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Rebecca Ibarra: You're listening to the Brian Lehrer show on WNYC. I'm Rebecca Ibarra filling in for Brian who is off today. Thank you so much for letting me spend part of your morning with you. Now we turn to the latest immigration news. President Biden has begun the first face of returning immigrants who say they were unjustly deported by the Trump administration.

By some estimates, more than 900,000 immigrants were formally deported under the previous administration. Joining us now to discuss what the process might look like as well as other Biden administration reversals on Trump's immigration policy is Julia Preston, contributing writer for The Marshall project. Welcome back to WNYC Julia.

Julia Preston: Hello, Rebecca. Thank you for inviting me.

Rebecca: Great to have you. Just before the 4th of July weekend, the Biden administration launched the first phase of deportation returns. It starts with bringing back deported veterans and military families. Now, some people might be shocked to hear that the US was deporting veterans. Can you give us a bit more background on how many were deported?

Julia: I don't think we have good estimate of the numbers. We think that the number of deported veterans is a few hundred, maybe several hundred. There's a larger group out there that's affected by the new policy, which is the family members of veterans and active duty military people. Those numbers are probably well into the tens of thousands. I think there may be some details that your listeners don't understand, which is that, in order to serve in the military, you have to be either a citizen or a legal permanent resident.

The veterans who were deported are veterans who served honorably and then in many cases, they ran into some kind of difficulty with the law after they finished their service. In many cases, these are minor narcotics violations, marijuana violations that in many cases are no longer even crimes in the states where these veterans lived. It's long past due for some of these veterans to be able to return to the United States.

Rebecca: Yes, thank you for explaining that because when I read this news, one of the first things I did was Google how can someone who is undocumented serve in the military and then how can they be deported? I was actually very confused with that news.

Julia: Yes. The answer is, if you are undocumented, you can't serve in the military. It does happen very rarely, but you can't serve. These are-- We're talking about immigrants who were legal permanent residents and the military has not up to now made it particularly easy for these service members to naturalize while they're on service, which is I think, surprising.

You would think that the United States military would go out of its way when they have immigrants who come forward to offer their lives in defense of the country, that they would go out of their way to allow those immigrants to become US citizens. It hasn't really happened very effectively up to now. The veterans who were deported were veterans who never were able to naturalize while they were serving.

Rebecca: You said that the numbers are unclear. Already a number of deported veterans have returned. Can you talk a bit about what that process looks like right now and whether or not the Biden administration is doing anything to expedite that process of veterans returning?

Julia: What the administration announced right before the July 4th holiday was essentially a review process. This was an order from the Secretary of Homeland Security to all the agencies involved in immigration. It's a mind numbingly complex bureaucracy that involves Citizenship and Immigration Services, it involves ICE, Immigration and Customs Enforcement, involves the border authorities, it involves the Department of Justice to be able to to reverse these deportations and start bringing people back.

What the administration said was, they are going to guarantee, and it's a pretty strong term. They want to guarantee that an individual who served honorably in the United States military will be able to live legally in the United States and become a citizen. At this point, what's happening is, there's a review process going on. They're identifying the veterans who've been deported, the family members of veterans who've been deported, which is a much larger universe.

They are reaching out to them and also starting to set up a process to institutionalize that. In the meantime, a number of these cases have already been resolved, and people are starting to come back.

Rebecca: What kind of qualifications does one have to meet for that reversal?

Julia: I don't think that's been entirely established yet. It seems that they will require an honorable discharge, so the individual will have to have served honorably. They will not allow immigrants who were convicted of violent crimes, serious crime, serious felonies, to be able to reverse their deportations.

Rebecca: Listeners, I'm wondering if anyone has had experience with the immigration process during the pandemic. I want to know what has it been like for you and the sorts of issues that you're running into or maybe you have a friend or a family member who you feel was unjustly deported. What would a deportation reversal mean to you? Or any questions that you have for our guest, Julia Preston, contributing writer for The Marshall project.

