Border Security: The San Diego Fence

Border Security: The San Diego Fence

name redacted

Specialist in Organized Crime and Terrorism

name redacted

Legislative Attorney

June 25, 2007

Congressional Research Service

7-....

www.crs.gov

RS22026

CRS Report for Congress

Prepared for Members and Committees of Congress

Border Security: The San Diego Fence

Summary

This report outlines the issues involved with DHS’s construction of the San Diego border fence

and highlights some of the major legislative and administrative developments regarding its

completion; it will be updated as warranted. (For more analysis of border fencing and other

barriers, please see CRS Report RL33659, Border Security: Barriers Along the U.S. International

Border, by (name redacted), Yule Kim, and (name redacted).) Congress first authorized the

construction of a 14-mile, triple-layered fence along the U.S.-Mexico border near San Diego in

the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) of 1996. By 2004,

only nine miles had been completed, and construction was halted because of environmental

concerns. The 109th Congress subsequently passed the REAL ID Act (P.L. 109-13, Div. B), which

contained provisions to facilitate the completion of the 14-mile fence. These provisions allow the

Secretary of Homeland Security to waive all legal requirements determined necessary to ensure

expeditious construction of authorized barriers and roads. In September 2005, the Secretary used

this authority to waive a number of mostly environmental and conservation laws. Subsequently,

the Secure Fence Act of 2006 (P.L. 109-367) removed the specific IIRIRA provisions authorizing

the San Diego fence and added provisions authorizing five stretches of two-layered reinforced

fencing along the southwest border. While the specific authorization of the San Diego fence was

deleted, the project appears permissible under a separate, more general authorization provision of

IIRIRA. In the 110th Congress, S. 1639, introduced by Senator Edward Kennedy on June 20,

2007, would amend § 102 of IIRIRA to once again expressly authorize the construction of the

San Diego fence.

Congressional Research Service

Border Security: The San Diego Fence

Contents

Background................................................................................................................................ 1

Section 102 of IIRIRA—Improvement of Barriers at the Border ............................................. 2

San Diego Sector Apprehensions .............................................................................................. 2

Recent Developments ................................................................................................................ 4

The Controversy .................................................................................................................. 4

Congressional Action .......................................................................................................... 4

Waivers, Costs, and Construction........................................................................................ 5

Figures

Figure 1. USBP Apprehensions, San Diego Sector, FY1992-FY2004 ............................................ 3

Contacts

Author Contact Information............................................................................................................. 6

Congressional Research Service

Border Security: The San Diego Fence

Background

The United States Border Patrol (USBP) is the lead federal agency charged with securing the U.S.

international land border with Mexico and Canada. The USBP’s San Diego sector is located north

of Tijuana and Tecate, Mexican cities with a combined population of 2 million people, and

features no natural barriers to entry by unauthorized migrants and smugglers.1 As part of the

“Prevention Through Deterrence” strategy, which called for reducing unauthorized migration by

placing agents and resources directly on the border abutting population centers, in 1990 the USBP

began erecting a physical barrier to deter illegal entries and drug smuggling in the San Diego

sector using the broad powers granted to the Attorney General (AG) to control and guard the U.S.

border.2 The ensuing “primary” fence was completed in 1993 and covered the first 14 miles of the

border, starting from the Pacific Ocean, and was constructed of 10-foot-high welded steel.3 This

fence (and the subsequent three-tiered fence, see discussion below) was constructed with the

assistance of the Department of Defense’s (DOD’s) Army Corps of Engineers.

According to the Bureau of Customs and Border Protection (CBP), the primary fence, in

combination with various labor-intensive USBP enforcement initiatives along the San Diego

border region (i.e., Operation Gatekeeper), proved to be quite successful but fiscally and

environmentally costly.4 For example, as undocumented aliens and smugglers breached the

primary fence and attempted to evade detection, USBP agents were often forced to pursue the

suspects through environmentally sensitive areas. It soon became apparent to immigration

officials and lawmakers that the USBP needed, among other things, a “rigid” enforcement system

that could integrate infrastructure (i.e., a multi-tiered fence and roads), manpower, and new

technologies to further control the border region. The concept of a three-tiered fence system was

first recommended by a 1993 Sandia Laboratories study commissioned by the Immigration and

Naturalization Service (INS). The study concluded that aliens attempting to enter the United

States from Mexico had shown remarkable resourcefulness in bypassing or destroying obstacles

in their path, including the existing primary fence, and postulated that “[a] three-fence barrier

system with vehicle patrol roads between the fences and lights will provide the necessary

discouragement.”5 Congress responded to these enforcement needs, in part, with the passage of

the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) of 1996.6 This

comprehensive law, among other things, expanded the existing fence by authorizing the INS

to construct a triple-layered fence along the same 14 miles of the U.S.-Mexico border near

San Diego.

