Trump's Attempted Abolition of Immigration Due Process with Former Immigration Judge Ting Chen

FULL TRANSCRIPT

This is Due Processing, it's me, Avi Singh, here with Kate Chatfield. Kate, what's happening?

Not much, Avi. How are you doing?

We're excited to be joined today by former federal immigration judge and current immigration advocate, Ting Chen. We're going to be talking about her path from immigration advocacy to the bench, what was it like being there, her takeaways, what's been happening during the Trump administration, and observations about our immigration system and due process.

Ting, welcome to Due Processing.

Thank you guys. Happy to be here.

Early Career Path

Why don't we just get started? Could you tell us a little bit about what your career was like before becoming a federal immigration judge? Like what was exciting about the work?

What motivated you about the work?

So I actually started my legal career in big law and did that for a year, but I kind of knew that I wanted to go into immigration work because I had done some asylum work during law school at a great clinic. And so then I went into private practice after I stopped working for big law. And it was just really exciting, fun work.

I love talking to new people every day about their cases, about their lives, what brought them to this country, and seeing the remarkable resilience that people from everywhere in the world had, and how we were all gathered in this one place that felt like, at the time, at least in the 20s, were fairly accepting of immigrants from around the world. So I did private practice in several different firms, and then I started my own practice, and did that for maybe six or seven years before I went to the Ninth Circuit.

There's a very skilled team of immigration lawyers at the Ninth Circuit that works in the Office of Staff Attorneys, and helps judges decide immigration cases and motions, and provides expertise whenever the judges need them.

So I did that for a couple of years, and that was really exciting because it gave me a different window into what immigration work looked like from the Ninth Circuit. But the one thing that I really did miss was talking to people and seeing people every day, and feeling like I could connect with a human being instead of just a certified administrative record every day. So I decided to apply for an immigration judge position within the Department of Justice, and then I went to EOIR, the Executive Office of Immigration Review, to work there as an immigration judge.

What year was that?

That was 2022 under the Biden administration.

During the Biden administration. And for people who have never set foot in an immigration court, what does a day in immigration court look like for people coming in and for the government attorneys and for the judge, for you?

Life as a Judge

So it's a little bit chaotic. It always has been a system that's been a little bit chaotic. For many years, the immigration court has had a significant backlog of cases.

There's a high caseload. And even in 2022, judges could not spend as much time as we probably should devote to each case. Typically, I would have a morning docket and an afternoon docket.

I would see two types of hearings in my docket. It's either a master calendar hearing, which is essentially a scheduling hearing with somewhere between 20 to 25 respondents. And they would just come in one by one, and I would talk to them briefly, get their addresses and languages, and then schedule them for a longer hearing.

So that was the first type of hearings that I would see. And the second type would be an individual or merit hearing, which I would mark evidence, take testimony, hear arguments, and then basically decide someone's application for relief. And it was usually, I would say probably, over 90% of the cases were asylum cases, where people were seeking to stay in the United States because they feared persecution in their home country.

So those were the two types of hearings I would do. And then in between that, in whatever free time I had, I would do motions or read new cases, go to meetings, things like do admin stuff. But it was always a high volume, and you turn over cases very quickly, pretty much every day.

Yeah. In immigration court, is we know you don't have the right to an attorney to represent you. How, like what percentage of people coming in for, let's just say your asylum cases, how many people had attorneys with them?

That varies quite a bit around the country, depending on which immigration court you're in, and also whether you handle detained or non-detained immigration court cases. So if you are a detainee in, say, the Fifth Circuit, you are probably much less likely to have representation than if you are, for example, in San Francisco, and you were not detained. So San Francisco had a pretty high representation rate.

“I'm not sure what percentage it was, but I had a significant number of people before me who were represented by attorneys. You know, for the people who couldn't find attorneys, often we would give continuances for them to try to find attorneys.

That was the case, I would say, between 2022 and beginning of 2025, that we would be more generous in allowing people some time to find attorneys, because it is incredibly hard to find attorneys, especially good quality immigration representation, and the fees that are needed to actually pay for those attorneys are very often prohibitive for a lot of the immigrants that are coming before you seeking, you know, and at the same time, having an attorney can make such a huge difference in how the case is litigated, you know, whether all your arguments are raised and raised properly.

