A federal judge in California sided with a pastor who was targeted by U.S. authorities in a border surveillance program under former President Donald Trump.
In a 44-page decision last week, Judge Todd Robinson ruled that U.S. Customs and Border Protection, or CBP, officials violated New York City pastor Kaji Dousa’s constitutional rights by adding her to a blacklist of border activists and calling on Mexican authorities to apprehend her — all despite lacking any evidence that she was involved in illegal activity.
For Dousa, whose experience The Intercept chronicled in an investigation last year, the victory marked the end of an exhausting ordeal that’s spanned more than four years.
“I had two real reasons for going into this — one, of course, to make sure that I’m safe to travel, but the other is that I just wanted it to help people, and from the responses that I’ve been getting, it seems like it will,” Dousa told The Intercept. “I feel like it’s a win for the helpers.”
Dousa filed suit against CBP and other elements of the Department of Homeland Security in July 2019 after a government whistleblower leaked internal documents showing that the pastor was added to a secret blacklist of journalists, lawyers, and advocates associated with migrant caravans in the San Diego-Tijuana area. A Homeland Security inspector general’s report later confirmed that she was one of at least 51 U.S. citizens who were targeted and tracked by their own government for their proximity to asylum-seekers as part of CBP’s Operation Secure Line. Nearly half of the so-called lookouts CBP placed “were on people for whom there was no evidence of direct involvement in illegal activity,” the inspector general found.
Through her litigation, Dousa’s lawyers discovered that she was also on a list that included 14 U.S. citizens whose personal information a CBP official shared with Mexican authorities, claiming that the pastor and the others were “caravan organizers/instigators” and requesting their apprehension. In his court testimony, the CBP official in question, Saro Oliveri, confirmed that he had no basis for making the highly unusual and potentially dangerous request for Dousa’s capture by foreign security forces.
“I think this has to be one of the most egregious rights violations in recent memory.”
“We view this as a really significant victory for religious liberty and for free speech generally, but I think this decision especially stands out,” Stanton Jones, Dousa’s lead attorney on the case, told The Intercept. Dousa’s experience may not have had the broad impact of other major cases on the border under Trump, such as family separation or the Muslim travel ban. “But on an individual basis,” he said, “I think this has to be one of the most egregious rights violations in recent memory.“
In a three-day bench trial in August, Robinson, a Trump-appointed federal judge who previously served as federal prosecutor working drug cases on the border and as a CIA operations officer, heard from Oliveri and several other San Diego-based officials responsible for Operation Secure Line. Oliveri told the judge that his request to Mexican authorities was “literally creative writing,” that he had never made such a request before, that he did so “without any basis” in fact or law, and that he could not recall who ordered him to send the message.
The email featured prominently in Robinson’s ruling, with the judge finding that Oliveri and his colleagues retaliated against Dousa for her ministry to migrants at the border — activity that was clearly protected under the First Amendment — and that the “email to the Mexican government would chill a person of ordinary firmness from continuing to engage in Dousa’s protected activities.”
“Not only does it appear that the decision to send such an email was unprecedented, but even Oliveri acknowledged that the email was ‘[l]iterally, creative writing … [w]ithout any basis,” the judge wrote. Robinson added that while Oliveri testified that he never intended to retaliate against the pastor, “the absence of any proper basis for writing and sending the email is incontrovertible evidence of Oliveri’s retaliatory motive.”
“I think that what it illustrates is really a pervasive culture and sense of lawlessness and lack of accountability within CBP.”
The judge additionally ruled that the sending of the email amounted to a violation of Dousa’s rights under the Religious Freedom Restoration Act and ordered the U.S. authorities to contact the Mexican government and formally withdraw the request.
“CBP falsely told a foreign government to detain an American citizen who is a Christian pastor because CBP didn’t like the Christian ministry that she was providing to migrants,” said Jones, Dousa’s attorney. “I think that what it illustrates is really a pervasive culture and sense of lawlessness and lack of accountability within CBP.”