1

U.S. Department of Justice, Office of the Inspector General, Operation Gatekeeper: An Investigation Into Allegations

of Fraud and Misconduct, July 1998.

2

See e.g., 8 U.S.C. §1103 (a)(5).

3

U.S. Government Accountability Office, Border Control—Revised Strategy is Showing Some Positive Results,

GAO/GGD-95-30, January 31, 1995.

4

See California Coastal Commission, W 13a Staff Report and Recommendation on Consistency Determination, CD063-03, October 2003, at 14-16 (stating that construction of the primary fence significantly assisted the USBP’s efforts

in deterring smuggling attempts via drive-throughs using automobiles and motorcycles). (Hereafter CCC Staff Report.)

5

Peter Andreas, “The Escalation of U.S. Immigration Control in the Post-NAFTA Era,” Political Science Quarterly,

vol. 113, no. 4, winter 1998-1999, p. 595.

6

See P.L. 104-208, Div. C. IIRIRA was passed as part of the Omnibus Consolidated Appropriations Act of 1997.

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Border Security: The San Diego Fence

Section 102 of IIRIRA—Improvement of Barriers at the Border

Section 102 of IIRIRA concerns the improvement and construction of barriers at our international

borders. As described later, several of the provisions in §102 were amended in the 109th Congress

to facilitate the construction of the San Diego fence, as well as other border barriers. The

following paragraphs, however, discuss §102 as originally passed in IIRIRA to provide a

historical perspective and comparative analysis.

Section 102(a) appears to give the AG7 broad authority to install additional physical barriers and

roads “in the vicinity of the United States border to deter illegal crossings in areas of high illegal

entry into the United States.” The phrase vicinity of the United States border is not defined in the

Immigration and Nationality Act (8 U.S.C. §1101 et seq.) or in immigration regulations. The

section also does not stipulate what specific characteristics would designate an area as one of high

illegal entry. This subsection has not been amended.

Section 102(b)—before its amendment in the Secure Fence Act of 2006 (P.L. 109-367)—

mandated that the AG construct a barrier in the border area near San Diego. Specifically, §102(b)

directed the AG to construct a three-tiered barrier along the 14 miles of the international land

border of the United States, starting at the Pacific Ocean and extending eastward. Section 102(b)

ensured that the AG would build a barrier, pursuant to his broader authority in §102(a), near the

San Diego area. Other non-amended provisions in §102(b) provide authority for the acquisition of

necessary easements, require that certain safety features be incorporated into the design of the

fence, and authorize an appropriation not to exceed $12 million.

Section 102(c)—before its amendment in the REAL ID Act as part of P.L. 109-13—waived the

Endangered Species Act (ESA) of 1973 (16 U.S.C. §§1531 et seq.) and the National

Environmental Policy Act (NEPA) of 1969 (42 U.S.C. §§4321 et seq.), to the extent the AG

determined necessary, in order to ensure expeditious construction of the barriers authorized to be

constructed under §102.8 The waiver authority in this provision appears to apply both to barriers

that may be constructed in the vicinity of the border under §102(a) and to the barrier that is to be

constructed near the San Diego area under §102(b).

San Diego Sector Apprehensions

Apprehension statistics have long been used as a performance measure by the USBP. However,

the number of apprehensions may be a misleading statistic for several reasons, including the

data’s focus on events rather than people9 and the absence of reliable estimates for how many

aliens successfully evade capture. These factors aside, however, apprehensions data remain the

best way to gain a glimpse into the reality facing USBP agents and the trends in unauthorized

7

Although the law still cites to the Attorney General, the authorities granted by this section now appear to rest with the

Secretary of DHS. See P.L. 107-296, §§102(a), 441, 1512(d) and 1517 (references to the Attorney General or

Commissioner in statute and regulations are deemed to refer to the Secretary).

8

CBP never used this waiver authority and actually published a Final Environmental Impact Study and received a nonjeopardy Biological Opinion under the ESA. See Department of Homeland Security, Environmental Impact Statement

for the Completion of the 14-mile Border Infrastructure System, San Diego, California (July 2003).

9

If the same person is apprehended multiple times attempting to enter the country in one year, each apprehension will

be counted separately by the USBP in generating their apprehension statistics. This means that apprehension statistics

may overstate the number of aliens apprehended each year.

