Actions and Decisions Have Consequences

The failure to conduct a background check on an illegal alien captured on the Mexican border resulted in the alien returning to the US where he raped two women and murdered one of them. The agency’s 20-day suspension of a supervisor is upheld by the MSPB.

Sometimes, the decisions we make have unexpected repercussions.

A new decision from the Merit Systems Protection Board (MSPB) brings the point home.

A Border Patrol agent was told to perform a criminal background check on an illegal alien named Esparza who was apprehended along the Mexican border. The agent did not perform the background check even though the agency knew an outstanding warrant was issued in Oregon for Esparza. Instead, Esparza was voluntary returned to Mexico.

As often happens, Esparza didn’t hang around Mexico very long. He again returned to the United States and was not caught when he came back over the border this time. Instead, he went back to Oregon.

After arriving in his newfound homeland, he raped two nuns and murdered one of them.

As a result, an investigation was conducted by the agency to find out how this happened. Esparza, as it turned out, had a criminal history in the United States of thefts, narcotics offenses, robbery, and kidnapping; he had two previous deportations from the U.S.; and he had a warrant for robbery out of Los Angles, California. The investigation revealed that none of the Border Patrol agents who “processed” Esparza while he was in custody had conducted a background check.

After the investigation, the agency proposed a 20-day suspension for negligent performance of duties against Supervisory Border Patrol Agent Robert D. Velez II.

The agency decided to suspend Velez for 20-days on the theory that he had authorized a voluntary release of Esparza without ensuring that a background check had been conducted. Velez argued that he had checked and was told that the background check had been conducted and that the results were negative.

The administrative judge found that the charge against Velez was not justified and reversed the suspension.

But that did not end the case. The agency appealed the initial decision to the full board. The MSPB agreed with the agency and reinstated the 20-day suspension. The Board rejected the credibility decision by the administrative judge that resulted in reversing the suspension.

While the MSPB normally defers to a credibility determination by an administrative judge, the Board noted that it “may overturn an AJ’s demeanor-based credibility findings when it has sufficiently sound reasons for doing so, such as when the AJ’s credibility findings are incomplete, inconsistent with the weight of the evidence, and they do not reflect the record as a whole.”

A detailed examination of the facts in the case led the Board to conclude that someone was lying and that it was apparent, or should have been apparent, that no background check was conducted on Esparza.

The final result: the 20-day suspension was upheld as the supervisor did not do his job as “extra caution should have been used in determining his (Esparza’s) criminal history, and that “a 20-day suspension was well within the tolerable bounds of reasonableness under the facts of this case. ”

A contributing factor to the Board’s decision was because “it is undisputed that this incident resulted in a substantial amount of negative publicity for the agency.”

Presumably, the fact that two women were subsequently raped and one was murdered by Esparza was also a consideration lurking in the background as well.

Robert D. Velez, II, v. Department of Homeland Security, DE-0752-04-0407-I-1 (2006 MSPB 116) May 5, 2006

About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources. Follow Ralph on Twitter: @RalphSmith47