Exclusive: Border Patrol Knew About Harrowing 'Game Of Smiles' Sexual Assault Claims, But Did Not Take Action, Former Official Says

U.S. Customs and Border Protection leadership knew about an alleged sexual assault in which a female Border Patrol trainee claimed to have been raped by at least one instructor and multiple male peers at a graduation party—but they did not take proper action in the years following the incident, a former internal affairs chief has told Newsweek.

James Tomsheck was head of internal affairs from 2006 to 2014 before being removed from the role amid criticism of his team's handling of allegations of inappropriate use of force by Border Patrol agents.

Tomsheck said that when he was first given the file on the alleged incident, which was believed to have taken place in the early 2000s, he was left horrified by its contents.

The 'game of smiles'

Placed on his desk within his first month on the job, he said the report detailed a "disgusting sexual predator event" in which a female Border Patrol trainee based at a facility near Charleston, South Carolina, claimed to have been invited to a graduation party at an instructor's temporary residence.

After being "encouraged" to drink a considerable amount of alcohol by her superiors, the woman said she had then been asked to participate in a game they referred to as the "game of smiles."

"In great graphic detail, this game was described as a scenario wherein several men would sit around a table with their pants down. The female would then go under the table and engage in oral sex with different members, different persons sitting under the table," Tomsheck told Newsweek.

"The intent of the game, as described in the report, you lost if you smiled while sitting at the table. This disgusting sexual predator event was documented in great detail," he said.

The report then went on to claim that the female Border Patrol trainee had been further sexually assaulted after falling unconscious "by virtue of alcohol consumption," Tomsheck said.

"Several of the instructors and others present at this party then engaged in sexual intercourse with her, constituting a first-degree sexual assault," he said.

Tomsheck said an internal investigation found reason to believe the alleged incident did occur. However, because the probe occurred around the same time that the U.S. government's immigration and national security arm was undergoing a major shake-up in the wake of the terrorist attacks of 2001, Tomsheck said it "laid dormant for several months that became years."

While the investigation would have previously been under the purview of the Immigration and Naturalization Service agency, which ceased to exist in 2003 with the creation of the Department of Homeland Security, it was later picked up again by the U.S. Immigration and Customs Enforcement Office of Professional Responsibility, which had been tasked with professional oversight.

'Extremely disturbed'

For reasons unknown to Tomsheck the case once again appeared to go into a dormant state, according to the file. It later appeared to be shut down when the victim decided she no longer wished to move forward with the case.

"I was extremely disturbed by both the findings of the investigation and the lack of action on the part of Border Patrol managers, senior leadership, to hold accountable those responsible for those gross acts that occurred," Tomsheck said.

He said by the time he found out about the investigation, it had been closed after the victim had "chosen not to cooperate."

"The conflict I faced was respecting the privacy of the victim, who in the final report she had clearly indicated she wanted no further involvement with the incident. She stated within the investigation that she did not want to cooperate any further," he said.

Tomsheck said he believed it was important to respect the alleged victim's decision. However, he also felt that Border Patrol officials should have continued to investigate the case without her involvement and determine whether any disciplinary action should be taken.

The former internal affairs chief said he was reassured that the investigative findings had been provided to Border Patrol leadership, who would be responsible for determining what level of discipline would be appropriate for those found to have been involved.

As far as Tomsheck is aware, however, no Border Patrol instructors or trainees were ever "held accountable" over the incident. It is likely, he said, that those who did go on to have careers with the agency, would have either have been promoted or retired by now.

Tomsheck said he did not hear about the "game of smiles" case again until years later, in 2015, not long after he had been removed his role, when he spoke with a senior Border Patrol official who was also aware of the so-called "game."

The former internal affairs chief said he was surprised to learn from the official that the case had not been pursued because Border Patrol leadership had determined that the event had simply not occurred. Having read the previous report, which found reason to believe the incident had taken place, Tomsheck questioned how that could be true.

When Tomsheck laid out the findings in the report, he said the senior Border Patrol official "expressed great concern" about the information he relayed.

The term "game of smiles" is one that former Border Patrol Agent Jenn Budd had independently told Newsweek that she had been made aware of during her time as a trainee within the agency in the 1990s. She recently shared with Newsweek her own story of surviving an alleged sexual assault as a Border Patrol trainee.

Budd said she had been warned about the "game" in her first week at the agency's training academy in Glynco, Georgia, by female superiors. The "game of smiles" was also known to trainees as the "circle blow," she said.

While Budd said she had never heard of any specific incidents in which the "game" had unfolded, she had been warned about it by superiors who also warned her and other female trainees to watch their drinks around men within the Border Patrol.

Jenn Budd
Former Border Patrol agent Jenn Budd says her supervisors at the Border Patrol's academy in Glynco, Georgia only told her to file a complaint when she came forward with her rape allegations.

