Order Code RS22026
Updated August 8, 2005
CRS Report for Congress
Received through the CRS Web
Border Security: Fences Along the
U.S. International Border
Blas Nunez-Neto
Analyst in Domestic Security
Domestic Social Policy Division
Stephen R. Vina
Legislative Attorney
American Law Division
Summary
This report outlines the issues involved with the Department of Homeland
Security’s (DHS’s) completion of a three-tiered, 14-mile fence, along the border near
San Diego, California. The state of California delayed completion of the fence due
primarily to legal and policy conflicts with its federally-approved, state-run Coastal
Management Program. Former authorization for the fence only allowed the waiver of
the Endangered Species Act and the National Environmental Policy Act. During the
109th Congress, provisions to facilitate the completion of the border fence were included
in the REAL ID Act of 2005 (H.R. 418), which was subsequently added to H.R. 1268,
the Emergency Supplemental Appropriations Act, and signed into law on May 11, 2005
(P.L. 109-13). The border fence provisions allow the Secretary of DHS to waive all
legal requirements
determined necessary to ensure expeditious construction of
authorized barriers and roads. This report will be updated as warranted.
Background
The United States Border Patrol (USBP) is the lead federal agency charged with
securing the U.S. international border. In the early 1990s, the USBP incorporated the
construction of physical barriers directly on the border into their National Strategic Plan
as part of the “Prevention Through Deterrence” strategy,1 which called for reducing
unauthorized migration by placing agents and resources directly on the border abutting
population centers. The USBP first constructed border fencing in the San Diego sector,
which extends inland from the Pacific Ocean along the international land border with
Mexico, and covers approximately 7,000 square miles of territory. Located north of
1 For an expanded discussion of the USBP, please refer to CRS Report RL32562, Border
Security: The Role of the U.S. Border Patrol
, by Blas Nunez-Neto.
Congressional Research Service ˜ The Library of Congress

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Tijuana and Tecate, Mexican cities with a combined population of 2 million people, the
sector features no natural barriers to entry by unauthorized migrants and smugglers.2
Using the broad powers granted to the Attorney General (AG) to control and guard the
U.S. border,3 in 1990 the USBP began erecting a physical barrier to deter illegal entries
and drug smuggling in the San Diego sector. 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.4 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. Since 1990, Congress has 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.5 In 2001, this power was re-authorized through FY2006.6
Additional funding is also provided within the USBP construction account in the DHS
appropriations bill.
According to CBP, the primary fence, in combination with various labor intensive
USBP enforcement initiatives along San Diego border region (i.e., Operation Gatekeeper),
proved to be quite successful but fiscally and environmentally costly.7 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 resiliency 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.”8 Congress responded to these enforcement needs,
in part, with the passage of the Illegal Immigration Reform and Immigration
2 U.S. Department of Justice, Office of the Inspector General, Operation Gatekeeper: An
Investigation Into Allegations of Fraud and Misconduct
, July 1998.
3 See e.g., 8 U.S.C. §1103 (a)(5).
4 U.S. Government Accountability Office, Border Control — Revised Strategy is Showing Some
Positive Results
, GAO/GGD-95-30, Jan. 31, 1995.
5 See P.L. 101-510, Div. A, Title X, §1004; P.L. 102-190, Div A, Title X, Part G, §1088; P.L.
102-484, Div A, Title X, Subtitle E, §1041(a)-(d)(1); P.L. 103-160, Div A, Title XI, Subtitle C,
§1121(a), (b); P.L. 103-337, Div A, Title X, Subtitle B, §1011(a).
6 P.L. 107-107, Title X, Subtit. C, §1021 (amending §1004 of the National Defense Authorization
Act of Fiscal Year 1991, P.L. 101-510, codified at 10 U.S.C. §374 nt.).
7 See California Coastal Commission, W 13a Staff Report and Recommendation on Consistency
Determination
, CD-063-03, Oct. 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.)
8 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.

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Responsibility Act (IIRIRA) of 1996.9 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 US-Mexico border near San Diego.
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. Section 102(a) appears to give the AG10 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.
Section 102(b) mandates that the AG construct a barrier in the border area near San
Diego. Specifically, §102(b) directs 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) ensures that the AG will build a barrier, pursuant
to his broader authority in §102(a), near the San Diego area, although there is some debate
whether IIRIRA requires continuous triple fencing and roads for the entire 14-mile
corridor.11 Section 102(b) also provides authority for the acquisition of necessary
easements, requires certain safety features be incorporated into the design of the fence,
and authorizes an appropriation not to exceed $12 million.
Section 102(c) — before the passage of H.R. 1268 — 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. The waiver authority in this provision appears to apply both to
barriers that may be constructed in the vicinity of the border and to the barrier that is to
be constructed near the San Diego area. Reportedly, the waiver provisions established in
this section have not been implemented by the Bureau of Customs and Border Protection
(CBP).12 In fact, CBP reportedly published a Final Environmental Impact Study pursuant
to NEPA and received a non-jeopardy Biological Opinion from the U.S. Fish and Wildlife
Service under the ESA.13 The REAL ID Act amended §102(c) to, among other things,
authorize the waiver of all legal requirements determined necessary for the construction
of the barriers and roads authorized to be constructed in §102 of IIRIRA.
9 See P.L. 104-208, Div. C. IIRIRA was passed as part of the Omnibus Consolidated
Appropriations Act of 1997.
10 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 The Homeland Security Act of 2002, P.L. 104-208,
§§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).
11 See CCC, Staff Report, at 7 nt. 2 and p. 23 nt. 4.
12 Id. at 14.
13 Id.

