Tuesday, March 21, 2017


[UPDATED 10:32 AM - At 10:21 AM ET, I sent an email notification to US Attorney Yamileth Davila informing her as follows, including links to my reports:

"Dear US Attorney Yamileth Davila,

I have published two reports alleging that you have committed gross malpractice in your defense of President Trump's EO in John Doe v. Trump before Chief District Court Judge William Conley in the Western District of Wisconsin."]

Yesterday, I published a report alleging that the US Attorneys defending the Trump Executive Orders in the Western District Of Wisconsin committed intentional malpractice in failing to invoke the strict prohibition against such suits in 8 U.S.C. 1158(d)(7), which 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.

I further supported allegations of intentional sabotage by DOJ lawyers defending Trump's EO by quoting the prohibition in 1158(d)(7) as having been upheld - on both procedural and Constitutional grounds - in L.M. v. Johnson, 150 F.Supp.3d 202 (2015) from the Southern District of New York.

The oral argument for the current case - John Doe v. Trump - in the Western District of Wisconsin is today at 3PM. It is a claim by a Syrian alien regarding asylum. All asylum grants are strictly regulated - generally - by 8 U.S.C. 1158. And specifically - the code at 1158(d)(7) states that no private right of action may be brought by anyone claiming benefit of the asylum statute, on either procedural or substantive (including Constitutional) grounds.

Therefore, the District Court has no jurisdiction whatsoever to entertain the alleged Constitutional violations in this case. That the DOJ attorneys charged with defending President Trump's Executive Orders in this case have failed to even mention 1158(d)(7) in their reply brief is gross malpractice at best, and intentional sabotage at worst. Upon publishing this report today, I am forwarding it, and yesterday's report, directly to Department of Justice Attorney, Yamileth Davila. Her email address at DOJ is listed in the grossly deficient reply brief. I am doing this to put her on notice - before oral argument today - that she now has no excuse for not being aware of these controlling precedents.

The only jurisdiction the Wisconsin District Court may possibly have in this case - and even this is not certain (see forthcoming report here on jurisdiction generally) - is to review only that part of the claim that seeks to compel the Executive immigration officers to obey explicit statutory deadlines in reviewing an asylum seeker's petition for asylum. In order to compel a public official to do an act that he is required to do according to statute, one must bring an action for Writ of Mandamus.

While the Amended Complaint on behalf of the Syrian alien, John Doe, does not specifically request mandamus by name, it does request the court to compel immigration officials to, "...promptly and fairly adjudicate Plaintiff’s petitions for derivative asylum solely in accordance with preexisting law..." Therefore, this part of the complaint does, in fact, request mandamus action.

That mandamus is absolutely barred by 1158(d)(7) must be why the plaintiff's attorneys do not mention it specifically, but rather disguise it. That the DOJ attorneys have failed to clarify the mandamus request, and have also failed to invoke the strict prohibition in 1158 against it is, again, gross malpractice at best, and something far sinister at worst.

I now supplement yesterday's report with the decision of the Central District of California from Alaei v. Holder, recently decided in May 2016. In that case, the plaintiff sought to compel immigration officials to hold a hearing on her asylum application within the 45 day timeline stated in 1158(d)(5)(A)(ii). The Court accepted jurisdiction, citing 28 U.S.C. 1361, which gives District Courts original jurisdiction for "any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." 

Note that the law does not require mandamus to be requested specifically by name, it is sufficient that the plaintiff requests any action in the nature of mandamus. The Central District of California (who answers to the 9th Circuit Court of Appeals) then analyzed the plaintiff's mandamus request under both 1158(d)(7) and the Administrative Procedures Act (APA). She was barred under both and her case was dismissed. She also brought a Constitutional due process claim, but that was summarily dismissed as well.

As to 1158(d)(7), the Court stated:

Here, Plaintiff fails at least the first prong of the test as the relevant statute makes clear that the 45-day rule is not a right enforceable by the applicant. See 8 U.S.C. § 1158(d)(7) (“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.”).

