“To clarify my exchange with Rep. Raskin regarding potential reasons for separation due to communicable diseases, while HIV is not a communicable disease that would bar entry into the U.S., HIV does present additional considerations that may affect how migrants might move forward in processing,” Hastings said. “CBP would not separate families due to the communicable nature of HIV.”
Instead, Hastings said separations are handled on a “case-by-case basis” for families if a parent was found to have 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 said. “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 made his initial comments Thursday during an oversight hearing before the House Judiciary Committee under questioning from Rep. Brian Raskins (D-Md.), who if a mother or father being HIV positive “is alone enough to justify separation from their child.”
“It is because it’s a communicable disease under the guidance,” Hastings said at the time.
The initial testimony sparked confusion among public health advocates. It was unclear what guidance on HIV the CBP chief was 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in 2010 ended the administrative HIV travel ban into the United States through administrative action after Congress repealed the statutory HIV travel ban during the George W. Bush administration.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.
CBP issues the clarification moments after the Blade obtained from the Centers for Disease Control & Prevention veiled interagency criticism over the policy as stated by Hastings in congressional testimony.
Bertram Kelly, a CDC spokesperson, made the comments Friday via email in response to a Washington Blade inquiry over the policy as articulated by Customs & Border Patrol Chief Brian Hastings.
“While HIV is infectious, it cannot be spread through casual contact,” Kelly said. “HIV is most commonly transmitted through sexual behaviors and needle or syringe use.”
“Before 2010, refugees and immigrants with HIV were banned from entry to the U.S.,” Kelly continued. “The decision to lift the ban was based on science showing that HIV is not spread through casual contact. Removing HIV infection from the list of illnesses that prevent entry to the U.S. reflects the most recent scientific research regarding HIV risk.”
Although the comments didn’t explicitly criticize CBP, they directly undercut the stated rationale for using HIV status for family separation at the border.
The CDC, which is headed by Director Robert Redfield, is among the U.S. agencies leading the charge in the Trump administration’s plan to beat HIV by 2030. The plan seeks to target areas in the United States where most of the new infections are taking place with prevention and treatment measures.
Hastings’ testimony also directly contradicted 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.
Aaron Morris, executive director of Immigration Equality, warned the Trump administration against any family separation based on HIV status on a preemptive basis.
“Any preemptive separation of families is a senseless cruelty,” Morris said. “If someone becomes so sick that a doctor concludes that they can no longer care for their child, a guardian must to be appointed. But under no circumstances should anyone living with HIV ever be presumed to be incapable of parenting.”
Jennifer Kates, senior vice president of global health and HIV policy at the Kaiser Family Foundation, said more information is needed from the Trump administration.
“It will be important to understand how such case-by-case decisions relate to current HHS policy which clearly states that HIV is not a communicable disease of public health significance, with no exceptions or additional considerations,” Kates said.