Silva v. U.S. Attorney General
In January 2022, Asian Americans Advancing Justice-Atlanta, the Southern Poverty Law Center (SPLC), the National Immigration Project (NIPNLG), and Foley & Lardner LLP filed a petition for review with the Eleventh Circuit Court of Appeals challenging the deportation of Kelvin Silva and asserting that the exclusion of unwed U.S.-citizen fathers from the former derivative naturalization statute violates Equal Protection.
Status: Ongoing • Issues: Derivative Citizenship, Equal Protection, Fifth Amendment
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
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
Former permanent resident deported after more than 30 months in ICE custody
Decades After Being Overturned, Discriminatory Guyer Rule Leads to Deportation of Kevin Silva
The Year in Review: Events that Shaped 2021
Former permanent resident who hoped Biden would be his 'miracle' to be deported
Charlotte father thought he was U.S. citizen. Now, he’s facing deportation.
Charlotte Man in Deportation Limbo Due to Obsolete Immigration Law
Charlotte Man Faces Deportation by Obscure, Racist Immigration Law
Permanent resident facing deportation hoping for Biden's help: 'Need a miracle'
Martinez v. Donahue; Benavides v. Gartland
In April 2020, Advancing Justice-Atlanta, the Southern Poverty Law Center, and Kilpatrick Townsend filed a habeas petition and civil rights complaint on behalf of several medically vulnerable immigrants detained at the three Georgia ICE detention centers to seek their release during the COVID-19 pandemic.
Status: Decided • Issues: Immigration Detention, Indefinite Detention
In April 2020, Advancing Justice-Atlanta, the Southern Poverty Law Center, and Kilpatrick Townsend filed a habeas petition and civil rights complaint on behalf of several medically vulnerable immigrants detained at the three Georgia ICE detention centers to seek their release during the COVID-19 pandemic.
Filed
April 2020
Status
Decided
Issues
Immigration Detention, Prison Conditions, COVID-19
Legal Filing
Martinez Memorandum In Support of Motion for TRO (04/08/20)
Martinez Order Denying TRO (04/10/20)
Martinez Memorandum In Support of Preliminary Injunction (04/30/20)
Martinez Second Amended Petition for Habeas Corpus and Complaint (05/18/20)
Martinez Order Denying PI (06/03/20)
Benavides Memorandum In Support of Motion for TRO (04/08/20)
Benavides Order Denying TRO (04/18/20)
Benavides Amended Petition for Habeas Corpus and Complaint (05/07/20)
Benavides Memorandum In Support of Preliminary Injunction (05/08/20)
News & Press Releases
Trinh v. Homan
In February 2018, Advancing Justice-Atlanta filed a nationwide class action lawsuit against ICE to challenge the prolonged and indefinite detention of Vietnamese refugees.
Status: Decided • Issues: Immigration Detention, Prolonged Detention, Indefinite Detention
In 2017, Immigration and Customs Enforcement (ICE) imprisoned dozens of Vietnamese immigrants across the country, including those who came to the United States before July 12, 1995 (pre-1995 Vietnamese).
ICE has historically been unable to remove pre-1995 Vietnamese immigrants with deportation orders to Vietnam. Consequently, ICE for years released pre-1995 Vietnamese immigrants relatively promptly after their deportation proceedings concluded. But ICE abruptly changed its detention practices in 2017 and began imprisoning pre-1995 Vietnamese immigrants for many months.
In February 2018, Advancing Justice-Atlanta, along with Advancing Justice-Asian Law Caucus and Advancing Justice-Los Angeles, filed a nationwide class action in the Central District of California to challenge ICE’s indefinite detention of pre-1995 Vietnamese immigrants under Zadvydas v. Davis.
For more information on deportations of Vietnamese immigrants who entered the U.S. before 1995, please visit this resource page developed by our affiliate, Asian Americans Advancing Justice - Asian Law Caucus
Filed
February 28, 2018
Status
Decided
Issues
Immigration Detention, Prolonged Detention, Indefinite Detention
News & Press Releases
Singh v. Sessions
In May 2018, Advancing Justice-Atlanta appealed to the Eleventh Circuit Court of Appeals a federal judge’s decision denying the release of an immigrant whose removal ICE could not effectuate.
Status: Decided • Issues: Immigration Detention, Prolonged Detention, Indefinite Detention
In May 2018, Advancing Justice-Atlanta appealed to the Eleventh Circuit Court of Appeals a federal judge’s decision denying the release of an immigrant whose removal ICE could not effectuate.
Filed
May 2018
Status
Decided
Issues
Immigration Detention, Prolonged Detention, Indefinite Detention