Border agency faces subpoena for online posts
House panel to seek records on violent and xenophobic Facebook messages by agents.
WASHINGTON — The House Oversight Committee is set to subpoena the nation’s largest federal law enforcement agency as part of an investigation into a scandal in which Border Patrol agents and officers posted and shared violent and xenophobic messages in secret Facebook groups with thousands of members.
“They made these vile posts not only about immigrants — including a father and daughter who drowned in the Rio Grande — but also about a member of our committee,” committee Chairwoman Carolyn B. Maloney ( D- N. Y.) wrote Friday, notifying her colleagues of the intent to subpoena.
Lawmakers requested records in July 2019, Maloney said, but U. S. Customs and Border Protection, the parent agency of the Border Patrol, has refused to produce documents identifying employees who participated in the groups.
The primary group — known as “I’m 10- 15” after the code used by Border Patrol for migrants in custody — at one point had 9,500 members. The group’s vulgar posts, f irst reported by ProPublica, included an illustration of President Trump assaulting a member of Congress and mocked migrants who drowned in the Rio Grande.
“The Trump administration has expressed more concern about protecting the reputations of employees who made racist and sexually depraved posts,” Maloney wrote, “than the wellbeing of the children and families they interact with on a daily basis.”
In July, more than a year after launching an internal investigation into 138 employees for “inappropriate social media activity,” CBP told The Times it had f ired four border officials and disciplined 60 more for their participation in the groups. Thirty- eight were suspended without pay and an additional 27 disciplined “with reprimands or counseling,” an agency spokesman said at the time, speaking on condition of anonymity to discuss details of the internal investigation.
All four agents that CBP said it had f ired appealed their removal, The Times has learned.
Asked Friday whether the four f ired agents remained employed by the Homeland Security Department, CBP spokeswoman Stephanie Malin said in a statement that one employee’s removal was recently upheld by an administrative judge for the Merit Systems Protection Board, an independent review body within the executive branch, “although could be further appealed.” Three others remain in the appeals process.
“CBP has provided a significant volume of documents on the matter, some of which were publicly released by the committee without CBP’s consent,” Malin said. “Since the beginning of this investigation, CBP’s primary goal has been to provide transparency while still protecting the health and safety of our personnel, given the high degree of social unrest and the potential hostile targeting of employees for the nature of their employment.”
Maloney and fellow lawmakers have criticized what they called a lack of accountability and transparency in the internal investigation conducted by CBP’s Office of Professional Responsibility. Lawmakers also said the agency has failed to turn over requested information for their own inquiry into the scandal, though committees routinely receive sensitive and classified information as part of Congress’ oversight role.
The lawmakers likened the initial consequences doled out by CBP so far to a slap on the wrist and have published documents showing the punishments are already being rolled back in negotiations with unions representing the federal employees.
CBP has produced at least three such documents to the committee showing proposed terminations were reduced to suspensions of a week to a month, according to the Friday letter, “despite the fact that all of the underlying charges in these three cases were sustained.” An additional 19 employees’ suspensions were reduced.
“It is evident that the Trump administration significantly reduced the punishment of many of these employees, while at the same time shielding them from congressional oversight,” Maloney’s letter stated.
The agency produced one termination letter to the committee that was sent to a supervisory Border Patrol agent in Calexico, Calif., that stated he was f ired for “Conduct Unbecoming a Supervisory Border Patrol Agent,” according to Maloney’s letter.
“The nature of your posts and your repeated display of poor judgement has destroyed my confidence in your ability to perform your duties,” the termination notice reads, according to Maloney’s Friday letter. “Your continued assertion as to the innocuous nature of your postings leads me to believe there is no reasonable basis for expecting rehabilitation.”
The agent, in a written reply, downplayed the posts as “good natured” and said they were “just having fun.”
The House committee says the agency refuses to provide enough information so congressional watchdogs can determine whether such agents are truly being held accountable. Lawmakers also want to know how the Facebook group and others like it operated for years with agency leaders’ knowledge, even though they were clear violations of CBP’s standards of conduct.
“Employees will not make abusive, derisive, profane, or harassing statements or gestures, or engage in any other conduct evidencing hatred or invidious prejudice to or about one person or group on account of race, color, religion, national origin, sex, sexual orientation, age or disability,” the standards state.
The agency’s more than 60,000 employees are expected to adhere to the standards “both on and off duty,” including “comments and posts made on private social media sites.”
CBP acknowledged the posts violated the standards, according to Maloney’s letter, writing to the committee in September 2019 that “posts demeaning of migrants and members of Congress were wholly unacceptable.”
But agency leadership has pushed back on criticism of its investigation, saying privacy rules made it diff icult to share details, even with Congress. Now officials say “leaks/ release of information” mean “we cannot ensure that appropriate confidentiality will be placed in the information we provide,” according to exchanges between the agency and committee included in the Friday letter.
At the start of the internal investigation, Matthew Klein, assistant commissioner of the agency’s Office of Professional Responsibility, emphasized that the privacy of the social media groups does not protect current or former employees from disciplinary action.
In July 2019, CBP internal investigators began looking into more than 60 current employees and eight former staff members following reports of a secret Facebook group in which members used dehumanizing and derogatory language regarding Latina members of Congress and deceased migrants.
The Office of Professional Responsibility ultimately doubled the number of individuals under investigation and included several additional private social media groups. The Homeland Security Department’s inspector general also opened an investigation.