interviews
The Uniqueness of Electrification in The United States
by Gretchen Bakke
September 10, 2021
This interview with Gretchen Bakke, author of The Grid, and visiting professor of anthropology at the Integrative Research Institute on Transformations of Human-Environment Systems at Humboldt University in Berlin. , Humboldt University, Berlin Germany, was conducted and condensed by franknews. This interview was originally published in February 2019.
frank: I have your book here, it's such a great framing piece that simplifies something so complicated.
GB: Incredibly complicated.
I would love to talk about energy democracy. How people want to move forward, and what sort of policy needs to be in place.
I think when you talk about energy democracy, it's not quite the same thing as equity.
I've spoken to some people who incorporate equity into their definition of energy democracy. They say, in trying to fix certain systems, we need to also engage people who have been marginalized from energy systems in the past. But it is also definitely its own issue.
One thing that's remarkable about systems everywhere, is that there's some sort of universal electrification. Just the idea. That idea seems to be an early 20th-century idea. Places that didn't get a grid in the early 20th century have a very partial and elite system. If you look for example, at Lagos in Nigeria, what you have is rich people on the grid, and poor people on a generator system. Even poor people means middle-class people, right? There's still a grid there, but it's like two or three generators, a bunch of cables, and it runs for one building or maybe two buildings. It uses heavy fuel oil, usually diesel, so it's a much more polluting thing.
The fact that there already is universal electrification, even though it's not profitable for companies is something that in my experience, everybody wants to preserve.
I never talked to anybody, the entire time I was doing research, that thought some people should have electricity and other people shouldn't.
I did talk to people who thought it might be wise, as the system is redeveloped, overhauled, or given a new shape at the lowest levels, to think more about the quality of electricity as being matched more closely to the needs of the user. This is maybe true, but it's also a sneaky way of saying Facebook should have more reliable, more stable voltage, with no interruption whatsoever, and the home user should not.
The question is, once you open that door, how far can you go with it before you start to actually develop two parallel systems? It might be true – it might be that I personally don't need to have the same quality of electricity as the US military. But give an inch and they take a mile. You don't want that to happen. I think that's one question. I think the other thing, and this is what I would guess you're interested in talking about democracy, is thinking about the way in which the electricity systems are becoming more individualized, especially with rooftop solar, and how that sense of ownership, or control, over the electrons that you make can be produced, while maintaining this universal system.
Absolutely.
The dream version of it is that everybody has solar, everybody has some kind of small wind, everybody is connected to a big grid, and everybody has some kind of storage, and thus has the capacity to run off their own electricity when they want, when it's cheaper, or when the big system is down. But also has the capacity to feed into a public electricity system. This is perfect. It's hard to manage, and it's hard to figure out how to pay for the grid if you do that, because you still have exactly the same giant infrastructure, but the way you make money off of it is removed.
In this ideal, is it a combination of public and private sectors maintaining the larger infrastructure, and the individual running their personal solar on the home?
If it was really ideal, the individual could choose to run it or not. The only way that that kind of system can actually work is with some pretty serious AI. When I was finishing the book, people were always talking about an orchestrator. What we need is an orchestrator to make all of this complexity work together. It was still this idea that it would be a person. What I’ve found in the three years since, is now there’s an assumption that computers can do this. Computers can make it so that whatever is happening on the level of the individual, the small scale producer doesn't actually take down the larger grid. You could just have a button that said, “I'm available to go off the grid if needed”, on your phone, I guess. I always imagine a real button on the wall, but this will be on your phone.
Then if there is too much demand, the orchestrator can just flip you off, and you can run on your own system, because it's two o'clock in the afternoon and you live in Phoenix, you need air conditioning. You have your air conditioning, but you also have your solar. Solar and air conditioning are so nicely married to each other. That's the ideal, but then the question is, where are all the ways that it can go wrong? Where we lose democracy, actually, and we lose equity. Even though there's some sort of dead reckoning sense of where we want to get to.
We tend to think of renewable energy as good, but eventually those companies will accumulate the same amount of wealth and power as coal or oil. The question becomes, like you said, what are the challenges and how do you move forward?
