Protecting the Predators at DHS

IMPORTANT UPDATE: This story now includes the response of Secretary of the Department of Homeland Security Alejandro Mayorkas to revelations in POGO’s story, published yesterday. Only hours after the story appeared, Mayorkas announced he had become “aware of draft unpublished reports from the Office of the Inspector General that underscore the need for immediate action.” Mayorkas announced the creation of a “working group” to “conduct a 45-day review of employee misconduct discipline processes currently in effect throughout DHS…” (see update below).

ADDENDUM: On June 16, 2022, Secretary Mayorkas announced that he had directed the Department of Homeland Security (DHS) to reform its employee misconduct discipline processes. “The deeply concerning reports this spring underscored the need for urgent action to prevent and address harassment and other misconduct in the workplace. On April 7, 2022, I directed the Department’s General Counsel to conduct a 45-day review of the employee misconduct discipline processes currently in effect across DHS and to recommend any necessary improvements. Based on the results of that review, I have directed the Department to implement significant reforms to our employee misconduct discipline processes, including centralizing the decision-making process for disciplinary actions and overhauling agency policies regarding disciplinary penalties.”

More than 10,000 employees at law enforcement components of the Department of Homeland Security (DHS) say they have experienced sexual harassment or sexual misconduct, according to an unpublished federal watchdog report obtained by the Project On Government Oversight (POGO). That’s over one-third of the roughly 28,000 employees who responded to a survey conducted as part of the long-pending review.

DHS’s Office of Inspector General has been working on the report, which includes the survey responses, for more than four years. Capitol Hill received the draft report. POGO is not making it public in full at this time to protect sources who fear retaliation. None of its results have been previously released, even though a draft was cleared by a group of senior watchdog officials in late 2020.

Since then, a few top advisors close to Inspector General Joseph V. Cuffari have been trying to delete material from the sexual misconduct review, citing his removal of findings and evidence from previous reports. While it’s common for draft reports to face revisions to adjust language or double-check evidence and data, the wholesale proposed cuts of key material have led to delays of more than a year, an unusually long hold-up.

A censored version of one of those previous reports focused on domestic violence committed by DHS law enforcement personnel. It was published in November 2020. But POGO obtained an earlier draft of that document, which shows significant portions were removed prior to its release — for many of the same reasons now being used to justify major cuts from the sexual misconduct review.

It was initially unclear whether DHS Secretary Alejandro Mayorkas was even aware of the shockingly high number of claims of sexual misconduct. Or that relatively few are ever officially reported. Or how those that do get official attention are ultimately dealt with by Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), the Transportation Security Administration (TSA), and the Secret Service.

It was also unclear whether Mayorkas knew about the inspector general’s cuts from the 2020 report on domestic violence at DHS. Or that the agency substantiated those charges in 30 cases involving its employees — and then continued to allow them access to government-issued firearms.

Hours after POGO’s story appeared, Mayorkas announced in a memo addressed to all “DHS Component and Office Leaders” and provided to the New York Times that he had just become “aware of draft unpublished reports from the Office of the Inspector General that underscore the need for immediate action.” Mayorkas said he was creating a “working group” to “conduct a 45-day review of employee misconduct discipline processes currently in effect throughout DHS…”

An earlier response to POGO from Mayorkas’s office had given no indication what he might do, one way or the other. “By law, the DHS Office of Inspector General occupies a unique and independent status within the Department. DHS does not have any involvement with internal OIG deliberations or decisions,” a spokesperson for Mayorkas said.

In the sexual misconduct report, the sheer number of alleged abuses is all the more troubling because survey respondents reference their frequent fear of reprisal when considering whether to officially divulge what they say happened to them. Of the more than 10,000 survey respondents who say they experienced sexual misconduct during the seven-year period of fiscal years 2012 through 2018, only about 22% formally reported it. Among those who did report, a substantial number — about 41% — say doing so “negatively affected their careers.”

Taken as a whole, detailed evidence in the unfinished sexual misconduct report, as well as cuts from the domestic violence report, create the appearance that the four DHS components — which employ roughly 150,000 federal workers — suffer from a widespread culture of impunity, silencing, and retaliation when dealing with sexual misconduct and domestic violence.

