Via Email
November 26, 2019
Mr. Kenneth T. Cuccinelli, II
Acting Deputy Secretary
Department of Homeland Security
Mr. Mark Koumans
Acting Director
U.S. Citizenship and Immigration Services
Department of Homeland Security
Re: Recent Actions by USCIS Management Gagging Whistleblowers

Dear Acting Deputy Secretary Cuccinelli and Acting Director Koumans,
On behalf of, and as the exclusive representative of, the 13,500 unionized employees of the U.S.
Citizenship and Immigration Services (USCIS), we are writing to express our grave concern about
recent publicly-reported actions by USCIS management that effectively and illegally stifle
guaranteed whistleblower rights. We consider these actions extremely concerning, so much so that
American Federation of Government Employees (AFGE) Council 119, our AFGE Counsel, and
Government Accountability Project are partnering in the representation of these matters.
Illegal and Improper Conduct
As you know, on November 21, 2019, Mr. Koumans sent to all USCIS employees a communication
stating that they would suffer increasingly severe discipline—including termination of
employment—for the unauthorized disclosure, or “leaking,” of non-public information. According

 to Mr. Koumans, the communication was expressly issued because of “recent unauthorized
disclosures of sensitive, for official use only, and internal use only information by USCIS personnel
to media outlets.”1 That assertion ignores the fact that the recent information reported in the media
about USCIS was lawfully reported by whistleblowers. Thus, the Koumans directive was intended
to illegally intimidate whistleblowers from lawfully reporting ongoing abuses by the Department of
Homeland Security (DHS).
In the same vein and equally disturbing is the recent television pronouncement by Mr. Cuccinelli
that 27 USCIS employee “leakers” were disciplined within 100 days of his appointment (in June
2019, as then-acting USCIS Director). 2 No further information has been disclosed by DHS. This
comment along with the absence of information regarding disciplinary action taken demonstrates a
deliberate management strategy to illegally intimidate whistleblowers.
Violation of the Whistleblower Protection Act
Mr. Kouman’s directive fails to include statutorily required language informing employees that their
whistleblower rights supersede any non-disclosure policies. The “anti-gag” provision of the
Whistleblower Protection Enhancement Act (5 U.S.C. § 2302(b)(13)) specifically states that
employers with authority to take personnel actions cannot implement or enforce any non-disclosure
policy—the November 21 communication for instance—unless the policy statement contains the
explicit language guaranteeing whistleblower rights as set forth in the footnote, below. 3
The Office of Special Counsel (OSC) has repeatedly instructed that agencies cannot implement or
enforce nondisclosure policies, forms or agreements that restrain federal employees without
“including the required language. As stated by the head of OSC on January 25, 2017:

Hamed Aleaziz, A Top US Immigration Official Threatened to Fire Employees For Leaking to the Media, BuzzFeed
News (Nov. 21, 2019), available at https://www.buzzfeednews.com/article/hamedaleaziz/us-immigration-officialsthreatened-media-leaks.
1

Sharyl Attkisson, Immigration Battles, FullMeasure (November 3, 2019) (video interview with Ken Cuccinelli,
available at http://fullmeasure.news/news/immigration/immigration-battles).
2

3

5 U.S.C. § 2302(b)(13) reads as follows:
Any employee who has authority to take, direct others to take, recommend, or approve any personnel action,
shall not, with respect to such authority—
(13) implement or enforce any nondisclosure policy, form, or agreement, if such policy, form, or agreement
does not contain the following statement: “These provisions are consistent with and do not supersede, conflict
with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive
order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector
General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower.

