CBP is separating families on the basis of HIV status, even though it’s against the law

"This administration will grasp at any straw to separate a child."

CBP is separating families on the basis of HIV status, even though it's against the law
CBP is separating families on the basis of HIV status, said Brian S. Hastings, chief of the Law Enforcement Operations Directorate of the U.S. Border Patrol in U.S. Customs and Border Protection, at a hearing this week. Such actions are against the law. (Photo credit: Tasos Katopodis/Getty Images)

U.S. Customs and Border Protection Chief of Law Enforcement Brian Hastings admitted to Congress Thursday that a parent’s HIV-positive status is grounds for separation.

“If a mother or father has a HIV-positive status, is that enough to justify separation from their child?” Rep. Jamie Raskin (D-MA) asked Hastings at a House Judiciary Committee hearing on family separation.

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

Raskin then asked Hastings to clarify what he meant by “communicable,” explaining that HIV is not spread through “ordinary contact.”

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

The exchange shocked immigration and LGBTQ experts alike, given Hastings’ gross misunderstanding of health policy. Nearly a decade ago, the Department of Health and Human Services removed HIV from its list of communicable diseases that would prevent an immigrant from gaining entry into the United States.


Contrary to what Hastings testified, HIV is not transmitted by casual contact. It is also extremely difficult, if not impossible, to transmit the disease through exchange of bodily fluids if the HIV-positive individual has been taking medication to reduce their levels.

“HIV has not been considered a communicable disease of public health significance since 2010 when advocates succeeded in ending the HIV Travel and Immigration Ban,” Aaron C. Morris, executive director at Immigration Equality, told ThinkProgress.

“Immediately after the ban was lifted, the CDC removed HIV from its list of communicable diseases,” Morris continued. “We are appalled to learn that the U.S. government is again stigmatizing immigrants living with HIV. Separating children from their parents because they are HIV-positive deeply misunderstands basic public health and will irreparably harm families and children.”

“This administration will grasp at any straw to separate a child,” he added.

Hastings failed to confirm whether separating family units on the basis of HIV status was an official policy of CBP or where the “guidance” came from in the first place. Raskin asked acting Homeland Security Secretary Kevin McAleenan the same question last week at a related hearing but was told no.


“The simple fact of being HIV positive—does not seem like that would meet the standard [to separate a parent from their child],” McAleenan said, adding that some who’d been separated from their children may have been removed due to “other complications medically.”

That, however, hasn’t prevented CBP from separating families with HIV-positive parents. Three girls — 11, 12, and 14 years old — crossed the U.S. border with their father at Eagle Pass, Texas, in November last year. CBP permanently separated them from their father because he is HIV positive, immigration attorneys told Quartz.

“…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 in a statement to ThinkProgress. “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 the their parent in HHS or CBP custody.”

HIV positive migrants, many of whom are asylum seekers, face tremendous barriers in receiving proper medical care while in government custody. The death of Roxsana Hernández, an HIV-positive transgender woman, for instance, may have been prevented had she received necessary medical attention upon arrival in the United States.

Hernández became HIV-positive following a brutal gang rape in her home country of Honduras, which has the highest murder rate of transgender people in the world.

After she presented herself to CBP, she was held in a freezing cold cell where the lights were kept on 24 hours a day. These facilities are only equipped to provide emergency medical care and aren’t meant to hold people for over 72 hours. Hernández was there for almost a week.


She was then transferred to three separate Immigration and Customs Enforcement (ICE) facilities within three days. Because ICE requires that medical screenings be completed no later than 12 hours after their arrival, Hernández did not see a medical professional until 8 days after she first entered the custody of DHS. She died on May 25, 2018. According to her autopsy report, she suffered from 10 heart attacks in the two days before her death.

This story has been updated to include comment from U.S. Customs and Border Protection Chief of Law Enforcement Brian Hastings.