Friday, March 17, 2017


[UPDATED: 4:01 PM 3.17.17- with PDF Government Reply Brief.]

The Government's reply brief in John Doe v. Trump - before Judge William Conley in the Western District of Wisconsin - was filed late last night just minutes before the deadline. Incredibly, in an act of sheer deep state sabotage, it does not cite to, rely upon, or draw the attention of the Court to, the very statute that specifically bars asylum seekers and asylees from suing the US Government or its officers.

That statute is  8 U.S.C. 1158(d)7This section of US Code has been cited in multiple federal cases regarding asylum issues. It is beyond question the most on point controlling statute concerning the case brought by a Syrian alien who was granted the gift of asylum, is residing here, and who sued the US Government to stay President Trump's travel ban Executive Orders so that his wife and child could avoid the 120 day delay involved therewith.

That the Government's brief defending the Executive fails to cite this controlling law is malpractice against the USA.

That legal sin is amplified as well by the fact that multiple federal cases have interpreted the broad prohibition of 1158(d)(7) to not just bar suits based upon the Immigration and Naturalization Act (INA), prior precedent also states that the statute bars Constitutional claims as well.

1158(d)(7) states:

(7)No private right of action

Nothing in this subsection shall be construed to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person.

Notice the bold print heading. That is a crucial indicator. "No private right of action" is allowed. It refers to "this subsection", which is 1158, the part of the code that allows asylum claims.

Every person seeking asylum does so under the discretionary grant of authority in 1158 generally, but 1158(d)(7) specifically makes clear that nothing in that subsection creates "substantive or procedural rights legally enforceable by any party against the United States". This is because no alien has a legal right to asylum in the USA. Asylum is a gift stemming from our national sovereignty.

It's that simple. The John Doe in the Wisconsin District Court case has no private right of action and cannot sue. The case is a sham, and it has been since day one.

District Judge William Conley knows this, but he has never mentioned it. John Doe's attorneys know, and they should be reprimanded according to ethics rules requiring them to make the court and opposing counsel aware of important precedent that goes against them.

But most egregious here is the conduct of the US Govt Attorneys charged with defending President Trump's Executive Orders. Their 46 page brief fails to rely upon or even mention 1158(d)(7). Sabotage.

Here is a perfectly illustrative decision from, L.M. v. Johnson, 150 F.Supp. 3rd 202 (2015) from the Eastern District of New York. I will provide two quotes, one as to the statutory prohibition and the other as to Constitutional claims:

Statutory bar:

"The court agrees with Pesantez and the other persuasive authorities cited below that mandamus relief is unavailable in this action. Section 1158(d)(7) of the INA plainly states that "[n]othing in [Section 1158(d)] shall be construed to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person." 8 U.S.C. § 1158(d)(7). The Mandamus Act authorizes the court "to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." 28 U.S.C. § 1361 (emphasis added). Here, Section 1158(d)(7) precludes mandamus relief by providing that "nothing in [Section 1158(d)]," including the 45- and 180-day timeframes contained in Section 1158(d)(5)(A)(ii) and (iii), creates any legally enforceable right or benefit against any officer of the United States or any agency."

Constitutional bar:

"The court concludes that Plaintiffs have failed adequately to allege a due process violation. First, Section 1158(d)(7) explicitly disclaims the creation of any enforceable "substantive or procedural right or benefit." Accordingly, Plaintiffs have suffered no cognizable deprivation of rights."

There you go. How is it possible 1158(d)(7) is not even mentioned in the Government's reply brief? Malpractice at best, intentional deep state sabotage at worst.

I apologize for not having an electronic copy of the Government's reply brief for you at this time. The Lawfare blog has been publishing all the EO court case documents, but they have not posted it as of my publishing this. Please do not ask me how I know the brief is fixed against POTUS. The brief will become public when you demand it. And I expect the Government will supplement their brief once they get wind of this discussion. [Update: this paragraph was written before the brief became available.]

I believe it was entered in the federal Pacer system about 11:57 PM last night. I did not get it there. I do not have an electronic copy, nor can I make one at this time. I broke this story earlier today on Twitter.

Bill Ette J.D.

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