Daily Rules, Proposed Rules, and Notices of the Federal Government
The Administrative Conference Act, 5 U.S.C. 591-596, established the Administrative Conference of the United States. The Conference studies the efficiency, adequacy, and fairness of the administrative procedures used by Federal agencies and makes recommendations for improvements to agencies, the President, Congress, and the Judicial Conference of the United States (5 U.S.C. 594(1)). For further information about the Conference and its activities, see
At its Fifty-sixth Plenary Session, held June 14-15, 2012, the Assembly of the Conference adopted five recommendations. Recommendation 2012-1, “Regulatory Analysis Requirements,” considers the various regulatory analysis requirements imposed upon agencies by both executive orders and statutes. It offers recommendations designed to ensure that agencies satisfy the existing requirements in the most efficient and transparent manner possible. It also provides recommendations on streamlining the existing analysis requirements.
Recommendation 2012-2, “Midnight Rules,” addresses several issues raised by the publication of rules in the final months of a presidential administration. The recommendation offers a number of proposals for limiting the practice of issuing midnight rules by incumbent administrations and enhancing the powers of incoming administrations to review midnight rules.
Recommendation 2012-3, “Immigration Removal Adjudication,” addresses the problem of case backlogs in immigration removals. The recommendation suggests a number of ways to enhance efficiency and fairness in these cases. Officials from the Department of Homeland Security (DHS) and the Department of Justice's Executive Office for Immigration Review (EOIR) had significant and helpful input during the committee process preceding the adoption of the recommendation by the full Assembly of the Conference.
At the end of the first day of the Fifty-sixth Plenary Session, during deliberation of Recommendation 2012-3, “Immigration Removal Adjudication,” the Assembly had to adjourn due to the lack of a quorum. That determination came after three amendments proposed by DHS to sections 10(b) and 21 of the recommendation failed. There is doubt whether a quorum existed at the time the Assembly voted on those amendments. Moreover, because those amendments failed by relatively narrow margins (one was a tie), they might have succeeded had a quorum been present. The following day, after a quorum had been reestablished, the full recommendation (including the two sections that had been adopted prior to the quorum call) was adopted by a voice vote. In light of the uncertainty surrounding the votes on DHS's amendments, DHS and a number of other members have taken the reasonable view that those two sections carry less persuasive weight than they might otherwise.
An ex post review of all relevant sources has introduced some uncertainty as to whether procedures could have been managed differently. Because the mission of the Conference is to ensure consensus-driven and fair procedures, the Conference has sought and will continue to seek the input of its membership on ways to revise quorum procedures in the future, to ensure that the Conference acts only through a full quorum of its members. We look forward to working with DHS and the Department of Justice to implement the other 35 parts of this important and historic recommendation.
Recommendation 2012-4 addresses a variety of issues that have arisen since the Paperwork Reduction Act was last revised in 1995. It recommends ways to improve public engagement in the creation and review of information collection requests and to make the process more efficient for the agencies and the Office of Management and Budget. It also suggests ways to streamline the review and approval process without increasing the burden on the public of agency information collections.
Recommendation 2012-5 addresses the problem of overlapping and fragmented procedures associated with assigning multiple agencies similar or related functions, or dividing authority among agencies. The recommendation proposes some reforms aimed at improving coordination of agency policymaking, including joint rulemaking, interagency agreements, agency consultation provisions, and tracking and evaluating the effectiveness of coordination initiatives.
The Appendix (below) sets forth the full text of these five recommendations. The Conference will transmit them to affected agencies and to appropriate committees of the United States Congress. The recommendations are not binding, so the relevant agencies, the Congress, and the courts will make decisions on their implementation.
The Conference based these recommendations on research reports that it has posted at:
Over the past several decades, the United States Congress and various Presidents have imposed numerous regulatory analysis requirements on administrative agencies in connection with their rulemaking activities. Some of these requirements are relatively sweeping measures designed to ensure that agencies' regulations advance legitimate goals, such as Executive Order (EO) 12,866's requirement that executive agencies analyze the benefits and costs of proposed regulations.