And how does democracy need to be reformed? Because if you think of it as kind of old school democratic, then a house can be an entity that can vote somehow forward into a management structure, which then represents it up. Along the way, you can do that with little company forms. Like I have my own little electricity company, and this is how much I make. My block is represented by this other kind of electricity company, and that goes up. It's not rocket science, we know how to do democracy in that way.
The question is, does democracy in that way work? Does it only produce a trickle up of funds and a trickle down of responsibility and risk?
As we move forward do you think we continue to use the grid as our primary infrastructure? Or do we move away from it?
The premise is, and the fact of the matter is, it's not replaceable at this point. It's simply not. We are replacing little tiny bits of it all the time, but the bigger system, you can't just build a parallel system next to it. It's too expensive to do that.
The thing that I really understood about the grid when I was writing the book is that nobody understands it.
There isn't any one person who understands how it all fits together. People understand their tiny little piece of it, and they understand the thing on either side of that tiny piece, and that's it. The expertise and the technology has the same structure. If we have 80% solar feeding into this grid, here's what happens when a cloud goes over at the level of five seconds. Now, this is a giant problem, and there's electrical engineers working on figuring out how to make the grid function in this case. There's a push behind the expert. At the expertise level, people are interested actually, in the larger infrastructure. And nobody else knows enough to get around it. It might just be like inertia when you sit there. One thing that I really have seen is that the way in which reforms are happening in the western part of the US, and the way that they're happening in the northeast are quite different. There are different logics at work that might actually, in 100 years, if we're still here, and not completely roasted to death, produce two systems with fairly different underlying structures.
What is the difference?
The west is inter-regional cooperation. The west is really like, how do you deal with the fact that you have hydro in the Pacific Northwest, and you have wind in the Dakotas, and you have all this solar on the south. It turns into this regional balancing of renewables that then depends a lot on people being able to take themselves off the grid in order to manage that in a reasonable way, but it's huge. That's why you have all these fights in California saying, we don't want to import any coal power from Idaho, and Idaho is saying, "We don't want to be part of this thing. You're going to force all of your renewables on us." The reason those fights are happening is because what's developing is, in fact, a very large regional balanced, renewable system.
What's happening in the northeast, because it's so much denser is, micro grids that can island themselves, but for the most part are interoperable. It's a very different shape. It's like a foam in the northeast, all these little bubbles that are stuck together. If this will happen, we'll see, but that seems to be the direction it's going. Whereas there's very few little bubbles developing in the west. What happens in the south is up for grabs.
Is one better than the other?
The grid is always about geography. It's always a local system. What you have available to you geographically determines what you're capable of doing. You can have pumped air storage in Alabama or Mississippi. The way in which the weather affects the grid is interesting. During Hurricane Harvey, one of the things they learned was that the solar panels stay on the house if the roof stays on the house. Really the weaker link is not how a solar panel connects, it's how the roof is connected to the building. These are things that in the West Coast, with the possible exception of the Pacific Northwest, are just not problems. The storms aren't that ferocious, but on the East Coast they are. There needs to be a reaction to that, that provides the resilience they all like to talk about. What they also found after Sandy, is that communities that had one house on a block that had electricity came back much more quickly. They had a sense of cohesion, of social cohesion, of neighborliness, and there was less sense of trauma, things will rebuild quickly, and everything worked better. In that in that case, you want to be able to have a micro-grid even if it's at the level of the home.
The idea of being islandable seems like a very good thing. People like to point to Wall Street during Sandy, which seemed islanded off.
They actually had generators in the basement, so everything was out except this one building, and people were really mad because they saw the lights on, and they're like, "Why do those guys have it?", assuming that they were prioritized to get electricity, but they actually had a generator system in their skyscraper, and on the ground floor in that skyscraper were all kinds of shops and restaurants that then served everybody. Everybody talks about this like, "We could go there, we could have kebabs."
At least we have kebabs!
They weren't islanded properly speaking, it's just that they had giant diesel generators in their basement.
They weren’t on their own grid.
Problem with that is, of course, you run out of gas.
Now, there's a race in the technology sector to figure out how to store renewable energy. I mean, we have batteries –
People love batteries. There's a lot of ways to store electricity that are less detrimental to the environment, but people do love batteries.
What was your initial motivation in writing The Grid?
