Case 3:19-cv-01255-LAB-KSC Document 55 Filed 12/20/19 PageID.513 Page 1 of 34

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Oscar Ramallo (Bar No. 241487)
Oscar.Ramallo@arnoldporter.com
ARNOLD & PORTER KAYE SCHOLER LLP
777 South Figueroa Street, 44th Floor
Los Angeles, CA 90017
Telephone: (213) 243-4000
Facsimile: (213) 243-4199
Attorney for Plaintiff
Kaji Dousa
[Additional counsel listed on following page.]

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No. 19-cv-01255 (LAB)

KAJI DOUSA,

PLAINTIFF’S BRIEF IN
SUPPORT OF HER MOTION
FOR PRELIMINARY
v.
INJUNCTION AND IN
OPPOSITION TO
DEFENDANTS’ MOTIONS
U.S. DEPARTMENT OF HOMELAND
TO DISMISS AND TO
SECURITY (“DHS”); U.S. IMMIGRATION STRIKE
AND CUSTOMS ENFORCEMENT
(“ICE”); U.S. CUSTOMS AND BORDER
PROTECTION (“CBP”) KEVIN K.
MCALEENAN, Acting Secretary of DHS;
MATTHEW T. ALBENCE, Acting Director
of ICE; MARK A. MORGAN, Acting
Commissioner of CBP; AND PETER
FLORES, Director of Field Operations for
CBP, San Diego,
Plaintiff,

Defendants.

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R. Stanton Jones (pro hac vice) (DC SBN 987088)
Stanton.Jones@arnoldporter.com
William C. Perdue (pro hac vice) (DC SBN 995365)
William.Perdue@arnoldporter.com
Christian D. Sheehan (pro hac vice) (DC 1045233)
Christian.Sheehan@arnoldporter.com
ARNOLD & PORTER KAYE SCHOLER LLP
601 Massachusetts Ave., NW
Washington, DC 20001
Telephone: (202) 942-5000
Facsimile: (202) 942-5999
Ada Añon (pro hac vice) (NY 5030697)
Ada.Anon@arnoldporter.com
Leah J. Harrell (pro hac vice) (NY 5623335)
Leah.Harrell@arnoldporter.com
Neesha Chhina (pro hac vice) (NY 5726021)
Neesha.Chhina@arnoldporter.com
ARNOLD & PORTER KAYE SCHOLER LLP
250 West 55th St.
New York, NY 10019
Telephone: (212) 836-8000
Facsimile: (212) 836-8689
Stephanie Llanes (pro hac vice) (NY SBN 5580014)
Stephanie.Llanes@protectdemocracy.org
THE PROTECT DEMOCRACY PROJECT, INC.
222 Broadway, 19th Floor
New York, NY 10038
Telephone: (202) 579-4582
Anne Tindall (pro hac vice) (DC SBN 494607)
Anne.Tindall@protectdemocracy.org
THE PROTECT DEMOCRACY PROJECT, INC.
2020 Pennsylvania Ave. NW, Suite # 163
Washington, DC 20006
Telephone: (202) 579-4582
Genevieve Nadeau (pro hac vice) (MA SBN 677566)
Genevieve.Nadeau@protectdemocracy.org
Ben Berwick (pro hac vice) (MA SBN 679207)

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Ben.Berwick@protectdemocracy.org
THE PROTECT DEMOCRACY PROJECT, INC.
15 Main St., Suite 312
Watertown, MA 02472
Telephone: (202) 579-4582
Attorneys for Plaintiff
Kaji Dousa

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TABLE OF CONTENTS
INTRODUCTION .................................................................................................... 1
ARGUMENT ............................................................................................................ 2

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I. PASTOR DOUSA IS LIKELY TO SUCCEED ON THE MERITS ................. 2

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A. Pastor Dousa Has Standing to Seek Injunctive Relief .................................... 2

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1. Defendants Have Targeted Pastor Dousa Based on Constitutionally
Protected Activities ........................................................................................... 2

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2. There Is an Objectively Reasonable Likelihood That Defendants Will
Continue Targeting Pastor Dousa Based on Her Protected Activity ............... 8
3. Pastor Dousa’s Injuries Are Traceable to Defendants and Can Be
Redressed by Injunctive Relief ....................................................................... 11
B. Pastor Dousa Is Likely to Prevail on Her First Amendment Retaliation
Claim................................................................................................................... 12
C. Pastor Dousa is Likely to Prevail on Her Free Exercise and Hybrid Rights
Claims ................................................................................................................. 18
D. Pastor Dousa Is Likely to Prevail on Her RFRA Claim ............................... 19

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II. ALL OTHER EQUITABLE FACTORS SUPPORT A PRELIMINARY
INJUNCTION......................................................................................................... 21
A. Pastor Dousa Seeks Workable Relief............................................................ 21

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B. Pastor Dousa Faces Irreparable Harm Absent an Injunction ........................ 23

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C. The Equities and the Public Interest Support an Injunction ......................... 23

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III. THE COURT SHOULD DENY THE GOVERNMENT’S MOTIONS........ 24

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CONCLUSION....................................................................................................... 25

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TABLE OF AUTHORITIES

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Page(s)
Cases
Arizona Students’ Ass’n v. Ariz. Bd. of Regents,
824 F.3d 858 (9th Cir. 2016) ............................................................................. 13
Ashcroft v. Iqbal,
556 U.S. 662 (2009) .......................................................................................... 24
Brady v. United of Omaha Life Ins. Co.,
902 F. Supp. 2d 1274 (N.D. Cal. 2012)............................................................. 22
Burwell v. Hobby Lobby Stores, Inc.,
573 U.S. 682 (2014) .................................................................................... 19, 21
City of Los Angeles v. Lyons,
461 U.S. 95 (1983) ............................................................................................ 10
Clapper v. Amnesty Int'l USA,
568 U.S. 398 (2013) ...................................................................................... 9, 10
Coszalter v. City of Salem,
320 F.3d 968 (9th Cir. 2003) ....................................................................... 13, 16

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Dahlia v. Rodriguez,
735 F.3d 1060 (9th Cir. 2013) ........................................................................... 25
Does v. Harris,
772 F.3d 563 (9th Cir. 2002) ....................................................................... 10, 24
Eclectic Properties E., LLC v. Marcus & Millichap Co.,
751 F.3d 990 (9th Cir. 2014) ............................................................................. 25
Elrod v. Burns,
427 U.S. 347 (1976) .......................................................................................... 13
Employment Division, Dep't of Human Res. of Oregon v. Smith,
494 U.S. 872 (1990) .................................................................................... 19, 20
Garcia v. Lawn,
805 F.2d 1400 (9th Cir. 1986) ........................................................................... 24

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Gutierrez-Soto v. Sessions,
317 F. Supp. 3d 917 (W.D. Tex. 2018) ............................................................. 18
Hartmann v. Cal. Dep’t of Corr. & Rehab.,
707 F.3d 1114 (9th Cir. 2013) ........................................................................... 11
Hodgers-Durgin v. de la Vina,
199 F.3d 1037 (9th Cir. 1999) ........................................................................... 10
Hyland v. Wonder,
972 F.2d 1129 (9th Cir. 1992) ........................................................................... 13
Lopez v. Candaele,
630 F.3d 775 (9th Cir. 2010) ........................................................................... 8, 9
Melendres v. Arpaio,
695 F.3d 990 (9th Cir. 2012) ......................................................................... 9, 23
Meyer v. Grant,
486 U.S. 414 (1988) .......................................................................................... 12
Mockaitis v. Harcleroad,
104 F.3d 1522 (9th Cir. 1997), overruled on other grounds by City
of Boerne v. Flores, 521 U.S. 50 (1997) ........................................................... 12

