Criminal Investigator Helping Mom Become US Citizen Stays Fired

A Criminal Investigator with the Department of Homeland Security who was fired for misconduct in connection with helping her mother try to win U.S. citizenship went to court to try and keep her job. The court sustains the MSPB conclusion that she should be fired.

A Criminal Investigator with the Department of Homeland Security, fired for misconduct in connection with helping her mother try to win U.S. citizenship, has lost her appeal before the Federal Circuit Court of Appeals. (Hernandez v. Department of Homeland Security, C.A.F.C. No. 2009-3038 (nonprecedential), 5/8/2009)  The facts are taken from the court’s decision.
The agency slapped Hernandez with four charges, only three of which were sustained before the Merit Systems Protection Board—making false statements to assist her mother’s application for citizenship; making false statements during an official investigation; and misusing government equipment. (Opinion p. 2)
With regard to the first sustained  charge, Hernandez filed an affidavit stating that her mother had lived with her the previous ten years. However, five years earlier when completing her Questionnaire for National Security Positions (QNSP), Hernandez had reported that her mother lived in Mexico. In her defense, Hernandez argued that her mother used her Mexico address as a permanent one even though she had been living with Hernandez during some of the same time period. (p. 2)
As to the second sustained charge, Hernandez gave contradictory facts to the agency regarding her former husband. She signed court documents in connection with an adoption stating that she was still married to him even though they had been divorced some 7 years earlier.
She later signed another affidavit stating that they had never represented themselves to be married following their divorce. There were also discrepancies in information she provided at different times concerning child support payments. Hernandez explained the contradictory affidavits by explaining that she had not read the supporting information provided with the more recent affidavit. (p. 2)
The third sustained charge involved Hernandez’s personal use of the Treasury Enforcement Communications System (TECS), in direct violation of agency rules. Hernandez claimed that she did not know it was prohibited to search her own name and home address on the system. However, the agency was able to show she had been given formal training and certification on the system that included specific instructions never to use it for personal searches. (p. 3)
The Merit Systems Protection Board upheld the three charges and sustained Hernandez’s removal. It did not buy her explanation on her mother’s residency since Hernandez had purposely left out the fact that her mother lived for a time with relatives in Mexico. The Board also did not find credible the idea that a trained criminal investigator who had gone to law school would not read documents supporting an affidavit before she signed it. Finally, the Board found that Hernandez knew or should have known that she was prohibited from putting her personal information into the TECS systems. (pp. 3-4)
The court decision now affirms the Board’s decision. The court agrees with the MSPB’s conclusion that there was substantial evidence backing the agency’s case against Hernandez. And the court, like the Board, refused to overturn the removal penalty. As the court explains, “A very high standard of honesty and credibility is expected of law enforcement officers because of the public trust and confidence attendant to their job responsibilities.” (p. 4) The appeals court also pointed to Hernandez’s refusal to admit to wrongdoing and her lack of regret for her actions as properly factoring into the removal penalty. (p. 5)

Bottom line: Hernandez remains out in the cold unless she can convince the U.S. Supreme Court to take another look at her case. 

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.