The original motivation is kind of twofold, but they go together. One is that I felt like I saw a lot of people trying to intervene in the system who didn't understand what that meant, didn't understand what it was as a system. Those interventions were people putting solar on the roof, and then they're super mad that when their house blacked out. I know a lot of people who have bought diesel generators instead because during a blackout you get to have power.
It was also just this idea that you could make electricity into a commodity and make money off of it like anything else that has been so damaging to the system. There were a lot of interventions happening in the grid, and I just thought well, we need a primer. That's a super practical side of it.
The other side was this desire to try to tell the history of America in a different way. I was surprised how much the book ended up being a business history. I did not intend it to be that way, I was really like, "I'll have a technology history chapter, a business history chapter, legislative history chapter, and then we'll just sort of go forward.”
But the uniqueness of electrification in the US is that it's always been for profit.
There are pockets that are not that way for historical reasons, and ideological reasons. The fact that the business community has been so interested in the book, I think it's been really good, I hope. I hope it's really good. Those were the two pieces. It really is this American story of a battle between freedom, independence, self-reliance, big money, and big government.
How do we determine what energy is worth? As you wrote, it's not tangible. It's not a banana.
One of the problems I have with the way these arguments are happening in the US is that what is it worth always, somehow only has one metric, and that metric is money.
But what is it worth to you that you have energy security? If there's a way you can have solar and not lose your power, which is not that complicated, what is that worth to you? A lot. What is it worth to stop carbon emissions? If you just get a lot of solar up, all you've got are the emissions that go into making those panels, and getting them on your roof, from China or wherever they come from. The singular metric is a part of capitalism – that we're not allowed to measure anything any other way. That's not true everywhere.
Not to glorify China because it does not need to be glorified at this moment, but I did see one talk by a Chinese electrical engineer, whose job was to make a new green city from scratch. Everything he presented had two metrics, how much it costs, and what the carbon emissions were. I was just like, "Okay, great, I don't care what the metrics are, but I'm so happy you have two of them so that then there's this possibility of saying, "Okay, how do I, in fact measure worth?"
Right. It's actually a much deeper conversation than just what technology is available, how much does it cost, and how much money can you make?
I think you really see that with the fires in California. How can you maintain a system that doesn't spark? What is the cost of that? It's not about just money.
I was thinking about how relevant The Grid is in relation to these California fires.
I think the thing to look at is the difference between the way in which Southern California Edison has been upgrading their system, and the way in which PG&E was not upgrading their system. At this very basic level of how a wire connects to a pole, how a wire connects to a transformer, if you're in a situation where any spark creates a fire, what's the necessary technology to not have any sparks at all, ever?
PG&E was just neglecting that sort of upgrade?
I don't know if they were neglecting it, but they weren't prioritizing it to the same degree that Southern California Edison has, and I would say at this point, it might be interesting to talk to Southern California Edison. Because there should be fires in Southern California too. It's not just bad luck that they're all happening in PG&E territory. There are sometimes fires in Southern California, but it's not the same. With the same frequency.
This is where energy democracy becomes a question. This is a public thing, this grid. I embrace this, the infrastructure, but also what it gives us, what it affords us, and if I'm the master of my house and I have my solar panels, and I live in Southern California or Northern California, I do not want to be the one responsible for hooking that system up, because I'm going to burn down everybody.
It's not like this Occupy Wall Street movement of electricity independence, we'll just destroy the entire country. One spark at a time. Even the companies do it wrong, and they're well trained people. I think there's a place for expertise in the future. If you want universal electrification, there's a place for expertise in there.
In terms of policy in the U.S., what do you think we need in order to move towards a more ideal scenario?
We need to stop using fossil fuels. I think what Governor Brown did wasn't little. It will be interesting to see if it sticks, but it was an interesting first trial, which is just, here's the date we'll be done. We're not going to put it in our cars, we're not going to put it in our electricity system, we're not going to extract it, we're not going to burn it, we won't import it. The fossil fuel businesses will be gone.