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Navajo Nation v. U.S. Forest Serv.,
535 F.3d 1058 (9th Cir. 2008) ........................................................................... 20
Perry v. Sinderman,
408 U.S. 593 (1972) ............................................................................................ 6
Ragbir v. Homan,
923 F.3d 53 (2d Cir. 2019) .......................................................................... 12, 18
Rueda Vidal v. U.S. DHS,
No. 18-9276 (C.D. Cal. Aug. 28, 2019) ............................................................ 18
Snyder v. Phelps,
562 U.S. 443 (2011) .......................................................................................... 12
Soranno’s Gasco, Inc. v. Morgan,
874 F.2d 1310 (9th Cir. 1989) ............................................................................. 6

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Van Dyke v. Regents of Univ. of Cal.,
815 F. Supp. 1341 (C.D. Cal. 1993) .................................................................. 23
Widmar v. Vincent,
454 U.S. 263 (1981) .......................................................................................... 12

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Statutes

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6 U.S.C.
§ 211(c)(9) ........................................................................................................... 5
§ 211(g)(4)(C)(1) ................................................................................................. 5

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42 U.S.C.
§ 2000bb-1 ......................................................................................................... 21
§ 2000bb-1(a) .................................................................................................... 20
§ 2000bb(a)(2) ................................................................................................... 20
Rules

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Fed. R. Civ. P. 12(b)(1) .......................................................................................... 12

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Fed. R. Civ. P. 12(d) ............................................................................................... 25

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Fed. R. Civ. P. 56(d) ............................................................................................... 25

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Other Authorities

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Bureau of Transportation Statistics, U.S. Dep’t of Transportation,
Border Crossing Entry Data - Annual Data, https://bit.ly/2PIs4Jm .................... 6
CBP, CBP Announces 5 Million Global Entry Members, Apr. 3,
2018, http://bit.ly/2Vg1JDB ................................................................................ 6
Letter from Jennifer L. Costello, Acting Inspector General, DHS, to
Sen. Tom Udall (July 15, 2019), https://bit.ly/34EOwaE ................................... 4
Tom Jones, Mari Payton, & Bill Feather, Government Secrets: Why
and How a Special Agent-Turned-Whistleblower Uncovered
Controversial Borders Surveillance Tactics, NBC San Diego,
Nov. 19, 2019, http://bit.ly/348beIC ................................................................... 4

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INTRODUCTION

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This case is about whether the U.S. government can target members of the

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clergy for surveillance, detention, interrogation, and harassment for exercising

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their First Amendment right to minister to people whom the government disfavors.

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Pastor Dousa’s complaint alleges that Defendants included her name and a photo

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of her face marked with a yellow “X” on a list of 59 “[s]uspected [o]rganizers,

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[c]oordinators, [i]nstigators, and [m]edia.” She alleges that Defendants targeted

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those 59 individuals for enhanced surveillance and other adverse treatment as part

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of a multi-agency investigation known as Operation Secure Line. And she alleges

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that Defendants chose her as one of their targets because she engaged in “acts of

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devotion commanded by the core tenets of her Christian faith”—namely,

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advocating for and ministering to migrants in New York and at the Southern Border

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by blessing their marriages, dedicating their children to Christ, hearing their

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confessions, and providing them other forms of pastoral care.

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Shortly after filing her complaint, Pastor Dousa moved for a preliminary

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injunction to halt Defendants’ illegal targeting of her based on protected activity.

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She then successfully moved for limited expedited discovery. The documents that

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Defendants have produced confirm exactly what Pastor Dousa alleged: Defendants

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singled out Pastor Dousa and other “[s]uspected [o]rganizers, [c]oordinators,

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[i]nstigators, and [m]edia” because of their protected First Amendment activity,

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including their advocacy work on behalf of immigrant communities and, in Pastor

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Dousa’s case, her work ministering to migrants seeking refuge in this country.

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Neither the government’s response to Pastor Dousa’s motion nor its motion

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to dismiss disputes that she and others were targeted based on their exercise of First

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Amendment rights. The government does not contest that Defendants compiled a

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dossier on Pastor Dousa, that they tracked prayer vigils and rallies she led in New

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York, or that they surveilled the church where she coordinates with the New

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Sanctuary Coalition because of her work with and for migrants. The government
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also does not dispute that her ministry and advocacy work is constitutionally
protected. Most notably, the government does not dispute that Pastor Dousa would
not have been included on a DHS targeting list, or been subject to surveillance, if
not for the views she expresses and the people with and for whom she prays.

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Rather than defend their targeting of Pastor Dousa and others based on
protected activity, the government principally argues that Defendants’ actions have
not concretely harmed her. But uncontested evidence shows that Pastor Dousa has
curtailed her ministry, both at the Southern Border and in New York, because she
fears Defendants will continue to target her based on her protected conduct. Given
the undisputed facts and the government’s own documents, that fear is wellfounded. Indeed, the government never argues that the targeting list containing
Pastor Dousa’s photo has been rescinded, that Operation Secure Line is inactive,
or that Defendants’ surveillance activities are somehow a thing of the past.

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The Court should grant Pastor Dousa’s preliminary injunction motion. At a
minimum, the Court should deny Defendants’ motions to dismiss and to strike.

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ARGUMENT

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I.

PASTOR DOUSA IS LIKELY TO SUCCEED ON THE MERITS
A.

Pastor Dousa Has Standing to Seek Injunctive Relief

Pastor Dousa has amply demonstrated concrete and particularized harms
sufficient to confer standing. Defendants have repeatedly targeted her for adverse
treatment because she engaged in constitutionally protected activities, which has
deterred her from providing the pastoral services that are central to her faith.
1.

Defendants Have Targeted Pastor Dousa Based on
Constitutionally Protected Activities

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The government first argues that Pastor Dousa lacks standing because she has

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not shown a “concrete and particularized harm.” Opp. 8. In fact, Pastor Dousa

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alleges—and the discovery documents confirm—that Defendants have repeatedly
targeted her for adverse treatment based on her protected activities in three ways.
First, Defendants detained and interrogated Pastor Dousa at the Southern
Border because of her protected activity, which is plainly an injury-in-fact. The
government’s documents demonstrate that Defendants created a “lookout” and
entered an “[i]nterdiction” for Pastor Dousa on December 5, 2018. CBP-0004849.1 That was just days after her first trip to Mexico with the “Sanctuary Caravan,”
a group of faith leaders, congregants, and humanitarian workers that provided
pastoral services to several hundred asylum-seekers traveling to the United States.
7/24/19 Dousa Decl. ¶¶ 8, 13-15. The sole purpose of Pastor Dousa’s trip was to
engage in protected ministry; she prayed with migrants, officiated their weddings,
heard their confessions, and anointed the sick. Id. ¶¶ 14-15. Defendants responded
to this exercise of constitutionally protected rights by flagging Pastor Dousa’s name,
which led directly to her detention and interrogation for a “Tactical Terrorism
Response Team” interview. See CBP-00030 (explaining that Pastor Dousa’s name
triggered a “computer generated alert” in CBP’s system when she sought to cross
the border on January 2, 2019); CBP-00003 (noting Pastor Dousa’s “TTRT exam”).
Second, Defendants have extensively monitored Pastor Dousa’s activities at
the border and inside the United States based on her protected activity. Even
though Pastor Dousa’s interrogation yielded “[n]o derogatory information,” CBP00030, Defendants subsequently placed her on an internal targeting list of 59
“Suspected Organizers, Coordinators, Instigators, and Media,” CBP-00035, 37—a
list that is now the subject of an investigation by the DHS Inspector General. See

