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Former permanent resident deported after more than 30 months in ICE custody

Courtesy of Maria Rodriguez

(NEW YORK) — After more than 30 months in detention centers, Kelvin Silva was deported last week by U.S. Immigration and Customs Enforcement to the Dominican Republic. His mother, children and siblings continue to live in the U.S.

Silva, 45, legally moved to the United States when he was 11. His father was residing in the U.S. as a naturalized citizen, and Silva became a lawful, permanent resident. He had a Social Security card and paid taxes — until an immigration judge revoked his status.

“My belief was that I was a citizen through my father,” Silva previously told ABC News.

But that was not the case. Silva, whose parents were not married, never became a U.S. citizen. At the time he immigrated, the Immigration and Nationality Act of 1940 was still the law. It barred children like Silva, whose parents were never officially married, from gaining citizenship status through their fathers.

That law was repealed by Congress in 2000, but the new legislation was not applied retroactively to people over the age of 18, which Silva was at the time.

“There’s this group of people that we maintain are unfairly being punished under the old rule,” Peter Isbister, one of Silva’s lawyers and a senior lead attorney with the Southeast Freedom Initiation at the Southern Poverty Law Center, told ABC News.

After his father died when he was a teenager, Silva said he became involved in illegal activities. He was convicted in 2013 for possession with intent to distribute marijuana and cocaine and sentenced to 127 months in federal prison. He earned his GED behind bars and completed a drug abuse program.

But two days before he was tentatively supposed to be released from the custody, ICE began his removal proceedings. That was on July 16, 2019. Since then, Silva remained in ICE custody as he continued to fight to earn his citizenship retroactively. Up until last week.

Silva, whose deportation proceedings began under former President Donald Trump, thought the Biden administration would be his “miracle.”

Just a few months after President Joe Biden was inaugurated, ICE issued an administrative stay in his case at the direction of the U.S. Department of Homeland Security, according to the Southern Poverty Law Center. Silva remained in the U.S.

But there were several times Silva thought he would be deported. He was “toyed with” multiple times, according to Isbister. On several occasions, he was put on a bus or a plane, expecting to be deported, only to be brought back to a detention center, his attorney said.

“He was shackled the whole time,” Isbister said of these moments.

But after more than 30 months in ICE custody, Silva’s hope vanished. He was deported on Feb. 15.

Silva, who has not been to the Dominican Republic since he was 11, has no immediate family members in the country, his family says.

ICE has previously told ABC News that Silva entered the U.S. legally but violated the terms of his admission with multiple drug convictions.

The agency said Silva is “an aggravated felon who falls within the current priorities for civil immigration enforcement arrest and removal set forth by the current administration.”

People who “pose a threat to public safety” are prioritized for deportation, an ICE spokesperson said.

According to Isbister, Silva, his family, and his attorneys are all disappointed in the Biden Administration, which had the discretion to keep him in custody as his case continued to be litigated.

A spokesperson for ICE did not immediately respond to ABC News’ request for comment on Wednesday.

“The divergence between the Biden administration’s rhetoric on racial justice and racial equity, and the positions that they took when they had a choice in this case – that’s what’s upsetting,” Isbister told ABC News.

“To have him removed in Black History Month, where with one hand the Biden administration is rightfully elevating the first black woman to the highest court in the land… and with the other hand, really not lifting a finger in the face of the Guyer rule and Kelvin’s removal,” Isbister said, referencing the 1940 law that deprived Silva of citizenship.

“When push comes to shove, the immigrant community comes out on the bottom,” Isbister said.

Despite his deportation, Silva’s attorney says he will continue to fight to be recognized as a U.S. citizen as his case is fought in the U.S. Court of Appeals for the Eleventh Circuit.

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