Dousa v. DHS
This case is about government harassment of and retaliation against dissenters and those who associate with marginalized communities.
On July 8, 2019, Reverend Kaji Dousa filed a lawsuit against the Department of Homeland Security (DHS), Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), and the people leading these agencies, to stop their unlawful retaliation against her for providing pastoral services to migrants and refugees—a central calling of her Christian faith. The lawsuit asks the court to declare the actions targeting First Amendment rights as unlawful and asks for a permanent injunction against the government to stop surveilling, detaining, interrogating, or acting unlawfully against Rev. Dousa, both immediately and in the future, and in retaliation for how, when, and where she exercises her religion.
The free practice of religion is foundational to our democracy and core to Rev. Dousa’s lifework.
For nearly a decade, Rev. Dousa has used her ministry to advocate for migrants and refugees, both within the United States and across the border in Tijuana, Mexico. Her pastoral work includes ministering to migrants, officiating weddings for migrant communities, and organizing prayerful vigils that are sometimes critical of U.S. immigration law and policy, all of which are clearly protected by the Constitution and federal civil-rights law.
In 2018, Rev. Dousa helped organize a mobile clinic of faith leaders to deliver pastoral services, such as prayer and church-blessed marriage ceremonies, to migrants seeking asylum in the United States. This “Sanctuary Caravan” lasted 40 days and 40 nights, a period of Biblical significance, and included dozens of volunteers ministering to several hundred asylum seekers south of the Southern Border. In December 2018, Rev. Dousa traveled down to Mexico to join the Sanctuary Caravan and, on January 2, 2019, she attempted to return to the U.S. through the San Ysidro port-of-entry.
Federal immigration officials detained Rev. Dousa for hours in secondary screening, subjected her to extended interrogation of her ministry, and revealed disturbingly deep knowledge of her personally and her pastoral work with migrants.
The case reveals the unconstitutional and antidemocratic actions of the government.
Rev. Dousa’s ministry to migrants, and her leadership in prayerful vigils through the New Sanctuary Coalition (a New York City faith-based organization), caused local ICE officials to place her on a list of “Anti-Trump Protests” targeted for surveillance.
And DHS, in response to Rev. Dousa’s ministry, further targeted her for heightened surveillance, detention at the border, extensive interrogation, and revocation of her clearance (SENTRI) for expedited border crossing.
Following Rev. Dousa’s detention at the border, on March 6, 2019, San Diego’s NBC affiliate published internal DHS documents revealing a government surveillance program dubbed “Operation Secure Line.” These documents included a list of 59 individuals—journalists, lawyers, advocates, and Rev. Dousa—each person listed with their photograph and personal details (including date of birth, country of commencement, and any suspected connection to migrants). For some individuals, their photograph included a color-coded “X” over their faces, indicating whether the individual had been arrested, interviewed, or subjected to an adverse immigration action, like having their visa or SENTRI pass revoked. (A SENTRI pass is a permit for expedited border crossing.) Over Rev. Dousa’s photograph was a yellow “X” with the notation “Disposition: SENTRI revoked.”
For all people targeted by Operation Secure Line, their only shared connection is their work to aid, counsel, minister to, and provide information about migrants.
Publicly, CBP officials responded to the NBC report by saying “that the names in the database are all people who were present during violence that broke out at the border in November,” referring to a confrontation during which CBP officials fired tear gas at migrants, including children. But Rev. Dousa had not been present for any violence near the border, neither in November nor at any other time.
CBP also said that “journalists are being tracked so that the agency can learn more about what started that violence.” Yet the journalists who appeared on the list, and who were detained for interrogation at San Ysidro, reported that, similar to Rev. Dousa, immigration officials asked them no questions about November confrontations between immigration officials and migrants at the border.
The punitive actions taken by DHS, CBP, and ICE have both a tangible and chilling effect on Rev. Dousa’s right to practice her Christian faith and minister her faith to others. And these actions are not only undemocratic, but also illegal under the U.S. Constitution. Protect Democracy and Arnold & Porter Kaye Scholer LLP are representing Rev. Dousa in this case, and they filed the suit in U.S. District Court for the Southern District of California.
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Q. Who is the plaintiff?
A. Senior Pastor Kaji Dousa of Park Avenue Christian Church in New York City. Pastor Dousa is also the co-chair of the New Sanctuary Coalition, a faith-based network advocating for immigrant rights which has provided aid to migrants and refugees in the so-called “migrant caravan.”