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All documents cited by Bates number refer to the redacted versions of
documents produced by Defendants in discovery on November 1, 2019, which are
attached in their entirety to the Declaration of William C. Perdue. Defendants
subsequently provided unredacted versions of these documents to Pastor Dousa and
Magistrate Judge Crawford. Pastor Dousa is prepared to file the unredacted
versions under seal if the Court so requests.
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Letter from Jennifer L. Costello, Acting Inspector General, DHS, to Sen. Tom
Udall (July 15, 2019), https://bit.ly/34EOwaE (acknowledging “specific concerns”
about the list of “individuals, including journalists and attorneys, who may have
been singled out for enhanced inspection at U.S. ports of entry”).
As discussed in greater detail below, see infra pp. 13-18, the documents
produced in discovery strongly suggest that Defendants chose these targets,
including Pastor Dousa, based on their protected activities—in particular, their
opposition to U.S. immigration policy and their efforts to help migrants enter and
gain status in the United States through established legal channels. See, e.g., CBP00022 (describing the “migrant caravan”—a group of migrants traveling from
Central America to the Southern Border for whom Pastor Dousa’s Sanctuary
Caravan provided pastoral care—as “a common cause for numerous open border,
humanitarian, and other groups with the goal to challenge U.S. immigration laws”).
In Pastor Dousa’s case, the documents indicate that Defendants targeted her
specifically because of the religious nature of her work; CBP reports describe her
as a “Suspected Organizer, Pastor” who had been “[i]dentified as performing
marriage ceremonies in Tijuana, MX.” CBP-00002.
Defendants have conducted extensive surveillance of Pastor Dousa and other
targets on the list. The whistleblower who first disclosed the operation—now
identified as a nine-year-veteran special agent in DHS’s Homeland Security
Investigations unit, the investigative arm of ICE—has stated that Defendants
compiled dossiers on the individuals included on the targeting list. See Mem. 6,
17; Tom Jones, Mari Payton, & Bill Feather, Government Secrets: Why and How
a Special Agent-Turned-Whistleblower Uncovered Controversial Borders
Surveillance Tactics, NBC San Diego, Nov. 19, 2019, http://bit.ly/348beIC; see
also CBP-00002 (CBP profile on Pastor Dousa); CBP00020-22 (field intelligence
report including Pastor Dousa’s name, photos, and social media activity alongside

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information about other immigrant-rights advocates). And immigration officials
in New York have tracked and surveilled prayer vigils and rallies Pastor Dousa has
led. 7/24/19 Dousa Decl. ¶¶ 33-35. They surveilled the New Sanctuary Coalition’s
offices at the Judson Memorial Church. Id. ¶ 34. An ICE official in New York
even told Pastor Dousa that he “know[s] exactly how to find [her],” that she is “all
over the documents that [he] has,” and that he “know[s] [her] network just as good
as [she] do[es].” Id. ¶¶ 47, 49. None of this is disputed.
Defendants’ monitoring and surveillance, moreover, has upended Pastor
Dousa’s ministry. She canceled a planned trip to Mexico this year and has refrained
from blessing marriages of migrants. Id. ¶¶ 42, 45. She feels compelled to warn
penitents about the possibility of government surveillance, chilling her ability to
provide pastoral counseling and absolution. Id. ¶¶ 40-41, 44. Her church has
declined to host a pro se asylum clinic and has seen migrants and refugees deterred
from participating in church activities. Id. ¶¶ 37-38. It is difficult to overstate the
effect this disruption has had on Pastor Dousa’s ministry. Pastor Dousa has “offered
pastoral care to [immigrant-rights] advocates and to the migrants they serve for
nearly a decade,” and “[m]inistering to migrants is a large part of [her] work as a
pastor.” Id. ¶ 43. Because of Defendants’ targeting, she “no longer feel[s] that [she
is] able to fulfill this core part of [her] faith.” Id. The government never addresses
these harms, and simply ignores the cases holding that they constitute concrete
injuries-in-fact sufficient to confer standing. See Mem. 12 (citing cases).
The government instead suggests that any information-gathering about Pastor
Dousa is not a cognizable injury because CBP is authorized by statute to collect
information about travelers to the United States. Mot. to Dismiss 14 (citing 6
U.S.C. § 211(c)(9), (g)(4)(C)(1)); Opp. 10-11, 18-19. But the documents make
clear that Defendants’ surveillance of Pastor Dousa was not routine informationgathering. Defendants monitored her as part of an investigation specifically

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targeting individuals exercising their rights to pray with, advocate for, and report
on migrants traveling to the United States. See, e.g., CBP-00002, 5, 20-22. The
targeting list was comprised of just 59 individuals—out of the more than 5 million
who have Global Entry memberships and more than 77 million who crossed the
California-Mexico land border in 2018. See CBP, CBP Announces 5 Million
Global Entry Members, Apr. 3, 2018, http://bit.ly/2Vg1JDB; Bureau of
Transportation Statistics, U.S. Dep’t of Transportation, Border Crossing Entry
Data - Annual Data, https://bit.ly/2PIs4Jm (last visited Dec. 20, 2019). And in any
event, even if some of Defendants’ monitoring falls within the scope of the statutes,
the Supreme Court has long recognized that even authorized government actions
can be both harmful and unlawful if undertaken “because of … constitutionally
protected speech.” Perry v. Sindermann, 408 U.S. 593, 597 (1972); see also
Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1318 (9th Cir. 1989) (plaintiffs
alleged sufficient injury-in-fact by alleging that “the defendants’ actions were taken
in retaliation for [their] exercise of first amendment rights”); Mem. 12, 18.
Finally, Defendants also concretely injured Pastor Dousa by revoking—or at
least attempting to revoke—some portion of her trusted traveler status in response
to her protected activity. The government does not dispute that the DHS targeting
list includes a photo of Pastor Dousa with a yellow “X” over her face and the
notation “Disposition: SENTRI Revoked.” 7/24/19 Dousa Decl. ¶ 29; see also
CBP-00037. The meaning is clear: Defendants decided to withdraw a government
benefit because they deemed Pastor Dousa a “[s]uspected [o]rganizer[],
[c]oordinator[], [or] [i]nstigator[]” based on her work ministering to migrants. The
government offers no alternative explanation for that notation, and Pastor Dousa
has no reason to believe it to be false. 10/11/19 Dousa Decl. ¶ 17.
The government nonetheless appears to dispute whether Pastor Dousa was
ever technically enrolled in SENTRI in addition to Global Entry. See Opp. 4-6 &

