In a strange turn of events, a Filipino man denied permission multiple times to remain in the U.S. with his American husband has been granted a tourist visa to reenter the country.
In September, The Advocate reported the story of Roi Whaley, a 46-year-old casino worker in Gulfport, Miss., who has advanced lung cancer and has been forced to live apart from his husband, Aurelio Tolentino, for more than three years. Tolentino had worked legally as a registered nurse in the U.S. but was denied a green card because of his HIV-positive status (the ban on HIV-positive green card applicants has since been lifted). He also applied for asylum based on his sexual orientation, but his request was denied, and he was ordered to leave the country in 2007.
Tolentino has lived in Vancouver, Canada, with his mother since then and still faces possible deportation to the Philippines. "He's going to die there," Whaley said in September of such prospects. "He's not going have a job, he's not going to have access to the medication he needs to live, he's probably going to be shunned by everyone in his family."
The case caught the attention of an LGBT immigration rights group that has been attempting to reunite the couple. As a matter of protocol, attorneys with Immigration Equality advised Tolentino to first apply for a tourist visa -- which likely would be denied -- followed by a request to the Department of Homeland Security for "humanitarian parole," whereby he would be allowed back into the country on a temporary basis to take care of Whaley, who is also HIV-positive and cannot undergo chemotherapy because of his low T-cell count. As a result he faces a grim prognosis.
Surprisingly, Tolentino's application for a multiple entry tourist visa was approved last week. Whaley intends to travel to Canada next month and return to the United States with his husband in the near future. "When it happened I wasn't really sure how to take it," said Whaley, who married Tolentino in Canada earlier this year. "It wasn't supposed to happen -- [there was] less than a 1% chance that they would do it."
Immigration Equality spokesman Steve Ralls said many binational gay couples stay together using tourist visas. "The circumstance here that is unique is that Aurelio had tried so many other avenues to enter the country, including visas in the past," he said. "All of those requests had been denied."
Other immigration attorneys said that a State Department official who handles nonimmigration visa applications may have issued the visa being unaware of (or ignoring) Tolentino's previous attempts.
Or the official may have noted that Tolentino obeyed previous instructions to leave the country when he was ordered to do so and was not at high risk to stay longer than permitted. Given Tolentino's story, "It's quite possible that he could have gotten a sympathetic officer," said Greg Siskind, an immigration attorney in Memphis.
Tolentino's visa does not authorize him to work in the United States, however. Humanitarian parole would provide Aurelio a longer stay in the country, but neither option would include a work permit.
The visa also doesn't necessarily secure entry into the United States: Immigration officials will still need to grant Tolentino entry, and they have authority to turn away an individual with a valid tourist visa.
Another immigration attorney who declined to be named expressed concern and said that if officials knew Tolentino was traveling to the US to be with his husband as a result of media attention, such information could lead to a denial of entry. Ralls explained that Immigration Equality and Whaley decided to go public with the news "because we're confident that the State Department and Department of Homeland Security have recognized that Aurelio has always played by the rules, that he has a legitimate need to be in the United States, and that he will continue to follow all of the laws pertaining to his new visa."
An immigration policy source said Secretary of State Hillary Clinton's progressive record on gay rights issues during her State Department tenure makes it unlikely that Tolentino would be turned away. "It's hard to imagine that she would be anything but supportive and sympathetic in a case where a gay man is simply trying to return to the U.S. to be with his dying partner," the source said.
Whaley has been an active advocate for immigration reform on Capitol Hill, recently telling his story to congressional staff in meetings at the offices of Mississippi senators Thad Cochran and Roger Wicker, both Republicans. He also met with aides to Mississippi representative Gene Taylor -- a Democrat who lost his House seat in the midterm elections but whose office has been in frequent contact with Whaley.
The Uniting American Families Act, a bill that would allow gays and lesbians the opportunity to sponsor a noncitizen partner for residency, is highly unlikely to pass this year. On a conference call last week with reporters, Immigration Equality executive director Rachel Tiven said the UAFA lost 16 of its 135 cosponsors in the House and three of 25 cosponsors in the Senate, where it is part of a comprehensive immigration reform bill.