I recognize the current government does not want to do this, but the reason I say it has to happen at the level of policy, is that as soon as that kind of thing gets said seriously, there's a lot of innovation that starts to be funded. Things begin to change. I don't know if you've seen this yet, but you should, you will – you stop seeing a house with like two solar panels on the roof. Every single rooftop should have solar. Where you're moving away from private decisions about household electricity use being mimicked in the infrastructure into a larger, statewide decision. For example, if the car becomes electric, how do you deal with that? You need some people who conceptualize it, but you also need a lot of tiny little machines that are going to make these things interoperable with each other. This is a wonderful thing, you have the car, it can store electricity, and then it can charge at work, and then you drive it home, blah, blah. But it turns out that the cars are using their own electricity at precisely the same moment the sun goes down. Actually they are not a storage resource to a solar power grid, not at dusk at least. These little things, where you're like, "Oh, weird, that's not going to work." It was a great idea, it won't work. But those kinds of studies, and the kind of investment, if we're keeping capitalism for right now, that's necessary to make major change happen, will only happen when there's laws in place.
Right. And laws that say no fossil fuels?
I think law saying no to fossil fuels. That's what I think. The issue is, does it need to be across the board, like what California did? I find that interesting, in a good way. Does it need to be sector by sector? If there was no global warming, I think by 2100, we'd have renewable electricity anyway because once you build it, it's free. This is something that has been a shock to everybody that I've talked to. That the price per kilowatt hour is coming down to about zero. You still have to build the thing and there is some maintenance, but essentially, what you're paying for is the labor power to make it, and continue to make it work. I think that transition would happen, we'd figure out how to do it, we'd be at 100% renewables, people would start having electric cars because it's cheaper to use free electricity than it is to pay for gas. The shift would happen slowly.
Without global warming, we will be doing this anyway. The question is if we need legislation to make it happen, because we need it to happen faster.
That's a really interesting way of framing it because that doesn't seem to be the debate. The debate seems to be why should we do these things? Is global warming real? Who cares? This is how things function, any alternative seems impossible, new policy that’s ambitious is wild idealism, etc. etc. But framing this as what is already happening, climate change or not, is really interesting.
I guess the problem is just like when we lose coal – we should all be super attached to coal. But industries change.
Everything is an issue of perception. I like your idea of working backwards.
I think we'll move that way with capitalism completely intact. There's a lot of reasons to challenge the current world order, but we don't even have to challenge it.
It's like getting ready to go to the airport. Your flight is at 10, you need to be there at 8, so you leave your house at 7. If we're going to move to renewables by 2050, what are the steps that need to take place right now?
Exactly. But something needs to happen, and that's the thing, any kind of law is going to make a giant difference, but it seems to be very difficult to make a law.
Do you find one argument most compelling after all this research?
Of why we should have a law?
Of why laws should change? Of why our energy systems are important to focus on period.
No. I feel like I don't talk about things in terms of climate very much. Sometimes because I've been explicitly told not to, but sometimes because everybody gets really anxious. When you're talking about transforming the electricity system, people are like, "That's a funny problem". Engineers are all super excited, because they have a good job again, and they used to have a boring job, and the utility people are kind of scared, but they're also excited, because maybe they can change the way the company works.
The transformation of the electricity system is producing all of these very exciting problems for people who are in the industry. I think it's producing a lot of exciting opportunities for people outside the industry. There's a kind of hopefulness.
It hits the desire to tinker, that a lot of people have. There's not an ideological argument in it.
Part of that is, we need to retire all of our coal fired power plants for 2050 anyway. They've been retiring for a while, we've been replacing them with natural gas for a while, natural gas works differently than coal fire plants. We've already had to adapt the system to that, now we're not building as many, and we're building more renewables. But it's all outside of a conversation about good and bad people.
I feel like 2018 has made climate change a much more mainstream conversation than it was before. The weird weather piece of it, like, "Okay, we don't know about climate, but weather", we can tell you that it's weird. That might be just the beginning of a way in, where it stops being about having this abstract conversation about what lefty people believe rigthy people should do.
I feel like there is a holier than thou attitude that gets rolled in. People have a lot of other problems and desires, so for now, how can an energy transition not be about climate change? That's the slow path. But if we want to speed it up, then it has to be about climate change, and after that, it just turns to politics, and that's hard. I don't have a solution for that one.
We'll talk in five years.
Who knows what anything will look like in five years! The slow way is avoiding climate change in conversation, and the fast way is folding it into the conversation, and risking politicizing everything.
