EXCLUSIVE: The head of Border Patrol pushed back against the Biden administration’s handling of a false "whipping" controversy aimed at his agents in 2021, emails from the days after the incident seen by Fox News show -- with the chief reprimanding officials for failing to highlight migrant assaults on agents, as well as the lives his agents were saving.
Emails obtained by the Heritage Foundation's Oversight Project via FOIA, and provided to Fox News, shed new light on the Sept. 2021 Haitian migrant crisis in Del Rio, and a related incident in which Border Patrol agents on horseback encountered migrants coming across the river. Photographs from the incident were misinterpreted by commentators, reporters and some Democrats as showing the agents whipping migrants. In fact, the agents were using reins to control their horses, were not carrying whips and did not whip anyone.
But the controversy went viral on social media and made national news, leading to a scrambled response from the Biden administration. The emails show how on the day after the incident, Customs and Border Protection (CBP) officials were immediately under pressure for a response.
"Hi all. We need to get the more [sic] details on this as soon as possible," one Sept. 20 2021 email from a redacted official said. "Just got a call from White House [Office of Inter-Governmental Affairs]/Political -- the footage is getting everywhere."
"DHS wants to be able to update the talking points for media inquiries to say an investigation is underway. Please let me know if/when I can confirm that," another says minutes later.
Eventually, a statement was put out in which DHS says that the CBP Office of Professional Responsibility was investigating the matter and in which the footage was described as "extremely troubling" with a promise that an investigation will "define the appropriate disciplinary actions to take."
The email chain also includes redacted talking points for officials to use. But, in response to the back-and-forth, Border Patrol Chief Raul Ortiz expressed his frustration at the failure to highlight the good work his agents were doing or the violence and abuse they faced at the hands of migrants.
"This horse business is awfully negative but there are great efforts occurring and we aren't highlighting any of them," he said in a furious email. "Everyday we are providing lifesaving efforts to migrants under the bridge."
"Our agents are being assaulted and we aren't saying a word," Ortiz said.
The Chief then also noted incidents in which Haitian migrants on removal transportation had hijacked buses and attempted to escape -- something he said had not been commented on by the agency – as well as the long hours they were putting in, often in intense heat and under difficult conditions.
"The bus contractors and pilots are dealing with Haitians escaping or trying to overrun drivers and we stay quiet. Agents and pro staff are working 14 hour days in difficult conditions, nothing said," he said. "We have to change the narrative or these stories will be only story."
Ortiz’s words do not appear to have been heeded. While Mayorkas had given an initial defense of the agents alongside Ortiz that day, noting the distinction between the use of reins and any use of whips, he later walked that back -- saying it was before he saw the footage.
In the emails, Mayorkas is told in an email from an unnamed official that DHS "will need to clarify what reins looks like vs a horse whip, and clarify use of force."
By the end of the week, Mayorkas was deferring to the OPR’s investigation, while also expressing his horror at the images.
"Our nation saw horrifying images that do not reflect who we are. We know that those images painfully conjured up the worst elements of our nation's ongoing battle against systemic racism," Mayorkas said at a press conference.
President Biden meanwhile, came out swinging at the agents directly, angrily (and falsely) accusing them of assaulting migrants -- and promising that there would be consequences.
"To see people treated like they did, horses barely running over, people being strapped — it's outrageous," Biden told reporters, making a whipping motion with his hand. "I promise you, those people will pay. There will be an investigation underway now, and there will be consequences. There will be consequences."
In the emails obtained by Fox, an official flags Biden’s remarks to Ortiz, who responds: "The tremendous work that took place over the last 10 days is what I'm gonna choose to focus on."
Acting CBP Commissioner Troy Miller responds simply: "Agree."
Months later, in March 2022, an official appeared to scold Ortiz’s comments he made in a local radio interview in which Ortiz said he hoped the investigation would be wrapped up "relatively quickly."
"And we’re going to find out, you know, really, what the truth was behind that incident, and I’m confident that almost all of those [agents] will be exonerated. And what we’ll find is it was probably, you know, mischaracterized," he said.
The email flags the remarks and then reminds the recipients of "our approved messaging on this" which emphasizes sharing the results of the investigation when it is complete "consistent with the need to protect the integrity of the investigation and individuals’ privacy."
The subsequent investigation, which did not reveal its findings until the summer of 2022, found "no evidence" that agents struck migrants and found that they were not carrying whips, but it still faulted agents on more minor infractions. An agent was accused of using "denigrating and offensive" language against migrants regarding national origin and gender, and of having maneuvered a horse around a child in an "unsafe manner" – while agents were said to have used "unnecessary use of force" to drive the migrants back.
In a statement, former acting CBP Commissioner Mark Morgan and former acting Immigration and Customs Enforcement (ICE) Director Thomas Homan said that the emails "paint a picture of the Biden administration’s continued incompetence and politicizing of border security."
"They offer more proof that Secretary Mayorkas was made aware the ‘whipping’ narrative was false, days before he continued to insinuate otherwise from the White House podium," they say. "They show the White House pressuring CBP for answers in what quickly became a politicized investigation."
The former officials also claimed that DHS leadership "do not care" about how the administration’s policies impact the morale and well-being of the Border Patrol.
"Mayorkas, in particular, as one of the chief architects and consistent defenders of this radical agenda, bears unique responsibility for the cratering of morale across the force. Even his own agents have lost confidence in his ‘leadership,’" they say.
Brandon Judd, the head of the National Border Patrol Council, accused the administration of vilifying law enforcement in order to appease its base.
"President Biden, Vice President Harris and Secretary Mayorkas knew they could use the court of public opinion to make their base supporters happy by prematurely convicting the overworked and overwhelmed Horse Patrol agents with their political rhetoric," he said.
"They knew the evidence would ultimately come to light to show the agents not only did nothing wrong but actually carried out their duties lawfully and in accordance to orders from an Executive Branch Department they control. They obviously didn’t care," he said. They knew by the time all evidence came to light, the damage would be done and the political points they desperately wanted would be scored.