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n.2 (referring to Pastor Dousa’s “alleged SENTRI card”); Mot. to Dismiss 17
(same). But there is evidence to the contrary. As Pastor Dousa explained, she
successfully applied to the Global Entry program in 2016, and many of the
communications from CBP regarding her Global Entry application referenced
SENTRI as well. 10/11/19 Dousa Decl. ¶¶ 2-9. She also has used her Global Entry
card to gain access to expedited processing lanes at San Ysidro that are marked with
the term “SENTRI.” Id. ¶¶ 8, 10-11. Moreover, the government’s own documents
refer to Pastor Dousa in connection with SENTRI. One CBP record expressly states
that Pastor Dousa has status in the “SENTRI Highway” program. CBP-00048. And
another CBP record was updated on March 8, 2019—suspiciously, one day after
DHS’s targeting list was first reported in the media—to include the notation: “Do
not revoke SENTRI based on this lookout.” CBP-00003. These documents suggest
that Pastor Dousa did previously enjoy SENTRI status, and that Defendants at least
contemplated revoking it before March 8, 2019.
The government attaches a declaration from CBP Branch Chief Oliveri, but
he notably does not address Pastor Dousa’s SENTRI status. He asserts that Pastor
Dousa is enrolled in Global Entry, but never states whether she was enrolled in
SENTRI, even though CBP administers the SENTRI program. See Oliveri Decl.
¶¶ 1, 2. The government instead argues that it is implausible that CBP “would
revoke the SENTRI card as a punishment while leaving her with the more valuable
Global Entry status.” Opp. 16. But again, the documents indisputably show that
Defendants intended to revoke the SENTRI portion of Pastor Dousa’s trusted
traveler status; perhaps Defendants meant to revoke her status and simply did so
ineffectually. Regardless, even an attempted withdrawal of a government benefit
can cause concrete harm by chilling protected activity. At a minimum, attempting
to withdraw Pastor Dousa’s border-crossing privileges based on her protected
activities corroborates the other concrete harms Pastor Dousa has suffered.

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There Is an Objectively Reasonable Likelihood That
Defendants Will Continue Targeting Pastor Dousa Based
on Her Protected Activity

The government next asserts that Pastor Dousa lacks standing to seek
injunctive relief because she faces no “objectively reasonable likelihood” of future
injury by Defendants. Opp. 10. That assertion is irreconcilable with the evidence.
“[P]ast” actions alone are “strong evidence” of a “credible threat of adverse state
action.” Lopez v. Candaele, 630 F.3d 775, 786 (9th Cir. 2010); see Mem. 11 (citing
additional cases).

Here, Defendants literally placed Pastor Dousa in their

crosshairs, including her on a secret DHS list dated one week after her detention
and interrogation, with a yellow “X” over her face.

And the government

documents produced in discovery confirm that Pastor Dousa’s inclusion on this list
was not a mistake or an aberration; it was part of a concerted effort to probe her
activities and affiliations based on her protected activities. See supra pp. 3-5. The
government does not contend that this targeting operation is no longer active.
Indeed, the government offers no response to the targeting list, even though it is at
the very center of this lawsuit. In the argument sections of its two filings, the
government does not even mention the list, much less persuasively explain it away.
Moreover, records produced by the government continue to describe Pastor
Dousa as a “suspect,” with no supporting evidence. CBP-00050. That, too, makes
it reasonably likely that Defendants will continue to monitor Pastor Dousa’s
activities, including by tracking her public events and surveilling the church where
she often coordinates her work in New York City. Again, the government does not
dispute that this surveillance has occurred. And Pastor Dousa is not alone.
Defendants have deported Pastor Dousa’s New Sanctuary colleague Jean
Montrevil and attempted to do the same to her colleague Ravi Ragbir. See Mem.
8-9. As part of Operation Secure Line, Defendants compiled dossiers on 58 other
individuals and placed them on the same targeting list. And immigration officials

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have targeted dozens of immigrant-rights advocates across the country. See Mem.
7-9. Contrary to the government’s suggestion, this disturbing pattern and practice
does not indicate that Pastor Dousa is seeking relief “on behalf of non-parties to
this case.” Opp. 11-12. Rather, it shows “[a] history of past enforcement against
parties similarly situated to” Pastor Dousa, which “cuts in favor of a conclusion
that a threat is specific and credible.” Lopez, 630 F.3d at 786-87. It is well settled
that “a pattern of officially sanctioned behavior, violative of the plaintiffs’ federal
rights,” can be sufficient to establish that an injury is likely to recur. Melendres v.
Arpaio, 695 F.3d 990, 998 (9th Cir. 2012) (quotation marks omitted; cleaned up).
The government’s attempt to cast doubt on Pastor Dousa’s fear of further
surveillance, detention, and interrogation is similarly unavailing. The government
first observes that Pastor Dousa crossed the border without incident on April 4,
2019. Opp. 1, 5-6. But she did so “only … because [her] lawyer could accompany
[her].” 10/11/19 Dousa Decl. ¶ 17. “In all of [her] international travel, by land or
air, since [her] detention and interrogation, [she] ha[s] carried with [her] a letter
from [her] lawyer outlining [her] rights to travel.” Id. The government also notes
that Pastor Dousa has not “allege[d] any intent to travel to Mexico in the near
future.” Opp. 10. But to the extent Pastor Dousa has limited her travel, it is
precisely because she fears further targeting by Defendants.

The fact that

Defendants’ targeting of Pastor Dousa has chilled her international ministry does
not undermine her standing to sue; it supports it.
The government is left to argue that Pastor Dousa’s fear of future detention
rests on a “highly attenuated chain of possibilities,” citing Clapper v. Amnesty
International USA, 568 U.S. 398 (2013). Opp. 10. But the facts of this case and
Clapper could hardly be more different. The plaintiffs in Clapper had “no actual
knowledge of the Government’s … targeting practices.” 568 U.S. at 411. And
they could “only speculate” about (1) whether the government would use the

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challenged program rather than other means of surveillance, (2) whether a court
would authorize the surveillance, (3) whether the surveillance would succeed in
acquiring the communications of the plaintiffs’ foreign contacts, and (4) whether
the surveillance would also incidentally acquire the plaintiffs’ communications as
well. Id. at 412-14. Here, Pastor Dousa does know about the government’s
“targeting practices”—her photo appears on a CBP targeting list with a yellow “X”
over her face. Unlike in Clapper, moreover, there is no reasonable possibility that
Defendants would try to take Pastor Dousa into secondary inspection but fail in the
attempt. And the government itself takes the position that CBP officials do not
need court approval, or even any particular level of suspicion, to search or detain
travelers like Pastor Dousa at the border. See Opp. 10-11 & n.3.2
The government also cites City of Los Angeles v. Lyons, 461 U.S. 95 (1983),
see Opp. 9, but that case is no more helpful than Clapper. The alleged injury in
Lyons required speculation that, having been placed in a chokehold by police on
one occasion in the past, the plaintiff would be stopped by police again in the future,
and that the incident would escalate so as to lead to another chokehold. See 461
U.S. at 105-06. The Ninth Circuit has held that Lyons does not govern when the
“plaintiffs engaged in entirely innocent conduct” and “there is no string of
contingencies necessary to produce an injury.” Hodgers-Durgin v. de la Vina, 199
F.3d 1037, 1041-42 (9th Cir. 1999).

Here, crossing the border to perform

expressive, associative, and religious work is not only “entirely innocent”—it is
constitutionally protected. And no “string of contingencies” is needed to predict

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2

For similar reasons, it is irrelevant that CBP added the notation “Interdiction
canceled” to Pastor Dousa’s file on July 25, 2019. CBP-00048. That notation is
dated the very same day Pastor Dousa filed her motion for a preliminary injunction,
suggesting that Defendants acted only in response to this lawsuit. And because CBP
can detain travelers regardless of whether an interdiction has been entered, the
notation provides no assurance that Defendants will not detain and interrogate
Pastor Dousa on subsequent trips to the border.
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that, absent an injunction, Defendants will exercise their broad border control
powers to do again what they have already done before—surveil, detain, and
interrogate Pastor Dousa based on her protected activities.

4

3.

