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ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

Adoption of Recommendations

AGENCY: Administrative Conference of the United States.
ACTION: Notice.
SUMMARY: The Administrative Conference of the United States adopted five recommendations at its Fifty-sixth Plenary Session. The appended recommendations address regulatory analysis requirements, midnight rules, immigration removal adjudication, the Paperwork Reduction Act, and improving coordination of related agency responsibilities.
FOR FURTHER INFORMATION CONTACT: For Recommendation 2012-1, Reeve Bull; for Recommendations 2012-2 and 2012-3, Funmi Olorunnipa; for Recommendation 2012-4, Emily Bremer; and for Recommendation 2012-5, David Pritzker. For all five recommendations the address and phone number are: Administrative Conference of the United States, Suite 706 South, 1120 20th Street NW., Washington, DC 20036; Telephone 202-480-2080.
SUPPLEMENTARY INFORMATION:

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, seehttp://www.acus.gov.

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:http://www.acus.gov/events/56th-plenary-session/.A video of the Plenary Session is available at the same web address, and a transcript of the Plenary Session will be posted once it is available.

Dated: August 7, 2012. Paul R. Verkuil, Chairman. Appendix—Recommendations of the Administrative Conference of the United States Administrative Conference Recommendation 2012-1 Regulatory Analysis Requirements Adopted June 14, 2012

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.1 Other requirements are more specific mandates that agencies take into account certain factors when drafting regulations, including the proposed rules' effects on small businesses,2 intergovernmental relations,3 constitutionally protected property rights,4 or the well-being of families.5

1 See generallyExec. Order No. 12,866, 58 FR 51735 (Oct. 4, 1993). Independent regulatory agencies, as defined in the Paperwork Reduction Act, 44 U.S.C. 3502(5), are not subject to that requirement.

2 SeeRegulatory Flexibility Act, 5 U.S.C. 603-04 (requiring agencies to do initial and final “regulatory flexibility” analyses, describing the impact of the rule on “small entities”).

3 See generallyExec. Order No. 13,132, 64 FR 43255 (Aug. 10, 1999).

4 See generallyExec. Order No. 12,630, 53 FR 8859 (Mar. 15, 1988).

5 See generallyPublic Law 105-277, § 654, 112 Stat. 2681, 2681-528-30 (1998).

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.6 EO 13132 requires agencies to consider the impact of their regulations on State and local governments, and EO 13175 similarly requires agencies to assess the impact of proposed rules on Native American tribal governments.7

6Curtis W. Copeland,Regulatory Analysis Requirements: A Review and Recommendations for Reform51 (Feb. 23, 2012) (report to the Administrative Conference of the United States),available at http://www.acus.gov/wp-content/uploads/downloads/2012/03/COR-Copeland-Report-CIRCULATED.pdf.

7 Id.at 50-51.

Nevertheless, even relatively similar analytical requirements have distinct scopes, triggering events, and exceptions.8 For instance, although UMRA and EO 12866 cover the same agencies and require similar types of analysis, UMRA covers far fewer rules than the executive order. The various requirements also differ in the amount of discretion provided to agencies to determine whether an analysis is required. For example, EO 12,866's analysis requirement applies in any rulemaking with an annual economic effect of $100 million or more. In contrast, EOs 13132 and 13175 are triggered when a regulation has “substantial direct effects” on State or Native American tribal governments, respectively, but neither executive order defines the phrase, thereby allowing agencies to determine what constitutes a “substantial direct effect.”9 As a result, agencies may adopt differing perspectives on events that implicate any given regulatory analysis requirement, thereby resulting in inconsistency throughout the government. Therefore, although certain aspects of the various analysis requirements could theoretically be consolidated,10 the numerous distinctions among the requirements complicate any effort to consolidate and streamline them.

8 Id.at 44-48.

9 Id.at 50-51.

10For instance, an economic analysis performed under EO 12,866 might also meet the requirements of UMRA in those instances wherein an agency is subject to both requirements.Id.at 55.

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.11

11Agencies should consider the applicable regulatory analysis requirements throughout rulemaking proceedings and should not limit this process to the period immediately preceding the issuance of a notice of proposed rulemaking. In this light, agencies should be guided by Administrative Conference Recommendation 85-2,Agency Procedures for Performing Regulatory Analysis of Rules,which sets forth “specific advice on the use and limits of regulatory analysis and on integration of regulatory analysis into the agency rulemaking process.” Administrative Conference of the United States, Recommendation 85-2,Agency Procedures for Performing Regulatory Analysis of Rules,50 FR 28364 (July 12, 1985) (preamble). Specifically, the recommendation states that “[i]f regulatory analysis is to be used in a rulemaking, the agency decisionmaking process should be structured to involve agency regulatory analysts early in the evolution of the rule, before alternatives have been eliminated. Regulatory analysis should not be used to produce post hoc rationalizations for decisions already made, nor should it be allowed to unduly delay rulemaking proceedings.”Id.¶ 2(a).

