I am heartened by the plethora of recent commentary regarding the questionable lawfulness and/or constitutionality of the summary affirmance or so called "streamlining" opinions of the BIA entered without any analysis or rationale.
I am presently struggling with multiple briefs due in the 2nd Circuit on the issues of asserted substantive, procedural, facial and as applied deprivations of substantive and procedural due process and additionally attempting to argue patterns of abuse associated with such process- as alluded to by the 1st Circuit as a plausible legal justification for finding due process violations as systemic and/or inherent in the summary affirmance process.
In such endeavors I am now encountering a new and regrettably re-occurring problem. As substituted appellate counsel before the circuit court and not the attorney of record in proceedings before the EOIR and BIA, I am required to brief the issues on appeal to the circuit, some due this forthcoming week, and the related certified records of proceedings requested months ago are not yet ready and cannot be filed in the circuit court as ordered due to the increasing backlogs of similar requests being made to the BIA/EOIR for such records. In essence, I am required to brief the circuit on the issues without the benefit of first reviewing the requested certified record of proceedings, which arguably the single BIA panel member could not possibly have read, let alone review, in the time frame mandated by the AG for rendering such summary affirmance opinion which is the basis for such appeal to the circuit. Can anyone say "catch-22"?
If anyone out there is aware of any specific circuit court opinions, particularly in the 2d Circuit, finding facial, as applied and/or inherent or indigenous due process violations in the summary affirmance procedures and process, I would appreciate if other attorneys would share their experience on similiar matters, particularly as I am required to evidence such deprivations by 11/12/03.
James G Mc Keon
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