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Border Security: The San Diego Fence

migration along the border. As Figure 1 shows, apprehensions remained stable during the early

1990s in the San Diego sector despite the construction of the “primary” fence in 1993.

Figure 1. USBP Apprehensions, San Diego Sector, FY1992-FY2004

600000

500000

400000

300000

200000

100000

0

1992

1993

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

Source: CRS Presentation of CBP Data

After the IIRIRA’s mandate for increased enforcement along the Southwest border in 1996,

including construction of the triple-fence, apprehensions dropped rapidly in the San Diego sector

in the late 1990s—from 480,000 in FY1996 to 100,000 in FY2002. The reduction in

apprehensions was even more marked in the areas where fencing was constructed within San

Diego sector. The USBP’s Imperial Beach and Chula Vista stations saw their apprehensions

decline from 321,560 in FY1993 to 19,035 in FY2004—a reduction of 94% over the 12 year

period. Although much of this reduction in apprehensions in those stations and in San Diego

sector may have been due to the construction of the triple-fence, the sector also saw an increase in

other resources that may account for part of the reduction. For example, the number of agents

assigned to the San Diego sector increased significantly during this period—from 980 agents in

1993 to 2,274 in 1998.10 Additionally, the number of underground sensors deployed in the San

Diego sector almost tripled from 1993 to 1998, and the fleet of vehicles increased by over 150%

over the same period.11

The increase in manpower and resources reflected the USBP’s policy of re-routing unauthorized

migration away from population centers to remote border regions where their agents have a

tactical advantage over border-crossers. Other sectors, especially the remote Tucson sector in

Arizona, saw apprehensions increase significantly in the late 1990s. Proponents of border fences

point to the drastic reduction in apprehensions along the San Diego sector as tangible proof that

these fences succeed in their goal of reducing cross-border smuggling and migration where they

are constructed. Opponents attribute part of the decrease in apprehensions to the increase in

manpower and resources in the sector and (pointing to the increase in apprehensions in lesspopulated sectors) contend that the fence only succeeds in re-routing unauthorized migration.

10

CBP data provided to CRS on January 12, 2004.

U.S. Citizenship and Immigration Services, “Operation Gatekeeper Fact Sheet,” July 14, 1998, available at

http://uscis.gov/graphics/publicaffairs/factsheets/opgatefs.htm.

11

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Border Security: The San Diego Fence

Recent Developments

The Controversy

By 2004, only nine miles of the 14 miles of fence authorized to be constructed had been

completed. Two sections, including the final three-mile stretch of fence that leads to the Pacific

Ocean, were not finished because of environmental concerns and litigation.12 In order to finish the

fence, the USBP proposed to fill a deep canyon known as “Smuggler’s Gulch” with over 2

million cubic yards of dirt. The triple-fence would then be extended across the filled gulch.

California’s Coastal Commission (CCC), however, essentially halted the completion of the fence

in February 2004. The CCC determined that the CBP had not demonstrated, among other things,

that the project was consistent “to the maximum extent practicable” with the policies of the

California Coastal Management Program—a state program approved under the federal Coastal

Zone Management Act (CZMA) (16 U.S.C. §§1451-1464).13 Specifically, the CCC was

concerned with the potential for significant adverse effects on (1) the Tijuana River National

Estuarine Research and Reserve; (2) state and federally listed threatened and endangered species;

(3) lands set aside for protection within California’s Multiple Species Conservation Program; and

(4) other aspects of the environment. The CCC held that Congress did not specify a particular

design in the IIRIRA and that the CBP failed to present a convincing argument that the less

environmentally damaging alternative projects it rejected would have prevented compliance with

the IIRIRA.

Congressional Action

Although the IIRIRA initially allowed DHS to waive two major environmental laws, it did not

include the CZMA in its purview. Congress, accordingly, attempted to pass legislation to facilitate

the completion of the fence. The 107th Congress, in §446 of the Homeland Security Act (P.L. 107296), expressed its sense that completing the 14-mile border project should be a priority for the

Secretary of DHS. The 108th Congress considered measures that would have allowed the

Secretary of DHS to waive the CZMA and other environmental laws, but no bill passed both

chambers.14 However, the 109th Congress subsequently passed the REAL ID Act of 2005 (P.L.