You can tweet @BrianLehrer or give us a call at 646-435-7280. Again, that's 646-435-7280. You briefly mentioned this Julia, but I want to go back to it. When these vets who were deported return to the United States, are they receiving visas or citizenship or a path to citizenship? What exactly happens?

Julia: I think it will depend on the case. I think the intention of the administration is to open a path to citizenship for these men and women who served honorably in the armed forces. In many cases, we're talking about veterans who served in combat and put their lives on the line. It will depend a great deal, I think, on the facts of the individual cases. I think it's important to know that all of these reviews, the veteran review is just the first phase of what could become a larger process of reviewing and reversing deportations.

All of these reviews have to proceed on a case to case basis. There's nothing happening here that is creating a new visa or a new class of people who can come to the country. It's all on a case to case basis. As I said, I think the intention is to open a path to citizenship for these veterans, but it will be decided case by case.

Rebecca: Correct me if I'm wrong, but the Biden administration could potentially end up reviewing up to 900,000 people applying for reversals total?

Julia: I don't think the numbers will be that large. In addition to the veterans, we're talking about potentially three other categories of people. One is the category of young people, young immigrants who would've been eligible for the program called DACA. This is a deportation protection program for young people. I'm sure many of your listeners are familiar with this highly successful program.

President Trump relentlessly tried to cancel this program and as a result, there are probably more than 100,000 maybe more than 200,000 people out there who would have been eligible had the program continued functioning in its full steam if we want to put it that way. They were not able to apply because of restrictions that were placed on the program in the process of President Trump trying to cancel it completely. That's one category.

A number of those young people were actually deported because they didn't have the protections. That's one category of people who the administration will look at. They will also be looking at people whose-- It's a small group but a very significant group of people whose deportations appear to be in retaliation for some kind of political activism. Yes.

Rebecca: No, I'm reacting. Can you give an example of that?

Julia: Yes, there is an Argentine man named Claudio Rojas, who appeared in a film. It was part documentary, part fiction film about a protest that he engaged in, amazingly gutsy protest in a Florida immigration detention center a number of years ago. He actually with a number of immigrant youth, young people who infiltrated the-- They voluntarily infiltrated this detention center and they held a series of protests in the detention center.

Then there was a film made about this. The film premiered at the Sundance Film Festival two years ago and about a week later, Claudio, who appeared as himself in the film was deported by ICE. Well, it was pretty clearly a case that ICE was angry and frustrated about the film and they decided to express their view of the film by deporting one of the main protagonists. His case is currently under review.

Then there's a larger group of people who are close family members, spouses, children, parents, but mainly spouses of United States citizens who have been deported, who have no criminal record, and who have obviously very close ties to families in the United States. Their deportations have imposed just unimaginable hardship on their families. That group of people is a much larger group of people. That could be tens of thousands of people, who at a certain point, I think the administration will start to review those cases and see if some of those people can come back to the United States as well.

Rebecca: Julia, you recently wrote, "Legal scholars said a process that resulted in returns of significant numbers of deported people would be highly unusual in American Immigration Law." What has deportation reversal looked like in the past?

Julia: A very arduous, arcane, difficult process. To get a deportation reverse, you needed a lawyer who was highly skilled, you needed to go before immigration court, make arguments with ICE, these cases very often went to the immigration judge, to review to the second circuit, or to some circuit court for additional review. It was just a total trajectory of thorns to try and get deportation reversed.

I couldn't find a legal scholar who could remember or recall a case where there was actually a whole program to start bringing back people to the United States, on the theory that they were unjustly deported. This is really quite unusual, I think, what the Biden administration wants to do here.

Rebecca: You're listening to the Brian Lehrer Show on WNYC. I'm Rebecca Ibarra filling in for Brian today, and we're talking about the latest immigration news with Julia Preston, contributing writer for The Marshall Project. Listeners, do you have any questions or stories for our guest, longtime immigration reporter Julia Preston, on how the Biden administration is addressing Trump-era deportations or any other immigration-related news. Number to call is 646-435-7280.

