Border Security: The San Diego Fence

Border Security: The San Diego Fence
Blas Nuñez-Neto
Analyst in Domestic Security
Domestic Social Policy Division
Michael John Garcia
Legislative Attorney
American Law Division
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 administrative¹
developments regarding its completion; it will be updated as warranted. 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,^th
and construction was halted because of environmental concerns. The 109 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

110^th 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.

¹ For more analysis of border fencing and other barriers, please see CRS Report RL33659, Border
Security: Barriers Along the U.S. International Border, by Blas Nuñez-Neto and Michael John
Garcia.

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.² 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.³ 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.
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.⁵ 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.”⁶ Congress responded to these enforcement needs, in part, with the
passage of the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA)
of 1996.⁷ This comprehensive law, among other things, expanded the existing fence by

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, January 31, 1995.
⁵ See California Coastal Commission, W 13a Staff Report and Recommendation on Consistency
Determination, CD-063-03, 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.)
⁶ 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.
⁷ See P.L. 104-208, Div. C. IIRIRA was passed as part of the Omnibus Consolidated
(continued...)

authorizing the INS to construct a triple-layered fence along the same 14 miles of the
U.S.-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. As described later, several of the provisions in §102 were amended
in the 109^th 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 AG⁸ 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 §102.⁹ 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).

⁷ (...continued)
Appropriations Act of 1997.
⁸ 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).
⁹ CBP never used this waiver authority and actually published a Final Environmental Impact
Study and received a non-jeopardy 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).

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 people¹⁰ 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
⁶⁰⁰⁰⁰⁰
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^S^o^u^r^c^e^{: C}^R^S^P^r^e^s^eⁿ^ta^ti^oⁿ^o^f^C^B^P^D^a^ta¹⁹⁹²¹⁹⁹³¹⁹⁹⁴¹⁹⁹⁵¹⁹⁹⁶¹⁹⁹⁷¹⁹⁹⁸¹⁹⁹⁹²⁰⁰⁰²⁰⁰¹²⁰⁰²²⁰⁰³²⁰⁰⁴
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 to¹¹
2,274 in 1998. 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 over¹²

150% over the same period.

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

¹⁰ 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.
¹¹ CBP data provided to CRS on January 12, 2004.
¹² U.S. Citizenship and Immigration Services, “Operation Gatekeeper Fact Sheet,” July 14, 1998,
available at [http://uscis.gov/graphics/publicaffairs/factsheets/opgatefs.htm].

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
that the fence only succeeds in re-routing unauthorized migration.
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 of¹³
environmental concerns and litigation. 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).¹⁴ 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
107^th Congress, in §446 of the Homeland Security Act (P.L. 107-296), expressed its sense
that completing the 14-mile border project should be a priority for the Secretary of DHS.
The 108^th Congress considered measures that would have allowed the Secretary of DHS¹⁵
to waive the CZMA and other environmental laws, but no bill passed both chambers.
However, the 109^th 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

¹³ 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).
¹⁴ 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).
¹⁵ See, e.g., S. 2845 (108^th Cong.), as passed by the House.

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.
The 109^th 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.¹⁶
CBP has estimated that this fencing will total roughly 850 miles. While the specific
authorization of the San Diego fence was deleted, the project appears permissible under^th
the general fence authorization in §102(a) of IIRIRA. In the 110 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.).¹⁷ 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.¹⁸ 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.¹⁹ 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.²⁰

¹⁶ From CBP Congressional Affairs, September 25, 2006.
¹⁷ The waiver also includes all federal, state, or other laws and regulations deriving from the
listed laws.
¹⁸ See DHS FY2007 Congressional Budget Justifications.
¹⁹ From the DHS FY2006 and FY2007 Congressional Budget Justifications.
²⁰ 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.