Lesbian Family Fights Deportation Laws

California resident Shirley Tan, along with partner Jay Mercado and their twin sons, is protesting her deportation and the state’s immigration laws, which they would not be subject to if they were legally married.

After receiving a delay in her planned April 22 deportation, California resident Shirley Tan has benefited from a one-off bill introduced to the judiciary committee by Sen. Dianne Feinstein (D-Ca) that allows her to stay in the U.S. with her family, perhaps permanently. Tan and Jay Mercado, her partner of 23 years and a U.S. citizen, live in San Mateo with their 12-year-old twin sons. On January 28 of this year, immigration officials showed up on their doorstep to give Tan notice of the order for her deportation in April.

The couple had applied for political asylum for Tan in 1995, due to extreme violence that Tan had been subjected to by family members disputing an inheritance in the Phillippines. Tan and Mercado, under the impression that their application was still pending, told the San Jose Mercury News that Tan’s former lawyer did not inform them of a 2002 denial and ruling for deportation. Tan was able to obtain a two-week delay in early April to plead her case with the support of California congresswoman Jackie Speier (D-San Mateo) and Senators Barbara Boxer (D-Ca) and Feinstein.

According to the Immigration and Nationality Act (INA), citizens and legal residents can sponsor their heterosexual spouses for citizenship. Under the Defense of Marriage Act passed by the Clinton administration same-sex marriages are not federally recognized, making the right to obtain legal status unavailable to gay and lesbian couples. Situations like Tan and Mercado’s are faced by an esitmated 35,820 same-sex couples in America, according to census data gathered by Immigration Equality. State-by-state marriage laws do not confer immigration benefits to homosexual couples, since the immigration law is on the federal level.

The discrimination of same-sex couples in immigration law is being contested by the Uniting American Families Act (UAFA). The act was reintroduced to Congress on Frebruary 12 of this year by Nadler and Sen. Patrick Leahy (D-Vt), and now has 110 co-sponsors in the House and Senate. The UAFA proposes to extend sponsorship rights for citizens to their foreign born same-sex partners. The term “partners” is defined by the act in autonomous language relative to the definitions for domestic partners or civil unions, skirting the controversy over those unions and same-sex marriage in many states. Information on immigrationequality.org states, “The UAFA does not seek to add same sex couples to the category of spouse in the INA. Instead, it creates a new category of relationship, permanent partnership, which is recognized under the INA. Although an application for permanent partner status under the INA would be subjected to the same intense scrutiny as a marriage-based application, a successful application would confer no benefits other than immigration status for the foreign national.”

Tan has been granted reprieve from her deportation order while the Senate decides whether it will vote on the UAFA, according to her attorney she will not be up for deportation again until December 2010. “I hope that I can stay here, because I don’t want to be apart from my kids … they are my life, and really we are a solid family, and I love them so much that I don’t want to be separated from them,” Tan told the Bay Area Reporter.

Speier, who helped Feinstein write the private bill, was one of the first California politicians to champion Tan’s case. “I visited with Ms. Tan, her partner, and two sons, and I can attest that this is one of the most cohesive, loving, and functional families I have ever met,” Speier told The Advocate after the bill was passed. “Shirley Tan was in danger of being deported because of her same-sex relationship with her partner of 23 years. This case only underscores the need to pass the Uniting American Families Act so more families aren’t torn apart by unfair and unequal immigration laws.”

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