5

Pastor Dousa’s Injuries Are Traceable to Defendants and
Can Be Redressed by Injunctive Relief

6

Finally, the government briefly contends that Pastor Dousa’s injuries are not

7

traceable to or redressable by each of the defendants named in her complaint. See

8

Opp. 11; Mot. to Dismiss 14. That argument is unavailing. Pastor Dousa seeks

9

relief against CBP, ICE, and DHS—along with the individual heads of each agency,

10

in their official capacities—as well as CBP’s Director of Field Operations in San

11

Diego, also in his official capacity. Each of these agencies and officials was either

12

“involve[d] in the acts or omissions constituting the alleged constitutional violation”

13

or “can appropriately respond to injunctive relief.” Hartmann v. Cal. Dep’t of Corr.

14

& Rehab., 707 F.3d 1114, 1127 (9th Cir. 2013). CBP participated in Operation

15

Secure Line, and CBP officers effectuated Pastor Dousa’s detention and

16

interrogation at San Ysidro, which is overseen by CBP’s San Diego field office.

17

Compl. ¶¶ 29, 48-53. ICE likewise participated in the targeting operation; indeed,

18

the whistleblower himself was an ICE agent. See supra p. 4. ICE officials have

19

surveilled Pastor Dousa and her associates, deported one of her close New

20

Sanctuary colleagues, and attempted to deport another close colleague. Compl.

21

¶¶ 56-70, 92-100. And both CBP and ICE are components within DHS, which also

22

participated in Operation Secure Line. Id. ¶¶ 24-25, 56. The government never

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explains why injunctive relief against any Defendant would not redress Pastor

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Dousa’s injuries. Pastor Dousa has therefore adequately demonstrated her standing

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to seek injunctive relief against each of them.3

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3

Because Pastor Dousa has standing, the Court should also deny Defendants’
motion to dismiss for lack of jurisdiction under Rule 12(b)(1).
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B.

2

Pastor Dousa Is Likely to Prevail on Her First Amendment
Retaliation Claim

3

Pastor Dousa is likely to prevail on her claim for First Amendment retaliation.

4

That claim has three elements: protected activity by the plaintiff, adverse action by

5

the government, and a showing that the protected activity was a substantial or

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motivating factor behind the adverse action. See Mem. 13. The government here

7

does not dispute that Pastor Dousa has engaged in expressive, associative, and

8

religious activities protected by the First Amendment. See id. Nor could it. Pastor

9

Dousa’s speech on “matter[s] of ‘public concern’ is at ‘the heart of First

10

Amendment protection,’ and ‘occupies the highest rung of the hierarchy of First

11

Amendment values.’” Ragbir v. Homan, 923 F.3d 53, 69-70 (2d Cir. 2019)

12

(quoting Snyder v. Phelps, 562 U.S. 443, 451-52 (2011)) (cleaned up). Indeed,

13

“[b]ecause [her] speech concerns ‘political change,’ it is also ‘core political speech’

14

and thus ‘trenches upon an area in which the importance of First Amendment

15

protections is at its zenith.’” Id. at 70 (quoting Meyer v. Grant, 486 U.S. 414, 421-

16

22 (1988)) (emphasis omitted). Pastor Dousa’s associative conduct with migrants

17

and advocates likewise is “protected by the First Amendment.” Widmar v. Vincent,

18

454 U.S. 263, 269 (1981). And there is “[n]o question” that preaching, offering

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pastoral care, and performing rites like marriage ceremonies are protected exercises

20

of religion. Mockaitis v. Harcleroad, 104 F.3d 1522, 1530 (9th Cir. 1997),

21

overruled on other grounds by City of Boerne v. Flores, 521 U.S. 507 (1997).

22

Defendants also have taken adverse actions against Pastor Dousa—it is

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undisputed that they have targeted her and others she associates with for detention,

24

interrogation, surveillance, and other enforcement actions.

25

Moreover, to the extent Defendants have revoked Pastor Dousa’s SENTRI

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privileges, that too is an adverse action supporting her retaliation claim. See Ariz.

27

Students’ Ass’n v. Ariz. Bd. of Regents, 824 F.3d 858, 870 (9th Cir. 2016)

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(deprivation of a valuable government benefit is a sufficient adverse action).

Mem. 14-15.

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The government suggests that some of these actions (but not others) were not
sufficiently “adverse.” For example, the government notes that Pastor Dousa “does
not allege that she has ever been prevented from crossing the border,” Opp. 17, and
asserts that she was detained in secondary inspection for “only about 43 minutes,”
id. at 3. But “the type of sanction imposed to discourage the exercise of First
Amendment rights ‘need not be particularly great in order to find that rights have
been violated.’” Hyland v. Wonder, 972 F.2d 1129, 1135 (9th Cir. 1992) (quoting
Elrod v. Burns, 427 U.S. 347, 359 n.13 (1976)). To support a retaliation claim, the
adverse action need only be sufficient to “chill a person of ordinary firmness from
continuing to engage in the protected activity.” Ariz. Students’ Ass’n, 824 F.3d at
867 (quotation marks omitted). Any retaliatory detention and interrogation meets
that standard, regardless of its precise length. And the government notes that Pastor
Dousa is a person of more-than-ordinary firmness—she “does not shy away from
controversy or engagement.” Opp. 17 n.6. But even she has significantly curtailed
her ministry and gone to great lengths to avoid further adverse actions.
Finally, Pastor Dousa’s protected activity was plainly a substantial or
motivating factor in the adverse actions taken against her. Defendants created a
CBP “lookout” for Pastor Dousa mere days after she first crossed the border to
engage in protected ministry—far less than the “three to eight months” the Ninth
Circuit has held falls “easily within a time range that can support an inference of
retaliation.” Coszalter v. City of Salem, 320 F.3d 968, 977 (9th Cir. 2003).
Defendants then placed her on a list of “Suspected Organizers, Coordinators,
Instigators, and Media,” along with the notation “Disposition: SENTRI Revoked.”
The obvious inference is that Defendants withdrew this benefit because they
deemed her to be a “[s]uspected [o]rganizer[], [c]oordinator[], [or] [i]nstigator[].”
The documents produced in discovery shed considerable light on how
Defendants determined which individuals to target as a “[s]uspected [o]rganizer[],

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[c]oordinator[], [or] [i]nstigator[].”

One field report describes the “Migrant

Caravan” as “a common cause for numerous open border, humanitarian, and other
groups with the goal to challenge U.S. immigration laws.” CBP-00022. These
groups, the report continues, “attempt to use mechanisms such as the U Visa, the
Credible Fear screening process for refugees, and Humanitarian Parole to allow
aliens to gain legal status in the U.S.” Id. The report identifies Pastor Dousa and
other targets as among those who have traveled to the Southern Border to provide
such assistance to migrants. CBP-00020-22. And it includes screenshots of social
media posts in which targeted individuals express opposition to U.S. immigration
policy, including one post discussing Pastor Dousa’s work with the New Sanctuary
Coalition. CBP-00017-21. These documents strongly support Pastor Dousa’s
allegations that Defendants chose targets based on their protected activities—their
opposition to U.S. immigration policy and their efforts to help migrants enter and
gain status in the United States through established legal channels.
In Pastor Dousa’s case, moreover, it was not simply her advocacy work that
landed her on CBP’s radar—it was the religious nature of her work. Defendants
described Pastor Dousa as a “Suspected Organizer, Pastor” and targeted her
because she was “[i]dentified as performing marriage ceremonies in Tijuana.”
CBP-00002; see also CBP-00013 (discussing intelligence efforts to “identify
several subjects involved in performing marriages in Tijuana” for members of the
migrant caravan). Performing those marriages was unquestionably a core protected
religious activity. And Pastor Dousa has explained (and the government has not
disputed) that her faith requires her to offer pastoral care to migrants, including by
providing the church’s blessing for their marriages. 7/24/19 Dousa Decl. ¶¶ 9, 15.
The government does not argue that any factor other than Pastor Dousa’s
protected activity was the actual basis for Defendants’ actions.