Some of the regulatory analysis requirements created by statute and executive orders have similar elements. For instance, the Regulatory Flexibility Act (RFA), Paperwork Reduction Act (PRA), Unfunded Mandates Reform Act (UMRA), and EO 12866 all require agencies to discuss the need for a proposed regulatory action, assess the costs and benefits of the proposal, and discuss alternative regulatory actions that could have been selected.
Nevertheless, even relatively similar analytical requirements have distinct scopes, triggering events, and exceptions.
In this Recommendation, the Conference has sought to ensure that agencies fulfill the various regulatory analysis requirements in the most efficient manner possible and to enhance the transparency of the process by encouraging agencies to identify explicitly which of the requirements apply to any given rulemaking and why any applicable analytical requirements are not triggered. Also, agencies should be able to refer to a comprehensive list of cross-cutting regulatory analysis requirements, and they should identify any agency-specific or statute-specific requirements applicable to their rules.
In addition, the Conference asks the Executive Office of the President and Congress to consider streamlining the existing regulatory analysis requirements. It encourages the Executive Office of the President and Congress to consider consolidating certain analysis requirements to the extent overlap exists and to promote uniformity in the determination of whether any given analysis requirement applies. Although the Conference seeks to assure that existing analytic requirements are applied in the most efficient and transparent manner possible, it does not address whether the number or nature of those requirements might not be reduced in light of their cumulative impact on agencies.
1. The Executive Office of the President should request that an appropriate agency prepare and post on its Web site a chart listing the various cross-cutting analytical rulemaking requirements (i.e., those that apply generally to a group of agencies rather than a specific agency or issue); the chart should provide links to the relevant statutes and executive orders establishing these requirements.
2. To the extent certain regulatory analysis requirements are agency-specific or statute-specific, affected agencies should prepare and post on their Web sites a list of all such additional requirements (beyond the cross-cutting requirements described in Recommendation 1), along with links to the underlying statutes.
3. In order to minimize the burden and duplication that agencies face in conducting separate regulatory analyses, the Executive Office of the President and Congress should review
4. The Office of Information and Regulatory Affairs (OIRA) should notify agencies that an analytical requirement for which it plays a central coordinating role might be satisfied by another applicable analytical requirement, and that the agencies may not need to prepare a separate analysis to satisfy the former requirement in such instances.
5. In developing any future guidance on regulatory analysis requirements, OIRA should consider the cumulative impact of those requirements and, to the extent possible, integrate the requirements into existing formats for analysis.
6. In the preamble to each significant proposed or final rule, agencies should briefly indicate which of the cross-cutting and agency-specific or statute-specific regulatory analysis requirements arguably apply to the particular rulemaking under consideration, and why any specific requirement is not triggered.
There has been a documented increase in the volume of regulatory activity during the last months of presidential terms.
The Conference has found that a dispassionate look at midnight rules
In addition, critics have suggested that administrations have used the midnight period for strategic purposes. First, administrations are said to have reserved particularly controversial rulemakings for the final months of an incumbent President's term in order to minimize political accountability and maximize influence beyond the incumbent administration's term. Such strategic timing is said to weaken the check that the political process otherwise provides on regulatory activity. Second, there is some concern about the quality of rules that may have been rushed through the rulemaking process. Third, some fear that midnight rulemaking forces incoming administrations to expend substantial time, energy, and political capital to reexamine the rules and address perceived problems with them. Although similar concerns have been raised with respect to non-legislative rules issued during the midnight period, such rules are not the focus of this Recommendation because they can be modified or amended without notice and comment procedures.
Given these criticisms, there have been many proposals to reform midnight rulemaking, some directed at limiting the ability of incumbent administrations to engage in it, some directed at enhancing the ability of incoming administrations to revise or rescind the resulting rules, and others directed at encouraging incumbent and incoming administrations to collaborate and share information during the rulemaking process.
