Legal Beat
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CBP Did Not Abuse Its Discretion When It Fired Officer Who Married Illegal Alien
New York, NY - The U.S. Customs and Border Protection (CBP) did not abuse its discretion when it fired a CBP Officer who married an illegal alien, the Federal Circuit ruled last week.
In this case, the CBP Officer was removed from her position at John F. Kennedy International Airport effective December 1, 2008. The CBP Officer worked for the federal government as an Immigration Inspector with the Immigration and Naturalization Service (INS) from 1988 until 2003, when she became an employee of CBP, part of the new Department of Homeland Security.
In June 2004, CBP issued employee standards of conduct, which included a section labeled “Inappropriate Association.” This section, among other things, bans employees from associating with any individual believed to be, or known to be, connected with “criminal activities.” The section went on to say that the limitation on association covers “any social, sexual, financial, or business relationship with a source of information, a suspected or known criminal, or an illegal alien, subject to being removed from the United States of America.”
The issue of inappropriate association was also the subject of a “muster” for the week of July 31 - August 6, 2005, and the CBP Officer did not deny attending this muster.
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I n December 2004, the CBP Officer met an illegal alien at a Christmas party given by mutual friends. The two began dating shortly thereafter. During the first several months of dating, the CBP Officer claimed she did not know she was dating an illegal alien. In early September 2005, however, the pair discussed marriage, and the illegal alien informed the CBP Officer that he could not marry her because he did not have “the papers.” Nevertheless, they married that month, and the illegal alien returned to his native Colombia in December 2006 to obtain an immigrant visa. The CBP Officer began submitting forms to have her husband’s immigration status adjusted.
In May 2007, based on a complaint, CBP began an investigation into the matter. Ultimately, the CBP Officer was removed from her position effective December 1, 2008, and appealed to the U.S. Merit Systems Protection Board. The MSPB sided with the agency, prompting the CBP Officer to appeal to the Federal Circuit.
Before the Federal Circuit, the CBP Officer made four arguments. First, she claimed that she was not given adequate notice of the rule prohibiting associating with illegal aliens. Second, she stated that other employees married illegal aliens without penalty. Third, she argued that she properly relied on the statements of CBP supervisors and her union president when she married the illegal alien. Fourth, she contended that the penalty of removal was arbitrary and unreasonable.
With respect to the first argument, the Federal Circuit stated that there was “substantial evidence” in the record that the CBP Officer was properly notified of the prohibition against associating with illegal aliens. The court noted that the standards of conduct were posted on the