A spokesperson for Mayorkas said the current administration has been trying to reform the agency. “Secretary Mayorkas has made it clear to the DHS workforce that sexual harassment and sexual assault will not be tolerated,” the spokesperson told POGO. “Since the start of the Biden-Harris Administration, DHS has taken important steps to combat abuse and misconduct, including reforms to Department policies and employee trainings.”

These revelations come just as Congress on a bipartisan basis renewed and expanded the landmark Violence Against Women Act (VAWA) by closing some key loopholes. In the words of former U.S. Representative Gabrielle Giffords (D-AZ), a prominent victim of gun violence, “It should anger all of us how many abusers and stalkers are able to slip through cracks in our laws and obtain guns.”

At the same time, influential Senate Republicans are trying to block two of President Joe Biden’s nominees because of allegations involving sexual harassment and domestic violence.

Senator Chuck Grassley (R-IA) — who has long kept close tabs on inspectors general — is seeking to delay a vote on one of Biden’s ambassador nominees who is accused of covering up sexual harassment allegations made against a close associate.

Senator James Lankford (R-OK), who sits on the Senate Homeland Security and Governmental Affairs Committee, recently cited a sworn 2021 affidavit alleging that Biden’s nominee to run ICE may have become violent with his wife at home.

“If these allegations of physical and violent domestic abuse are true, they are disqualifying for a law enforcement officer at any level,” Lankford said in a statement last month.

A spokesperson for Inspector General Cuffari offered only a limited reply in response to POGO’s detailed questions about the still-pending sexual misconduct report and the material removed from the domestic violence review. “Since coming on board in July 2019, Dr. Cuffari established the highest expectations for quality standards for every employee,” a spokesperson for Cuffari said in a statement emailed to POGO. “All reports initiated and published during his tenure meet appropriate quality standards.”

In response to the sexual harassment survey, DHS employees provided several reasons for not reporting misconduct, such as believing some behavior was too minor, that their agency’s “law enforcement culture” was not supportive of reporting, or that no one would investigate their claims anyway. The draft report obtained by POGO quotes a female ICE employee saying: “this is the community I have to work in and grow in the ranks with and it’s better to be one of the guys than ‘that girl.’”

The unpublished report says that about 15% of federal law enforcement jobs are filled by women, and some agencies have even fewer. It notes that “women made up only 5 percent of CBP’s Border Patrol workforce.”

The draft also confirms that, in many cases, DHS managers did not investigate alleged offenders when employees filed formal complaints against them, even when those complaints led to six-figure financial settlements.

The unreleased document references 249 cases where DHS components reached settlements with employees who filed Equal Employment Opportunity (EEO) complaints related to sexual harassment. Yet in most cases — 185 out of 249 — inspector general staff found no records showing that DHS components carried out investigations or took disciplinary action against purported perpetrators.

While investigations of alleged offenders and potential discipline are not required to resolve an EEO complaint, they are strongly encouraged. The Equal Employment Opportunity Commission advises that once “on notice of alleged misconduct,” an agency “has a duty to exercise due care by launching an internal investigation, regardless of whether an EEO complaint is filed,” according to the draft report.

Even so, the draft found that, “although sexual harassment is a violation of each components’ policies and standards, none of the four components had formal mechanisms in place to administer discipline for violations reported exclusively through the EEO process.”

In one startling case, Customs and Border Protection paid a female employee $255,000 to settle her 2016 Equal Employment Opportunity complaint. She alleged her boss repeatedly made sexual remarks and propositioned her for sex. When she refused, the boss retaliated by denying her training and work opportunities, the unreleased draft says. It notes that an examination of CBP records showed “no indication the component conducted a corresponding misconduct investigation or administered disciplinary action for this case.”

In another case, a male Secret Service employee complained in 2018 that a male co-worker, “repeatedly stood over him and put his genitals near his face and shoulder.” As of late 2019, when the watchdog office wrapped up its fact-finding, the case was unresolved, and there was no record of any investigation or disciplinary action.