AFGE/Government Accountability Project Letter to Acting Deputy Sec’y Cuccinelli and Acting Director Koumans
Re: Recent Actions by USCIS Management Gagging Whistleblowers
November 26, 2019
Page 2

 Nondisclosure agreements and policies can chill would‐be whistleblowers from coming
forward. These orders must clearly state that federal employees have a right to make
disclosures of wrongdoing.4
The OSC has read the anti-gag statutory language to include all authoritative management
communications and has ordered corrective actions to federal agencies that have issued unlawful
gag orders. Those agencies include the Department of Justice, Department of Health and Human
Services, the Drug Enforcement Administration within Justice, the Department of Housing and
Urban Development, the U.S. Department of Agriculture, the Department of Energy, the
Department of the Interior, as well as the Department of Homeland Security.5
Mr. Kouman’s directive does not contain the required anti-gag language. That it is intended to chill
employees from engaging in protected whistleblowing is demonstrated by the fact that the directive
was issued just days after current and former USCIS employees publicly blew the whistle on
significant misconduct, particularly concerning MPP—the Migrant Protection Protocols or “Remain
in Mexico” policy—as well as a new policy ordering the deportation of asylum seekers to
Guatemala.
Lawful Whistleblower Reports
Douglas Stephens, a former Asylum Officer, first reported to Congress that he had sent to his
supervisors a legal memo challenging MPP’s legality on no less than seven separate grounds. This
has been widely reported on in recent days by Senator Jeff Merkley (D-OR), the Washington Post,
CNN, the Los Angeles Times, This American Life, and the New York Times. 6 After sending the
OSC Press Release, OSC's Enforcement of the Anti-Gag Order Provision in Whistleblower Law (Jan. 25, 2017),
available at https://www.scribd.com/document/337635299/OSC-s-Enforcement-of-the-Anti-Gag-Order-Provision-inWhistleblower-Law.
4

Irvin McCullough and Zack Kopplin, Washington Post, Gag Orders at Federal Agencies Are Violating Whistleblower
Laws, (June 8, 2018), available at https://www.washingtonpost.com/news/posteverything/ wp/2018/06/08/gag-orders-atfederal-agencies-are-violating-whistleblower-laws/ (McCullough and Kopplin Washington Post Op Ed).
5

Office of Sen. Jeff Merkley, Shattered Refuge, A U.S. Senate Investigation into the Trump Administration’s Gutting of
Asylum (November 2019), Appendix N: Confidential Whistleblower Email to USCIS Management Regarding Migrant
Protection Protocols (August 12, 2019), pp. 77-80, available at https://www.merkley.senate.gov/imo/media/doc/
SHATTERED%20REFUGE%20-%20A%20US%20Senate% 20Investigation%20into%20the%20Trump%
20Administration%20Gutting%20of%20Asylum.pdf; Greg Sargent, In scathing manifesto,. an asylum officer blasts
Trump’s cruelty to migrants, Washington Post (November 12, 2019), available at https://www.washingtonpost.com/
opinions/2019/11/12/scathing-manifesto-an-asylum-officer-blasts-trumps-cruelty-migrants/#comments-wrapper;
Priscilla Alvarez, Senate Report: Whistleblowers Blast Trump Administration's Immigration Policies, CNN (Nov. 14,
2019), available at https://www.cnn.com/2019/11/14/politics/merkley-asylum-report/index.html; Molly O’Toole,
Asylum Officers Rebel Against Trump Policies They Say are Immoral and Illegal, Los Angeles Times (Nov. 15, 2019),
available at https://www.latimes.com/politics/story/2019-11-15/asylum-officers-revolt-against-trump-policies-they-sayare-immoral-illegal; The Out Crowd, This American Life (Nov. 15, 2019), available at https://www.thisamericanlife.
org/688/transcript; Why I Quit My Job Carrying Out Trump’s Immigration Policies, New York Times (Nov. 20, 2019),
available at https://www.nytimes.com/2019/11/20/opinion/trump-asylum-remain-mexico-policy.html.
6

