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San Diego Union-Tribune
A pastor sued DHS over a border surveillance program. A judge just ruled in her favor.
By Alex Riggins,
A federal judge in San Diego has ruled in favor of a New York pastor who sued the U.S. Department of Homeland Security over a sweeping surveillance program , ruling that federal agents violated her civil rights and retaliated against her for protected First Amendment activity.
U.S. District Judge Todd Robinson ruled that an email sent by a U.S. Customs and Border Protection official asking Mexican immigration authorities to detain Douša had the practical impact of scaring her away from traveling to Tijuana. That, the judge wrote in a 44-page ruling, "violated her Free Exercise rights by restricting her ability to minister to migrants in Mexico."
The email also showed CBP both "retaliated against her in violation of her First Amendment rights" and violated her rights under the Religious Freedom Restoration Act of 1993, Robinson ruled.
"I am humbled and full of gratitude for Judge Robinson's thoughtful ruling in our favor," Douša, who previously led a La Mesa church, said in a statement. "To be the prevailing party in a lawsuit against the most powerful government in the world, quite honestly, feels like a miracle."
Others called the judge's ruling "a massive win for accountability" and vindication for the attorneys, journalists and others who were tracked by the government because of their work in Tijuana after the arrival of a large migrant "caravan" from Central America.
"Having the court decide that what the government did to Pastor Douša was retaliatory and violated her rights is an important recognition of the problems with the sprawling government surveillance that ensnared dozens of U.S. citizens in an unjustified, illegal and immoral program that targeted them for simply helping," Mohammad Tajsar, a senior staff attorney with the ACLU of Southern California, said Wednesday.
Tajsar is an attorney in two similar lawsuits filed by targets of the surveillance program in federal courts in Los Angeles and Arizona.
"This decision demonstrates that these individuals were not just justified in the work they did, but were brave in coming out and suing the government for recompense," he added. "These moments where you get some accountability are to be cherished."
Officials from DHS did not respond Wednesday to a request for comment on the ruling.
The key piece of evidence in the case was the email that a high-ranking CBP branch chief in San Diego sent to Mexican immigration officials. The message was sent in December 2018, the month after the large group from Central America arrived in Tijuana.
The email, authored by Saro Oliveri, listed 24 people, including 14 U.S. citizens, whom Oliveri accused of being "organizers/instigators" of the so-called caravan. Written in Spanish, the email asked Mexican immigration officials to detain those people because CBP wanted to interview them and "there exists a great possibility that they do not have adequate documentation to be in Mexico."
But last year in court, Oliveri testified that he made up the inadequate documentation claim without any basis.
"Literally, creative writing," he testified in August.
For prevailing in her lawsuit, the judge ordered CBP to write to Mexican immigration officials and make clear that their request to detain Douša or deny her entry into Mexico is "fully and immediately rescinded and revoked." Robinson also awarded Douša reasonable costs and attorneys' fees in an amount yet to be determined.
Douša did not seek monetary damages.
"This was about vindication of her First Amendment rights," said Anne Tindall, an attorney at Protect Democracy who was one of the lawyers representing Douša. "It's about making sure she's free to travel to Mexico and continue her ministry there. (It was) about shining a light on DHS and its activities, (which were) not what we should expect of our government."
Douša said she saw the hand of God in the decision.
"Judge Robinson vindicated what I knew to be true all along: my own government didn't like who God called me to serve, so they did everything they could think of to make that nearly impossible for me," she said in her statement. "This righteous ruling gives me the chance to get back to my ministry unimpeded by government intervention."
Investigation and surveillance
Douša's name landed on CBP's radar in late November 2018, when Border Patrol agents caught a Honduran woman who was part of the Central American migrant group trying to unlawfully cross the border. The woman allegedly told the agents that a few days earlier at a migrant camp in Tijuana, Douša told her and others that "they should all get married to each other," because it would help them get papers to live in the U.S. She also told the agents she was forced to marry another migrant despite having a husband in Honduras.