Rather, the

government points to a variety of supposedly “plausible alternative explanation[s]”

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beyond retaliation that, in its view, could potentially explain Defendants’ actions.
Opp. 17; see also id. at 15-19. To the extent the government suggests Pastor Dousa
must rule out all potential alternative explanations or prove that retaliation was the
sole basis for Defendants’ adverse actions, that is incorrect.

To obtain a

preliminary injunction, Pastor Dousa need only show that, at trial, she is “likely”
to establish that her protected activity was a “substantial or motivating factor” in
the adverse actions taken against her. She has more than satisfied that burden.
Furthermore, none of the government’s alternative explanations withstands
scrutiny. In its initial public response to the targeting list, CBP stated that “the
names in the [Operation Secure Line] database are all people who were present
during violence that broke out at the border in November,” Compl. ¶ 72. That
statement was false—Pastor Dousa undisputedly was not present during any
violence and was not even asked about any violence during her interrogation. See
7/24/19 Dousa Decl. ¶ 17, 25; Mem. 16.
Similarly, in its recent filings, the government suggests that Pastor Dousa’s
detention and interrogation could have reflected a routine exercise of CBP’s
“substantial authority to question travelers upon reentry into the United States.”
Opp. 17. According to the government, it was only natural for CBP “to ask Plaintiff
questions about her activities in Mexico” because of migrants’ recent
“confrontations with CBP” and a post by Pastor Dousa on Facebook about hoping
to learn about those confrontations.

Opp. 17-18.

But again, the discovery

documents contain no suggestion that Pastor Dousa was connected to any border
violence (or that Defendants could reasonably have believed that she was). In any
event, routine questioning cannot explain placing an electronic alert on Pastor
Dousa’s name, including her photo on a targeting list, performing research on her
activities, and compiling a profile about her, complete with additional information
Defendants hoped to learn through further investigation. See supra pp. 3-5; CBP-

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00002. That Defendants’ “proffered explanations … were false and pretextual”
“show[s] that retaliation was a substantial or motivating factor behind [their]
adverse … actions.” Coszalter, 320 F.3d at 977 (quotation marks omitted).
The government also offers that any personal information Defendants have
compiled on Pastor Dousa could reflect the ordinary operation of the Global Entry
program, customs enforcement efforts, or other security screening measures. Opp.
18-19. But this case is not about the CBP’s recordkeeping practices under the
Global Entry program. Again, these particular dossiers were compiled on just 59
individuals as part of a surveillance operation directed at those who offered care
and support to or reported on the migrant caravan. The whistleblower has stated
that the dossiers are part of Operation Secure Line, not Global Entry, and the
discovery documents support that statement. See supra p. 4.
In light of those discovery documents, the government may attempt to offer
yet another theory of why Defendants targeted Pastor Dousa—that they were
investigating potential marriage fraud. The documents indicate that in a November
30, 2018 field interview, a Honduran national allegedly told agents that Pastor
Dousa, an “organizer,” had encouraged migrants in Tijuana to “get married to each
other” to “facilitate their political asylum claim[s].” CBP-00007. To be clear,
Pastor Dousa said no such thing. She told all couples she married that she was
performing a religious ceremony and provided them with documentation reflecting
only the religious nature of the marriage. 12/5/19 Dousa Decl. ¶¶ 5, 7. At most,
Pastor Dousa told couples that “a certificate, in English, documenting their marriage
could help reunite their families after crossing into the United States.” Id. ¶ 7.
Regardless, the discovery documents do not indicate that Defendants
conducted any real investigation into marriage fraud. During her interrogation in
January, Pastor Dousa was not asked a single question about the marriages she
performed. Id. ¶ 8. Nor is there any suggestion in the documents that CBP

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conducted any inquiry into which migrants Pastor Dousa had married or whether
their marriages were fraudulent. That is telling, as Pastor Dousa expressly told
migrants she married that they should share her card with government officials if
they received questions about their church-blessed marriages. Id. ¶ 7. Moreover,
the CBP report addressing possible marriage fraud discusses only a single
marriage—for a wedding Pastor Dousa did not attend, with a certificate she did not
sign—and notes no reason to believe that the certificate was illegitimate. CBP00013. Instead, the report appears to use the certificate as a justification for a
sprawling analysis of individuals potentially tied in some way to the marriage, as
well as their “[a]ssociate[s].” CBP-00013, 16. One individual, for example, had
potential connections to an “open border activist/attorney” working with the
migrant caravan. CBP-00013. The report then catalogs several “politically active”
social media posts by that activist, including one that mentioned Pastor Dousa and
the New Sanctuary Coalition. CBP-00017-21. The report concludes by reiterating
that the targeted individuals associate with groups that “challenge U.S.
immigration laws” and seek to “assist migrants with their goal of entering the U.S.”
CBP-00022. The discovery documents thus are more consistent with Defendants
using “marriage fraud” as a pretext to target Pastor Dousa and others based on
protected activities, rather than the predicate for a bona fide investigation.
Finally, the government asserts that it is “more plausible” that Defendants
targeted Pastor Dousa’s colleagues and numerous other immigrant-rights
advocates nationwide “because each was in violation of one or more immigration
laws or otherwise subject to removal.” Opp. 19. But the Second Circuit has held
that Ravi Ragbir, the Executive Director of New Sanctuary, the organization Pastor
Dousa co-chairs, for example, “adduced plausible—indeed, strong—evidence that
officials responsible for the decision to deport him did so based on their disfavor
of Ragbir’s speech.” Ragbir, 923 F.3d at 73. Other courts have held similarly.

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See, e.g., Gutierrez-Soto v. Sessions, 317 F. Supp. 3d 917, 934 (W.D. Tex. 2018)
(Mexican journalist raised genuine dispute of fact regarding retaliatory revocation
of his humanitarian parole); Order Re: Defendants’ Motions to Dismiss at 19-21,
Rueda Vidal v. DHS, No. 18-9276 (C.D. Cal. Aug. 28, 2019) (ECF No. 48) (DACA
recipient stated a plausible claim that DHS revoked her status in retaliation for
political activism). Pastor Dousa’s complaint references numerous other instances
with strong circumstantial indications of retaliatory intent. See Compl. ¶¶ 88-119.
The government cannot rebut evidence of retaliation by simply wishing it away.
C.

10

Pastor Dousa is Likely to Prevail on Her Free Exercise and
Hybrid Rights Claims

11

Pastor Dousa also is likely to prevail on the merits of her claims under the

12

Free Exercise Clause and the hybrid rights doctrine. The government does not

13

dispute that governmental actions burdening the free exercise of religion are

14

subject to strict scrutiny if they (1) are not generally applicable or neutral with

15

respect to religion or (2) are generally applicable and neutral, but also implicate

16

other rights beyond free exercise, such as free speech. See Mem. 17-18. The

17

government also does not dispute that if Defendants’ actions against Pastor Dousa

18

here are subject to strict scrutiny, they cannot survive. Id. at 18-19, 21-22.

