<p> THE STATE OF AMERICA’S BORDER SECURITY Senator Ron Johnson, Chairman Committee on Homeland Security and Governmental Affairs United States Senate 114th Congress November 23, 2015 MAJORITY STAFF REPORT 1 Table of Contents Executive Summary .......................................................................................................................3 Key Highlights .....................................................................................................................7 Part I: The U.S. – Mexico Border ...............................................................................................15 Physical Barriers and Technological Detection Capabilities in the Sectors ..................................16 Fencing and Infrastructure ................................................................................................17 Technologies ......................................................................................................................22 Experiences on the Border .............................................................................................................28 Border Patrol .....................................................................................................................28 Local Law Enforcement .....................................................................................................29 Local Landowners ..............................................................................................................30 Transnational Crime at the Southwest Border ...............................................................................31 Cartels ................................................................................................................................31 Drug Smuggling .................................................................................................................32 Human Smuggling and Trafficking ....................................................................................34 Gangs, Criminal Aliens, and Special Interest Aliens .........................................................35 Part II: The U.S. – Canada Border ............................................................................................36 U.S. – Canada Joint Operations .....................................................................................................38 Threats to the Northern Border ......................................................................................................39 Terrorism ...........................................................................................................................39 Drug Smuggling .................................................................................................................43 Human Smuggling and Trafficking ....................................................................................44 Threats on Tribal Lands.....................................................................................................44 Part III: The Maritime Border ...................................................................................................46 Agency Collaboration and Joint Missions .....................................................................................46 Threats along the Maritime Border ................................................................................................48 The Atlantic Coast and Caribbean .....................................................................................50 The Pacific Coast ................................................................................................................52 The Great Lakes ..................................................................................................................54 U.S. Ports ............................................................................................................................54 Part IV: U.S. Ports of Entry ........................................................................................................56 Visa Waiver Program .....................................................................................................................56 2 Refugee Resettlement ....................................................................................................................59 Biometric Entry-Exit Program .......................................................................................................61 Preclearance Agreements ...............................................................................................................64 Part V: Understanding the Root Causes of Immigration.........................................................66 