“If a mother or father has HIV positive status is that alone enough to justify separation from their child?” asked Jamie Raskin, the Maryland Democrat.

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

The lawmaker pressed Hastings on the issue, noting that HIV is not communicable under ordinary contact.

“That’s the guidance,” Hastings repeated. He could not say, however, where that guidance came from. “I’m not sure if that came from legal counsel. I believe that it is defined as a communicable disease.”

Hastings’ testimony contradicts a 2010 policy put in place by US Citizenship and Immigration Services that removed HIV positive status from the list of communicable diseases that bar immigrants from entry into the US.

Quartz first reported on July 12 that border officials had separated three girls from Honduras—age 11, 12, and 14—from their father because of his HIV status. The father was deported back to Honduras. His daughters have not seen him since.

CBP continues to separate kids from their parents at the US southern border if a parent has a “criminal history,” a “criminal warrant” or a “communicable disease,” among other qualifications, the agency told Quartz today. It did not answer questions about who had advised border patrol that HIV positive status qualified as a “communicable disease.”

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

“The government may not separate simply because a parent is HIV,” said Lee Gelernt, deputy director of the Immigrants’ Rights Project at the ACLU. “We intend to raise that issue with the court as well as other issues, including the government taking children away because the parent committed a misdemeanor years ago.”

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