Washington Blade - July 06, 2007
Lou Chibbaro Jr

Whaley stood by his domestic partner, Aurelio Tolentino, 34, a native of the Philippines, for the past two years as Tolentino waged a losing legal battle to fend off a U.S. deportation order brought about because of his HIV-positive status. A U.S. immigration law bans HIV-positive immigrants from staying in the country.

On July 11, five days before he would be subject to arrest and deportation, Tolentino is scheduled to fly from Gulfport to Billington, Wash., where he will rent a car and drive 30 miles north to the Canadian border. In a process arranged through his lawyers in the U.S. and Canada, Canadian customs officials will allow Tolentino to enter that country as a "refugee" from the United States.

The Canadian option was made possible, in part, because Tolentino's mother lives in Vancouver, British Columbia, as a naturalized Canadian citizen.

"We're going to have a little get together at the house with friends," Whaley said Monday. "It's a kind of a going away party for Aurelio," he said. "But I don't have it in my heart to celebrate the Fourth of July because I feel so let down and disappointed in this country and what it's supposed to stand for."

In what he calls a heart-wrenching choice between remaining in the U.S. or joining the man he loves in Canada, Whaley says he will move to Canada as soon as Tolentino obtains legal resident status there, as expected by his lawyers. At that time, the two gay men will marry in Canada under the Canadian same-sex marriage law. As Tolentino's legal spouse, Whaley will be eligible for permanent resident status in Canada. The two plan to live in Vancouver.

As a registered nurse, Tolentino expects to find gainful employment in Vancouver, where nurses are in high demand, just as they are in the U.S. He has worked in hospitals and health care facilities in California and Mississippi since arriving in the U.S. in 1999.

Authorities found out about his HIV status in 2005 when he applied for permanent U.S. resident status and took a required physical exam and blood test. When the blood test turned up positive for HIV, immigration officials immediately denied his residence application, revoked his work permit and issued a deportation notice.

Citing the U.S. Immigration and Nationality Act, as amended in 1993, immigration authorities informed Tolentino in a letter that the law bars "any alien" from remaining in the country if they are found to have "a communicable disease of public health significance, which shall include infection with the etiologic agent for acquired immune deficiency syndrome (AIDS)."

A Democratic-controlled Congress added the 1993 HIV immigrant ban to the immigration law at a time when fears about the transmission of the AIDS virus ran high and lawmakers worried that a flood of foreigners infected with the virus could overload the U.S. health care system. President Clinton denounced the law as punitive and unnecessary but signed it anyway.

This week, with the July 4th holiday coming one week before Tolentino's departure to Canada, and with the couple facing separation for a year or more, Whaley says the fireworks display over the Gulfport waterfront was the last thing on his mind.

"He's a hardworking, wonderful person," Whaley said of Tolentino. "He would make a model U.S. citizen. I love my country, but at this time I feel such betrayal."

HIV brought them together

In interviews, Tolentino and Whaley, who also has HIV, told of how their HIV status brought them together and later, through U.S. immigration polices, threatened to pull them apart.

The two met in November 2004 through an Internet chat room set up for people with HIV. At the time, Tolentino, who lived in Long Beach, Calif., said he became depressed upon learning of his HIV status and sought information and encouragement from peer counselors and others with HIV through the America Online chat room.

Tolentino was impressed by Whaley's encouraging comments and helpful advice about coping with medication and doctors' visits.

"I told him to call me on my cell phone," Tolentino said. "We then talked by phone every single day."

By February or March of 2005, the two developed a "serious relationship" over the phone, which soon progressed to romantic and "intimate" conversations through camera hookups on their respective computers, Tolentino said. They met in person for the first time in June 2005, when Whaley arranged for a rendezvous at a New Orleans hotel.

"It was like cloud nine," Tolentino said. "After two days in New Orleans, we drove to his house in Mississippi. That's when we decided to be a couple."

Over the ensuing months, Whaley flew to California and the two vacationed in Palm Springs. The gay-friendly resort town made such an impression on the two that they considered moving there together.

When Tolentino's application for permanent residence status led to the government's discovery that he was HIV positive, Whaley jumped into the legal battle to help fight the deportation order.

Separated by Hurricane Katrina

The two were to discuss Tolentino's legal strategy at Whaley's apartment in Gulfport in August 2005 when an impending hurricane forced the cancellation of Tolentino's flight from California to Gulfport.

Hours later, Tolentino watched the TV reports of Hurricane Katrina from his home in Long Beach with horror. With landline and cell phone communication cut off, he could not reach Whaley for nearly 24 hours.

"I didn't know if he was alive. We learned that so much of Gulfport was destroyed. It was so horrible."

When he finally reached Whaley, he learned that Whaley had evacuated his apartment shortly before a tidal surge resulted in floodwaters rising to the level of the roof of his apartment building, destroying all his possessions.

"I drove to my brother's place, taking my computer, my important papers and my car," Whaley said. "That's all I had left."

It was at that time that Tolentino provided the moral and psychological support he needed to get through a crisis that literally upended his life, Whaley said. Among other things, Whaley was forced to relocate into a FEMA trailer.

With most local banks destroyed by the storm, many residents, including Whaley, could not gain access to funds to pay bills, including cell phone bills.

"The computers and ATM machines were all knocked out," he said.

When Whaley's cell phone provider threatened to cut off his and other local residents' service for lack of payment, Tolentino sprung into action in California. He created a web site calling on customers of the provider nationwide to threaten to cancel their service if the company cut off its customers in hurricane-damaged areas. The company quickly backed down, Whaley said.

A few months later, Tolentino, who did not have a driver's license, enrolled in a driving course, got his license, bought a new car and drove across the country to join Whaley - this time permanently. Tolentino moved into the trailer and quickly got a job at a Gulfport health care facility.

By that time, immigration officials had revoked his work permit, but that didn't seem to make a difference in the hurricane-ravaged Mississippi coastal areas, where doctors and nurses were in great demand.

"Nobody asked him for a work permit," Whaley said.

"It's just so unreal and so difficult for us to comprehend that we have to leave this country because of HIV," Tolentino said. "We've been crying a lot, and it's very hard for the two of us."

He said he is grateful that Canada appears ready to give him and Whaley a chance to put their lives back together as a couple.

"If Canada is willing to give me a refugee status, then I'm up for it and I'm going to embrace that country and basically give all my life to that country rather than this country," he said.

"It's not like a hatred kind of thing, because I really like the U.S.," Tolentino said. "But if they accept me as what I am in Canada, then I will accept them with all my heart."

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