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.

Recommendation

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.12 The chart should be designed to serve as a useful resource to agencies for identifying analysis requirements that might apply; it would not constitute a formal “checklist” that agencies must complete or represent a judgment that an agency need comply only with the requirements enumerated in the list.

12The Administrative Conference can provide appropriate assistance in accomplishing this endeavor.

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 reviewrequirements on an ongoing basis to determine if any of them should be consolidated or eliminated.

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.13

13Agencies should also be aware that certain analysis requirements outside of the purview of OIRA can be satisfied by performing similar analysis under a separate requirement.See, e.g.,Unfunded Mandates Reform Act, 2 U.S.C. 1532(c) (“Any agency may prepare any statement required under subsection (a) of this section in conjunction with or as a part of any other statement or analysis, provided that the statement or analysis satisfies the provisions of subsection (a) of this section.”); Regulatory Flexibility Act, 5 U.S.C. 605(a) (“Any Federal agency may perform the analyses required by sections 602, 603, and 604 of this title in conjunction with or as a part of any other agenda or analysis required by any other law if such other analysis satisfies the provisions of such sections.”).

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.14 In so doing, the agency may utilize the lists of regulatory analysis requirements described in the first and second recommendations. An example for a hypothetical regulation that might be construed to have potential effects on the economy, states, and the environment but that ultimately does not trigger any of the associated regulatory analysis requirements is provided in the form of a chart15 :

14As explored above, agencies should not treat this merely as a checklist and instead should consider the various analysis requirements throughout the rulemaking process.See supranote 11. This recommendation is merely intended to ensure that the agency provides the public a brief explanation of its determination that certain analysis requirements do not apply.

15As a general matter, the various regulatory analysis requirements will fall into three potential categories: (a) the analysis requirement applies to the rulemaking; (b) the analysis requirement does not apply to the rulemaking but its inapplicability is not immediately clear without additional explanation; and (c) the analysis requirement clearly does not apply to the rulemaking. An agency could use a chart similar to the exemplar provided for analysis requirements that fall into the second category. It would actually perform the analysis requirements falling into the first category, and it would not need to explain the inapplicability of requirements falling into the third category. An agency could choose to provide an explanation for the inapplicability of requirements in the third category. For instance, with respect to the analysis requirement created by the Assessment of Federal Regulation and Policies on Families (Pub. L. 105-277, sec. 654), an agency might add an entry to the chart stating “Proposed rule will not affect family well-being.”

Executive Order 12,866 OIRA has determined that the proposed rule will not have an “annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities,” and does not trigger the additional information requirements of § 6(a)(3)(C) of EO 12,866. Executive Order 12,898 Data available to the agency indicate that the proposed rule does not have disproportionately high and adverse health or environmental effects on minority or low-income populations. UMRA Proposed rule will not “result in aggregate expenditure by State, local, and tribal governments, or by the private sector, of $100,000,000 or more in any one year (adjusted annually for inflation)” and therefore does not trigger UMRA requirements. Administrative Conference Recommendation 2012-2 Midnight Rules Adopted June 14, 2012

There has been a documented increase in the volume of regulatory activity during the last months of presidential terms.1 This includes an increase in the number of legislative rules (normally issued under the Administrative Procedure Act's (APA) notice and comment procedures)2 and non-legislative rules (such as interpretive rules, policy statements, and guidance documents) as compared to other periods. This spurt in late-term regulatory activity has been criticized by politicians, academics, and the media during the last several presidential transitions. However, the perception of midnight rulemaking as an unseemly practice is worse than the reality.

1 One study shows that, as measured by Federal Register pages, rulemaking activity increases by an average of 17 percent in the three months following a presidential election. See Antony Davies & Veronique de Rugy, Midnight Regulations: An Update(Mercatus Ctr. at George Mason Univ., Working Paper, 2008),available at http://mercatus.org/uploadedFiles/Mercatus/Publications/WP0806_RSP_Midnight%20Regulations.pdf (studying the number of pages published in the Federal Register over specific time periods in various presidential administrations).

