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Customs and Border Protection Is Separating Families Based on HIV Status

Health and Human Services removed HIV from a list of communicable diseases that bar immigrants from entry into the United States in 2010.
Migrants play football at a temporary detention center for immigrant children in Tornillo, Texas.

Migrants play football at a temporary detention center for immigrant children in Tornillo, Texas.

A Customs and Border Protection official sparked outrage when he told Congress late last week that his agency routinely separates children from their HIV+ parents, despite long-standing protections for such immigrants. The exact scope of those separations—as with many other statistics on the phenomena faced by United States immigrant detainees—remains unknown.

Customs and Border Protection Chief of Law Enforcement Brian Hastings told the House Judiciary Committee at a hearing Thursday that his agency considered HIV to be a "communicable disease" under a form of guidance used by agents to determine whether to separate children entries from parents. The agency practice, described by Hastings as part of an unspecified "guidance" for the treatment of inmates, runs counter to the guidance of the Department of Health and Human Services, which in January of 2010 removed HIV from a list of communicable diseases that bar immigrants from entry into the U.S., based on the finding that it was not communicable or easily transmitted through casual contact.

When Representative Jamie Raskin (D-Maryland) asked Hastings if his agency separates parents with the flu—a disease spread not just through certain bodily fluids under particular conditions, but also in the breath, recent research shows—from their children, Hastings said that it does not.

Immigrant rights advocates were outraged by Hastings' exchange with Raskin, who said, according to the Washington Blade, that he had based his line of questioning on a Quartz report earlier this month that CBP had separated an immigrant father from his three daughters because of the father's HIV status.

Hastings walked back his comments in a statement emailed to Pacific Standard.

"As I noted multiple times when presented with hypothetical scenarios or specific allegations by members of the Committee, I would need to review the full facts and circumstances associated with a case before speaking definitively," he writes. "CBP would not separate families due to the communicable nature of HIV. Generally speaking, separations of this type are due to the potential requirement for hospitalization and whether it is in the best interest of the child to wait for the disposition of their parent in HHS or CBP custody."

Hastings also appeared to reverse course on flu sufferers. "Similarly, while a simple flu case would generally not be grounds for separation, complications requiring hospitalization may impact the best approach for maintaining custody of the child. For these reasons, Border Patrol makes all separation decisions on a case-by-case basis and these decisions are not taken lightly," Hastings adds.

Hastings did not respond to Pacific Standard's questions about the scope of the family separations related to HIV status. Since the start of the Trump administration, observers have expressed concerns over how data is, or is not, compiled on various phenomena faced by the immigrants it detains and deports. Late last year, former Department of Homeland Security Secretary Kirstjen Nielsen told Congress she was unaware of the number of immigrants who had died in DHS custody, provoking outrage. More recently, Pacific Standard reported that immigration officials were failing to count the number of veterans they had been deporting.

Staff at Immigration Equality, an organization that advocates for the rights of LGBT and HIV+ immigrants, say that the organization is "looking into" the number of HIV-related separations "but unfortunately can't offer any new information at this time."

The best way to get a clear picture of how the administration's immigration policy affects the people in its custody has been to compel the administration to offer information through the courts, advocates say. "The Trump administration continues to separate children from their parents for any reason it can think of with little to no transparency or accountability," says Sharita Gruberg, director of policy at the Center for American Progress' LGBT Research and Communications project. "The [American Civil Liberties Union's] litigation continues to reveal the scope of these policies but the administration itself has been unwilling to come forward unless compelled by a court to do so and even then seems unable to account for the full scope of families it has separated."

Experts agree that the administration, despite ostensible efforts to stop the AIDS epidemic, has a poor record with HIV+ immigrants. William McColl, vice president for policy and advocacy at AIDS United, a Washington non-profit aiming to end the epidemic, says his organization "is not aware of the scope of this particular problem. With that being said, we do know that two transgender women living with HIV have died while in ICE custody and that the safety of immigrants living with HIV in U.S. custody is a real concern. We will continue to fight for an end to the inhumane detention conditions in which many immigrants are currently kept."

In absence of hard data on separations, advocates remain concerned by the comments Hastings made on Thursday.

"The CDC removed HIV from its list of communicable diseases nearly a decade ago," Gruberg says. "There is no legitimate reason for separating people living with HIV from their children. CBP is simply doing so to stigmatize people living with HIV and using any rationale they can invent to separate families and terrorize immigrants."

"We are appalled to learn that the U.S. government is again stigmatizing immigrants living with HIV," Aaron C. Morris, director of Immigration Equality, writes in an email.

Other advocates were adamant that CBP and the administration reverse and make clear its policies on HIV+ immigrants. "We call on the administration to immediately cease the CBP's targeting of immigrants living with HIV and end the policy of family separation," McColl says.