'A very disturbing pattern'

While Tomsheck said his concerns about sexual misconduct within the Border Patrol began with the "horrific" allegations outlined in the report he first read in 2006, they did not end there.

"That report was the first indicator that I became aware of sexual misconduct problems within the ranks of Border Patrol," he told Newsweek. "Over the course of the next eight years, I came to understand that this was a very disturbing pattern and practice of abuse that existed within the ranks of the Border Patrol and appeared to be part of the Border Patrol culture."

During the final weeks of his role as CBP head of internal affairs before being removed from the post, Tomsheck said he sent a report to CBP's leadership, warning about the high rate of "sexual misconduct" allegations within the Border Patrol and within the CBP.

"I believe the number was well in excess of 30, close to 35 instances of frontline Border Patrol agents or CBP officers engaging in sexual misconduct that ran the gamut from unwanted touching, inappropriate sexual verbal comments to first-degree sexual assault," he said. "It was occurring within the ranks of U.S. Customs and Border Patrol at a rate that far exceeded that of the general population."

While Tomsheck said there were cases of Border Patrol agents victimizing migrants and asylum seekers or other people they engaged with at the border, many of the allegations made against Border Patrol workers included incidents that saw female agents being targeted.

Tomsheck said he forwarded the report outlining more than 30 sexual misconduct incidents alleged to have occurred in the roughly 18 months leading up to April 2014 to the recently appointed Commissioner of CBP, R. Gil Kerlikowske, and then-acting deputy commissioner of CBP, Kevin McAleenan. Neither Kerlikowske, who oversaw Tomsheck's removal from CBP's internal affairs office, nor McAleenan would have held the top jobs in the agency around the time the incident was alleged to have occurred.

McAleenan would eventually go on to become CBP commissioner under the Trump administration, before being quickly promoted to Acting Secretary of the Department of Homeland Security in April 2019, following the high-profile resignation of then-DHS chief Kirstjen Nielsen. McAleenan followed Nielsen out the White House not long after, stepping down from the role in October.

According to Tomsheck, the former internal affairs chief's report was quickly dismissed, with McAleenan's only response being to question why he had sent it out in the first place.

McAleenan has disputed that account, however, with a source close to him telling Newsweek that McAleenan has no recollection of receiving such a report or ever having such an exchange with Tomsheck.

Border Patrol agent
This photo shows a US Border Patrol patch on a border agent's uniform in McAllen, Texas, on January 15, 2019. The Border Patrol has faced growing scrutiny over claims of sexism and sexual misconduct within the agency. SUZANNE CORDEIRO/AFP/Getty

In a phone interview with Newsweek, Kerlikowske said he does remember receiving a report outlining concerns around sexual misconduct from Tomsheck. He also acknowledged that it was not the first time Tomsheck had tried to flag the issue with CBP leadership.

However, he said that his office was unable to verify where the internal affairs chief was getting his "data" from.

"I don't know where his perspective or information came from other than kind of anecdotal," he said.

Tomsheck has maintained that the information was far from "anecdotal," and insists that the report simply relayed confirmed allegations and convictions concerning Border Patrol agents and CBP officers.

Kerlikowske said he said that he decided to remove Tomsheck from his post because of the "clear lack of accomplishment in the years by internal affairs." The agency, he said, was "getting a whole new authority" at the time that required a "fresh perspective and new leadership."

Asked whether he believed, at the time, that there might be a problem of sexual misconduct within the Border Patrol, Kerlikowske said he "didn't try to separate out all the different problems of discipline" within the agency, "whether it was domestic violence, sexual assault or use of force."

He did acknowledge that the agency's struggle to recruit women then—and now—was "problematic," but said he had tried to promote efforts to do more to see women recruited across federal law enforcement bodies.

Kerlikowske maintained that he had never heard of the "game of smiles." However, as has been noted, if the incident did take place, it would have occurred before his time in office.

The former CBP commissioner also told Newsweek that if Tomsheck was seriously concerned about sexual misconduct allegations within the Border Patrol agency, he should have done more to push the issue.

"If I would have gone to my chief and said, 'well, just let me tell you about this problem…what are you going to do about it chief?' I probably wouldn't have been kept in that position," he said.

Kerlikowske said, "Regardless of the number of sexual assault complaints, any assault complaint made against a CBP employee is significant and must be investigated thoroughly and all support for the victim from counseling, to leave (if asked for), transfer (if seen as necessary or requested by the victim) and any additional requests for assistance should [be] granted."

In a statement sent to Newsweek, Robert Bonner, who was the head of CBP from March 2003, when the agency was created as part of the DHS, until December 2005, said that he did not recall allegations about the "game of smiles."

However, he said, "Tomchek was brought into CBP after I left as Commissioner in November 2005, so I am reasonably sure that Mr. Tomchek did not brief me on these allegations or any investigation that may have been conducted by the INS or ICE."