The Conference believes that although it may be desirable to defer significant and especially controversial late-term rulemakings until after the transition of a presidential administration, shutting the rulemaking process down during this period would be impractical given that numerous agency programs require constant regulatory activity, often with statutory deadlines. Thus, the Conference believes that reforms directed at curtailing midnight rules should be aimed as precisely as possible at the activities that raise the greatest causes for concern. Reforms should target the problems of perceived political illegitimacy that arise from rules that that are initiated late in the incumbent administration's term or that appear to be rushed through the regulatory process.
Accordingly, this Recommendation proposes reforms aimed at addressing problematic midnight rulemaking practices by incumbent administrations and enhancing the ability of incoming administrations to review midnight rules. This Recommendation defines “midnight rules” as those promulgated by an outgoing administration after the Presidential election. It is directed at addressing midnight rulemaking of “significant” legislative rules,
1. Incumbent administrations should manage each step of the rulemaking process throughout their terms in a way that avoids an actual or perceived rush of the final stages of the process.
2. Incumbent administrations should encourage agencies to put significant rulemaking proposals out for public comment well before the date of the upcoming presidential election and to complete rulemakings before the election whenever possible.
3. When incumbent administrations issue a significant “midnight” rule—meaning one issued by an outgoing administration after the Presidential election—they should explain the timing of the rule in the preamble of the final rule (and, if feasible, in the preamble of the proposed rule). The outgoing administration should also consider selecting an effective date that falls 90 days or more into the new administration so as to ensure that the new administration has an opportunity to review the final action and, if desired, withdraw it after notice and comment, before the effective date.
4. Incumbent administrations should refrain from issuing midnight rules that address internal government operations, such as consultation requirements and funding restrictions, unless there is a pressing need to act before the transition. While incumbent administrations can suggest such changes to the incoming administration, it is more appropriate to leave the final decision to those who would operate under the new requirements or restrictions.
5. Incumbent administrations should continue the practice of sharing appropriate information about pending rulemaking actions and new regulatory initiatives with incoming administrations.
6. Where an incoming administration undertakes to review a midnight rule that has already been published, and the effective date of the rule is not imminent, the administration should, before taking any action to alter the rule or its effective date, allow a notice-and-comment period of at least 30 days. The comment period should invite the public to express views on the legal and policy issues raised by the rule as well as whether the rule should be amended, rescinded, delayed pending further review by the agency, or allowed to go into effect. The administration should then take account of the public comments in determining whether to amend, rescind, delay the rule, or allow the rule to go into effect. If possible, the administration should initiate, if not complete, any such process prior to the effective date of the rule.
7. When the imminence of the effective date of a midnight rule precludes full adherence to the process described in paragraph six, the incoming administration should consider delaying the effective date of the rule, for up to 60 days to facilitate its review, if such an action is permitted by law.
8. In order to facilitate incoming administrations' review of midnight rules that would not otherwise qualify for one of the APA exceptions to notice and comment, Congress should consider expressly authorizing agencies to delay for up to 60 days, without notice and comment, the effective dates of such rules that have not yet gone into effect but would take effect within the first 60 days of a new administration.
9. The Office of the Federal Register should maintain its current practice (whether during the midnight period or not) of allowing withdrawal of rules before filing for public inspection and not allowing rules to be withdrawn once they have been filed for public inspection or published, absent exceptional circumstances.
The U.S. immigration removal adjudication agencies and processes have been the objects of critiques by the popular press, organizations of various types, legal scholars, advocates, U.S. courts of appeals judges, immigration judges, Board of Immigration Appeals members and the Government Accountability Office. Critics have noted how the current immigration adjudication system fails to meet national expectations of fairness and effectiveness. One of the biggest challenges identified in the adjudication of immigration removal cases is the backlog of pending proceedings and the limited resources to deal with the caseload. A March 2012 study by the Transactional Records Access Clearinghouse at Syracuse University reports that the number of cases pending before immigration courts within the U.S. Department of Justice's Executive Office for Immigration Review (EOIR) recently reached an all-time high of more than 300,000 cases and that the average time these cases have been pending is 519 days.