AFGE/Government Accountability Project Letter to Acting Deputy Sec’y Cuccinelli and Acting Director Koumans
Re: Recent Actions by USCIS Management Gagging Whistleblowers
November 26, 2019
Page 3

 memo, Mr. Stephens was told he was going to be disciplined for insubordination; instead, he
resigned rather than work under MPP. Mr. Stephens submitted a written statement to Congress on
November 19, 2019, and testified before Congress on November 22, 2019.7
Similarly, Michael A. Knowles, Special Representative for Refugee Asylum and International
Operations for the National Citizenship and Immigration Services AFGE Council 119, testified
before Congress on November 19, 2019 about MPP. He provided significant details about many
wrongful and illegal abuses.8
The Whistleblower Protection Act specifically allows federal employees to lawfully make
whistleblower disclosures to Congress.9
In addition, on November 20, 2019, media outlets reported that USCIS is training Asylum Officers
to implement a new policy that will return asylum seekers from Honduras and El Salvador to
Guatemala.10 The reports note that Asylum Officers received, with their training materials,
information about the dangers faced in Guatemala -- including extreme and pervasive gang-related
violence. Anonymous Asylum Officers expressed deep concern about the consequences of sending
asylum seekers to Guatemala in light of the known dangers.
These disclosures fall squarely within well-established categories of protected whistleblower
activity. Mr. Stephens raised concerns with his USCIS management and Congress that conducting
asylum interviews under MPP violates migrants’ due process rights, international treaty obligations,
and the Immigration and Nationality Act. He added that it knowingly endangers those forced to
remain in Mexico awaiting asylum hearings, putting them in an unsanitary location lacking in basic
services and at risk of rape, kidnapping and violence. Mr. Knowles, testifying as a union
Written Statement of Douglas Stephens, Esq., Examining the Human Rights and Legal Implications of DHS’ “Remain
in Mexico” Policy, before the House Homeland Security Subcommittee on Border Security, Facilitation and Operations
(Nov. 19, 2019), available at https://www.whistleblower.org/wp-content/uploads/2019/11/111819-cover-letterTestimony-of-Douglas-Stephens-for-the-House-Homeland-Security-Committee-FINAL.pdf; Statement of Douglas
Stephens before the House Foreign Affairs Subcommittee on Africa, Global Health, Global Human Rights, and
International Organizations, Humanitarian Aspects of the United States Migratory Crisis (Nov. 22, 2019), available at
https://foreignaffairs.house.gov/2019/11/humanitarian-aspects-of-the-united-states-migratory-crisis.
7

Statement of Michael A. Knowles before the House Homeland Security Subcommittee on Border Security, Facilitation
and Operations, Examining the Human Rights and Legal Implications of DHS’ “Remain in Mexico” Policy (Nov. 19,
2019), available at https://homeland.house.gov/activities/hearings/examining-the-human-rights-and-legal-implicationsof-dhs-remain-in-mexico-policy.
8

9 See

5 U.S.C. 2302(c)(2)(C)(iii).

Ted Hesson Trump Administration Prepares to Send Asylum Seekers to Guatemala, Reuters (Nov. 20, 2019),
available at https://www.reuters.com/article/us-usa-immigration-guatemala-asylum/trump-administration-prepares-tosend-asylum-seekers-to-guatemala-idUSKBN1XU2SI; Hamed Aleaziz, Asylum Officers Were Told of Killings and
Violence in Guatemala. They Were Ordered to Send People There Anyway, BuzzFeed News (Nov. 21, 2019), available
at https://www.buzzfeednews.com/article/hamedaleaziz/asylum-officers-guatemala-deport-central-guidance.
10