The draft report’s findings are consistent with accounts from a former insider and agency critic. Former Senior Patrol Agent Jenn Budd has said she was raped in the Border Patrol academy in the 1990s, faced pressure not to report it, and later experienced sexual harassment on the job.

“My experience is not an anomaly. In general, the agency has an attitude that male agents are to be believed and those who complain about sexual assault or harassment are not,” Budd, who also served as a Border Patrol intelligence officer, told POGO.

“Whether an agent is disciplined or not is never known to most victims because the agency claims privacy restrictions. Offenders are often moved from station to station, sector to sector, and victims are often given settlements to remain quiet,” Budd said.

Her experience may help explain why the unpublished survey showed about 41% of those who reported their harassment said they felt that doing so harmed their careers.

If you file an Equal Employment Opportunity complaint, “everyone in your [Border Patrol] station will know within a week,” Budd told POGO. “You will be given dangerous positions without backup, your car may be vandalized, you may find yourself being written up for minor infractions such as a wrinkled uniform, and they will isolate you with a do-nothing position.”

Despite acknowledging receipt of POGO’s query, Customs and Border Protection – the Border Patrol’s parent agency – did not provide comments for this story.

Amid the #MeToo movement and a 36% increase in allegations of sexual misconduct from fiscal years 2017 to 2018, then-DHS Secretary Kirstjen Nielsen issued a statement about the problem of workplace harassment.

Nielsen stressed the need for DHS to “respond swiftly,” and to block “retaliation” against agency staff who reported abuse. In her statement, she referenced incidents of sexual misconduct tied to DHS personnel that appeared in news stories around the country. “Courageous women and men have come forward to report their experiences with unwanted sexual advances, comments, or conduct in the workplace. Preventing this type of behavior is a subject I feel strongly about,” she said.

Around this same time, in early 2018, the DHS watchdog office began its review of how DHS’s law enforcement divisions handled sexual misconduct. It examined reams of internal sexual misconduct claims and disciplinary files and surveyed personnel at all four DHS law enforcement components.

By the end of November 2020, an all-but-complete version of the unpublished report on sexual misconduct had been approved by Cuffari’s Office of Counsel, by quality assurance staff, and by three high-level watchdog officials, according to interviews conducted by POGO.

Now, more than a year later, significant parts of the document seem to be at risk — if the report is ever issued at all.

Top aides to Cuffari, who are still reviewing the document, have marked for removal any mention of public, high-profile cases of sexual misconduct at DHS — even though Secretary Nielsen alluded to such cases in her statements condemning sexual misconduct in early 2018.

“In recent years, all four components have faced widely reported allegations and incidents of sexual harassment and sexual misconduct,” reads one of many factually accurate segments marked for deletion by a Cuffari advisor.

“For example, in 2012, the ICE Chief of Staff resigned amid allegations of sexual harassment and several Secret Service employees solicited prostitutes in Cartagena, Colombia,” reads another, also marked for removal.

And yet another tagged for excision: “In 2017, public reports surfaced about CBP’s ‘rape table’ at the Newark airport where employees were held down while other employees simulated sexual acts on them.”

To support their argument for censoring these references, and others, senior Cuffari aides opined in writing that they were “irrelevant,” “inflammatory,” or “unnecessary.”

In an attempted rebuttal, a staffer working on the report argued, also in writing, that “[I] don’t think there is anything to be embarrassed about beginning a review with topics of high public interest.”

Other efforts by Cuffari’s aides to excise passages cite an aversion to “second-guessing” disciplinary decisions within DHS, pointing to an earlier directive by Cuffari.

The unreleased draft also highlights the finding that, even when sexual misconduct does lead to discipline, accountability often falls short. For example, it says many of the employees alleged to have sexually harassed co-workers or engaged in sexual misconduct get written up for vague infractions like “conduct unbecoming,” “inappropriate conduct,” and “unprofessional behavior.”

Because these generic charges do not detail the sexual nature of the offense, it is harder to keep track of subsequent acts of misconduct, impeding accountability.