2 See5 U.S.C. 553.

The Conference has found that a dispassionate look at midnight rules3 issued by past administrations of both political parties reveals that most were under active consideration long before the November election and many were relatively routine matters not implicating new policy initiatives by incumbent administrations.4 The Conference's study found that while there are isolated cases of midnight rules that may have been timed to avoid accountability5 the majority of the rules appear to be the result of finishing tasks that were initiated before the Presidential transition period or the result of deadlines outside the agency's control (such as year-end statutory or court-ordered deadlines). Accordingly, it appears that the increase in rulemaking at the end of an administration likely results primarily from external delays, the ordinary tendency to work to deadline, or simply a natural desire to complete projects before departing. Nonetheless, the timing of such rulemaking efforts can put a new administration in the awkward position of having to expeditiously review a substantial number of rules and other actions to assess the quality and consistency with its policies.

3The U.S. House of Representatives' Subcommittee on Commercial and Administrative Law has previously suggested midnight rules as a topic suitable for Conference study.SeeH. Subcomm. on Commercial & Admin. Law, 109th Cong., Interim Report on Administrative Law, Process and Procedure for the 21st Century 150 (Comm. Print 2007). (listing among “Areas for Additional Research” the following question: “Should a new President be authorized to stay the effectiveness of `midnight rules' that are promulgated shortly before a new administration takes office? If so, should there be limits on the amount of time rules can be delayed”).

4 See Jack M. Beermann, Midnight Rules: A Reform Agenda (Feb. 8, 2012) (report to the Administrative Conference of the U.S.), available at http://www.acus.gov/wp-content/uploads/downloads/2012/02/Midnight-Rules-Draft-Report-2-8-12.pdf.

5 See, e.g., Beermann, Midnight Rules, supra note 4, at 28 n. 74, 54 n. 137 (citing examples of cases where an incumbent administration may have timed a midnight rule to avoid accountability).

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,6 although the considerations that underlie it may apply to other agency regulatory activities that affect the public.

6Executive Order 12866 defines a rule as “significant” when it is likely to have “an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities; create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.” Exec. Order No. 12866, 58 FR 51735 (Oct. 4, 1993).

Recommendation

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.

Recommendations to Incoming Presidential 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.7 Before deciding whether to delay the effective date, however, the administration should, where feasible, allow at least a short comment period regarding the desirability of delaying the effective date. If the administration cannot provide a comment period before delaying the effective date of the rule, it should instead offer the public a subsequent opportunity to comment on when, if ever, the rule should take effect and whether the rule itself should be amended or rescinded.

7The Conference takes no position on whether—absent legislation such as paragraph eight suggests—the law authorizes administrations to delay the effective dates of rules not yet effective without notice and comment, but recognizes that prior administrations have done so.

Recommendation to Congress

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.

Recommendation to the Office of the Federal Register

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.

Administrative Conference Recommendation 2012-3 Immigration Removal Adjudication Adopted June 15, 2012.

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.1 A February 2010 study by the American Bar Association's Commission on Immigration reports that the number of cases is “overwhelming” the resources that have been dedicated to resolving them.2 Another challenge identified is the lack of adequate representation in removal proceedings, which can have a host of negative repercussions, including delays, questionable fairness, increased cost of adjudicating cases, and risk of abuse and exploitation. More than half of respondents in immigration removal proceedings and 84 percent of detained respondents are not represented.3

1 Immigration Court Backlog Tool,Transactional Records Access Clearinghouse, Syracuse Univ. (Mar. 28, 2012),http://trac.syr.edu/phptools/immigration/court_backlog/(providing comprehensive, independent, and nonpartisan information about U.S. federal immigration enforcement).

2Am. Bar Ass'n Comm'n on Immigration, Reforming the Immigration System, Proposals to Promote Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases 1-49 (2010)available at http://www.americanbar.org/content/dam/aba/migrated/Immigration/PublicDocuments/aba_complete_full_report.authcheckdam.pdf.

2 Id.

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.4 Following the study and consistent with the Conference's statutory mandate of improving the regulatory and adjudicatory process, the Conference issues this Recommendation directed at reducing the caseload backlog, increasing and improving representation, and making the immigration adjudication system more modern, functional, effective, transparent and fair. This Recommendation urges a substantial number of improvements in immigration removal adjudication procedures, but does not address substantive immigration reform. A pervading theme of this Recommendation is enhancing the immigration courts' ability to dispose of cases fairly and efficiently. Many of the reforms are aimed at structuring the pre-hearing process to allow more time for immigration judges to give complex cases adequate consideration. This Recommendation is directed at EOIR and DHS agencies, USCIS and ICE. A few parts of this Recommendation would also impact the practices of United States Customs and Border Protection (CBP), another component of DHS.