AFGE/Government Accountability Project Letter to Acting Deputy Sec’y Cuccinelli and Acting Director Koumans
Re: Recent Actions by USCIS Management Gagging Whistleblowers
November 26, 2019
Page 4

 representative, expressed similar concerns independently. The disclosures by Asylum Officers
about Guatemala show that removing asylum seekers to Guatemala will place them in serious
danger. These disclosures, and similar future disclosures by federal employees, are protected
whistleblowing activity. They express clearly reasonable beliefs about the illegality and adverse
effects of conducting asylum interviews pursuant to USCIS mandates.11
Constitutional Violation
The Koumans directive is also a prior restraint that violates the Constitution. The Supreme Court
unequivocally has held that prior restraint is incompatible with the First Amendment. Nebraska
Press Association v. Stewart, 427 U.S. 539 (1976). Forcing citizens to disclose whom they
communicate with long has violated First Amendment freedom of association rights. NAACP v.
Buttons, 371 U.S. 415 (1963), United States v. Garde, 848 F.2d 1307 (D.C. Cir. 1988).
Deeply Troubling Cuccinelli Statements
We are also gravely concerned about Mr. Cuccinelli’s public comments. On November 3, 2019, he
boasted to a television interviewer: “in my first 100 days here [(from June 2019 when he was first
appointed acting USCIS Director)] we disciplined 27 leakers. We have a handful more still in the
pipeline for discipline.”12
USCIS has provided no further information about this boast. But if any employees have been
disciplined for “leaking”—when in fact those disclosures constitute protected whistleblowing
activity—discipline of any kind, or its threat, is an illegal prohibited personnel practice.
USCIS’ messages to employees in form of illegal gags and threats seek to and likely will impede
the exercise of their whistleblower rights. Employees reading their agencies’ rules will not know
they have the right to contact Congress or the media to expose misconduct. Even employees who
know their rights may be intimidated from speaking out of fear of violating agency policy. 13
Ultimately, when an agency unlawfully gags its employees, it threatens Congress’s ability to engage
in oversight, hampers citizens’ right to know about serious abuses and dangers to public safety, and
undermines policy-making that depends on information provided by expert civil servants in the best
position to identify wrongdoing.

Whistleblowers are only barred from publicly disclosing classified or otherwise statutorily prohibited information
(such as trade secrets or privacy information). For instance, in Department of Homeland Security v. MacLean, 135 S.
Ct. 913 (2015), the Supreme Court reversed the termination of a DHS whistleblower for publicly disclosing Sensitive
Security Information. Thus document – like training materials -- marked “Sensitive But Unclassified,” “For Official Use
Only,” or “Internal Use Only” can be disclosed when they evidence wrongdoing protected by whistleblower laws.
11

Sharyl Attkisson, Immigration Battles, FullMeasure (November 3, 2019) (video interview with Ken Cuccinelli,
available at http://fullmeasure.news/news/immigration/immigration-battles).
12

13

See McCullough and Kopplin Washington Post Op-Ed, n. 5.

AFGE/Government Accountability Project Letter to Acting Deputy Sec’y Cuccinelli and Acting Director Koumans
Re: Recent Actions by USCIS Management Gagging Whistleblowers
November 26, 2019
Page 5

 Action Demanded
We demand that USCIS and DHS immediately issue a corrective communication to the USCIS
workforce that conforms with the statutory mandate of 5 USC §2302(b)(13), discussed above. In
addition, if any employees have been disciplined as “leakers’ under this or similarly faulty nondisclosure directions, those personnel actions should be immediately reversed.
Very truly yours,
/s/
Danielle Spooner
President, AFGE Council 119

/s/
Tom Devine
Legal Director, Government Accountability Project

Cc:

J. Ward Morrow, Assistant General Counsel, AFGE
Michael Knowles, President, AFGE Local 1924
Dana Gold, Senior Counsel and Director of Education, Government Accountability Project
David Z. Seide, Senior Counsel, Government Accountability Project
Congresswoman Karen Bass, Chair, House Foreign Affairs Subcommittee on Africa, Global
Health, Global Human Rights, and International Organizations
Congresswoman Kathleen Rice, Chair, House Homeland Security Subcommittee on Border
Security, Facilitation and Operations

AFGE/Government Accountability Project Letter to Acting Deputy Sec’y Cuccinelli and Acting Director Koumans
Re: Recent Actions by USCIS Management Gagging Whistleblowers
November 26, 2019
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