A defense of non-specific, generic charges is that they can make it easier to discipline employees in certain cases — notably where the standard of proof for a sexual offense cannot be met because evidence is weak or absent. But non-specific allegations may also present a false picture of reality and hamper the ability of agencies to track sexual offenders over time when there is recidivism.

Nonetheless, a top aide to Cuffari objected to a finding in the draft that generic charges are often used to deal with sexual misconduct, writing:

“Aren’t we again going behind or second guessing the decisions of disciplinary authorities?” Another official backed that up, citing two prior reports issued under Cuffari that also cut findings regarding discipline.

One of those prior reports focused on domestic violence by DHS law enforcement agents.

A pre-publication draft of the domestic violence report obtained by POGO prominently highlighted 35 cases where DHS law enforcement agents — mostly within Customs and Border Protection — had engaged in domestic violence but had not been convicted.

Although DHS internal affairs officials “substantiated” their violent abuse of domestic partners, in 30 cases they kept their jobs and their government-issued guns. “In most instances the employee received little or no discipline and remained a law enforcement officer with access to a firearm,” the draft states.

This information was stripped out of the final document published in November 2020.

Instructions to remove this material, in addition to a data table and summaries of how and whether DHS disciplined the offenders, appeared in a July 9, 2020, email signed by Cuffari, also obtained by POGO.

“Peel off the remaining language and cases that essentially go beyond Lautenberg and risk appearing biased/in the posture of second guessing DHS disciplinary decisions without full facts and potentially in violation of applicable rules,” Cuffari wrote in the email. The Lautenberg Amendment is a law specifying that persons convicted of domestic violence cannot carry firearms.

In response to Cuffari’s directive, his staff removed nearly four pages of factual evidence, narrowed the declared scope of the report, and changed its title — essentially suppressing evidence, only to publish a softer, markedly incomplete version of the original document.

What had been described in the original draft as a presentation of how DHS handles “arrests and/or convictions” for domestic violence, was recast and limited to a technical analysis of the department’s compliance with the Lautenberg Amendment, which applies only to convictions.

The change in the report’s title highlights the shift. The original title, “DHS Has Not Adequately Addressed Law Enforcement Misconduct Related to Domestic Violence,” was weakened to read, “DHS Components Have Not Fully Complied with the Department’s Guidelines for Implementing the Lautenberg Amendment.”

But the title change overlooked a key fact: Existing agency policies already allow and actually encourage DHS to take action against alleged offenders — even if they avoid a conviction for domestic violence that would trigger the Lautenberg Amendment.

As a suppressed portion of the draft report clearly notes, DHS rules stipulate that even without a domestic violence conviction, agency components can “still investigate the offenses to determine whether the employees engaged in misconduct.” And a finding of misconduct — even it occurs off duty — can result in discipline, up to and including termination.

One former Customs and Border Protection official was pointed in his criticism. “It is highly inappropriate for that information to be stripped from the report,” former Assistant Commissioner of CBP in charge of Internal Affairs James Tomsheck told POGO. “It is their job to second guess and look at disciplinary practices to ensure consistency.”

He pointed to “wild discrepancies inside the Border Patrol” in disciplining employees for on-duty and off-duty conduct, such as confirmed instances of domestic violence. “If they liked an employee, they diluted discipline,” Tomsheck said.

There is no question that other inspector general offices have focused on how discipline is administered. A case in point: a 2015 report by the Justice Department watchdog. It found employees “are being charged inconsistently, which raises a potential that employees may receive inconsistent penalties for similar misconduct.”

Critics say DHS’s Customs and Border Protection, in particular, needs more scrutiny because of its wide-ranging power at and near borders and because it has more agents than any other law enforcement organization in the U.S.

“The public has a clear and compelling need to know what's going on in America's largest law enforcement agency,” Tomsheck said.

Cuffari’s directive to remove material from the 2020 domestic violence report led to the stripping out not only of statistics, but of disturbing case studies as well. One deletion involved the factual account of an unnamed CBP agent attacking his own wife and another woman.

