Border Security: The San Diego Fence Page: 3 of 6
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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 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 AG 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
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).
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Border Security: The San Diego Fence, report, May 23, 2007; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc808731/m1/3/: accessed September 22, 2018), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.