So, you know, as a judge, I really did appreciate good attorney representation, and I thought that was such an important part of court.

For somebody who didn't have an attorney, how would you try to mitigate that as a judge, like recognizing that, here's somebody in front of me, maybe they have a really meritorious case, yet they don't have anybody skilled to present it to me? You know, how would you mitigate that?

“That's such a good question. So in the Ninth Circuit, the judge, if it's a pro se client, respondent actually has a duty to develop the record. I mean, we, you know, have certain things that we just have to do in each case, to bring out the claim and really figure out if there is something there.

And so I took that job very seriously because one, I think it's hard when you only have a limited amount of time to get at the heart of somebody's claim.

Two, you have to kind of recognize that a lot of people who are seeking asylum are people who have sustained significant trauma in their lifetime or maybe has not had significant amount of education and so or may communicate differently with you than a lot of people that you're used to in normal life. There's also an interpreter in court, so you have to kind of take in the into consideration the challenges of communicating through someone, a third party.

So you have to kind of take all those things into consideration when you're doing the fact finding as a judge. But I was very concerned and basically keeping it the level playing field whether you had an attorney or not. I'm not sure that that's always possible, and that's why I think having good counsel is very, very important.

But you know, I know all of my colleagues and I tried to be backstops and to really fulfill our duties to develop the record in that way.

So about this duty to develop the record, like we're, you know, we all kind of know, I think where we're going to be heading, which is you have, there's structural factors, right? There's like a backlog, you know, there's not enough judges, there's not enough courtrooms, there's not enough resources, there's many, many, many claims.

There's government attorney on one side and there's either a represented or an unrepresented person on the other side with all of the challenges that you described in terms of communicating their point of view.

Even if they have counsel, right? Those challenges could exist in terms of getting them voiced, right? And attorney would make a huge difference.

But like a lot sounds like it would come down to like, for that backstop function, that the judge would be even against all those pressures, would be kind of committed to the values of the system, of like a due process and a functioning immigration system, right? To kind of make the record be the backstop. And judges are getting removed, right?

Like hundreds of judges are being fired or retiring and not replaced, and they're retiring because of concerns they have about the Department of Justice, or they're leaving or whatever, and they're being replaced. Are they being replaced by people that we can think have that same conviction to be the backstop? Are there any concerns about that?

Like in these moments, the backstop function becomes more valuable in a moment where the pressure is.

Yeah.

Think about that.

Judicial Independence Erosion

Yeah, I think completely. I think this is a moment when having fair, neutral, competent adjudicators is extremely important. And I think we're really seeing the problems that can happen when there's massive removals of people who are well-versed in immigration law and who do their jobs and who try their best to provide due process.

When I think about appeals in the immigration field, I think that the standards of review are so unforgiving in some instances and so much is relying on the fact finder. For example, in determining credibility, that the bottom layer of immigration judges is a really important role. And what we have now is kind of a wholesale influence of the administration from top to bottom through aggressive tactics of removal, of intimidation, of the issuance of case law that take away immigration judges' ability to independently decide cases.

And the result really is a bottom layer of immigration judges, I think, now, that can no longer be relied on to be truly unbiased in their work, and to be truly independent, and to do their work in a way that is responsible and that really honors the dignity of our immigration system and all the people that contributed to it and helped build it. So I think that that erosion has really saddened me in the last year. And I'm not really sure what the answer is at this point.

Certainly, there are, I think, very strong and sensible voices out there calling for Article 1 Immigration Court that would allow the court to be more independent. And I think that is one very good solution to the problems. We're certainly seeing some of the inherent problems of having like basically a court that is housed within the executive branch and that answers to the executive branch at this moment.

Can you talk just back up to zooming out? So yeah, most people think when they hear the word judge, they think of like an Article 3 judge or a state court judge that's appointed by the governor or elected, but totally neutral, like separated from the district attorney, the prosecutor, the government. Like how does it work, just even stepping back, like when you were hired, like how does it work under the EOI, like the judges, you are a Department of Justice employee.