Central American Migration to the U.S. ........................................................................................67 HHS Response ....................................................................................................................68 DOJ Response ....................................................................................................................70 DHS Response ....................................................................................................................71 Mexico Response ................................................................................................................74 U.S. Assistance to Central America and the Dependency on Remittances ........................75 Unauthorized Immigrant Populations ............................................................................................77 Demographics of the Foreign-Born and Native Born Population.....................................79 Labor Participation and Incentives ...................................................................................81 Conclusion and Recommendations for Proposed Legislation .................................................83 Appendix A: Key Findings of Fact from Border Security Hearings and Roundtables.........94 Appendix B: Key Findings of Central America Trip ...............................................................99 Appendix C: Acronyms .............................................................................................................103 3 Executive Summary For decades, politicians from both parties have vowed to secure our national borders and fix our broken immigration system. Unfortunately, the tough talk has yielded little, if any, real or lasting results. Since the 1986 comprehensive immigration reform that promised to fix the problem once and for all, Congress has passed dozens of laws promising significant reform while the illegal immigrant population has steadily grown from a supposedly 3.5 million in 1986 to approximately 11 million today. Since becoming Chairman of the Senate Committee on Homeland Security and Governmental Affairs, I have made border security a top priority. The Committee has held 13 hearings and 3 roundtables related to the subject and visited the southwest border, northern border, and Central America. Our efforts represent the necessary first step in solving any problem: a sincere attempt to fully understand and properly define it. Despite dedicated and often heroic efforts from both the U.S. Customs and Border Protection (CBP) and local law enforcement, the accumulated testimony and information the Committee has gathered yields an inescapable conclusion: America’s borders are not secure. This current state of affairs is clearly unacceptable. A secure border is not only a prerequisite to a functioning legal immigration system, but it is essential to maintaining national security and protecting public health and safety. To understand how porous our borders truly are, consider testimony from former Drug Czar General Barry McCaffrey and Rear Admiral Peter Brown stating we are interdicting less than 10 percent of drugs crossing our land borders and only 11-18 percent crossing our maritime borders. These metrics not only reveal the lack of a secure border, they also point to a root cause— perhaps THE root cause—of the problem: America's insatiable demand for drugs. This demand fueled the rise of drug cartels and transnational criminal organizations that have grown and expanded their product lines to include most forms of illegal drugs and human trafficking. Sex trafficking is extensive and the drug cartels often use economic migrants as a diversion for even higher value drug and human smuggling. As product moves through Central America the drug cartels have dramatically weakened the public institutions and rule of law within those nations. The resulting corruption and criminal impunity enjoyed by gangs and extortion racketeers have led to high murder rates, destroyed economic opportunity, and created significant incentives to migrate to America—the so called “push factors” of illegal immigration. Although significant, these push factors pale in comparison to the pull factors, or incentives, that fuel illegal immigration. Even during periods of slow economic growth, the opportunities that abound in America relative to other countries are the most powerful incentives for both legal and illegal immigration. The significant wage gaps that exist between America and our southern neighbors are the metrics that prove the point. 