The District Court then referred to a 9th Circuit Court of Appeals prior decision on this issue:

The Ninth Circuit has held that identical language in other immigration statutes foreclose
mandamus relief. Campos v. I.N.S., 62 F.3d 311, 313–14 (9th Cir. 1995);

Every US Attorney involved with all of the other travel ban Executive Order cases should now take notice of what we are discussing here today, because the strict prohibition language of 1158(d)(7) also exists in other statutes with regard to non-asylum cases. Therefore, the other district court cases pending in Hawaii and Maryland have also been the subject of gross malpractice. (We shall discuss those legal sins in a forthcoming report.)

The District Court in Alaei v Holder then went on to cite the precedent from, L.M. v. Johnson, discussed in yesterday's report:

[S]ee also, e.g., Pesantez v. Johnson, No. 15 CIV. 1155 (BMC), 2015 WL 5475655, at *2 (E.D.N.Y. Sept. 17, 2015) (“It is beyond serious dispute that mandamus . . . is unavailable to compel compliance with a statutory obligation when the underlying statute expressly disclaims a private right of action.”); L.M. v. Johnson, No. 14CV3833NGGVMS, 2015 WL 8540876, at *5 (E.D.N.Y. Dec. 8, 2015) (following Pesantez); Pesic v. Perryman, No. 99 C 3792, 1999 WL 639194, at *5 (N.D. Ill. Aug. 17, 1999) (“Where there is no private right of action under a statute, mandamus is not
available.”). Plaintiff is thus not entitled to mandamus relief.
(Emphasis added.)

You see that, "it is beyond serious dispute" that the plaintiff in John Doe v Trump can compel compliance with any statutory obligation, since the underlying statute - 1158 generally - expressly disclaims a private right of action, specifically under 1158(d)(7).

As to the APA mandamus request, the Court stated:

Here, § 1158(d)(5)(A)(ii) is not a “specific, unequivocal command” to adjudicate an asylum application within 45 days. Rather, the statute requires adjudication of a petition within 45 days unless there are “exceptional circumstances."

The Court then took notice of the fact that the statute gives Executive officials discretion over the statute, and therefore those officials could not be compelled to act under the APA:

The statute thus vests at least some degree of discretion in the agency to not set a hearing on the application within 45 days, and thus this is not the type of ministerial command that gives rise to a claim under § 706(1). See, e.g.,Vietnam Veterans of Am., 811 F.3d at 1083 (the APA “does not give us license to compel agency action whenever the agency is withholding or delaying an action we think it should take. Rather, our authority to compel agency action is [limited to enforcing statutes or regulations that] contain[] an unequivocal command about which an official has no discretion whatever.” (Emphasis added.)

AG Holder's actions were upheld in that case because of the very clear prohibitions against private rights of action, specifically relevant was the rule of 1158(d)(7) and other similar immigration bars, which the DOJ has completely ignored in the present cases.

Again, that the DOJ attorneys, charged with defending the USA generally, and President Trump's Executive Orders, specifically, in this Wisconsin case, have failed to even mention 1158(d)(7) in their reply brief, is certainly gross malpractice, but obviously something more sinister is at play.  

These attorneys know the law. The DOJ has successfully defended similar claims within the past year on behalf of the Obama administration. They are simply choosing not to invoke the law now. That is illegal. That is unethical. That is something we have never seen before as a nation. And that is punishable by law.

What we are witnessing in these travel ban Executive Order cases is a complete breakdown of Constitutional separation of powers, as well as a rebellion on behalf of both the DOJ attorneys charged with defending the USA in these cases, and a revolt of the Judicial Branch in intentionally ignoring crucial jurisdictional issues. This is unprecedented in American history.

We the People must share this knowledge and act upon it. Please get this analysis to your circles. The future of the Republic depends upon the People being well educated.

Written and Research by Bill Ette, J.D.

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