4 SeeLenni B. Benson & Russell R. Wheeler,Enhancing Quality and Timeliness in Immigration Removal Adjudication(June 7, 2012) (report to the Administrative Conference of the U.S.),available at http://www.acus.gov/wp-content/uploads/downloads/2012/06/Enhancing-Quality-and-Timeliness-in-Immigration-Removal-Adjudication-Final-June-72012.pdf.

Recommendation Part I. Immigration Court Management and Tools for Case Management A. Recommendations to EOIR Regarding Immigration Court Resources, Monitoring Court Performance and Assessing Court Workload

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 (i.e.,non-citizens in removal proceedings), especially those in detention, will produce efficiencies and net cost savings; and

(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 tosystem-wide analysis of immigration court case management practices, and devise codes that reflect the multiplicity of reasons for an adjournment;

(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.5

5In the immigration adjudication context, biometric data are collected from respondents and used to perform a background check on respondents for security reasons.

B. Recommendations to EOIR Regarding Immigration Court Management Structure and Court Workforce

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 judges6 ; and

6 See Improving Efficiency and Ensuring Justice in the Immigration Court System: Hearing Before the S. Comm. on the Judiciary,_112th Cong. (2011) (statement of NAIJ),available at http://dl.dropbox.com/u/27924754/NAIJ%20Written%20Statement%20for%20Senate%20Judiciary%20Cmte%205-18-11%20FINAL.pdf(citing the National Defense Authorization Act for FY 2010, Public Law 111-84 where Congress facilitated part-time reemployment of Federal employees retired under CSRS and FERS on a limited basis, with receipt of both annuity and salary).

(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

7Some examples of the types of data that may be published include: year of law school graduation, graduate education, languages spoken, past employment with DHS, past employment representing respondents in immigration cases, military experience, gender and race/ethnicity composition.

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

8The Conference takes no position on whether EOIR should identify judges upon whom it has imposed formal disciplinary action or on the statute barring such 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

9 See Quality Judges Initiative,Inst. for the Advancement of the Am. Legal Sys., U. Denv.http://www.du.edu/legalinstitute/jpe.html(last visited June 20, 2012) (providing Judicial Performance Evaluation resources); Am. Bar Ass'n, Black Letter Guidelines for the Evaluation of Judicial Performance (2005),available at http://www.abanet.org/jd/lawyersconf/pdf/jpec_final.pdf (providing JPE resources).

C. Recommendations to EOIR Regarding Enhancing the Use of Status Conferences, Administrative Closures and Stipulated Removals

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-5510 and consider creating a new form (similar to scheduling orders used in other litigation contexts); and

10 SeeExec. Office for Immigration Review, U.S. Dep't of Justice, Record of Master Calendar Pre-Trial Appearance and Order (2009), available athttp://www.justice.gov/eoir/vll/benchbook/index.html.

(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.

D. Recommendation to EOIR and DHS Regarding the BIA

13. EOIR should finalize its 2008 proposed regulations to allow greater flexibility in establishing three-member panels for the Board of Immigration Appeals (BIA).

Part II. Immigration Removal Adjudication Cases and Asylum Cases A. Recommendations to EOIR Regarding Prosecution Arrangements and the Responsibilities of Trial Counsel

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.11

11The term “unit prosecution,” also sometimes known as “vertical prosecution,” is used in this Recommendation to refer to a practice used in someimmigration courts, whereby the ICE Chief Counsel organizes ICE trial attorneys into teams and then assigns the teams to cover the dockets of specific judges.

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.

B. Recommendations to EOIR Regarding Representation

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;12

12Immigration and Nationality Act of 1952 (INA), sec. 240(b)(1), 8 U.S.C. 1229a(b)(1) (2006).

(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.

C. Recommendations to DHS Regarding Notice To Appear Forms

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.13

13The purpose of this recommendation, coupled with Recommendation ¶ 3b, is to allow EOIR to better refine its information about immigration court workload by expanding its data collection field to include a record of the sources for each NTA form filed in immigration court.

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.

D. Recommendations to EOIR Regarding the Asylum Process

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;14

14“Oral advisal” is a term used by immigration courts to mean warnings given by an immigration judge about the procedural and substantive consequences for various actions.

(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 asa filing with the court, satisfies the statutory one-year filing deadline in appropriate cases and for the purposes of commencing the 180-day work authorization waiting period.

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.

E. Recommendation to DHS Regarding the Asylum Process

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.15

15 SeeBenson & Wheeler,Immigration Removal Adjudication, supranote 4, at 54-55 (describing in detail how these revised regulations would work under this recommendation).

F. Recommendations Regarding Further Study of BIA Jurisdiction, Immigration Adjudication, and/or the Asylum Process

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.

G. Recommendations to EOIR and DHS Regarding the Use of VTC and Other Technology

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