4 While economic opportunity is the single greatest incentive, we have created numerous other incentives within our laws, regulations, and through the lack of enforcement. We create sanctuary cities where criminals are able to avoid deportation and allow our welfare and tax systems to be abused by non-U.S. citizens. Combined with the 2008 Human Trafficking bill containing extended adjudication rights to unaccompanied minors from non-contiguous countries, President Obama's Deferred Action on Childhood Arrivals (DACA) sparked the dramatic upsurge in unaccompanied children from Central America arriving at the southwest border staring in 2012. Regardless of whether or not these laws, regulations, and executive actions actually apply to individuals, the reality is that illegal immigrants are allowed to stay in America. Through the use of social media, that fact is widely known and becomes its own powerful incentive for even more illegal immigration. In order to secure our borders we must clearly identify and eliminate these incentives. One way to eliminate an incentive would be to immediately return those who illegally cross our borders to their country of origin. Both current and former DHS officials have seen firsthand that expedited removal of illegal immigrants works as a deterrent. The surge of 30,000 immigrants from Brazil in 2005 was virtually stopped in its tracks by responding to it with expedited removal. As this example illustrates, we know what works and we simply need the political will and commitment to implement smart policy. But the problem remains multi-faceted and complex. Unfortunately, the Administration has declared it will oppose a process of incremental progress insisting instead it will only support comprehensive reform. The last three decades of failed attempts to secure our borders and fix a horribly broken legal immigration system lend very little credence to a compressive approach. It’s well past time to begin identifying individual problems and enacting solutions on a step-by- step basis. This report provides a summary of findings from the Committee’s border security hearings, as well as a primer on key border security issues and recommendations for “first step” reforms that could begin improving security at our borders. The Committee has already begun crafting and passing a number of these initial reforms. Six bills related to border security have been reported out of Committee, one of which was recently signed into law. Based on the information gathered by the Committee, the report presents the following findings: 1. Despite spending more than $100 billion over the last decade to fund security measures along the border, the border is still not secure. America’s insatiable demand for drugs, coupled with smugglers insatiable demand for profit, is one root cause (perhaps THE root cause) preventing the achievement of a secure border. 2. In certain areas and aspects, the border has become more dangerous and lawless over the years. The porous border has made the U.S. more vulnerable to criminal and potential terrorist activity. 5 3. To truly secure our border, we must identify and eliminate—or at least drastically reduce—the incentives for illegal immigration. Some key incentives driving unlawful migration are the opportunity to work and the security in knowing that, upon illegal entry, you will probably be able to remain in the U.S. a. The wage gap, or the difference between wages in the United States and countries south of the U.S.-Mexico border, is a driving factor for migration to the U.S. and will remain a factor for a very long time. b. Both current and former DHS officials agree that expedited removal of illegal immigrants works as a deterrent. Unfortunately, the current Administration is not removing illegal immigrants, including unaccompanied minors, on an expedited basis. c. Due to powerful incentives, immigration of unaccompanied minors from Central America has exceeded that of Mexican unaccompanied minors. To combat this, both pull and push factors should be analyzed and addressed. Until the political will exists on a bipartisan basis to solve these problems, comprehensive reforms to the state of our border security and immigration system will be difficult, if not impossible, to achieve. There are, however, piecemeal steps we can take now to prepare for bigger reforms down the road. These steps will not provide total border security, but they will move us in the direction of making our borders more secure. This report presents as recommendations the following reforms that the Chairman believes, with leadership and cooperation from both parties, can be achieved this Congress: A. Require adequate metrics to measure border security across all U.S. borders—land, air, and sea, with appropriate oversight and transparency. B. Ensure sufficient safeguards are in place in both the U.S. Refugee Resettlement Program and