19

Instead, the government argues that its actions targeting Pastor Dousa do not

20

trigger strict scrutiny in the first place. With respect to the hybrid rights claim, the

21

government never even mentions that doctrine, and thus appears to rely entirely on

22

the notion that Defendants’ actions do not implicate Pastor Dousa’s free speech

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rights at all. That is wrong, for the reasons explained above. See supra p. 12.

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actions against Pastor Dousa were ordinary applications of neutral, generally

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applicable border security policies, which burdened Pastor Dousa’s exercise of

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religion at most incidentally.

E.g., Opp. 10.

Under Employment Division,

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Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), of
course, “valid and neutral law[s] of general applicability” generally do not violate
the Free Exercise Clause. Id. at 879 (quotation marks omitted). But as explained,
Defendants’ actions against Pastor Dousa were not neutral or general at all—they
were targeted at her because of her work ministering to migrants.
Elsewhere, the government asserts without elaboration that Defendants’
actions did not “directly infringe[] upon or substantially burden[] the ‘exercise’ of
[Pastor Dousa’s] religion.” Mot. to Dismiss 23. To the extent that assertion
challenges the correctness or sincerity of Pastor Dousa’s belief that serving the
needs of migrants is a requirement of her Christian faith, the argument is absurd.
Pastor Dousa preaches about her beliefs regularly and acts upon them daily. “[T]he
federal courts have no business addressing []whether the religious belief asserted
... is reasonable,” or “presum[ing] to determine the plausibility of a religious
claim.” Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 724 (2014) (quotation
marks omitted; cleaned up).
To the extent the government instead means to minimize the effect of
Defendants’ actions on Pastor Dousa, the argument is at odds with uncontested
evidence. Again, Pastor Dousa has canceled a trip to Mexico, refrained from
blessing migrant marriages, had her pastoral counseling chilled, and had potential
parishioners deterred from attending her church. Those burdens are real and
substantial. The government simply ignores the case law recognizing similar
burdens as constitutionally significant. See Mem. 19-21 (citing cases).
D.

Pastor Dousa Is Likely to Prevail on Her RFRA Claim

Pastor Dousa also is likely to prevail on her claim under RFRA. The
government does not dispute that Defendants’ actions would fail strict scrutiny; it
argues only that those actions do not “substantially burden [Pastor Dousa’s]
exercise of religion.” 42 U.S.C. § 2000bb-1(a); Mot. to Dismiss 23. Importantly,

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RFRA’s plain text makes clear that a substantial burden may “result[] from a rule
of general applicability.” Id. Indeed, the express purpose of RFRA was to overrule
Smith and require a compelling justification for any substantial burden on the free
exercise of religion, including burdens from laws that are “‘neutral’ toward
religion.” 42 U.S.C. § 2000bb(a)(2). Pastor Dousa accordingly can prevail on her
RFRA claim even if, against the great weight of the available evidence, the
government were to demonstrate that Defendants’ actions against her reflected the
operation of neutral, generally applicable rules and policies.
The government conclusorily denies that the challenged actions here
“substantially burden the exercise of [Pastor Dousa’s] faith,” but also
acknowledges that governmental action “substantially burdens” the exercise of
religion under RFRA if it compels individuals “‘to choose between following the
tenets of their religion and receiving a government benefit.’” Mot. to Dismiss 23
(quoting Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1069-70 (9th Cir.
2008)). That is precisely the choice Defendants have forced upon Pastor Dousa
here. Because Pastor Dousa chose to counsel and minister to migrants across the
border, Defendants have revoked the privilege of returning to the United States free
from detention and interrogation. Now, every time Pastor Dousa contemplates
returning to Mexico to minister, she must weigh the added burden of secondary
inspection in the balance. She must make similarly difficult decisions every time
an asylum applicant approaches her for pastoral guidance, every time her church
contemplates a new migrant-focused program, and every time she considers
publicly expressing or acting upon what her faith teaches about serving migrants.
The whole point of RFRA is to avoid requiring religious adherents to make those
kinds of painful choices between the demands of their faith and their government.
Again, the government has not argued that Defendants’ targeting of Pastor
Dousa advances a compelling government interest. Even if it were now to suggest

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that Defendants’ actions served a compelling interest in rooting out marriage fraud,
see CBP-00009, 10, 22, 29, that argument would fail. For one thing, the fraud
allegations appear to have been a mere pretense for targeting Pastor Dousa based
on her protected activity. See supra pp. 16-17. And Defendants’ actions were not
the “least restrictive means” of uncovering any fraud. See 42 U.S.C. § 2000bb1(b)(2). Defendants targeted Pastor Dousa not just by questioning her at the border,
but also by monitoring her rallies, prayer vigils, and other religious activity in New
York. They have never asked Pastor Dousa a single question about marriages or
identified any suspect marriages she performed. See supra pp. 16-17. It is
implausible that Defendants’ extensive targeting and surveillance of Pastor Dousa
was less restrictive than other obvious steps they could have taken to uncover any
marriage fraud. The “exceptionally demanding” least-restrictive-means standard
requires the government to tread lightly when burdening religious practice. Hobby
Lobby, 573 U.S. at 728. Defendants have done precisely the opposite.
II.

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ALL OTHER EQUITABLE FACTORS SUPPORT A PRELIMINARY
INJUNCTION

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A.

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Pastor Dousa’s remedial request is simple—the Court should order

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Defendants to redress the consequences of their past retaliatory and discriminatory

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actions and to refrain from similar unlawful actions in the future. In concrete terms,

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Defendants should be preliminarily enjoined (1) to restore Pastor Dousa’s SENTRI

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status; (2) to rescind the document entitled “Suspected Organizers, Coordinators,

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Instigators, and Media,” as well as any associated targeting policy; (3) to rescind

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and destroy the profile compiled on Pastor Dousa, CBP-00002; FOIA-00002; and

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(4) to refrain from undertaking further surveillance, detention, interrogation, or

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other investigative or enforcement actions against Pastor Dousa, or individuals

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associated with her, based on protected expressive, associative, or religious speech

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or conduct. Nothing about that relief is impermissibly vague or indeterminate.

Pastor Dousa Seeks Workable Relief

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The government attempts to parse the Prayer for Relief in Pastor Dousa’s
complaint as if it set forth the only possible injunction this Court could enter. See
Opp. 22. Much of that parsing is demonstrably incorrect. For example, the
government asserts that Defendants would be enjoined from “ever surveilling,
detaining or otherwise targeting [Pastor Dousa] regardless of the justification,” id.,
but that is wrong—adverse actions against her would be barred only if “based on
her protected expression, association, or religious exercise.”

Compl. at 38.

Regardless, the Court has broad discretion to fashion appropriate equitable relief,
and the Prayer for Relief was deliberately framed in broad terms precisely to allow
the Court to tailor any injunction to the facts and the evidence. The government’s
suggestion that the Prayer for Relief is “redundant, immaterial, impertinent, or
scandalous,” so as to justify a motion to strike under Rule 12(f), is baseless.
The two cases the government relies on are of no help. In one, the court
rejected a proposed injunction that would have enjoined an insurer from
“‘obtaining input from biased medical consultants’ who are ‘not appropriately
trained and experienced,’” without providing any “clear or enforceable standards
for how [the insurer] would determine whether a medical consultant is
appropriately trained and experienced or biased or has a conflict of interest.” Brady
v. United of Omaha Life Ins. Co., 902 F. Supp. 2d 1274, 1283-85 (N.D. Cal. 2012)
(quoting proposed injunction; cleaned up). Here, Pastor Dousa seeks an injunction
ordering Defendants to undertake three discrete, concrete actions, and to refrain
from targeting her in the future based on her protected expressive, associative, or
religious speech or conduct. Nothing about that relief requires Defendants to make
judgments about appropriate training, bias, conflicts of interest, or the like.
Defendants presumably know the basis of their own actions, so no further clarity
is necessary for them to be able to conform their conduct to this Court’s order.

