Dear Editor:
In response to Mr. Mc Keon's letter seeking information regarding affirmance w/o opinion, let me give my opinion. If you have been appointed by the Circuit Court as substitute counsel, I am sure they will give you time to receive the Certified Administrative Record (CAR). You cannot file a brief without referring to the CAR and if you do, are subject to motions against you by opposing counsel. I have been in this same situation and would recommend the following: 1. Phone opposing counsel and make a stipulated motion to extend the time to file the CAR and set a new briefing schedule. Remember, it is their obligation to file the CAR and they must make a motion for an extension to do so.
2. I am sure they will agree on a stipulated motion. However if there is any reason why you do not get a stipulated motion, because of miscommunication, lost mail, etc., then you should file a motion for summary disposition, sanctions, remand to the BIA for failure to file the CAR or in the alternative a new briefing schedule. 3. Check the PACER for your cases to see if they have filed the CAR. If PACER shows the CAR has been filed, make a motion for a copy to the Circuit Court with an affidavit stating you never received the CAR and also ask for a new briefing schedule. As to any due process arguments regarding affirmance without opinion, I would not pursue this. The 1st, 5th, 7th, 11th, and most recently the 9th circuit have stated that this is not a denial of due process. However, all is not lost. The Ninth Circuit in Carriche v. Ashcroft, 225 F. 3d 1009 (9th Cir. 2003) seems to tell us that there is no denial of due process by the BIA, but that you may look to the IJ's decision for any errors. (Apparently the Full Monty). This means you have access to the Circuit Courts. I wish you good luck.
Miguel Gadda
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