Silva v. U.S. Attorney General

August 31, 2023 Kim Nguyen

In January 2022, Asian Americans Advancing Justice-Atlanta and partners filed a petition for review with the Eleventh Circuit Court of Appeals on behalf of Kelvin Silva, challenging a sexist and racist former law that excluded naturalized U.S.-citizen fathers like Mr. Silva’s from passing their citizenship status to immigrant children who were born “out of wedlock.”

Although the Child Citizenship Act of 2000 (CCA) changed this more than 20 years ago, it did not do so retroactively for children who had already turned 18 years old when the CCA took effect on Feb. 27, 2001, excluding thousands like Mr. Silva who immigrated to the U.S. as children decades ago to live with their custodial U.S.-citizen fathers.

The prior law’s limitation on father-to-child citizenship transmission was based on Guyer v. Smith, an 1864 Maryland court opinion holding that the children of a white American father and a Black mother from St. Barthelemy had no claim to U.S. citizenship because they were born “out of wedlock.”

Congress later codified the Guyer Rule in the Nationality Act of 1940 and recodified it in the 1952 Immigration and Nationality Act (INA), adding a provision to the derivative naturalization statute that allowed naturalized mothers to transfer citizenship to nonmarital children. Naturalized fathers, however, had no ability under the statute to transfer citizenship to their nonmarital children - even if the child was in the father’s full custody. This exclusion had a disproportionate impact on Black immigrants.

Mr. Silva’s petition for review challenges the exclusion of unwed fathers from the former statute for violating Equal Protection and was filed by Asian Americans Advancing Justice-Atlanta, the Southern Poverty Law Center (SPLC), the National Immigration Project (NIPNLG), and Foley & Lardner LLP.

Filed
January 28, 2022

Status
Ongoing

Issues
Derivative Citizenship, Equal Protection, Fifth Amendment

Legal Filing

Kelvin Osvaldo Silva’s Response to Court’s April 15, 2024 Order (04/29/24)

Opening Brief (08/16/22)

Reply Brief (01/06/23)

Response to OIL’s Rule 28(j) Letter (05/31/23)

News & Press Releases

NC man argues outdated, discriminatory law led to deportation

AAAJ-ATL, NIPNLG, SPLC Issue Statement Upon Filing Brief With the 11th Circuit Court of Appeals

‘Second Chances’: Racist Law Preventing Citizenship for Black Immigrants Leaves Man Fighting His Case from Afar