Julia, as you've reported, the Trump administration has deported hundreds of thousands of immigrants, but we have to remember that immigration activists once called President Obama the deporter-in-chief based on the high amounts of deportations under that administration. Has President Biden said whether his administration will also extend this reversal process to people who were deported under President Obama?

Julia: We haven't had a clear statement on that yet. In my story, I reported the case of a man named [unintelligible 00:14:02] Acosta, who was deported many years ago under Obama, and it was really cruel what happened to him. Basically, immigration agents burst into his living room, he was carving a Halloween pumpkin with his son. He was the father to two American citizens. His wife is an American citizen and it was based entirely on immigration, a prior deportation order that never should've been there in the first place.

We'll have to see. It's an older case and I don't know what's going to happen here. The administration has definitely put the emphasis on reversing deportations under President Trump, but we'll see when these test cases start to come forward if they're going to somehow think that a deportation that happened under President Obama when now President Biden was Vice-President, whether somehow that would not have been an unjust deportation.

Rebecca: In April of this year, the Supreme Court ruled that the Federal government has to provide all required information to those facing deportation in one single notice. Unless I'm mistaken, before, ICE would give people information in approximately two parts, a notice of deportation and then a separate notice on when to appear in court. What do you think, Julia is the practical significance of that ruling now? Will those facing deportation this year be able to make the case to stay?

Julia: This is a ruling called Niz-Chavez that came down from the Supreme Court in April. It's a little hard to say right now. I think that the entire system is trying to figure out what this ruling means. In practice, the ruling was with respect to a narrow set of circumstances that happen in immigration court, that determine how long an individual has been in the country without legal status.

This is an important determination to make in many immigration cases. Basically, the justices said, the law says that you have to put the time and the date on a notice to appear in immigration court. It's almost like a warrant to appear in immigration court. ICE and customs officials and Border Patrol officials were routinely not doing that. Now, it seems that they do have to do that with more caution. It's really still unclear the scope of this-- What this will mean in various cases, and I think that it's unlikely to affect a large number of people who've been deported recently.

Rebecca: Let's go to a caller. We have Gabriella in the East Village with a question for our guest Julia Preston. Gabriella, thanks for calling WNYC.

Gabriella: Thank you. A longtime listener, first-time caller. I have a question not about deportation, but about arrivals. I read a headline yesterday, forgive me I didn't read the entire article, but it was saying that people seeking refuge via boat from Cuba and Haiti will not be allowed into the country, according to Biden administration. I was wondering the legality of that and also why we wouldn't allow people to seek refuge in the United States from those countries coming in on boat.

Rebecca: Thank you for your call, Gabriella. Julia?

Julia: Yes, Gabriella, thank you for your question. I think the Biden administration is making what I would say is a rod political determination in this case, which is, we have major unrest, both in Haiti after the assassination of the President, and in Cuba, where we're seeing a protest in the streets unlike anything that we've seen in Cuba in decades. The administration is moving quickly, to cut off the intention of anyone in Cuba or Haiti to begin a boat people process to come to the United States.

For many years, the Cubans did have an opportunity if they could reach American shores, mostly we're talking about Florida, if they could set foot on American shores, then they were able to have a process to legal status. That policy was completely ended at the end of the Obama administration. Our current policy is that if you arrive illegally, without documentation by boat, you are not eligible to apply for asylum and the administration is reinforcing that policy.

Now whether legal challenges to that policy will proceed and prevail, I don't know. For the moment, I think they're just moving to make an announcement that will discourage people from any kind of mass immigration by taking to the sea as the Secretary of Homeland Security put it, from either Cuba or Haiti in the context of the current unrest.

Rebecca: Let's talk about another policy. The Biden administration has recently announced a new policy ending detention for pregnant women and nursing mothers. Julia, can you talk a little bit more about that policy for listeners who may not be familiar with it?