The numerous studies examining immigration removal adjudication have focused on the two agencies principally involved: The U.S. Department of Homeland Security (DHS), specifically two of its component agencies: the United States Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE), and EOIR. Prior studies about EOIR have noted the limited resources available to the agency and called for more resources to hire more immigration judges and support staff and thus ease the backlog of cases, criticized immigration judge hiring standards and procedures, and recommended enhanced orientation, continuing education, and performance monitoring.
Consultants for the Administrative Conference of the United States conducted a comprehensive and detailed study of potential improvements in immigration removal adjudication.
1. To encourage the enhancement of resources for immigration courts, working within and through the U.S. Department of Justice (DOJ), the DOJ's Executive Office for Immigration Review (EOIR) should:
(a) Continue to seek appropriations beyond current services levels but also plan for changes that will not require new resources;
(b) Make the case to Congress that funding legal representation for respondents (
(c) Continue to give high priority for any available funds for EOIR's Legal Orientation Program and other initiatives of EOIR's Office of Legal Access Programs, which recruit non-profit organizations to provide basic legal briefings to detained respondents and seek to attract pro bono legal providers to represent these individuals.
2. To monitor immigration court performance, EOIR should:
(a) Continue its assessment of the adaptability of performance measures used in other court systems;
(b) Continue to include rank-and-file immigration judges and U.S. Department of Homeland Security (DHS) agencies in the assessment of immigration courts' performance;
(c) Continue to incorporate meaningful public participation in its assessment; and
(d) Publicize the results of its assessment.
3. To refine its information about immigration court workload, EOIR should:
(a) Explore case weighting methods used in other high volume court systems to determine the methods' utility in assessing the relative need for additional immigration judges and allowing more accurate monitoring and analysis of immigration court workload;
(b) Expand its data collection field, upon introduction of electronic filing or other modification of the data collection system, to provide a record of the sources for each Notice to Appear form (NTA) filed in immigration courts;
(c) Continue its evaluation of adjournment code data, as an aid to
(d) Evaluate the agency's coding scheme to consider allowing judges or court administrators to identify what the agency regulations call “pre-hearing conferences,” sometimes known as “status conferences;” and
(e) Authorize, as appropriate, a separate docket in individual immigration courts for cases awaiting biometric data results with special coding for these cases to allow EOIR to measure the degree to which these types of security checks are solely responsible for case delays.
4. EOIR should consider assembling a working group of immigration judges and others familiar with court management structures to assist in its ongoing evaluation of alternatives to the current Assistant Chief Immigration Judge structure used by the agency.
5. To increase the immigration court workforce, EOIR should:
(a) Consider the use of temporary immigration judges where permitted by its regulations. If temporary immigration judges are used, EOIR should use transparent procedures to select such judges and usual procedures for monitoring judges' performance;
(b) Consider the National Association of Immigration Law Judges' (NAIJ) proposal for instituting senior status (through part-time reemployment or independent contract work) for retired immigration judges
(c) Consider using appropriate government employees as temporary immigration court law clerks.
6. To promote transparency about hiring practices within the agency and consistent with any statutory restrictions to protect privacy, EOIR should periodically publish summary and comparative data on immigration judges, Board of Immigration Appeals members, and support staff as well as summary information on judges' prior employment.
7. EOIR should expand its Web page entitled “Immigration Judge Conduct and Professionalism” that discusses disciplinary action to include an explanation of why the agency is barred by statute from identifying judges upon whom it has imposed formal disciplinary action.
8. EOIR should consider incorporating elements of the American Bar Association's and the Institute for the Advancement of the American Legal System's Judicial Performance Evaluation models into its performance evaluation process, including the use of a separate body to conduct agency-wide reviews.
