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the Sacramento Bee

Same-Sex Partners Mired in Deportation 'Nightmare'

Cynthia Hubert

Shirley Tan, right, and Jaylynn Mercado wed in in 2004, but voters said same-sex marriages are invalid. (MANNY CRISOSTOMO)

PACIFICA - Shirley Tan, a petite stay-at-home mother of twins, is wearing pink slippers on her feet and a black electronic bracelet around her left ankle.

"I feel like a criminal," said Tan, sitting on the sofa of the ocean-view home she shares with her longtime partner, Jaylynn Mercado, their 12-year-old sons and Mercado's mother, Renee.

In the eyes of immigration authorities, Tan is in the country illegally. Federal courts have denied her bid for asylum. But beyond that court battle, she argues that the law discriminates against her because she is a lesbian - and cannot be sponsored for citizenship by her partner.

Later this month, unless her pleas to congressional leaders and the courts are successful, Tan, 43, will be deported to her native Philippines, more than two decades after she fled a murderous relative and began a life in the United States.

"It's a shocking thing for all of us," said Mercado, who works in commercial insurance. "All this time, we thought she was legal ... . This is a nightmare."

Things likely would be different if Mercado were a man, according to legal experts.

Tan, who came legally to the United States as a visitor in 1989, wed Mercado in 2004, when San Francisco Mayor Gavin Newsom opened City Hall to same-sex unions. Those marriages later were declared invalid, and this past November California voters approved Proposition 8, which defines marriage as between one man and one woman. The matter now is under consideration by the state Supreme Court.

If Mercado, a U.S. citizen, were a man, she could sponsor Tan for legal permanent residency, their lawyer said. But because federal law limits the definition of marriage to a man and a woman, the couple has no such option.

Congress is debating a change that would add same-sex "permanent partners" to the list of family members that a citizen or legal resident could sponsor for immigration. The Uniting American Families Act is pending on behalf of thousands of gay and lesbian couples facing immigration issues. But the clock is ticking fast for Tan.

"If this were a heterosexual couple, things never would have gone this far," said immigration lawyer Phyllis Beech, who is representing the couple in their appeal of the deportation order issued in January. "Shirley married her partner and has been with her for more than 20 years, but in the eyes of the law, it doesn't mean anything."

So, barring a reprieve, Tan must report to immigration authorities in San Francisco on April 22 and board a plane to a place that she said feels foreign and frightening. Until that hour comes, she said, she refuses to pack her bags.

"We are trying to be optimistic," said Tan, who wears a diamond wedding ring on her left hand. "We are praying that everything works out ... . The Philippines is a strange country to me now."

Tan left the Philippines in 1989, fleeing a cousin who had been convicted 10 years earlier of murdering her mother and sister and attempting to kill Tan. The cousin had just been released from prison. Tan suffered head wounds and fractures in the rampage and still feared him, she said.


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After moving to the Bay Area to live with Mercado, a naturalized citizen from the Philippines who knew Tan's family, Tan applied for political asylum. Immigration authorities denied her case, arguing that the cousin had served his sentence, was not a part of government and did not represent a political threat. For years, the case bounced back and forth between the Bureau of Immigration Appeal and the federal district court. All the while, Tan and Mercado were assured by their lawyer that such matters take a great deal of time and patience, they said.

While they awaited a verdict, Tan got a work permit and a real estate license, and she gave birth to twins after she and Mercado pursued in vitro fertilization.

"It was the first time in my life that I cried tears of joy," said Mercado, who was in the delivery room when the boys were born.

Based on conversations with their original immigration attorney, the couple believed Tan's immigration case was still pending when agents from U.S. Immigration Customs Enforcement rang the doorbell of their home in January.

The officers produced a deportation order dated May 2002, a document that Tan said she never knew existed. They said she was in the country illegally, handcuffed her and took her to jail in downtown San Francisco.

"It was terrifying," Tan said. She was released after five hours with a monitoring bracelet and a promise to check in with immigration authorities three times a week until her departure from the country.

Laurie Haley, a spokeswoman for the immigration agency, said she cannot comment on the case because of privacy issues.

"We are strong members of this community," Mercado said. "Never in our wildest dreams did we think anything like this would happen to us."

The couple has been in contact in recent weeks with representatives of Sens. Dianne Feinstein and Barbara Boxer, and Rep. Jackie Speier, D-San Mateo, requesting that they introduce a private bill on their behalf or otherwise intervene in the case. On Thursday, a day before Tan had been ordered to leave the country, she and Mercado learned that thanks to Speier's intervention, authorities will give them until April 22 to try to resolve matters. But they still worry.

Beech has filed a motion to reopen the case but said it is unclear whether it will be addressed before Tan's ordered departure date. If Tan is deported, she will be banned from the United States for 10 years. If she is forced to leave, Mercado said, her family will reluctantly follow.

On Thursday afternoon, Tan and Mercado remained in limbo, hoping for the best but fearing the worst.

"We're trying to be positive. But we're scared that our family will be torn apart," said Mercado. "We are just living day to day."

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