Visa Waiver Program. C. Initiate a concentrated public relations campaign to dissuade all Americans, but in particular young people, from using and becoming addicted to drugs. D. Reform the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) to eliminate incentives for illegal immigration. E. Provide Border Patrol agents access to federal lands. F. Require DHS to examine the threats on the northern border. G. Call on the Chief of the Border Patrol to move agents to areas of high risk. 6 H. Provide and maintain adequate manpower on our border and satisfy hard to fill vacancies at our ports of entry. I. Complete the Congressionally mandated fencing requirement along the southwest border and understand our country’s fencing needs and other border security assets to determine what more is necessary. J. Require each border security technology acquisition program to demonstrate it has an approved baseline for costs, schedule, and performance. K. Ensure that successful state and local programs, such as Operation Stonegarden, are used appropriately and efficiently to maximize manpower at and near U.S. borders. L. Cut off federal funding for sanctuary cities that release criminal aliens into local communities, endangering public safety, and provide immunity to law enforcement officers so that courts cannot prevent them from honoring federal detainers. M. Ensure the continuation of current Border Patrol programs, such as Operation Streamline, that provide penalties to recent border crossers in order to reduce recidivism. N. Emphasize intelligence-based strategies at our borders. O. Authorize the Department’s preclearance agreements. The Chairman is hopeful that this report will provide useful and authoritative information to the public and elected officials regarding a path forward on border security and immigration reform. 7 Key Highlights 1. Despite spending more than $100 billion over the last decade to fund security measures along the border, 1 the border is still not secure. America’s insatiable demand for drugs, coupled with smugglers insatiable demand for profit, is one root cause (perhaps the root cause) preventing the achievement of a secure border. The Department of Homeland Security has pointed to a declining number of apprehensions along the southwest border as an indicator of success in controlling the border and deterring would-be trespassers. 2 However, this does not paint a comprehensive picture of security at the border. For one, apprehension data alone ignores the drug smuggling threat along our borders. Americans’ insatiable demand for drugs is largely driving this trade. Despite spending $25 billion annually on our war on drugs, 3 some estimates state that more than 60 percent of illegal crossings are related to drugs. 4 According to the Drug Enforcement Agency (DEA), the “new face of organized crime in America” is “[t]he growing relationship between Mexican-based drug cartels and domestic street gangs, coupled with … an unlimited supply of illegal guns.”5 In addition to being the key drivers of the drug trade, the Mexican cartels have become experts at evading the Border Patrol. A former U.S. official testified that CBP “seizes just 5-10 percent of the illegal drugs smuggled across the border, and interdicts less than 1 percent of the $20 billion plus laundered to Mexico each year.”6 Regarding the maritime border, the U.S. Coast Guard testified that it only interdicts 11 to 18 percent of the estimated drug flow into the U.S. 7 Moreover, independent experts believe that apprehension rates along the southwest border are somewhere between 40 and 55 percent. 8 In some sectors, Border Patrol agents and local law 1 See Lisa Seghetti, CONG. RESEARCH SERV., DHS BORDER SECURITY AND IMMIGRATION ENFORCEMENT STRATEGY, APPROPRIATIONS, AND METRICS 4–6 (2014) (on file with Majority Staff) (noting that from FY2006 through FY2013, Congress appropriated $86 billion to CBP and in total about $131 billion on “enforcement-related spending.”). 2 Remarks by Secretary of Homeland Security Jeh Johnson, Border Security in the 21st Century, U.S. DEP’T OF HOMELAND SECURITY (Oct. 9, 2014), http://www.dhs.gov/news/2014/10/09/remarks-secretary-homeland-security- jeh-johnson-border-security-21st-century. 3 See Lisa N. Sacco & Kristin Finklea, CONG. RESEARCH SERV., R 41535, REAUTHORIZING THE OFFICE OF NATIONAL DRUG CONTROL POLICY: ISSUES FOR CONSIDERATION 11 (2014). 4 Data provided by the U.S. Department of Homeland Security during bipartisan STAFFDEL to the Tucson, Arizona Sector (Feb. 2015). 5 All Hands on Deck: Working Together to End the Trafficking and Abuse of Prescription Opioids, Heroin, and Fentanyl Hearing Before the S. Comm. on Homeland Security & Governmental Affairs, 114th Cong. (2015) (statement of John “Jack” Riley, Acting Deputy Administrator, Drug Enforcement Agency). 