9. To enhance the utility of status conferences, EOIR should:
(a) Assemble a working group to examine immigration judges' perceptions of the utility, costs and benefits of such conferences;
(b) Consider a pilot project to evaluate the effectiveness and feasibility of mandatory pre-hearing conferences to be convened in specified categories of cases;
(c) Evaluate situations in which the judge should order the trial attorney to produce essential records from the respondent's file;
(d) Evaluate the use of EOIR's Form-55
(e) Recommend procedures for stipulations by represented parties.
10. To clarify the proper use of techniques for docket control in immigration removal adjudication cases, EOIR should:
(a) Amend the Office of the Chief Immigration Judge's (OCIJ) Practice Manual to specifically define “Motions for Administrative Closure”; and
(b) Amend appropriate regulations so that once a respondent has formally admitted or responded to the charges and allegations in an NTA, the government's ability to amend the charges and allegations may be considered by the immigration judge in the exercise of his or her discretion.
11. EOIR should expand its review of stipulated removals by considering a pilot project to systematically test the utility of stipulated removal orders (provided that respondents have been counseled by independent attorneys) as a mechanism to (a) reduce detention time, (b) allow judges to focus on contested cases, and (c) assess whether and when the use of stipulated removals might diminish due process protections.
12. In jurisdictions where DHS routinely seeks stipulated removal orders and asks for a waiver of the respondent's appearance, EOIR should consider designing a random selection procedure where personal appearance is not waived and the respondent is brought to the immigration court to ensure that the waivers were knowing and voluntary. If undertaking such a project, EOIR should encourage one or more advocacy organizations to prepare a video recording (with subtitles or dubbing in a number of languages) that explains the respondent's removal proceedings, general eligibility for relief, and the possibility of requesting a stipulated order of removal should the respondent wish to waive both the hearing and any application for relief including the privilege of voluntary departure.
13. EOIR should finalize its 2008 proposed regulations to allow greater flexibility in establishing three-member panels for the Board of Immigration Appeals (BIA).
14. EOIR should not oppose unit prosecution, which DHS's Immigration and Customs Enforcement (ICE) Chief Counsel has devised for prosecution in some immigration courts.
15. EOIR should consider providing immigration judges with additional guidance directed at ensuring that trial counsel are prepared and responsible for necessary actions that the parties must complete between hearings. Specifically, EOIR should consider:
(a) Amending the OCIJ's Practice Manual to explicitly include best practices for the activities of trial counsel in immigration removal proceedings;
(b) Instructing judges to document, in the record, the responsibilities, commitments, actions and omissions of trial counsel in the same case; and
(c) Clarifying the authority for judges to make conditional decisions on applications for relief where trial counsel has not provided necessary information.
16. To increase the availability of competent representation for respondents, EOIR should:
(a) Undertake a more intensive assessment of the paraprofessional programs that provide legal representation and the accreditation process for such programs;
(b) Continue its assessment of the accuracy and usefulness of the pro bono representation lists provided at immigration courts and on the agency's Web site; and
(c) Develop a national pro bono training curriculum, tailored to detention and non-detention settings:
(i) The training curriculum should be developed in consultation with groups that are encouraging pro bono representation.
(ii) The training curriculum should be offered systematically and in partnership with educational, CLE and/or non-profit providers.
17. To enhance the guidance available to legal practitioners and pro se respondents, EOIR should:
(a) Work with a pro bono organization to develop materials that explain the legal terms and concepts within the OCIJ Practice Manual;
(b) Share supplemental instructions developed by individual immigration courts or judges to aid the parties in preparing submissions to the immigration court; and
(c) Evaluate the cost and utility of developing access to electronically-available information in immigration court waiting rooms or similar spaces so that the respondents can access the court Web site and find instructional materials.