Really. I think what you said about the airport is really nice because there is the sense that the airplane will leave if you're not on it. That's essentially what the IPCC's latest report was – we have 12 years to do this. What do we do?
Do you feel optimistic?
I have decided that being optimistic is a more interesting story. I think it's really easy to talk about how you would fold up your life and future generations of your family and call it the death of humanity and all that. That may be where it all ends up, but at least for now it's not the more interesting story to tell or to investigate. Until it's hopeless, I would say I'm kind of in the, what are we doing? What is working? What is stopping us? How can we get around that? I feel like there are people who have believed that climate change is happening for a while, and now what they really want is action, and that group is growing every single day. People are just like, "Could somebody do something, please? Someone."
Anything.
Anything. Anything will be fine. I believe that each of those anythings, if they can be done, then opens up a whole new world of possibility. I can say, "Yes, we just need to get rid of fossil fuels, no extraction, no sale, no trade, no use." You can say that. I would be fine with just, we're going to stop having cars with engines in them.
Yeah.
I mean France said that. France is all nuclear, so they can. I guess it's still kind of how do we knock down a giant fireball, and while, by the way, we're doing that, try to make the world a little more equitable. The number one thing I would say needs to happen at the small level is that people with rooftop solar or small wind, need to be able to keep their lights on. That just has to happen.
How does that happen?
Essentially the problem is that if there's any electricity feeding into the system, when the men working on the system try to bring it back up, they get electrocuted. There just needs to be a switch, essentially, that automatically takes anything generating electricity off the system. There are places where this is being discussed more seriously, but if you have a diesel generator that already happens. You can do it with solar.
You can do it...
Yeah. To run a microgrid with solar power is more complicated technologically than with a diesel generator. With diesel, you actually have to go turn it on, and in that act of turning it on, you make a signal that says this house is an island. But with solar, it just stays on, there isn't any break. There would have to be some sort of artificial break put in, like maybe your power goes out for 45 seconds and then comes back on again. I don't know how it would work, but I could tell you that it's not so complicated.
It's a legislative problem, and it's a systems engineering problem, but it's not a technological problem.
I think the argument that everybody starts with is the good one, which is that electricity is everything – it's money, it's information, it's family, and some ways it's communication. It's the sense of how you're connected to the world. Just the idea of a blackout is a ridiculous misnomer, because the lights are not what matters anymore. If the electricity goes out you don't have running water anymore in your house. It's become this completely essential substructure of everything that we are and do.
Of course we should be interested in it.
We can't remove it anymore.
interviews
On the History of Family Detention
by Peter Schey
August 17, 2020
This interview with Peter Schey, president of the Center of Human Rights and Constitutional Law, was conducted and condensed by franknews.
The Center of Human Rights and Constitutional Law is a nonprofit, legal services group based in Los Angeles, California. We focus on immigrants' rights, international human rights, and prisoners' rights. These are large class action cases that may impact several thousands to hundreds of thousands of people.
We focus on the rights of immigrants and refugees because we feel that those communities are among the most vulnerable and marginalized in the United States. Within that population, we tend to focus on immigrant children, both those who are accompanied and are unaccompanied with parents, who have been detained by the federal government.
I know the Flores Case is central to a lot of that work. Can you walk us through what the Flores case is and its importance?
In 1986, we brought the Flores case, to the federal court in Los Angeles in response to a policy adopted by the Reagan administration that, in effect, detained immigrant children in facilities with no medical assessments, no medical treatment, no education, no visitation, and no case management. There was no effort to detain children in safe and sanitary conditions. Children were held as bait to apprehend their parents.
The Flores case was litigated over the next 10 years, and in early 1997, we arrived at a nationwide settlement in what is commonly called the Flores Settlement.
Unless a minor is a flight risk or a danger, he or she has the right to be held in a non-secure, licensed facility. Children also have the right to bedding, blankets, to adequate temperature controls, drinkable water, edible food, et cetera.
A second part of the settlement is that it creates the right to release for detained children.
What does release mean? Where are they released to?
The settlement specifically provides a hierarchy of relatives that a child must be released to -- a child has a right to be released to any parent in the United States. If there's no parent, children have the right to be released to a grandparent, an uncle, an aunt, or a brother or sister. They also have a right to be released to a licensed group home licensed by a state for the care of dependent children.