“A CBP officer was arrested and charged with assault after he punched his wife in the face,” says the excised segment.

Following the CPB agent’s assault on his wife, which the agent admitted in court papers despite never being convicted, CBP suspended him for five days, the deleted segment says.

Less than two years later, the agent assaulted another woman. CBP again suspended him, this time for 15 days. Then he returned to work.

During investigations of the assaults, CBP removed his firearm. After each investigation, it was returned to him.

No mention of the CBP agent’s assault on his wife, or other specific incidents of domestic violence at DHS law enforcement divisions ever appeared in the published version of the report.

Context in the domestic violence report was also put on the chopping block.

Federal standards in place at the time say that inspections “should provide the reader with the context … to help ensure the focus is not too narrowly drawn and to give clearer understanding of the impact of any report recommendations.”

Despite this guidance, the final report did not include a statement from the draft that read, “Research … suggests that domestic violence is higher in law enforcement families than in the general population.”

Cuffari’s advisors also directed the deletion of the statement that “domestic violence victims are five times more likely to be killed if their abuser has access to a gun” and an associated citation to the American Journal of Public Health.

The increased risk to victims is in part what motivated passage of the Lautenberg Amendment, which the DOJ described as “a tool” to remove firearms from “certain explosive domestic situations thus decreasing the possibility of deadly violence.” But the Lautenberg Amendment applies only when there is a conviction.

The case of the CBP agent who admitted to punching his wife, but was never convicted, illustrates the limits of relying solely on the criminal justice system. While assailants may be arrested, and their violence may be well documented, they are often not prosecuted or convicted. Indeed, the domestic violence report says that out of a sample of 162 domestic violence allegations over 2016 through 2018, only two led to convictions.

However, each DHS law enforcement component has an internal affairs unit. One such unit is CBP’s Office of Professional Responsibility.

According to James Wong, a former CBP deputy assistant commissioner for internal affairs, when a CBP employee is arrested by local law enforcement, the Office of Professional Responsibility opens a parallel investigation.

The office keeps in touch with local law enforcement or the district attorney — so that if they decline to prosecute, the office can proceed with its own administrative investigation “to get rid of the bad apples,” Wong said.

Under such circumstances, an administrative investigation is often the only means to hold perpetrators accountable.

Wong, Tomsheck, the former CBP official, and Budd, the ex-Border Patrol agent, all told POGO that the Border Patrol, a part of CBP, has particularly strong relationships with local law enforcement along the U.S.-Mexico border. Border Patrol managers frequently use those relationships to pull strings or apply pressure to persuade local police to downgrade or dump charges against CBP or other DHS agents.

As Wong put it, “The Border Patrol closes ranks.”

According to Tomsheck, local Border Patrol managers sometimes even pressure victims to drop charges. He says that they frequently “go to victims and say, ‘If you go forward with these charges, [your] primary breadwinner … will be out of a job.’” Wong said law enforcement at all levels, including at CBP, often try to influence spouses, or other potential complainants, not to testify against their alleged abusers.

When victims recant or withhold their testimony, it can pose a significant hurdle to criminal prosecution, according to researchers.

Wong said that any effort to understand how CBP and other DHS law enforcement components deal with domestic violence by their own agents cannot be limited to convictions that trigger the Lautenberg Amendment. He said there is a clear additional need to examine administrative investigations, their findings, and the discipline that results — not just convictions. “That’s the bigger picture,” Wong said.

He also said the propensity to commit domestic violence off duty is a sign of how Border Patrol agents, who often work with vulnerable immigrants in remote settings far from public view, will conduct themselves on the job.

“It raises questions about someone’s fitness for the job if they abuse someone they have committed their life to,” Wong said. “How are they going to treat a total stranger they have no relationship with? Who’s going to stop them?”

A portion of the draft report that was cut before publication addresses those questions.

“In cases where the employee has shown a propensity to violence, agencies put victims and the public at risk of further violence by keeping weapons in these individuals’ hands,” the draft report says in another section that was removed.