Q. What is this case about?
A. Pastor Dousa has used her ministry to serve migrants and refugees both within the United States and across the border in Tijuana, Mexico. Her work with migrants involves, among other things, ministering, officiating weddings, and organizing prayerful vigils (some of which have been critical of U.S. immigration law and policy). This religious speech and activity is clearly protected by the Constitution and federal law. But DHS has responded by targeting Rev. Dousa for heightened surveillance, detention, extensive interrogation, and revoking a clearance (SENTRI) that allows for expedited border-crossing.
Q. What are the First Amendment claims?
Q. There are three:
- Pastor Dousa is compelled by her faith to pray with and minister to migrants and refugees and to speak out against U.S. immigration law and policy on behalf of migrants and refugees. This is free speech and association protected by the First Amendment. The government has retaliated against Pastor Dousa for this speech and association.
- Ministry to migrants and advocacy on their behalf is a calling from God that is a requirement of Pastor Dousa’s faith. The First Amendment preserves her right to freely exercise that tenet of her faith, and the government has retaliated against her for this religious exercise.
- When a Free Exercise claim is brought together with a claim alleging a separate constitutional violation for the same First Amendment activity, the government’s behavior is subject to the strictest scrutiny by the courts. Pastor Dousa’s Free Exercise claim and her Free Speech and Association claims stem from the same religious activity, and the government’s retaliation for this activity is not supported by a compelling governmental interest.
Q. What is the basis for the Religious Freedom Restoration Act (“RFRA”) claim?
A. To establish a RFRA claim, a plaintiff must establish two things: “First, the activities the plaintiff claims are burdened by the government action must be an ‘exercise of religion.’ . . . Second, the government action must ‘substantially burden’ the plaintiff’s exercise of religion . . .” Pastor Dousa ministry to migrants is unquestionably an exercise of religion, and the government’s retaliation has substantially burdened her ability to carry out the requirements of her faith. Because she can make this showing, the government must demonstrate a compelling interest for its behavior, but there is no compelling government interest in surveilling and detaining Pastor Dousa for her ministry.
Q. What effect would victory have on the other 58 individuals on the watchlist (Operation Secure Line)? Could this case shut down the intelligence-gathering altogether?
A. Although Pastor Dousa is the only plaintiff in the case, she is not the only person that the Trump Administration has targeted based on the exercise of fundamental rights in support of immigrant communities. Pastor Dousa seeks a ruling that the Defendants’ targeting of individuals for exercise of their First Amendment rights is unconstitutional.
- ECF No. 1 Complaint (July 8, 2019)
- ECF No. 25 Motion for Preliminary Injunction (July 25, 2019)
- ECF No. 25-1 Memo of Authorities in Support
- ECF No. 33 Joint Motion for Determination of Discovery Dispute (August 21, 2019)
- ECF No. 35 Defendants’ Opposition to Preliminary Injunction (Sept. 9, 2019)
- ECF No. 36 Defendants’ Motion to Dismiss (Sept. 10, 2019)
- Adolfo Flores, A Pastor Who Was Put On A Watchlist After Working With Immigrants Is Suing The US, BuzzFeed (July 8, 2019).
- Kristina Davis, Pastor sues DHS over government surveillance program targeting migrant advocates, San Diego Union-Tribune (July 9, 2019)
- Paul Krueger, Tom Jones, and Mari Payton, Pastor Sues U.S. Border Agencies, Claims Trump Administration Interfered with Her Right to Counsel Undocumented Immigrants, NBC7-San Diego (July 9, 2019)
- Aysha Khan, Pastor surveilled after ministering to migrants sues US government, Religion News Service (July 9, 2019)
- Beth Fertig, Manhattan Pastor Sues Government Over U.S. Border Surveillance, WNYC (July 10, 2019)
- Matt Boone, Former La Mesa pastor who worked with migrants sues government over secret watchlist, ABC10-San Diego (July 11, 2019)
- Jade Hindmon and Marissa Cabrera, Former La Mesa Pastor Sues DHS Over Border Surveillance Program, KPBS (July 15, 2019)
- Aysha Khan, Coalition of 850 religious leaders backs lawsuit against DHS surveillance of pastor, Religion News Service (July 25, 2019)
Related readings: The government surveillance program targeting Pastor Dousa came to light as a result of reporting by NBC’s San Diego affiliate in March. After learning about her inclusion on the list, Pastor Dousa wrote an op-ed about her circumstances for BuzzFeed. Links to both pieces are listed below:
- Tom Jones, Mari Payton & Bill Feather, Source: Leaked Documents Show the U.S. Government Tracking Journalists and Immigration Advocates Through a Secret Database, NBC San Diego (March 6, 2019).
- Kaji Dousa, Opinion: I Prayed With Migrants. Now The Government Is Tracking Me., BuzzFeed (March 24, 2019).