And just talk about that structure and whether and how it worked, let's say, pre 2025.

Yeah. So historically, immigration judges are part of the executive branch. So while we try our best to be independent and neutral and unbiased in our reading of the law, of course, influenced by policy memoranda, a memoranda and case laws, case law that's issued by the Board of Immigration Appeals.

Historically, though, the administrations have largely left the immigration judges alone. When I was hired in 2022, my expectation was that I would remain in this job, possibly until I retired, because it was a performance merit-based system. And I had literally never heard of an immigration judge being fired.

And I knew of immigration judges who had done very egregious things or said things on the record that were very undignified or not the fitting of the court or done things that are kind of outrageous and still stayed in their posts. You know, this included judges who granted asylum at 98% grant rates or like 1% grant rates. So, even though there was like a large variation in how we decided cases and everybody's judicial philosophy, like everybody understood that this was going to be probably, you know, a post that we stay in for as long as we wished.

That was the expectation and that is what's been turned completely upside down the last couple of years. That is no longer the case for under this current administration.

Unceremonious Firing

Can you, like for you, like walk us through how you found out you were being let go? Was there an explanation? What happened?

So, no, there was never an explanation. There still hasn't been an explanation. I would love to hear from the attorney general himself, why I got fired if he wants to shoot me an email.

But a bunch of my colleagues had been fired, leading up to my own firing in November 2025. And there was a lot of speculation whether it was because of specific policies we questioned or like asylum grant rates or our background as respondents counsel or as advocates. But it was very clear that there was a pattern of targeting immigration judges for firings.

And I thought that I, I mean, in November, I thought I was actually, I was feeling pretty good, like cautiously optimistic about my prospects of staying within the OIR. But then I think it was like a Friday afternoon and all the emails, firing emails always came in on Friday afternoon between noon and three. And I was in a hearing, an asylum hearing taking testimony when I got the email.

And I turned off my audio recording and then I told the parties. And then I just very, very, very suddenly like just kind of burst into tears. And I just like fled from the courtroom and I, my robe was off within like a minute and I never put it back on again.

They immediately revoked all my access to the computer system within 20 minutes. I was very fortunate in that I was able to send out a thank you email to the other court staff and other judges at the court about a minute before I lost access to everything. Not all of my colleagues were, I was fired with four other people that day.

Not all of my other colleagues were quite so lucky. One person was in the middle of trying to print off his termination letter and could not print it out because he lost access. One person was in the middle of an asylum hearing and didn't get the email and realized when her access to the file that she was looking at was revoked, that maybe something had happened.

It was a very sudden and unceremonious firing, and my immediate supervisor, I don't think knew about it until I told her, and everybody was kind of in shock. But I don't know that any of us should have been in shock because it had been happening all year long. It was a very systematic, part of a very systematic dismantling of the Immigration Court system.

The things you mentioned, you said, 12 to 3 or something on Fridays, there were a certain time, and then the access being cut off, when it had been happening for other people, had the judges, because I'm kind of interested for the judges who remain, right? Not the newly hired ones who kind of maybe have a different understanding coming into these spots or redeployments of different judges or different administrative judges to this role.

But like this whole access being cut off within 20 minutes or happening when someone's on the bench conducting a hearing, was that kind of the consistent experience for the other people who had been fired earlier or were any parts of these different in any kind of way?

I think that was the very first time in the San Francisco Immigration Court that our internal access had been cut off so quickly. But I wasn't very surprised by it, because it was part of a larger theme of cruelty and inhuman treatment of anybody that is in the path of this administration.

And I'm talking about the immigrants who appear in the court room, the judges who work within the system, the USCIS officers who adjudicate asylum cases or other applications for relief.

Just anything, like this is, it's a part of a pattern of saying like, you are not worthy of being treated with the basic human dignity. And so we fired a bunch of judges in the summer. They got two hours to pull, you know, to pull everything out of their office and do this and do that or whatever.