109-13, Div. B), which authorized the Secretary of Homeland Security to waive all legal

requirements determined necessary to ensure expeditious construction of barriers and roads

authorized under IIRIRA § 102. Such waivers are effective upon publication in the Federal

Register. Federal district courts are provided with exclusive jurisdiction to review claims alleging

that the actions or decisions of the Secretary violate the U.S. Constitution, and district court

rulings may only be reviewed by the Supreme Court. Because the REAL ID Act amended only

the waiver provision of §102 of IIRIRA, the new waiver authority appears to apply to all the

barriers that may be constructed under IIRIRA—that is, both to barriers constructed in the

vicinity of the border and to the barrier that is to be constructed near the San Diego area.

12

A coalition of environmental groups had filed a lawsuit alleging that the government had not issued a proper

environmental impact statement. The lawsuit was later dismissed because of the use of DHS’s new waiver authority

(see later discussion). Sierra Club v. Ashcroft, 04-CV-272 (S.D. Cal. February 10, 2004).

13

See CCC, Staff Report, at 5-7. The CZMA requires federal agency activity within or outside the coastal zone that

affects any land or water use or natural resource of the coastal zone to be carried out in a manner that is consistent to

the maximum extent practicable with the policies of an approved state management program. 16 U.S.C. §1456(c).

14

See, e.g., S. 2845 (108th Cong.), as passed by the House.

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Border Security: The San Diego Fence

The 109th Congress also passed the Secure Fence Act of 2006 (P.L. 109-367), which removed the

specific provisions authorizing the San Diego fence and added provisions authorizing five

stretches of two-layered reinforced fencing along the southwest border. CBP has estimated that

this fencing will total roughly 850 miles.15 While the specific authorization of the San Diego

fence was deleted, the project appears permissible under the general fence authorization in

§102(a) of IIRIRA. In the 110th Congress, S. 1639, introduced by Senator Edward Kennedy on

June 20, 2007, would amend § 102 of IIRIRA to once again expressly authorize the construction

of the San Diego fence.

Waivers, Costs, and Construction

CBP, in conjunction with the Army Corps of Engineers and the National Guard, have now begun

the process of acquiring the land required to finish building the San Diego border fence. On

September 22, 2005, DHS published a Federal Register notice declaring the waiver of, in their

entirety: (1) the NEPA; (2) the ESA; (3) the CZMA; (4) the Federal Water Pollution Control Act

(33 U.S.C. §§1251 et seq.); (5) the National Historic Preservation Act (16 U.S.C. §§470 et seq.);

(6) the Migratory Bird Treaty Act (16 U.S.C. §§703 et seq.); (7) the Clean Air Act (42 U.S.C.

§§7401 et seq.); and (8) the Administrative Procedure Act (5 U.S.C. §§551 et seq.).16 DHS

predicts that the San Diego fence will have a total cost of $127 million for its 14-mile length

when it is completed—roughly $9 million a mile.17 Construction of the first 9.5 miles of fencing

cost $31 million, or roughly $3 million a mile, while construction of the last 4.5 miles of fencing

is projected to cost $96 million, or roughly $21 million a mile.18 DHS is proposing to hire private

contractors to expedite the construction of the remaining 4.5 miles of fencing; this fact, and the

complex construction project of filling Smuggler’s Gulch, may account for part of the difference

in cost. The FY2006 DHS Appropriations Act (P.L. 109-90) provides $35 million for the

construction of the border fence in San Diego. For FY2007, conferees for the DHS

Appropriations Act (P.L. 109-295) recommended $30.5 million be allocated to the San Diego

fence. Since 1990, Congress has also included language in DOD appropriations bills allowing the

DOD to assist federal agencies in counter-drug activities, including the construction of fencing

and roads to reduce the flow of narcotics into the country.19

15

From CBP Congressional Affairs, September 25, 2006.

The waiver also includes all federal, state, or other laws and regulations deriving from the listed laws.

17

See DHS FY2007 Congressional Budget Justifications.

18

From the DHS FY2006 and FY2007 Congressional Budget Justifications.

19

See P.L. 101-510, Div. A, Tit. X, §1004; codified, as amended, at 10 U.S.C. §374 nt. This authorization was recently

extended through FY2011. See P.L. 109-364, Div. A, Tit. X, §1021.

16

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Border Security: The San Diego Fence

Author Contact Information

(name redacted)

Specialist in Organized Crime and Terrorism

[redacted]@crs.loc.gov, 7-....

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

Acknowledgments

(name redacted), former CRS Analyst in Domestic Security, was the original co-author of this report (with

(name redacted)). (name redacted), former Specialist in Immigration Policy, also contributed.

Congressional Research Service

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