Fired INS Employee Goes to Court: “We are not persuaded” Says Court

An immigration official caught up in an incident where three fellow officers injured an illegal alien during a raid remains fired from his agency following review of his case in which he contended he was a whistleblower.

An immigration official caught up in an incident where three fellow officers injured an illegal alien during a raid remains fired from his agency following review of his case by the federal appeals court. (Rodriguez v. Department of Homeland Security, C.A.F.C. No. 2008-3209 (nonprecedential), 11/3/2009) The facts are taken from the court’s decision.

Rodriguez was a Detention Enforcement Officer with the San Antonio District of the Immigration and Naturalization Service when the incident leading to an alien’s injuries occurred. He was involved in an operation that led to apprehension of 35 or so illegal aliens. One of the aliens, Mr. Carrera, was severely injured.

When Rodriguez learned the alien’s neck had been broken in the incident, he unplugged the "IDENT" camera (Automated Biometric Identification System–This system is used to accurately identify aliens who have been apprehended and deported to make it easier to track them if they come back into the country). Rodriguez told his boss that the system was not working properly. As a result of his actions, the aliens in this particular operation were not processed through IDENT. (Opinion p. 2)

Three officials charged with causing Carrera’s injuries were eventually tried and convicted of criminal civil rights charges. During the trial, Rodriguez testified and admitted he had unplugged the IDENT machine on the day of Carrera’s injuries and that he had misrepresented to his supervisor that the machine was not working. (p. 3)

Apparently not pleased, the agency investigated Rodriguez and concluded he had engaged in misconduct. INS fired him for making misstatements, conduct unbecoming, and noncompliance with procedures. (p. 3)

On appeal to the Merit Systems Protection Board, Rodriguez challenged the agency’s evidence and argued among other things that his removal was reprisal for whistleblowing. The Administrative Judge sustained the charges and concluded that removal was an appropriate penalty. He declined to consider the whistleblowing defense.

The full MSPB found that the AJ erred by not considering the whistleblowing defense. However, the Board concluded that the agency had proved its case and that the error was harmless since it did not prejudice Rodriguez’ case–he had failed to establish enough facts to proceed with the whistleblowing defense. (p. 4)

Rodriguez went to court.

The Federal Circuit Court of Appeals has now affirmed the MSPB and upheld his removal, pointing out that Rodriguez admitted that he had made a misstatement to his supervisor. The court then made short shrift of the argument that his actions "taken in the totality of the circumstances" did not have any affect on operations on the day in question. "We are not persuaded," said the court. (p. 4)

By not recording the deported aliens’ identifying information into the IDENT system, the agency’s ability to identify those persons in the future was "severely limited," thus causing the agency to lose confidence in Rodriguez. (pp. 4-5)

Finally, the court sustained the Board’s conclusion that Rodriguez’s affirmative defense failed since the alleged whistleblowing did not meet the required protected disclosure test. (p. 6)

Bottom line: the appeals court has sided squarely with the agency and the MSPB, and Rodriguez remains off the rolls.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.