Julia: Well, your listeners may be startled to know that it was routine policy under the Trump administration, to detain pregnant women, nursing mothers and nursing children. In fact, the Obama administration before Trump had wrestled with what to do about this policy, and they only really established a clear policy against detention of pregnant women and nursing mothers at the end of the Obama administration.

That was quickly canceled by President Trump and now, what the Biden administration has done is restore a policy that applies only to Immigration and Customs Enforcement. That is to say, interior enforcement detention within the country that says, "We're not going to detain women who are pregnant, or are lactating or are recent mothers." I think the practice is going to be however, they're not saying that these women will not be put in deportation proceedings.

What will happen is they'll find some alternative to detention, maybe an ankle bracelet or maybe something as simple and straightforward and effective, by the way, as community monitoring for women who are going through immigration proceedings, and are pregnant or have recently become mothers.

Rebecca: One of the things you mentioned, which again, stands out, is this back and forth. This administration had a policy, this administration is reversing it. Now this administration has a new policy. Is this something that will just be easily reversed if there's a different administration in the coming years in the White House?

Julia: Well, there have been efforts to codify these policies into law. So far, that hasn't succeeded. Definitely, you're right, that this policy with respect to the detention of pregnant women, and nursing mothers is just that, it's not a statute. It's just a policy that was issued by the Department of Homeland Security. It could be reversed, but one hopes that the direction of our immigration policy is such that we wouldn't return to a policy that is so potentially dangerous to the health of a pregnant woman or a nursing mother as to put them in immigration detention.

Rebecca: You've written that the Biden administration is working with, "Little public fanfare to review the cases of people who say they were unjustly deported." Why do you think the administration might not be touting their achievements to their base?

Julia: Well, I actually think it's just a workload problem. If you think about it for a minute, this administration has worked incredibly fast to undo quite a number of the Trump administration's immigration policies, not as fast as many advocates would like and as you know, there's a border policy in place that is very frustrating to many advocates that the administration is still expelling people summarily across the border on public health grounds.

In general, if you think about it, they've reversed-- For example, the Department of Justice reversed very significant or began the process of reversing very significant rules about and decisions about women who were seeking asylum based on domestic violence claims, individuals who are seeking asylum based on gang violence claims and a whole other set of asylum criteria that the Trump administration had disallowed.

Across the board, there are these administrative changes that are taking place, week by week. I think part of what's going on here is that the people who are making these changes within the bureaucracy are just overwhelmed and they're not sure how well they're going to go, how fast they can actually put these things in place. I think they're being cautious in terms of praising their own actions before they've actually made them happen.

Rebecca: Talking about the work they have cut out for them, a final question. Immigration courts around the country are reopening for hearings and since the pandemic began, courts in New York, have been mainly hearing cases of immigrants who were detained, leaving out many others. What is the situation on the ground in these courts? What are you hearing? Is there a severe backlog of cases? What are you hearing?

Julia: Chaos. It's chaos. Nationwide, you have 1.3 million cases in the backlog. I think it's worth noting that the Trump administration came in, did a whole series of very radical administrative changes and legal changes in the courts all with the idea of reducing the backlogs, speeding up the performance of the immigration judges. At the end of the Trump administration, basically, the backlog had doubled.

Now we have a backlog of 1.3 million cases in the immigration courts nationwide with 560 judges. A lot of these cases now that the courts are open, they're starting to have hearings in person for asylum seekers and very complex immigration cases. In many cases, what's happening is the people are coming into court, the only thing they're achieving is getting a hearing date and these hearing dates in many cases are two years or three years out.

Just getting the courts open is obviously an important step. These courts are in such grave, urgent need of major reform, a major overhaul, a major rethinking of the whole process of the immigration courts because as it stands now, the immigration courts are not giving timely decisions to people who do deserve asylum and they're not giving timely decisions to people who won't win their cases.

Rebecca: We're going to have to leave it there for time. My guest has been Julia Preston, contributing writer for The Marshall Project. Julia, thank you so much for coming on WNYC.

Julia: Thank you so much for inviting me.

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