6 Securing the Border: Assessing the Impact of Transnational Crime: Hearing Before the S. Comm. on Homeland Security & Governmental Affairs, 114th Cong. (2015) (statement of General Barry R. McCaffrey, USA (RET.), Former Director, Office of National Drug Control Policy). 7 See Securing the Border: Understanding Threats and Strategies for the Maritime Border: Hearing Before the S. Comm. on Homeland Security & Governmental Affairs, 114th Cong. (2015) (statement of Rear Admiral Peter J. Brown, Assistant Commander for Response Policy, U.S. Coast Guard). 8 Bryan Roberts, Edward Alden, John Whitley, Managing Illegal Immigration to the United States: How Effective is Enforcement?, COUNCIL ON FOREIGN RELATIONS 2–3 (2013) (“The Obama administration has not offered, and Congress has failed to insist on, any accountability for the effectiveness of these huge enforcement expenditures). 8 enforcement estimated interdiction rates to be between 30 and 40 percent. 9 In other sectors, agents estimated they caught one-in-three in areas with a fence, and only one-in-20 in areas where no fence was present. 10 Of the 2,000 mile U.S-Mexico land border, only 653 miles, or less than 33 percent, is fenced. 11 Finally, at a Committee hearing, a witness testified that agents who reported more than 20 “got-aways” had to verify their report with a supervisor and would likely face retribution. 12 Senior officials at DHS have denied this assertion. 13 It is clear from these numbers and statements that the border is still not secure, and continues to be taken advantage of by cartels and other transnational criminal organizations (TCOs) seeking to smuggle humans and drugs unlawfully into the country. 2. In certain areas and aspects, the border has become more dangerous and lawless over the years. The porous border has made the U.S. more vulnerable to criminal and potential terrorist activity. The Committee has heard numerous anecdotes suggesting the border has become more dangerous and lawless over the years. For example, a local law enforcement official testified that cartels are responsible for numerous crimes in border towns, including home invasions, felony vehicle evasions, extortion, and sexual assault. 14 He also explained that violent transnational gangs, such as Mara Salvatrucha (MS-13), operate on both sides of the border and since 2011 the number of MS-13 members encountered at the border has increased each year. 15 One rancher testified before the Committee that parks that were previously used for recreation are no longer used for that purpose, because they have simply become too dangerous. 16 The same rancher told the Committee about his irrigation district workers being shot at by cartel members attempting to scare them off to allow the gangs to smuggle drugs across the border. 17 Others who live in border regions spoke of similar experiences. One witness testified that a neighboring farmer witnessed smugglers cutting holes in his fence and then driving 46 trucks 9 Majority Staff observations during Senators Johnson, Carper, and Sasse CODEL to the Texas Rio Grande Valley Sector (Feb. 2015); see also Ongoing Migration from Central America: An Examination of FY2015 Apprehensions: Hearing Before the S. Comm. on Homeland Security & Governmental Affairs, 114th Cong. (2015) (statement of Chris Cabrera, National Border Patrol Council). 10 Majority Staff observations during bipartisan STAFFDEL to the Tucson, Arizona Sector (Feb. 2015). 11 U.S. CUSTOMS AND BORDER PROTECTION OFFICE OF ADMINISTRATION & OFFICE OF BORDER PATROL, FACILITIES MANAGEMENT & ENGINEERING DIRECTORATE BORDER PATROL FACILITIES & TACTICAL INFRASTRUCTURE PROGRAM MANAGEMENT OFFICE (2015) (on file with Committee staff). 12 See Securing the Southwest Border: Perspectives from Beyond the Beltway: Hearing Before the S. Comm. on Homeland Security & Governmental Affairs, 114th Cong. (2015). 13 Securing the Border: Understanding Threats and Strategies for the Northern Border: Hearing Before the S. Comm. on Homeland Security & Governmental Affairs, 114th Cong. (2015). 14 Securing the Border: Assessing the Impact of Transnational Crime: Hearing Before the S. Comm. on Homeland Security & Governmental Affairs, 114th Cong. (2015) (statement of Benny Martinez, Chief Deputy Sheriff, Brooks County, Texas). 15 Id. 16 See Securing the Southwest Border: Perspectives from Beyond the Beltway: Hearing Before the S. Comm. on Homeland Security & Governmental Affairs, 114th Cong. (2015) (statement of Othal E. Brand, Farmer, McAllen, Texas). 17 Id. 9 loaded with drugs across his property. 