Separation Anxiety
Advocates Call for Clarity and Justice Regarding Immigrant Families and HIV at the Border
by Larry Buhl

A series of conflicting statements has come out of the Federal government over whether the government is separating migrant families at the border based on HIV status. That policy—to the extent that there is a coherent policy—came under scrutiny after the online publication Quartz reported in July that a man was separated from his daughters, ages eleven, twelve, and fourteen, because he was HIV-positive.

According to Christine Turner, the deputy director for special programs at Kids in Need of Defense (KIND), the girls crossed the U.S. border with their father in Eagle Pass, Texas, in November 2018 and immigration officials there immediately separated them from their father. According to an interview the father conducted with Turner, a border patrol official told him that he “had been separated due to his HIV-positive status.” After remaining in an ICE detention center from November 2018 until February 2019, the man was deported back to Honduras. His daughters were split up between two shelters in Texas, and months later were released to relatives in New York City. The girls’ mother died of AIDS-related causes before they left Honduras.

In a hearing before the House Oversight and Reform Committee days after that article came out, Congressman Jamie Raskin (D-Md.) put the question to Department of Homeland Security (DHS) Acting Secretary Kevin McAleenan: Should HIV status be a basis for separating parents from their children? McAleenan said no.

Days later, at a U.S. House Judiciary Committee Hearing on oversight of family separation at the border, Rep. Raskin questioned Brian Hastings, the Border Patrol Chief for law enforcement operations about whether HIV alone is enough to trigger a family separation. Hastings replied that it is. “It’s a communicable disease under the guidance.”

Raskin responded, informing him that HIV is not highly communicable because it is not passed through ordinary contact. And after a question by Raskin, Hastings acknowledged that CPB does not separate parents and children based on whether they have the flu, which is a highly communicable virus.

It has been long recognized in the medical and scientific community that HIV is not transmitted by casual contact. And multiple studies have proven that stable access to antiretroviral treatment allows people with HIV to live long, healthy lives and can reduce their viral load to undetectable status.

Hastings later walked back his testimony by issuing a statement to the online publication The Hill, saying, “CBP [Customs and Border Protection] would not separate families due to the communicable nature of HIV,” he said, adding that the virus “does present additional considerations that may affect how migrants might move forward in processing.”

Hastings said, “Border Patrol makes all separation decisions on a case-by-case basis and these decisions are not taken lightly.”

But Congressional leaders say this “clarification” has added more confusion, and does nothing to address the situation of the deported Honduran father and his children. And they expressed that the case-by-case policy expressed by Hastings was arbitrary.

Following Hastings’ clarification, Rep. Raskin sent a letter to McAleenan seeking a full explanation of DHS policy and practice of separating children from parents who are HIV positive at the southern border. House Judiciary Chairman Jerrold Nadler (D-NY) and Representatives Greg Stanton (D-AZ) and Charlie Crist (D-FL) also signed on.

The letter read: “We write to express our profound concern that Customs and Border Protection (CBP) agents may be separating children from their parents on the basis of the parent’s HIV status. We know of no legal or moral basis for such a cruel and senseless policy and, in light of contradictory statements from your Department on the issue, we seek immediate clarification and official renunciation of any such policy.”

A spokesman from Rep. Raskin’s office said that after more than a week DHS had not sent a response with clarification.

The American Civil Liberties Union (ACLU) will be filing a motion on this issue as part of its ongoing litigation against the government’s family separation policy.

Acting Homeland Security Secretary McAleenan has claimed that family separations are rare and occur only when the adults pose a risk to the child. Those risks, he said, include a communicable disease, abuse or neglect. Of tens of thousands of children taken into custody at the border this year, 911 children were separated since the June 26, 2018 court order, as of June 29, according to the ACLU.

The policy of family separations generally was halted last year after public outrage and bipartisan scrutiny. In 2010, the Centers for Disease Control and Prevention (CDC) removed HIV from the list of communicable diseases after the Obama administration ended the HIV travel ban into the U.S.

The AIDS Foundation of Chicago (AFC) joined other HIV/AIDS organizations in denouncing the policy. The Infectious Diseases Society of America (IDSA), HIVMA, Pediatric Infectious Disease Society (PIDS) and Society for Healthcare Epidemiology of America (SHEA) issued a joint statement, saying they “cannot identify any justification for denying parental rights based on HIV status. Similarly, we can find no justification for denying the accommodations that must be made to keep parents with HIV and their children together if medical care is needed, as is recommended in CBP guidance for parents with other medical conditions.”

The statement went on to slam the Trump administration for a lack of health protections at the border: “The treatment of immigrant families at our borders remains deeply troubling, running counter to basic public health principles of promoting well-being and preventing and treating disease, while posing risks of lasting harm to individuals and communities. Detaining large numbers of people and holding them in poor sanitary conditions with poor access to basic necessities only fuels the spread of infections including diarrheal diseases, measles, chickenpox and tuberculosis among others. In addition to calling for an immediate end to allowing HIV status to be considered in separating parents from their children, we call for an immediate and thorough examination of border protection health policies related to prevention and treatment of infectious diseases to ensure timely access to vaccinations and other preventive measures, and uninterrupted access to treatment for HIV and other communicable diseases.”

Sable Nelson, an associate manager for policy and advocacy at NMAC, told A&U that the CPB action of separating the Honduran man from his daughters was “arbitrary, harmful and goes against science.”

“Children can be separated if the parent can cause physical or emotional harm to their kids. But the rule as it’s being applied in this case is harmful and it’s propagating a long held stigma of HIV. We do believe (CPB) is trying to separate as many children from their parents as possible, and HIV might be used as an excuse to do this.”

Nelson said her organization and other colleagues are looking into whether Customs and Border Protection has separated other families based on HIV status, and also inquiring about whether any detainees have had HIV meds seized.

The policy of separation based on HIV—again, if it is an actual policy—is a curious juxtaposition to the Trump administration’s commitment to an “Ending the HIV Epidemic” initiative that aims to reduce new HIV infections by seventy-five percent within five years. At a rally in Cincinnati in early August, Trump promised to cure AIDS—and also cure childhood cancer—“very shortly” if reelected.

Larry Buhl is a multimedia journalist, screenwriter, and novelist living in Los Angeles. Follow him on Twitter @LarryBuhl.