Douša had been in Tijuana that month performing religious marriage ceremonies for 17 couples. But she testified that all of the people she married were real couples who she interviewed beforehand and who were common-law married in their home nations. She testified all but one of those couples shared children or had a child on the way.
She also testified that she provided marriage certificates to the couples, but those certificates did not include any sort of official seal or other markings to make them appear to be a government document. She testified that she believed the certificates "might offer the chance for families to stay together" at a time when the Trump administration was separating detained migrant families . But she said the documents were not intended for the couples to use in trying to obtain asylum or other legal status in the U.S.
In his ruling, the judge wrote that Douša "credibly testified at trial" that she had never promised a crowd of migrants they could get papers if they got married, nor did she force anyone to get married nor promise that her marriage certificates would facilitate asylum claims.
But at the time, in late November and early December 2018, the Honduran migrant's statement to the Border Patrol agents was damaging. It ended up in a written report that over the next few days was forwarded to the highest ranking CBP officials in San Diego, including the sector's chief Border Patrol agent and Roberto Del Villar, who was then the assistant chief patrol agent overseeing the San Diego-area Border Patrol's foreign operations branch.
"We need to start with some serious targeting efforts," Del Villar wrote to his boss. "Canceling visas, SENTRIs, Psy Ops, etc."
On Dec. 10 of that year, Oliveri sent the email to Mexican immigration officials — though Douša and her attorneys didn't learn about it until more than two years later, in September 2021.
At the time, Oliveri was CBP's branch chief in charge of the Trusted Traveler Program, which grants SENTRI and Global Entry passes to some frequent border crossers.
According to the judge's ruling that quoted testimony from trial, Oliveri would rarely — about once per year — get personally involved in decisions to revoke someone's trusted-traveler status. But he did become personally involved with Douša's.
The month after the email, in January 2019, Douša again visited Tijuana to minister to migrants. On her way back, she was not able to use her Global Entry status and was referred to secondary inspection, where two officers from CBP's Tactical Terrorism Response Team interviewed her.
Despite Douša ostensibly being referred to secondary inspection as part of an alleged marriage fraud investigation, the officers never questioned her about that alleged scheme.
A few days later, Rodney Scott, who was then chief Border Patrol agent for the San Diego Sector, asked for a briefing on efforts being taken regarding the migrant caravan, according to the judge. Del Villar then assigned another agent to compile a document about individuals associated with the migrant caravan.
That document eventually became a PowerPoint presentation titled "Migrant Caravan FY-2019: Suspected Organizers, Coordinators, Instigators, and Media." Two months later, in March 2019, NBC7 published a story about the document based on a leaked copy from a whistleblower. Douša suspected one of the blurred photos in the news report was her and later confirmed she'd been targeted by the surveillance program.
'Misguided and unprofessional'
In his ruling, Robinson wrote that the investigation into Douša was "at times misguided and unprofessional" but did not itself violate her rights. He also found that although several CBP employees sought to revoke her Global Entry pass, they never actually took the steps to do so.
"Indeed, had the Migrant Caravan PowerPoint never been leaked to the press, Dousa would have been none-the-wiser as to any of Defendants' investigative actions," the judge wrote.
But evidence turned over during the discovery portion of the case revealed the Oliveri email, which the judge ruled had the same practical impact on Douša as if her Global Entry status had been revoked. That, he ruled, was a violation of her rights.
The email constituted a "pretty extraordinary request to detain a U.S. citizen," Tindall, the attorney, said. "She only learned of this because she sued them."
The judge's order does not include a mandate for officials to rescind the detention requests for the other 23 people on the list.
Several other people have also filed federal lawsuits related to the same surveillance program. One case in Los Angeles was dismissed at the district court level, but is being appealed to the 9th U.S. Circuit Court of Appeals. Two other cases, in district courts in New York and Arizona, are still making their way toward trial.
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