18 That farmer was later told by a property appraiser that the value of his property had decreased significantly, due to its proximity to the border. Illegal immigration and drug smuggling are obvious deterrents to potential investors. 19 The National Border Patrol Council estimates that criminal aliens—individuals who have committed crimes in the U.S., served time in jail, and have been deported—constitute 10 to 20 percent of those who are apprehended at the border. 20 The July 2, 2015 murder of Kathryn Steinle in San Francisco, California by a criminal alien that had been deported five times with seven prior felony convictions has brought renewed attention to criminals entering and remaining in the U.S. 21 According to ICE, between January 1, 2014 and June 30, 2015, there have been 16,495 detainers issued that have not been honored in approximately 200 local “sanctuary” jurisdictions. 22 Of those who were released after an ICE detainer was not honored in the first eight months of 2014, “approximately 1,900 were later rearrested 4,300 more times on 7,500 different charges.”23 Between FY2010 and FY2014, 121 criminal aliens were released into the U.S. and “were subsequently charged with a homicide-related offense,” according to U.S. Immigration and Customs Enforcement (ICE) Director Sarah Saldana. 24 While drug smuggling and illegal entry represent important threats to our porous borders, there is also a concern that terrorists may be able to exploit these weaknesses to enter the U.S. undetected. 25 Experts have strong disagreements on the likelihood of terrorists transiting the southwest border, but the potential for exploitation is real, given the changing dynamics and backgrounds of the individuals being apprehended at the southwest border in the last few years. 26 Apprehensions include individuals from Iraq, Syria, Pakistan, and Egypt. 27 18 Id. (statement of Howard G. Buffett, Chairman and CEO, Howard G. Buffer Foundation and Arizona Landowner). 19 Id. 20 Response to Questions for the Record from Shawn Moran, Vice President, National Border Patrol Council, Deferred Action on Immigration: Implications and Unanswered Questions: Hearing Before the S. Comm. on Homeland Security & Governmental Affairs, 114th Cong. (2015) (“These are not economic immigrants in search of a better life. These are hardened criminals who are facing real jail time”). 21 Michelle Moons, Breaking: Pier 14 Murder Suspect Had Been Deported 5 Times With 7 Felonies, BREITBART (July 3, 2015), http://www.breitbart.com/texas/2015/07/03/breaking-pier-14-murder-suspect-had-been-deported-5- times-with-7-felonies/. 22 Letter to the Honorable Kelly Ayotte, Senator, Senate Homeland Security & Governmental Affairs, from the Honorable Sarah R. Saldana, Director, U.S. Immigration and Customs Enforcement (Aug. 14, 2015). 23 Jessica Vaughn, Protect the Public, not Criminal Immigrants, NAT’L REVIEW (July 8, 2015), http://www.nationalreview.com/article/420898/illegal-alien-criminal-steinle (data from Jan. 1, 2014-Aug. 31, 2014). 24 Joel Gehrke, ICE Failed to Deport 121 Convicts Now Facing Murder Charges, NATIONAL REVIEW (June 15, 2015), http://www.nationalreview.com/article/419781/ice-failed-deport-121-convicts-now-facing-murder-charges- joel-gehrke (citing a letter from Sarah Saldana, Director, Immigration and Customs Enforcement). 25 TEXAS DEP’T OF PUBLIC SAFETY, OPERATION STRONG SAFETY REPORT TO THE 84TH TEXAS LEGISLATURE AND OFFICE OF THE GOVERNOR 2 (2015) (Unclassified Version). 26 U.S. Northern Command and Southern Command: Hearing Before the S. Comm. on Armed Services, 114th Cong. (2015) (statement of General John F. Kelly, U.S. Southern Command) 27 TEXAS DEP’T OF PUBLIC SAFETY, OPERATION STRONG SAFETY REPORT TO THE 84TH TEXAS LEGISLATURE AND OFFICE OF THE GOVERNOR 2 (2015) (Unclassified Version); see also American’s Heroin Epidemic at the Border: Local, State, and Federal Law Enforcement Efforts to Combat Illicit Narcotic Trafficking: Hearing Before the S. Comm. on Homeland Security & Governmental Affairs, 114th Cong. (2015) (statement of Brandon Judd, President, National Border Patrol Council). 10 As to the northern border, “the U.S.-Canada border is the longest common border in the world.”28 Due to its length and the relatively low number of agents patrolling it, experts believe that vulnerabilities could be exploited. 29 In 2011, Alan Bersin, former CBP Commissioner, told the Senate Judiciary Committee that regarding terrorism, “it’s commonly accepted that the more significant threat comes from the U.S.-Canada border.”30 In FY2014, the Blaine sector in Washington State alone apprehended migrants from 32 different countries. 31 Finally, there is also the possibility that terrorists may exploit legal avenues to enter and remain in the U.S. For example, in 2011 the U.S. discovered two Iraqi refugees were plotting to send missiles, cash, and sniper rifles to insurgents to kill American soldiers abroad. 