And now we've realized we don't need to give them that. And so we fired you, you need to get out. We don't need you to have time to say goodbye to your peers because who cares?

And so that's the, it's part of a pattern of treatment this administration has given to just so many people, not even just in the immigration system, but all the people who have worked within this government, like it doesn't, at some point, if you're not useful to the administration's goals, you're not deserving of any kind of process or like respect or kindness. So in that sense, it didn't really surprise me, I guess.

Also, like I'm thinking about what an assault on the rule of law that is, that's like sort of like we're going to shut down the power to the court because we control the court. We're going to fire the judge in the middle of a hearing because we control that hearing. We control that judge.

I mean, it's like if you zoom out, it's just such a, again, like the word, like it's zero respect for any kind of independent fact finding, any kind of independent arbitration rule of law, you know, that it's just like, nope, you are, you know, you dance to our tune or get out.

Yeah. I mean, I think it's deeply symbolic of like how this administration does things. It just, it will pull the plug on due process, like literally and figuratively.

And it's, it's just so systemic. It appears everywhere. Once you start seeing it, you don't just see it in like how, you know, we're treated here or, you know, this group of people are treated there.

It's just, it's a total like scorched earth campaign. And like, it's not, I don't think what, I think what they don't realize is that like, they can, they can literally like pull the plug and revoke my access. Like, it's not, the court is built by so much more than just me and my access to like the electronic files.

You know what I mean? Like we all, at the very least, we all share institutional memory of what a functioning court looks like, a dignified court looks like, a court that provides due process looks like. And, you know, we all remember a court system where people have been granted asylum or other forms of relief.

And what happens when that is the outcome and people walk out of the courtroom and they become asylees and then they become green card holders and then they become citizens. Like we all hold that institutional memory and now we're all going out there and we are telling the world what happened. And that is all still part of this immigration court system.

So they can sort of like cut at, you know, the cut out people and they could cut out access, they could cut out like very concrete things, but they don't, what they, the administration doesn't realize that is that a lot of things are left behind and that we are still like creating our own narrative with what we have and what we had and what we remember and what we hope to do in the future.

No, and that's real because, you know, they're not going to be, you know, hopefully this mindset will not be the governing mindset, right, and there will be a, you know, there should be inquiries into what's happening with our federal immigration system, right, with if we believe in asylum as a thing, there should be a pathway to adjudicate it and to make determinations about it, right, that is consistent with like basic principles, right, like, you know. Yeah, absolutely. And the people who are undermining it ought to be, you know, held to account, right?

Yeah, I totally think so. And I think that, I think that there's so much noise in this administration and the stories that are like put out there about what the administration is doing. I think people forget, like, how much good can come out of a good immigration system and how these people who are, I feel like the administration has this, like, counter-narrative of, like, immigrants as being, like, criminals or, like, people who are not worthy of living in this country or, like, who cannot contribute to this country and things like that.

And they've, like, completely changed the narrative in that sense. And we are also focused on that because that is the story that we've been hit over the head with, like, for the last two years, and, you know, during the last version of this administration, that we forget, like, how good the stories are of asylees and of their children and of, like, people who are naturalizing and contribute to this country and, like. And I think that we should hold people accountable for what they have done to this immigration system.

And we should also amplify the stories of people who have really come out of the system and made our communities better.

You know, I want to, it's not, like, before 25 that the immigration system was perfect by any stretch of the imagination. What are structural issues like? Or I guess I want to ask you a question, like, it's a big question, but if you could design an immigration system from scratch, what would you do?

Like, what, how would you imagine, like, a humane, functioning, you know, workable immigration system?

Yeah, that is such a big question.

Reimagining Immigration Justice

I know, I know.

I've been asked it during job interviews, and I'm always sort of lost because I don't know what I don't say. So I think one thing that I would really like to see is an independent court system that adjudicates cases fully. I would like, frankly, this is maybe self-serving in a way, but also I feel like it should be done.