Recently, the head of ICE’s union noted the connection between domestic violence and fitness for law enforcement duty when he raised questions about Biden’s nominee for ICE director, Harris County, Texas sheriff Ed Gonzalez, who faces allegations of violence against his wife.

“Federal law enforcement agencies are entrusted by the American people to enforce laws passed by our elected representatives, and to do so in an honorable, humane, and respectable fashion,” wrote Chris Crane, National ICE Council president, in a letter regarding the allegations against Gonzalez sent to Senator Gary Peters (D-MI), chairman of the Senate Homeland Security Committee. “The ‘good old boy’ culture that currently exists within our agency needs to end.”

Gonzalez has denied the accusations. “It’s false, it’s all politics,” he told a local Houston news station that also reported his wife has denied the allegations and that he was never charged.

But worry about his nomination is only the latest concern, widely shared across the political spectrum, about domestic violence in the ranks of law enforcement — even in the absence of criminal convictions.

The draft report speaks to those concerns. Given that some 45,000 CBP law enforcement officers are required to carry guns — with another 12,000 at ICE, and 5,000 at the Secret Service — the draft report concluded that, “it is imperative that DHS and its components take appropriate action against those who have committed domestic violence.”

Yet these statements were also removed, as well as several recommendations calling for disciplinary improvements at the four DHS law enforcement components.

Last June, about two years into Cuffari’s tenure as DHS’s top watchdog, the Government Accountability Office (GAO) issued a report noting serious deficiencies in his office, some that predated his arrival.

Among other problems, the GAO found that little or nothing had been done to reduce delays in completing reports, noting that an increasing percentage are taking longer than 18 months to publish.

While GAO made no mention of the unfinished review of sexual misconduct, it fits the bill because it has been in the works since February 2018 — and Cuffari’s office has now been stalling a near-final draft for more than a year and counting.

According to GAO, “without timely DHS OIG reports, DHS’s ability to respond to such oversight efforts and Congress’s ability to conduct effective oversight of DHS operations are limited.”

Moreover, the suppressed DHS watchdog reports on sexual misconduct and domestic violence are part of a pattern where Cuffari has appeared unwilling to oversee his department as an independent watchdog.

In an article published in April 2021, POGO documented how Cuffari refused to approve any review into the use of force by Secret Service agents in clearing Black Lives Matter protestors from Lafayette Square across from the White House. Around the same time, he also refused to probe a sizable outbreak of COVID-19 among Secret Service agents.

In July 2021, POGO documented how, as part of an investigation into CBP’s 2019 Facebook scandal where at least 60 Border Patrol agents engaged in misconduct such as posting racist and sexist comments online, Cuffari prevented his own professional investigators from interviewing senior DHS officials about their knowledge of the matter.

In the same article, POGO described, using documents, various ways in which Cuffari delayed and interfered with a probe into charges made by a high-ranking DHS whistleblower who claimed that politically sensitive intelligence was being manipulated and suppressed by top DHS officials, including then acting secretary Chad Wolf. Wolf and other top officials denied the charges.

And in February, POGO reported that Cuffari is the principal target of a probe into his alleged retaliation against an official then serving as his top deputy. Cuffari has denied retaliating.

Yet more recently, Cuffari finds himself confronting a very different kind of criticism: that he signed off on a report that allegedly mischaracterizes the facts and is harsh on DHS management.

In March, Cuffari’s office issued a report finding “egregious conditions” and understaffing in an ICE detention center, calling for the “immediate removal” of immigrant detainees.

In ICE’s official response, the agency wrote that it has questioned whether the report met federal standards and alleged that Cuffari’s office “falsified and mischaracterized evidence, and has ignored facts in order to achieve preconceived conclusions.”

Cuffari’s office has responded that it “fully disagrees” and stands by the accuracy of its report. “Our employees’ impartiality, independence, and integrity are essential to our oversight work and will remain so moving forward,” the inspector general’s office said in a statement.

Sadly, Cuffari himself has an undeniable pattern of removing significant facts and evidence from major reports. As a result of this pattern, his independence and impartiality are in question. And, intentionally or not, he is effectively protecting alleged predators inside DHS.