18. To enhance the number and value of know-your-rights (KYR) presentations given to detained respondents, EOIR should:
(a) Ensure that KYR presentations are made sufficiently in advance of the initial master calendar hearings to allow adequate time for detained individuals to consider and evaluate the presentation information (to the extent consistent with DHS requirements for KYR providers);
(b) Consider giving LOP providers electronic access to the court dockets in the same manner as it is currently provided to DHS attorneys representing the government in cases (with appropriate safeguards for confidentiality and national security interests); and
(c) Encourage local EOIR officials to obtain from detention officers aggregate data about new detainees (such as, where possible, lists of new detainees, their country of origin, and language requirements) at the earliest feasible stage for both the immigration courts and LOP providers.
19. EOIR should study and develop the circumstances where the use of limited appearances, (the process by which counsel represent a respondent in one or more phases of the litigation but not necessarily for its entirety), is appropriate and in accordance with existing law. After further study, EOIR should consider taking appropriate action such as:
(a) Modifying appropriate and underlying regulations as necessary;
(b) Issuing an Operating Policies and Procedures Memorandum (OPPM) entry to explain to immigration judges the circumstances in which they may wish to permit limited appearances and the necessary warnings and conditions they should establish; and
(c) Amending the OCIJ Practice Manual to reflect this modified policy.
20. EOIR should consider whether pro se law clerk offices would save costs, enhance fairness, and improve efficiency.
21. To encourage improvement in the performance of attorneys who appear in the immigration court, EOIR should:
(a) Continue its efforts to implement the statutory grant of immigration judge contempt authority;
(b) Evaluate appropriate procedures to allow immigration judges to address trial counsel's lack of preparation, lack of substantive or procedural knowledge, or other conduct that impedes the court's operation; and
(c) Explore options for developing educational and training resources such as seeking pro bono partnerships with reputable educational or CLE providers and/or seeking regulatory authority to impose monetary sanctions to subsidize the cost of developing such materials.
22. DHS should consider revising the NTA form or instruct its completing officers to clearly indicate officer's agency affiliation, being specific about the entity preparing the NTA, in order to enhance the immigration court's ability to better estimate future workload.
23. DHS should conduct a pilot study evaluating the feasibility of requiring (in appropriate cases) the approval of an ICE attorney prior to the issuance of any NTA. The pilot study should be conducted in offices with sufficient attorney resources and after full study of the efficiencies and operational changes associated with this requirement, DHS should consider requiring attorney approval in all removal proceedings.
24. To facilitate the processing of defensive asylum applications, EOIR should consider having the OCIJ issue an OPPM entry, which:
(a) Explains that appropriate procedures for a respondent's initial filing of an asylum application with the immigration court do not require the participation of the judge and oral advisals made on the record at the time of the initial filing;
(b) Authorizes court personnel to schedule a telephonic status conference with the judge and ICE attorney in any situation where the respondent or his/her representative expresses a lack of understanding about the asylum filing and advisals;
(c) Notes that the immigration judge may renew, at the merits hearing, the advisal of the danger of filing a frivolous application and allow an opportunity for the respondent to withdraw the application; and
(d) Makes clear that the filing with immigration court personnel qualifies as
25. EOIR should consider seeking enhanced facilitation of defensive asylum applications by amending its current procedure of having judges “adjourn” asylum cases involving unaccompanied juveniles while the case is adjudicated within the DHS Asylum Office and instead have the judge administratively close the case. If the Office subsequently cannot grant the asylum or other relief to the juvenile, the Office can refer the case to ICE counsel to initiate a motion to re-calendar the removal proceeding before the judge.
26. EOIR should give priority to the use of adjournment codes for the purpose of managing immigration judges' dockets and stop using these codes to track the number of days an asylum application is pending.
27. DHS should consider revising its regulations and procedures to allow asylum and withholding applicants to presumptively qualify for work authorization provided that at least 150 days have passed since the filing of an asylum application.