I feel like immigration court judges should be elevated to a place where they are in the same positions as bankruptcy judges or tax court judges and things like that. I feel like this field isn't very attractive to a lot of people coming out of law school because it's not seen as really like a very glamorous area or like a prestigious area of law or whatever it is. I would like for this court to be independent and to be prestigious and to attract the best of the best of all the law students.

I think that would really make it a much more robust system, and it would help bring up the quality of representation as a whole as well. I, for one, am not entirely for outright abolishing of ICE, which I know a lot of people call for, but I think the problem is we don't really have, we haven't really proffered any good substitutes for ICE. And I think that there's a very real question about like, do we have open borders?

And if we do not have open borders, what does enforcement look like, right? I'm not, for one, I'm not for an entirely porous border, but I am for enforcement that is much more humane. I think we should not be detaining people in the numbers that we are right now.

I think we should be using alternatives to detention or having people check in or having other, there are very good ways, I think, that we can keep track of people where necessary. And I think that we should, I think detention is really like quite harmful to this country. I don't think it does anything to help us.

I think for a lot of people, it means ripping families apart. It means putting people who have absolutely no reason to be in detention, to be in detention. People then are forced to kind of give up on their cases.

So I think there's a lot we can do to reform the current detention system and enforcement system without perhaps doing away with it entirely. And so those are two things that I would really like to see. I think that also the DREAM Act or something similar to it, not only for people who have been here since they were children, but also for the parents of people who are US citizens or green card holders, something like that is much needed.

And for many years, that was not a politically controversial proposal. But I feel like under this current administration, this has become like a totally unreachable, unattainable goal, which is just ridiculous to me. And I think that having good employment-based immigration systems and student visa systems that really attract the best and brightest is extremely important.

And I think that's another thing that this current administration has done away with. So I think that there's a lot we can do in terms of expanding legal immigration, shrinking detention and enforcement, and doing it in a humane way, and then reforming immigration courts. I don't think these are probably realistic goals, but I think they're all things that we should be striving for at this point.

And I don't think you can really make meaningful change in the immigration field by chipping away at certain things. There really has to be kind of an audacious and bold proposal to change it all.

Yeah, like for example, presumption against detention, that's very strong, a right to counsel, independent judicial decision making, would be like a real paradigm shift from where we are right now. Those are large, as opposed to a narrow rule change or something like that.

I think the thing that kind of bothers me about immigration is this idea that it's civil, that it's not criminal in nature. And it's just, it bothers me so much, because I'm like, no, deporting someone is criminal, it's on par for me to criminal punishment. Detaining someone pursuant to immigration violations, or that's a criminal punishment.

And why don't we stop living under this illusion that it's not the same as criminal punishment? And why don't we accord it the same due process that we would in a criminal case, or in a criminal detention context?

Higher the stakes, more higher the protections, right? That's the idea. What do you think about ICE in the courthouse when you were a judge?

Fear in Courthouses

What was it like, or what were you hearing about it?

So I was lucky, sort of, in the sense that the location that I worked at in San Francisco was not, ICE didn't have a permanent presence in the building. They didn't have a floor of the building like they did at the other location, the other courthouse location in San Francisco. So we tended to see less of ICE in our building than the other courthouse in San Francisco did.

I did have an ICE officer come into my courtroom one day and detain someone before I had started a hearing. And I remember vividly coming into the hearing. And the person who had been detained was part of a case with three of his brothers and then one of his sister-in-law.

His sister-in-law was pregnant and was crying in the courtroom when I came in. And I remember just being confused as to why she was crying when the case hadn't started yet and then asking the attorneys what was going on. And they said that they had come in and detained her brother-in-law and he had an arrest.

But it was something I don't remember exactly what it was, and I feel like it was something relatively minor and he had not been convicted or pled or anything like that. And I actually went on to grant that whole family asylum except for the brother whose case was severed from his three brothers and sister-in-law. And I'm fairly sure, I don't remember exactly, I'm fairly sure DHS did not appeal my grant of relief.