If an investigation was conducted that corroborated the claims in the report Tomcheck claims to have reviewed, "the individuals involved should have been terminated and prosecuted," he said.

In addition to speaking with Kerlikowske and Bonner, Newsweek contacted but did not hear back from Ralph Basham, who was CBP Commissioner from June 2006 to February 2009 and David Aguilar, who served as Border Patrol Chief from July 2004 to January 2010 and who later served as Deputy Commissioner of CBP. Gustavo de la Viña, who led the Border Patrol from 1997 until he retired in 2004, passed away in October 2009.

A spokesperson for today's CBP suggested Newsweek contact the U.S. Department of Justice Office of the Inspector General, given that the Department of Justice would have overseen the INS around the time the alleged incident was believed to have occurred.

The DOJ OIG did not respond to a request for comment from Newsweek, while a spokesperson for the DOJ did not provide an on-the-record statement. The DHS and ICE, which would have been involved in the investigation, did not respond to requests for comment.

Border Patrol today

Tomsheck's account comes at a time when the Border Patrol is facing significant scrutiny over its handling of accusations of sexism and sexual misconduct.

In July, then-senior agent Gus Zamora, 51, was indicted on charges of sexual assault and kidnapping in the alleged assault of a junior female agent.

Despite the seriousness of the charges, Zamora, who is married to one of the agency's most high-ranking and celebrated female agents, Gloria Chavez, was allowed to retire from the agency following the indictment, according to The New York Times.

Tomsheck said he was "not at all" surprised, however, telling Newsweek that he found the incident and the Border Patrol's response to be "entirely consistent with the pattern of sexual misconduct within the ranks of Border Patrol."

The agency has also faced widespread condemnation after social media groups were exposed in which current and former agents were caught sharing sexist and racist content.

In one social media group, known as the "I'm 10-15" Facebook group, which included as many as 9,500 current and former Border Patrol agents, members shared a range of sexist and racist posts. This included an illustration appearing to depict New York Rep. Alexandria Ocasio-Cortez, who has been an outspoken critic of the Trump administration's hardline immigration policies, engaged in oral sex with a detained migrant.

The agency also has one of the lowest percentages of women on its force out of any federal law enforcement agency. According to a 2018 report from the Equal Employment Opportunity Commission, in fiscal year 2016, just 5 percent of the Border Patrol's employees were women.

The National Organization for Women has previously slammed the agency, questioning whether its lack of female workers might have something to do with allowing a "pervasive culture of sexism and racism" to fester.

Kerlikowske said he was well aware of the concerns that have been raised about the internal culture of the Border Patrol agency.

Social media groups like the "I'm 10-15" Facebook group, he said, are "problematic." "I didn't know anything about that," he said. However, he noted that it was still unclear how many Border Patrol agents had actually posted or engaged with sexist and racist posts shared within the group.

However, he said he believed that those investigating instances of sexism, racism or sexual misconduct within the Border Patrol should "recommend disciplinary action for those postings...if they have the proof."

Despite the recent scrutiny surrounding alleged misconduct within the Border Patrol, the former CBP chief said he believes the agency's leadership has taken significant steps over the years to ensure accountability.

In March 2012, the agency published its Employee Standards of Conduct, which seeks to make clear that sexual harassment and misconduct of any kind will not be tolerated.

Since then, CBP has also sought to set a higher standard for accountability and transparency with its annual Discipline Overview Report, which first saw findings for fiscal year 2015 published in May 2017.

The fiscal year 2015 report notes that agency staff had seen three arrests related to sexual misconduct that year. In each of the following fiscal years, 2016 and 2017, two arrests were made in connection with sexual misconduct allegations.

However, it is also important to note that each report also includes thousands of cases in which management determined disciplinary action was not warranted, including many allegations of misconduct that were deemed to be "unsubstantiated or unfounded," with the reports making no clear distinction on what kind of misconduct had been reported.

In fiscal year 2016, the number of cases where management "determined disciplinary action was not warranted" totaled 3,828, while in fiscal year 2017, the number came to 3,806. As the CBP notes in its 2016-2017 report, "this equated to an aggregate decrease of 17 percent" from the 4,610 cases that management determined disciplinary action was not needed in fiscal year 2015.

In a statement addressing concerns around the culture within Border Patrol, previously sent to Newsweek, CBP spokesperson Jacqueline Wren maintained that all of the agency's employees are "expected to conduct themselves in a professional manner while on or off duty."

"CBP stresses honor and integrity in every aspect of our mission, and the overwhelming majority of CBP employees and officers perform their duties with honor and distinction, working tirelessly every day to keep our country safe," she said, adding that today's CBP "takes every allegation of misconduct seriously and fully cooperates in the investigation of such allegations."

Updated: This article has been updated to reflect a source's request for anonymity and to include comments from Robert Bonner, a former head of the CBP.