28. With the active participation of DHS and EOIR and with input from all other relevant stakeholders, a comprehensive study of the feasibility and resource implications of the following issues related to proposed changes to the asylum process should be conducted:
(a) Whether DHS should direct some appeals currently in the BIA's jurisdiction to more appropriate forums and subject to the availability of resources by:
(i) Seeking statutory and regulatory change to allow all appeals of denied I-130 petitions to be submitted to the United States Citizenship and Immigration Services' Administrative Appeals Office (AAO);
(ii) Amending regulations to send all appeals from United States Customs and Border Protection (CBP) airline fines and penalties to AAO; or alternatively consider eliminating any form of administrative appeal and have airlines and other carriers seek review in federal courts; and
(iii) Creating a special unit for adjudication within the AAO to ensure quality and timely adjudication of family-based petitions, which should:
(1) Formally segregate the unit from its other visa petition adjudications;
(2) Issue precedent decisions with greater regularity and increase the unit's visibility; and
(3) Publicize clear processing time frames so that potential appellants can anticipate the length of time the agency will need to complete adjudication.
(b) Whether EOIR should seek enhanced facilitation of defensive asylum applications by amending its regulations to provide that where the respondent seeks asylum or withholding of removal as a defense to removal, the judge should administratively close the case to allow the respondent to file the asylum application and/or a withholding of removal application in the DHS Asylum Office; and if the Office does not subsequently grant the application for asylum or withholding, or if the respondent does not comply with the Office procedures, that office would refer the case to ICE counsel to prepare a motion to re-calendar the case before the immigration court.
(c) Whether the United States Citizenship and Immigration Services (USCIS) should expedite the asylum process by:
(i) Amending its regulations to provide an asylum officer with authority to approve qualified asylum applications in the expedited removal context;
(ii) Allocating additional resources to complete the asylum adjudication in the expedited removal context; as there may be significant net cost savings for other components of DHS and for EOIR;
(iii) Amending its regulations to clarify that an individual, who meets the credible fear standard, could be allowed to complete an asylum application with an asylum officer instead of at an immigration court; and
(iv) Allowing an asylum officer to grant an applicant parole into the U.S. where the officer believes the individual has a well-founded fear of persecution or fear of torture and permit the officer to recommend that DHS allow the individual to be released from detention on parole pending completion of the asylum process.
(d) Whether USCIS should clarify that an asylum officer may prepare an NTA and refer a case to immigration court where an officer determines that a non-citizen meets the credible fear standard but the officer believes that the case cannot be adequately resolved based on the initial interview and the asylum application prepared in conjunction with that interview, or in cases where an officer believes there are statutory bars to full asylum eligibility.
(e) Whether DHS should facilitate the DHS Asylum Office's adjudication of certain closely related claims by:
(i) Amending its regulations to authorize the Office to adjudicate eligibility for withholding of or restriction on removal providing also that if the Office grants such relief, there would be no automatic referral to the immigration court;
(ii) Amending its regulations to authorize the Office to grant “supervisory release,” identity documents, and work authorization to individuals who meet the legal standards for withholding or restriction on removal;
(iii) Developing a procedure in cases where withholding or supervisory release are offered requiring the Office to issue a Notice of Decision explaining the impediments to asylum, informing an applicant of his or her right to seek de novo review of the asylum eligibility before the immigration court, and explaining the significant differences between asylum and withholding protections; and
(iv) Developing a procedure to allow such applicants to request immigration court review, whereupon the Asylum Office would initiate a referral to the immigration court.
29. EOIR and DHS should provide and maintain the best video teleconferencing (VTC) equipment available within resources and the two agencies should coordinate, where feasible, to ensure that they have and utilize the appropriate amount of bandwidth necessary to properly conduct hearings by VTC.
30. EOIR should consider more systematic assessments of immigration removal hearings conducted by VTC in order to provide more insights on how to make its use more effective and to ensure fairness. Assessments should be periodically published and include:
(a) Consultation with the DHS Asylum Office regarding its use of VTC equipment and review of its best practices for possible adoption and integration into EOIR procedures;
(b) Random selection of hearings