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Douša v. DHS

Overview

Protect Democracy and Arnold & Porter Kaye Scholer LLP filed a lawsuit on behalf of Reverend Kaji Douša, challenging a previously secret Department of Homeland Security (DHS) surveillance operation that targeted activists, journalists, lawyers, and faith leaders who spoke out against the Trump Administration’s immigration policies. Rev. Douša sued 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. Douša, both immediately and in the future, and in retaliation for how, when, and where she exercises her religion.

In 2018, Rev. Douša helped organize the “Sanctuary Caravan,” 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. In December 2018, Rev. Douša traveled to Mexico to join the Sanctuary Caravan. But upon attempting to return to the United States, federal officials detained and interrogated Rev. Douša. She later learned that DHS had targeted her for heightened surveillance and revocation of her clearance for expedited border crossing. 

For all people targeted by this government surveillance program—dubbed “Operation Secure Line”—their only shared connection is their work to aid, counsel, minister to, and provide information about migrants. 

DHS’s punitive actions have had both a tangible and chilling effect on Rev. Douša’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 will continue to stand up against government harassment of and retaliation against dissenters and those who associate with marginalized communities.

Please direct any inquiries about this case to press@protectdemocracy.org.

FAQs

Q. Who is the plaintiff?

A. Senior Pastor Kaji Douša of Park Avenue Christian Church in New York City. Pastor Douša 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 Douša 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. Douša 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:

  1. Pastor Douša 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.
  2. Ministry to migrants and advocacy on their behalf is a calling from God that is a requirement of Pastor Douša’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.
  3. 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 Douša’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 Douša 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 Douša 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 Douša is the only plaintiff in the case, she is not the only person that the Trump Administration targeted based on the exercise of fundamental rights in support of immigrant communities. Pastor Douša seeks a ruling that the Defendants’ targeting of individuals exercising their First Amendment rights is unconstitutional.

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