Background: Moussa Diawara is interviewed for a "60 Minutes" segment (CBS Evening News). Inset: James Percival is interviewed as part of the same story (60 Minutes).
A federal judge has determined that the Trump administration endangered a man by publicly accusing him of pretending to be gay to avoid being deported from the U.S.
U.S. District Judge Jia Cobb was critical of the Department of Homeland Security (DHS) in a 13-page order detailing its leaders' apparent "delight in mocking" 57-year-old Moussa Diawara. Still, the Joe Biden appointee denied a request from the citizen of Mali that the government be forced to delete the "sensitive" asylum-related information, declaring that he has not shown that the releases were unauthorized.
Diawara had been living in the U.S. for years, having married a U.S. citizen and having two children over the course of two decades. According to a "60 Minutes" report, a U.S. immigration judge had ruled in 2012 that Diawara could not be deported to Mali, an asylum decision based on Diawara's stated fear of persecution due to his religion — he had converted to Christianity, and Mali is a majority Muslim country experiencing violence from Islamist extremists.
In July, agents with Immigration and Customs Enforcement (ICE) arrested him and deported him to Ghana, a country with which he said he had no affiliation; within days, he was returned to Mali. Diawara sued the Trump administration, and he was featured on the "CBS Evening News" in connection with the "60 Minutes" story about third-country deportations.
Notably, the story did not mention Diawara's sexuality — but DHS officials did.
In a comment to reporters weeks before the "60 Minutes" story aired, DHS pointed out that Diawara was "married to a woman he shares 2 children with" and "oddly claimed he would be persecuted for homosexuality if returned home to Mali."
After the "60 Minutes" report, the agency's general counsel, James Percival, took to social media.
"I pulled [Diawara's] file," Percival wrote on social media shortly after the episode aired. "His claimed reason for fearing Mali was that he is 'gay,' just in case you're wondering how bad the immigration fraud problem is."
The official ICE account also joined in. Quoting a Fox News correspondent's reposting of Diawara's asylum application, the account wrote, "Fake & Gay!"
Cobb struck a much different tone on the topic.
"Moussa Diawara is in danger," her order, issued Wednesday, began. "In part, he is in danger because the Department of Homeland Security, its General Counsel, and Immigration and Customs Enforcement told millions on social media that Diawara sought asylum in the United States by falsely claiming to fear persecution on account of his sexual orientation. This conduct is hard to square with the DHS's long-recognized commitment to safeguarding the confidentiality of asylum related information, a commitment based in the recognition that disclosure of that information may create new risks of retaliation and persecution."
Diawara has sought an order from the U.S. District Court for the District of Columbia "directing the removal of the existing social-media posts and preventing future disclosures of information related to his asylum application." He argued that when the regulation was written, the power of "disclosure to third parties" of asylum application information belonged only to the attorney general — but in his case, it was now-former DHS Secretary Kristi Noem who authorized the sharing of such information "in cases with media significance, for purposes of promoting transparency, accountability, and public awareness."
But Cobb was not sufficiently convinced. Pointing to the "disclosure to third parties" regulation that Diawara invoked, she noted that the regulation was written before the DHS existed. Since the agency's creation, however, authority over immigration matters moved from the Justice Department to DHS — and consequently, references to the "attorney general" naturally meant the DHS secretary instead.
"While Diawara's allegations raise real concerns, the Court is left, at this stage, with more questions than answers," Cobb wrote, choosing to deny his motion for a temporary restraining order.
Still, "[t]his is not to say that the record vindicates Defendants," the jurist added. "The Court acknowledges the gravity of Diawara's allegations and is amenable to ordering production of the administrative record to begin to address the factual questions presented by this case. But until then, the Court concludes that Diawara has not met his burden, at this early stage, to show that the disclosures were likely unauthorized."
Diawara and DHS are ordered to meet and file a joint status report by Friday indicating whether he plans to move for a preliminary injunction.
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