DHS declines to investigate border agents Biden admin accused of 'whipping' illegal immigrants

On Tuesday, the Department of Homeland Security provided an update on the investigation into the Customs and Border Protection agents that the Biden administration claimed were "whipping" illegal immigrants crossing the border in September.

DHS, under Secretary Alejandro Mayorkas, wrote that the CBP had initially referred the investigation to the DHS’s Office of Inspector General, but that office declined to investigate the matter, referring it back to the CBP's Office of Professional Responsibility.

The investigation is about two months old. On September 19, as thousands of Haitian and other nationality migrants were attempting to cross the border illegally, CBP agents on horseback were photographed, with many officials and others construing the agents' actions in the photos as "whipping" the migrants.

President Joe Biden said during a press conference that they immigrants were being "strapped" by border patrol agents on horseback, who claimed they were actually trying to keep the people away from the horses so they would not be injured.

On September 22, DHS Secretary Alejandro Mayorkas assured lawmakers that the review of the agents' conduct would take "a matter of days, not weeks."

"We are addressing this with tremendous speed and with tremendous force... The facts will drive the actions that we take, we will pull no punches, and we need to conduct this investigation thoroughly but very quickly. It will be completed in days, not weeks," said Mayorkas said at the time.

In accordance with DHS policy, OPR refers all allegations of serious misconduct against law enforcement officers to the OIG. If the US Attorney declines the case, OPR "continues with the final steps remaining in the investigation.  The results of the completed investigation are then provided to CBP management to evaluate whether disciplinary action is warranted," according to the DHS.

"OPR then immediately commenced investigative work, including its review of videos and photographs and the interview of witnesses, employees, and CBP leadership.  OPR has followed customary process in its investigation of this matter," the DHS wrote.

They assured that once the investigation is complete, the results would be communicated to CBP management "to determine whether disciplinary action is appropriate and, if so, the specific discipline to be imposed."

"At that time, the employees will be afforded due process, including an opportunity to respond, and any corrective actions will comport with applicable laws and regulations," the DHS continued.

The DHS, which oversees the CBP, stated that it "remains committed to conducting a thorough, independent, and objective investigation."

In determining what disciplinary action to take, the DHS said that "deciding officials are typically required to consider a number of factors, referred to in case law as the Douglas Factors (based on criteria set forth in the 1981 case, Douglas vs. Veterans Administration), to include an analysis of the nature and seriousness of the action; the employee's role and position, work record, and disciplinary history; the notoriety of the offense; and the consistency of the proposed penalty with discipline imposed for analogous offenses."

Following a decision, the employee is issued a decision letter. For certain types of actions, like long suspensions and removal actions, the agency is required to provide 30 days notice to the employee. Depending on the type of discipline imposed, employees have the right to the following appeal processes: "review by the Merit Systems Protection Board; review by the Equal Employment Opportunity Commission; a negotiated grievance procedure and arbitration; and an internal administrative grievance procedure."