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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 people14 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 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
6 0 0 0 0 0
5 0 0 0 0 0
4 0 0 0 0 0
3 0 0 0 0 0
2 0 0 0 0 0
1 0 0 0 0 0
0
1 9 9 2
1 9 9 3
1 9 9 4
1 9 9 5
1 9 9 6
1 9 9 7
1 9 9 8
1 9 9 9
2 0 0 0
2 0 0 1
2 0 0 2
2 0 0 3
2 0 0 4
S o u r c e : C R S P r e s e n t a t i o n o f C B P D a t a
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.
While some of this reduction may have been due to the construction of the triple-fence,
the number of agents assigned to the San Diego sector also increased significantly over
this period — from 980 agents in 1993 to 2,274 in 1998.15 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.16
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 less-populated sectors) contend
14 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.
15 CBP data provided to CRS on Jan. 12, 2004.
16 U.S. Citizenship and Immigration Services, “Operation Gatekeeper Fact Sheet,” (July 14,
1998) available at [http://uscis.gov/graphics/publicaffairs/factsheets/opgatefs.htm].

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that the fence only succeeds in re-routing unauthorized migration. Additionally, some
believe the reduction in apprehensions can be attributed to the economic recession in the
United States which depressed the job market, while others note that the reduction began
in the late 1990s when the economy was still undergoing a period of robust growth.
Recent Developments
Of the 14 miles authorized to be constructed, nine miles of the triple-fence have been
completed. Two sections, including the final three-mile stretch of fence that leads to the
Pacific Ocean, have not been finished. 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, objected to and essentially halted the completion of the
fence in February 2004, because it 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).17
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.18 If a federal court finds a federal activity to be inconsistent with
an approved state program, and the Secretary determines that compliance is unlikely to
be achieved through mediation, the President may exempt from compliance the activity
by determining that the activity is in the “paramount interest of the United States.”19
According to the CCC, the CBP did not believe that it could make further
environmental concessions and still comply with IIRIRA. 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. 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.
While the IIRIRA 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 final version of the House passed
intelligence bill in the 108th Congress, S. 2845 EAH, for example, contained language that
would have added the CZMA, among a wide array of other environmental, conservation,
and cultural restrictions, to the list of laws and regulations that DHS could waive in its
construction of border barriers.20 This section was ultimately removed during the
17 See CCC, Staff Report, at 5-7.
18 16 U.S.C. §1456(c).
19 16 U.S.C. §1456(c)(1)(B).
20 S. 2845 EAH, §3131. See also P.L. 107-296, §446 (declaring that the completion of the 14-
(continued...)

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conference process, and no border fence type provision was included in the intelligence
bill that was signed into law (P.L. 108-458).
In the 109th Congress, H.R. 418, the REAL ID Act of 2005, contained language
requiring the Secretary of DHS to waive all laws necessary to ensure expeditious
construction of the security barriers. H.R. 418 was passed by the House as a stand-alone
piece of legislation, but was also attached as an amendment to House-passed H.R. 1268,
the emergency supplemental appropriations bill for FY2005. During conference,
language was revised in H.R. 1268 to “authorize,” instead of “require,” the Secretary of
DHS to waive all “legal requirements,” instead of “all laws.” The conferees also added
a new provision that would make such waiver decisions effective upon publication in the
Federal Register. Language was also added granting federal district courts exclusive
jurisdiction to review claims alleging that the actions or decisions of the Secretary violate
the U.S. Constitution, and allowing district court rulings to be reviewed only by the U.S.
Supreme Court. H.R. 1268 was signed into law on May 11, 2005 (P.L. 109-13).
Section 102 of the REAL ID Act: The Border Fence Provisions
The waiver authority provided in §102 appears to be a broad grant of authority
because, in part, it authorizes the waiver of all legal requirements determined necessary
by the Secretary for the expeditious construction of authorized barriers and only allows
judicial review for constitutional claims.21 Furthermore, these claims can only be
appealed to the Supreme Court (i.e, there is no intermediate appellate review), whose
review is discretionary. It is unclear what a “legal requirement” may include, but the term
could arguably be as limited as filing requirements or be as broad as an entire law.
Moreover, because §102 of the REAL ID Act amends 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 — i.e., both to barriers constructed in the vicinity of the border
in areas of high illegal entry and to the barrier that is to be constructed near the San Diego
area. The military has now begun upgrading and rebuilding the San Diego border fence.
Relatedly, plans to construct a 123 mile vehicle barrier, consisting of steel beams planted
five feet deep into concrete bases, along the Arizona border are also moving forward.22
A review of the Federal Register did not reveal the use of the new waiver authority in
either case. The Senate-passed version of the FY2006 DHS Appropriations bill, H.R.
2360, includes $50 million for construction of the border fence in San Diego, and $50
million for border infrastructure, including fences and vehicle barriers, in Arizona.
20 (...continued)
mile border fence required to be carried out under §102(b) of IIRIRA should be a priority for the
newly created Secretary of DHS.
21 One of the most analogous provisions CRS located appears to be, at least on its face, 43 U.S.C.
§1652(c), which authorizes the waiver of all procedural requirements in law related to the
construction of the Trans-Alaska pipeline and limits judicial review to constitutional claims.
22 Jonathan Athens, Officials say OK to Border Fence, YumaSun.com (July 20, 2005) available
at [http://sun.yumasun.com/google/ysarchive14980.html].