And I remember thinking afterwards that this guy who had been detained for an arrest that hadn't resulted in a conviction yet, had been sent to a detained court somewhere, probably in Louisiana or something, I don't know. And where he would have had to litigate his whole asylum case from jail, probably without an attorney, in a very different courtroom than the one that I was conducting in San Francisco. And probably odds are lost his case with the same exact set of facts that his brothers had.

That really bothers me that something like that could make a difference in the rest of your life and whether you had freedom to litigate your case out in the open. And I was lucky in that that only happened once, that I know of. I'm fairly certain that I only had one respondent ever detained in that building or around that building.

But it left a very lasting impression. And the other thing I remember about last summer is just like the constant atmosphere of fear that everybody was living in. Like everyone who showed up in my courtroom for a good month or so, I had somebody cry at a scheduling, like a preliminary hearing every week.

And I was just confounded because I was like, I'm just scheduling your case. Like, why are you crying? And everybody was, it became very clear to me that everybody was crying because they were just so fearful.

And every day I would go outside and there would be ICE there and protesters there. And there were days when ICE and the protesters were clash outside. And one day ICE like drove down the street with a protester on top of their car, who like fell off and like got dragged a couple feet.

And it was just, it was like such chaos and it was such an atmosphere of like terror for people to walk in. I had respondents who like drove three hours to court. And then one person drove three hours to come to court.

And then when he got to the door, he saw that there were ICE officers there. And he just like went straight back to his house. And he had an attorney and his attorney explained to me in court that his client had come all the way out there and was just terrified to go to court.

And I was like, I understand. It's terrifying to be there. I cannot imagine.

And I certainly cannot imagine if I had a child at home or like I was like an asylum seeker afraid to go home or like I was say like, you know, from certain countries where government agents wore masks and like terrorized people and picked up people and detained them and tortured them. I just can't imagine the fear that people had. And that was their lives for that whole summer.

It's just not a way to run a court. It's not a court.

And it still is, yeah.

Well, in San Francisco, well, actually, there's been a nationwide vacatur of like the ICE, like Courthouse Arrest Policy, which is fortunate. I don't know, that was very recent. So I'm hoping that it'll be a little bit better from now on.

But my fear is that the damage was done last summer. And the rate of in-absential removal orders has skyrocketed since about mid last year. And asylum grant rate has taken a nosedive in the last year.

And the culmination of those factors make it very hard, I think, for people to come to court. Like, if you're a reasonable person, you would not come to court. And so the damage has like, it's semi-permanent damage, I think, and there are just thousands of people now who have removal orders against them because they were too afraid to show up.

Yeah, and the contacts with ICE are not just about being detained depending on your case, right? It's life and death stuff, right? So, you know, this is the...

Yeah, you rig the... You incentivize denials, you create fear, right? You know, it's a multi-pronged assault on the idea of even pursuing whatever legal claims you have, right?

Having a legal process at all. Yeah. All right.

Well, we solved it. We've got an idea what to do. And I think I really...

You know, I hope people listen to this, you know, and when you talk about the day to day, that situation with the brothers, right? Even though it was the one time in San Francisco, right? Like, this is a...

Like, these are real moments in these courthouses that are very low for me as a criminal defense attorney, but who, like, reads stuff, you know, it's still like matters of low visibility. So hearing how these court systems actually operate, hearing what your experiences were, I think, I hope people listen and activate or mobilize around this. And I hope that there's...

I hope there's hearings over this. You know, I hope there's, like, a real reckoning over who made decisions. You said you haven't heard from the attorney general why you were fired.

I hope that you get a letter, seriously, that explains why it was fucked up to fire all these immigration judges who were doing their jobs. And that it's like, he's forced to write it. And I think, I don't think that's a...

I don't think that's, like, fictional. This podcast is a petition. I hereby declare...

I'm sure this will be highly effective.

Get a sign on letter. We'll send it to the DOJ.

Well, yeah, they're going to be hearing from us. So, you know, we'll be sending them. We'll, like, put our podcast on a CD and mail it to Todd Blanche.

But, all right, well, this is... So I think this is a good place to leave it. We really appreciate Ting you coming on about these experiences, and it's great to connect.

So thanks, everybody, and we'll talk to you next time.