Jul 06, 2007  |  By: LOU CHIBBARO J  | COMMENTS     

Roi Whaley, 42, was born and raised in rural Gumbo, Mo., and has lived in Gulfport, Miss., for the past 24 years. He says the Fourth of July has long been one of his favorite holidays. But this week, Whaley, a supervisor at one of Gulfport’s waterfront casinos, says he’s struggling to retain his belief in what it means to be an American.

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 ...