There are only three reasons that a child may not be released. One, if the child is a significant flight risk. Two, if the child is determined to be a danger to herself or others. Or three, if the relatives to whom the child may be released, have been vetted and determined not able to provide a safe home for the child. For example, if they have an arrest warrant, or they have a serious criminal history. Other than those three circumstances, children have the right to be released to family members.
Traditionally, have administrations complied with the terms of Flores Settlement?
It covers all detained minors in the United States, whether accompanied or unaccompanied by parents. Various administrations complied with the settlement by promptly releasing any apprehended minor, generally within a day or two after processing their information.
But, in 2014, President Obama adopted the DACA program, and a couple of things happened.
The program allowed hundreds of thousands of young undocumented immigrants who had been brought here as children to surrender to the federal immigration authorities and obtain temporary work permits. Several hundred thousand young immigrants came forward and applied for DACA benefits. Opponents of President Obama and anti-immigrant organizations and elected officials were strongly opposed to the DACA program. They believed that it was an amnesty for undocumented people. Then, in the spring of 2014, there was a surge of immigrants apprehended at the southern border, including accompanied and unaccompanied children. These surges are not that uncommon and seem to occur every two or three years, especially in the springtime. President Obama's opponents initiated a public campaign blaming President Obama's DACA program for the surge. They basically argued that the DACA program was serving as a magnet to induce or encourage unaccompanied minors to enter the United States and parents to bring their children to the United States in hopes of winning DACA status. There were hundreds of newspaper articles and right-wing op-ed pieces that blamed President Obama's DACA program for this spring 2014 surge.
The two were, in fact, completely unrelated. None of these children that were coming in 2014 qualified for DACA. Immigrants are pretty well informed about these things back in their home country - they follow the news through immigrant networks, or their smugglers will provide information. Most immigrants who are planning on entering the United States understand the lay of the land and the policies before they make their entry. There really was no empirical connection between the DACA program and the surge.
Previous administrations had opted to release the families promptly after apprehension. The Obama administration decided to instead set up mass detention camps for accompanied children. They contracted private, for-profit corporations to operate large scale detention facilities in Texas. The cost was hundreds of millions of dollars, and those facilities could detain thousands of families.
How are they able to work within the parameters of the Flores Settlement at these detention centers?
When the Obama administration in 2014 responded to the surge there wasn't much they could do with regards to unaccompanied children - their rights were set by The Flores Settlement as well as by 2008 TVPRA.
We filed motions in the federal court that oversees compliance with The Flores Settlement in Los Angeles. We brought a motion to enforce the settlement, arguing that the lengthy detention of these accompanied children, with their parents, violated the release provisions of The Flores Agreement. The judge agreed with us and issued an order that required the government to come up with procedures to release accompanied children if a parent, designated a relative to whom they wished to have their child released. That is an important note - the Flores Settlement does not require the forced separation of children from their parents. It creates a right to be released that the parent is free to exercise or not exercise. Once we won that court order, the Obama administration figured out a way to come into compliance with the terms of the settlement. They had to figure out how to get kids released fairly promptly.
The way that they did that is through the asylum process. Almost all apprehended families are entitled to an interview that is called a credible fear interview - it's an interview to determine whether they appear to have a credible fear of returning to their home country because of persecution. It's a preliminary assessment of their right to receive asylum in the United States. The Obama administration accomplished these interviews fairly promptly. On average, within a week or two, if the parent has established a credible fear of persecution, the Obama administration would promptly release those parents and their children.
The Obama administration had over a 90% credible fear approval decisions. Therefore over 90% of children were released with their parents within about 20 days. That is how the Obama administration achieved compliance with the right of children to be promptly released. That way, they did not have to set up procedures to identify family members living in the United States, and they do not have to set up procedures to vet those relatives to make sure they could provide a safe home for any child released to them. So they achieved compliance with the settlement through the back door. But the bottom line is the result was that the vast majority of children were released reasonably promptly.
What happened after Trump was elected.
For the first year or two, there's really not much of a change. President Trump strongly opposes the settlement, and repeatedly publicly denounces the settlement. He says that he thinks children should not be released, that they should be detained, and that most of them should be deported. He urges Congress to enact legislation to override the settlement. He sought to terminate The Flores Settlement in federal court in 2018. And in 2019, his administration issued regulations in an effort to terminate the settlement. We blocked all of those efforts successfully.
