The REAL ID act, which aims to place limits on driver’s licenses and asylum seekers, also includes sweeping provisions to exempt the Department of Homeland Security from our nation’s laws and bar judicial review of border construction projects. This provision of HR 418 threatens to undermine the system of checks and balances for administration proposals, and would negate dozens of laws nationwide. We strongly urge you to oppose HR 418 and its fencing provisions, found in Section 102.

What Section 102 Would Do

• Give the Secretary of Homeland Security sweeping authority to waive ALL laws that would prohibit construction of barriers and roads along our nation’s borders. In addition to eliminating the National Environmental Policy Act’s purview over border infrastructure, it would also waive any state and local environmental laws that affect this construction.
• In addition to environmental laws, Section 102 would waive the rights of Native American nations to control the use of their lands. It would also eliminate state and local zoning laws, including ones that prohibit this type of construction in residential areas.
• Prohibit judicial review of these projects, eliminating any checks against the Department of Homeland Security for its use of land in border regions. It would also bar any individual, organization, business, or local or state government that is negatively affected from these projects to seek compensation for their losses.
• Give the Department of Homeland Security a free hand in construction over 7,500 miles of US border areas. This includes not only the US border with Mexico, but also the border with Canada. Currently, all construction is subject to public comment, environmental regulation, and judicial review.

Immediate Impacts

• Eliminate the need to conduct Environmental Impact Analyses by the Border Patrol in their construction projects along the border. Currently, this process, mandated by the National Environmental Policy Act of 1976, is the only mechanism to allow public input into these construction proposals.
• Allow completion of the “triple fence” in San Diego, California. Currently, there are two fences already spanning this area. This construction is not needed, as the current fencing and Border Patrol operations have already dropped migration through the area by 75% from 1993 to 2004. The vast majority of the remaining migration through the San Diego Border Patrol Sector is not in the urban area where the fence would be constructed, but in the mountainous areas to the east of the city.
• Clear the way for the construction of over 75 miles of fencing in Arizona. Currently, there are only approximately 75 miles of fencing over the entire US border with Mexico. This fencing would run through environmentally sensitive areas, would funnel migrants onto the Barry Goldwater Air Force bombing range, and push migrants out into the most remote stretches of Arizona Desert.
• In 2004, over 221 migrants died in Arizona alone, using isolated desert routes to avoid current fencing and other Border Patrol infrastructure. The construction of more fencing would push migrants into more inhospitable areas, most likely resulting in an increase in migrant deaths in the state and border-wide.
• Would open over one dozen federal and state parks, wildlife refuges, and wilderness areas up for unmonitored construction by the Border Patrol.

Human and Other Costs

• The existing Triple Fence in San Diego cost approximately $3 million per mile to construct. The original projected cost for the fence was $14 million. Total costs to date exceed $42 million, according to Rep. Duncan Hunter’s website - more than 200% over budget.
• With over 7,500 miles of border, it is unrealistic to expect fencing and other related operations to “seal” our nations borders. With the completion of all fencing proposals currently proposed, less than 8% of our border with Mexico, and only 0.02% of our national borders would be sealed.
• Fencing and other infrastructure projects do not decrease migration. Rather, they just shift the flow to more dangerous areas. Despite the implementation of border security infrastructure projects in California, Arizona and Texas since 1998, the former Immigration and Naturalization Service estimated in 2002 that the number of undocumented migrants entering the U.S. rose from 250,000 per year to 375,000 per year.
• A June 16, 2003 report by the Government Accountability Office (GAO) cited that "the Border Patrol has realized its goal of shifting illegal alien traffic away from urban areas into more remote areas. However, rather than being deterred from attempting illegal entry, many aliens have instead risked injury and death by trying to cross mountains, deserts, and rivers."
  • Whereas apprehensions in the San Diego sector have dropped 74% from 1993 (531,689 apprehensions) to 2004 (138,328 apprehensions), they have skyrocketed in Arizona, with a more than 500% increase there in the same time period (116,187 in 1993 to 588,719 in 2004).
  • According to the government’s own statistics, more than 2,000 migrants have died in transit since 1998 – after the implementation of Operations Gatekeeper (San Diego, CA) and Hold the Line (El Paso, TX).
  • In order the cross in more perilous areas migrants have increasingly replied upon human smugglers, causing an increase in criminal activity and violence.

Alternatives

• President Bush has issued repeated calls for immigration reform since January 2004, including proposals for guest worker plans. Providing a legal means of entry to migrants who currently enter our nation without papers would eliminate 99% of the flow of people over our borders.
• Meaningful immigration reform would provide us with information about the estimated 12 million undocumented migrants currently living in the U.S., significantly improving our national security.
• The current infrastructure at our borders is intended to stop migrants, not terrorists.
• Our border security strategy has not changed since the terrorist attacks of September 2001. Rather, there has been a redoubling of efforts underway since 1993 that specifically target migrants.
• When Congress passes meaningful immigration reform, the Border Patrol should reevaluate its operations and devise a strategy that effectively addresses its terrorist prevention mandate. Congress should establish a commission to look at this matter in a nonpartisan way.