigration with its restrictive policies and infamous detention centers. She hopes to highlight the voices of communities in the south that have helped combat all the hurdles that continue making immigrant lives harder.