But because of his restrictive asylum policies, the credible fear approval rate has now dropped from about 90% to about 10%. So the Obama approach of releasing the majority of children promptly no longer exists.
Is there any difference in the actions of officials at the border due to his rhetoric?
Border Patrol, ICE, and the Office of Refugee Resettlement, commonly called ORR, all take heed of what their boss thinks. So, they straddle the fence.
They are releasing unaccompanied children, but instead of doing it promptly within about twenty days, they're often detaining children for much longer.
So when we see the videos of kids in cages, that is due to them dragging their feet?
Yeah, absolutely. The fiasco on the border in 2019 actually was not the fault of the Border Patrol. It's complicated, but Border Patrol agents are supposed to turn over unaccompanied children to the ORR within 72 hours. They can only do that if the ORR has room. In 2019, when there were hundreds of children detained for weeks by the Border Patrol, which has no capacity to detain adults or children for more than a few days, ORR was simply not picking up children.
Why was the ORR not available to take the children?
ORR was not available to take custody of these children because they were at about 97% capacity. The reason they were at capacity was not because of surges, but, again, because they were straddling the fence due to the pressure they felt from the White House to not to release children at all. They couldn't do that because they would be in contempt of court, they'd be in clear violation of the settlement. So instead, they straddled the fence by creating vetting procedures for the relatives that were extremely challenging and took a long time. This way, they remained somewhat in compliance, while trying to appease the wishes of their boss, the president of the United States.
Because of those delays in releasing children, ORR reached 97% capacity in their facilities. If they had just released children in a couple of weeks, they would have been at 50% capacity. But because of the difficult process that they created, they were not moving children out of their custody quickly.
So when a surge of unaccompanied minors being apprehended at the border developed in April and May of 2019, Border Patrol would say to ORR, we have a hundred kids, come pick them up in 72 hours. ORR would just say, we're not going to pick them up because we were at capacity, sorry. That's what created that crisis.
More recently, the detention of accompanied children has increased substantially because the Trump administration has adopted far more restricted policies on who does and who does not qualify for political asylum. They've adopted a policy that states immigrants who are fleeing gang violence are not eligible for asylum. They have also issued a policy that domestic violence does not count as “credible fear.”
The government has also started to assign Border Patrol agents to conduct these interviews, as opposed to professional well-trained asylum officers. As a result, the approval rating for asylum went from over 90% down to about 10%. The mechanism that the Obama administration had used to comply with the settlement and to relatively promptly release accompanied children with their parents, that went out the window. Because now, instead of 90% of kids being relatively promptly released, now you only have 10% of children being promptly released. That creates a huge issue.
What is the legal justification for those changes?
They just made a policy decision. They just instructed their immigration judges and their asylum offices. Attorney General Jeff Sessions just issued opinions and DHS just issued opinions.
In March of this year, we brought an emergency motion to deal with the ongoing detention of accompanied and unaccompanied minors in light of COVID-19, and we won court orders in March, April, May, June, July, every month. We won court orders that basically now require that the government make additional efforts in terms of safe and sanitary conditions and that they reduce and eliminate some of the obstacles in the release of children.
How else has COVID changed things?
They can still apply for protection under the Torture Convention - which the United States is a party to. They do have to question people about whether they face torture, which is a quick interview conducted by Border Patrol. Very few immigrants are found to possess a credible fear that they are being tortured in their country. That has reduced the number of apprehended children because they are deported shortly after they reach the border.
Are there systematic changes that you want to see take place?
We will be urging both the Trump administration and the Biden camp to abolish family camps. We want to go back to what administrations did before the Obama administration- which was to release parents and children as promptly as possible. These people are not flight risks, and they are not a danger to national security.
If they were released with proper instructions as to the consequences of not showing up at their hearings, if they were treated fairly, they will appear for their hearings - their asylum hearings and their deportation hearings. That is a big change we would like to see. It is never going to happen under a Trump administration, maybe under a Biden administration. He was in the administration that began mass family detention in the first place, but hopefully, he has changed his thinking on that.