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In the government’s other case, the court rejected a proposed injunction
against “using state funds … to fund anti-religious activities … which have the
purpose or effect of disrupting, destroying, impeding and interfering with the free
exercise by plaintiffs of their religion.” Van Dyke v. Regents of Univ. of Cal., 815
F. Supp. 1341, 1346 (C.D. Cal. 1993). But Pastor Dousa’s proposed injunction
would turn on the basis of any future actions Defendants might take against Pastor
Dousa—which Defendants can and should know—not their “effect.”
B.

Pastor Dousa Faces Irreparable Harm Absent an Injunction

If this Court does not grant preliminary relief, Pastor Dousa is likely to suffer
irreparable harm. Deprivation of a constitutional right, even for a minimal period,
“unquestionably constitutes irreparable injury.” Melendres, 695 F.3d at 1002
(quotation marks omitted). And laws that merely burden speech even without
banning it outright still irreparably impair First Amendment rights. See Mem. 22.
The government does not dispute these principles, or even that—if Pastor
Dousa is likely to succeed on the merits—these principles apply here. Instead, the
government combines its merits and irreparable harm arguments, see Opp. 15-19,
and never offers any reason why, if the Court determines that Pastor Dousa is likely
to succeed on the merits of any claim, the Court should still deny an injunction due
to an absence of irreparable harm. If the Court finds a likelihood of success on the
merits, it accordingly should find a likelihood of irreparable harm as well.
C.

The Equities and the Public Interest Support an Injunction

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preliminary injunction. The government does not dispute that there is a “significant

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public interest in upholding First Amendment principles.” Doe v. Harris, 772 F.3d

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563, 583 (9th Cir. 2014) (quotation marks omitted). Nor does it dispute that “courts

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will more readily grant [injunctive] relief where allegations of retaliation are

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involved, because such conduct is likely to cause irreparable harm to the public

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interest … by deterring others from” exercising their rights. Garcia v. Lawn, 805
F.2d 1400, 1405 (9th Cir. 1986) (quotation marks omitted). The government notes
that Defendants have not banned Pastor Dousa from traveling to Mexico, Opp. 19,
but that hardly makes it equitable to threaten her with adverse action every time
she crosses the border, ministers to migrants, or posts on Facebook about doing so.

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On the other side of the ledger, the government at times suggests that Pastor
Dousa unreasonably delayed in bringing suit. See Opp. 5-6. Not so. She filed her
complaint six months after the Operation Secure Line documents were publicly
disclosed, and moved for a preliminary injunction two weeks later. Dkt. 1, 25.

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As predicted, the government also invokes a generalized “interest in the
efficient administration of immigration laws.” Opp. 20; see Mem. 24. But the
government never explains concretely how redressing past retaliation against
Pastor Dousa and refraining from future retaliation will actually endanger the
border. If anything, an injunction should strengthen border security by reminding
Defendants that their broad enforcement tools are meant for genuine security
threats, and not to punish U.S. citizens for exercising constitutional rights.
III.

THE COURT SHOULD DENY THE GOVERNMENT’S MOTIONS
Because Pastor Dousa is likely to succeed on the merits, a fortiori she also

has alleged claims that are plausible, precluding dismissal. But even if this Court
were to deny a preliminary injunction, it should deny the government’s motion to
dismiss. To survive a motion to dismiss, Pastor Dousa need only allege facts
showing a claim that is “plausible on its face,” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quotation marks omitted). On a preliminary injunction motion, moreover,
courts may draw whatever inferences they find appropriate, whereas on a motion
to dismiss, they “must draw all reasonable inferences in [the plaintiff’s] favor.”
Dahlia v. Rodriguez, 735 F.3d 1060, 1077 (9th Cir. 2013).

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The government muddies these clear standards by invoking the concept of
“plausibility” throughout its response to Pastor Dousa’s preliminary injunction
motion. But a “complaint may be dismissed only when defendant’s plausible
alternative explanation is so convincing that plaintiff’s explanation is implausible.”
Eclectic Properties E., LLC v. Marcus & Millichap Co., 751 F.3d 990, 996 (9th
Cir. 2014) (quotation marks omitted). A plaintiff thus need only point to alleged
“facts tending to exclude the possibility that the [defendant’s] alternative
explanation is true.” Id. at 996-97. Pastor Dousa has alleged many such facts.
CBP’s targeting list alone is more than sufficient. And if the Court deems it
necessary, Pastor Dousa is prepared to amend her complaint to include information
from the discovery documents.

As explained, the government’s alternative

explanations are even less plausible in light of those documents.
The government also floats the possibility of converting its motion to dismiss
into a motion for summary judgment. Mot. to Dismiss 8. But the discovery
documents show that the government could not possibly meet its burden on
summary judgment. Among other things, the government could not show that there
is no genuine dispute of material fact as to whether Defendants targeted Pastor
Dousa based on protected activity and whether their actions burdened her religious
practice. In any event, the Court cannot convert the government’s motion without
giving Pastor Dousa “a reasonable opportunity to present all the material that is
pertinent to the motion.” Fed. R. Civ. P. 12(d). That includes material obtainable
only through full discovery, including depositions. See Fed. R. Civ. P. 56(d).

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CONCLUSION
For the foregoing reasons, the Court should grant Pastor Dousa’s motion for
a preliminary injunction and deny Defendants’ motions to dismiss and to strike.

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Dated: December 20, 2019

Respectfully submitted,
By: /s/ Oscar Ramallo
ARNOLD & PORTER KAYE SCHOLER LLP

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Oscar Ramallo
Oscar.Ramallo@arnoldporter.com
R. Stanton Jones (pro hac vice)
Stanton.Jones@arnoldporter.com
William C. Perdue (pro hac vice)
William.Perdue@arnoldporter.com
Ada Añon (pro hac vice)
Ada.Anon@arnoldporter.com
Christian D. Sheehan (pro hac vice)
Christian.Sheehan@arnoldporter.com
Jaba Tsitsuashvili (Bar No. 309012)
Jaba.Tsitsuashvili@arnoldporter.com
Leah J. Harrell (pro hac vice)
Leah.Harrell@arnoldporter.com
Neesha Chhina (pro hac vice)
Neesha.Chhina@arnoldporter.com
THTHE PROTECT DEMOCRACY PROJECT, INC.
Stephanie Llanes (pro hac vice)
Stephanie.Llanes@protectdemocracy.org
Anne Tindall (pro hac vice)
Anne.Tindall@protectdemocracy.org
Genevieve Nadeau (pro hac vice)
Genevieve.Nadeau@protectdemocracy.org
Ben Berwick (pro hac vice)
Ben.Berwick@protectdemocracy.org

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Attorneys for Plaintiff Kaji Dousa

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CERTIFICATE OF SERVICE
I hereby certify that on December 20, 2019, I electronically filed the foregoing
with the Court using the CM/ECF system. I certify that all participants in the case
are registered CM/ECF users and that service will be accomplished by the CM/ECF
system.
Respectfully,
ARNOLD & PORTER KAYE SCHOLER LLP
By: /s/ Oscar Ramallo
Oscar Ramallo
Oscar.Ramallo@arnoldporter.com