July 25, 2019 at 4:55 pm EDT | by Chris Johnson
Trump administration: HIV status used to justify family separation at border
From left, Rep. Jamie Raskin (D-Md.) questions Chief Brian Hastings (Images public domain)

As President Trump continues to praise his administration’s plan to beat the HIV epidemic by 2030, a top Trump administration official says an immigrant’s HIV status is enough to justify family separation at the border.

Brian Hastings, chief of Customs & Border Patrol, made the remarks during a House Judiciary Committee oversight hearing Thursday under questioning from Rep. Jamie Raskin (D-Md.).

When Raskin asked the official if a mother or father having HIV positive status “is alone enough to justify separation from their child” Hastings affirmed that was the case.

“It is because it’s a communicable disease under the guidance,” Hastings said.

Raskin mentioned reports of kids being separated from their parents on the basis of their parents HIV status, then asked why should HIV be considered a communicable disease when “it’s not communicable by contact.”

Hastings simply replied, “That’s the guidance that we follow.”

The Maryland Democrat asked whether that policy is from CBP’s legal counsel or another source, but Hastings said he isn’t certain.

“I’m not sure if that came from legal counsel,” Hastings said. “I believe that is defined as a communicable disease.”

When Raskin asked Hastings whether he had a list of communicable diseases, the CBP said he didn’t immediately have that information.

But the next exchange was key in the discrepancy in the way CBP handles immigration who have HIV.

Raskin pointed out the flu is communicable and asked “would we separate parents from their kids if a mom or dad had the flu?”

“We’re not, sir,” Hastings replied.

The Trump administration has been widely criticized for separating families at the border, which is seen as the result of its “zero-tolerance” immigration policy. Many observers have said the policy amounts to human rights violations in the United States. 

Amid the height of criticism last year, President Trump signed an executive order directing the Department of Homeland Security to maintain custody of detained families together over the course of immigration proceedings, although the policy in some cases, such as HIV-based separations, seems to continue.

In a statement after the exchange, Raskin said he’s “ever more dismayed” over the CBP chief’s assertion HIV status is grounds for family separation.

“Of course, we would never allow parents and children to be separated in any courtroom in America solely for this reason. As a member of Congress, a citizen, a constitutional lawyer but above all as a father of three children, I am outraged by this unconscionable, irrational and cruel policy. I urge CBP and the Trump Administration to end it tonight.”

Raskin said he based his question on a report he saw in a July 12 article by Quartz, titled ‘U.S. Border Officials Permanently Separated 3 Girls from their Father Because he is HIV+.’ According to Quartz, immigration officials ‘made the decision to permanently separate’ three sisters — ages 11, 12 and 14 — from their father and they had not seen him since. Their mother had previously died of AIDS in Honduras.

It’s unclear what guidance on HIV the CBP chief is referencing. The Obama administration in 2010 ended the administrative HIV travel ban into the United States through administrative action after Congress repealed the statutory HIV travel ban during the George W. Bush administration.

When the ban was finally lifted, the Centers for Disease Control removed HIV from its list of communicable diseases.

Aaron Morris, executive director of Immigration Equality, said the policy makes no sense because HIV “has not been considered a communicable disease of public health significance since 2010.”

“We are appalled to learn that the U.S. government is again stigmatizing immigrants living with HIV,” Morris added. “Separating children from their parents because they are HIV-positive deeply misunderstands basic public health and will irreparably harm families and children.”

Hastings’ testimony directly contradicts congressional testimony last week from acting Homeland Security Secretary Kevin McAleenan, who said HIV status alone wasn’t a determining factor for family separation.

“The simple fact of being HIV positive does not sound like that would meet the standard,” McAleenan said. “There could be other complications medically that would have required a temporary separation.”

Similar to Hastings, McAleenan made the remarks under questioning from Raskin, who said he’s seen evidence suggesting three sisters were taken from their father in November 2018 allegedly because he was HIV positive.

“Again, you’re referencing a number of specific cases that I do not have in front of me,” McAleenan said. “I’m not sure if that was the only factor involved in that decision.”

Meanwhile, the Trump administration is touting its plan to beat the HIV epidemic by 2030 with a concentrated efforts into localities within the United States where the rate of new infection remain high.

The Washington Blade has placed a request in with CBP asking whether the policy of family separation based on HIV status is administrative or statutory and how many separations have occurred as a result of this policy.

But insiders have told the Blade the CBP chief was wrong to say the Trump administration has a family separation policy based on HIV status because no such guidance exists.

Jennifer Kates, senior vice president of global health and HIV policy at the Kaiser Family Foundation, said the Trump administration policy makes no sense on either a scientific or legal basis.

“If HIV is being treated as a communicable disease for the purposes of separating families at the border, that would be at odds with longstanding policy and science.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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