32 Other potential vulnerabilities include the Visa Waiver Program, student visas, and visa overstays. 3. To truly secure our border, we must identify and eliminate—or at least drastically reduce—the incentives for illegal immigration. Some key incentives driving unlawful migration are the opportunity to work and the security in knowing that, upon illegal entry, you will be able to remain in the U.S. a. The wage gap, or the difference between wages in the United States and countries south of the U.S.-Mexico border, is a driving factor for migration to the U.S. and will remain a factor for a very long time. “The main economic factor influencing migration is the wage gap, or the difference between what a potential migrant can earn in the U.S. compared to the migrant’s home country. Differences in average wages for similar workers between developed and developing countries constitute the single largest price distortion remaining in global markets.”33 Over the last several decades, migrant survey data suggested that the wage gap based on actual labor market outcomes in the U.S. and Mexico was approximately $7 to $1, if valued at the commercial exchange rate. 34 Today, this gap has fallen to as low as $5 to $1. 35 However, this wage gap is expected to continue to be above $3 to $1 until 2075. 36 The wage gap between the U.S. and Central 28 U.S. DEP’T OF HOMELAND SECURITY, NORTHERN BORDER STRATEGY 4 (2012), http://www.dhs.gov/xlibrary/assets/policy/dhs-northern-border-strategy.pdf. 29 Garrett Graff, Fear Canada: The Real Terrorist Next Door, POLITICO MAGAZINE (Oct. 16, 2014), http://www.politico.com/magazine/story/2014/10/fear-canada-not-mexico-111919.html#.VSYmIpN0eYM. 30 Improving Security and Facilitating Commerce at America's Northern border and Ports of Entry: Hearing Before the S. Subcomm. on Immigration, Refugees and Border Security of the S. Comm. on the Judiciary, 112th Cong. (2011) (statement of Alan Bersin, Commissioner, U.S. Customs and Border Protection). 31 Majority Staff observations during bipartisan STAFFDEL to the Blaine, Washington Sector (Aug. 2015). 32 See, e.g., James Gordon Meek and Brian Ross, Terrorists Once Used Refugee Program to Settle in U.S., ABC NEWS (Nov. 18, 2015), http://abcnews.go.com/International/terrorists-refugee-program-settle- us/story?id=35252500. 33 Bryan Roberts, Edward Alden, John Whitley, Managing Illegal Immigration to the United States: How Effective is Enforcement?, COUNCIL ON FOREIGN RELATIONS 8 (2013) (citing Michael Clemens, Claudio E. Montenegro, and Lant Pritchett, The Place Premium: Wage Differences for Identical Workers across the U.S. Border, CENTER FOR GLOBAL DEVELOPMENT (2008)). 34 Bryan Roberts, Edward Alden, John Whitley, Managing Illegal Immigration to the United States: How Effective is Enforcement?, COUNCIL ON FOREIGN RELATIONS 8 (2013). 35 Id. 36 Id. at 9. 11 American countries in terms of income is larger than the wage gap between the U.S. and Mexico. 37 According to economists, people will relocate if the ratio is above $2 to $1. 38 Therefore, the incentive to enter the U.S. for work will continue far into the future. If immigrants cannot find a lawful path to enter the U.S. where they will receive higher wages, they will enter the U.S. unlawfully. b. Both current and former DHS officials agree that expedited removal of illegal immigrants works as a deterrent. Unfortunately, the current Administration is not removing illegal immigrants, including unaccompanied minors, on an expedited basis. Both DHS Secretary Jeh Johnson and former DHS Secretary Michael Chertoff recognize that those seeking to unlawfully migrate to the U.S. are highly responsive to incentives and disincentives. During the Committee’s DHS Budget Hearing, Secretary Johnson admitted, “you have to show the population in Central America that you are sending people back.”39 In 2005, a large number of Brazilians sought to enter the U.S. illegally due to a change in Mexican policy in which the government suspended a visa requirement for Brazilians, allowing easy travel. 40 According to one account, the number of Brazilians detained at the U.S.-Mexico border tripled from the previous year to more than 30,000. 41 In response, DHS dedicated bed space, detained, and expedited the removal of Brazilians. 42 According to Secretary Chertoff: “The word spread surprisingly swiftly; within its first thirty days, the operation had already begun to deter illegal border crossings by Brazilians. In fact, the number of Brazilians apprehended dropped by 50%. After 60 days, the rate of Brazilian illegal immigration through this sector was down 90%, and it is still significantly depressed all across the border. In short, we learned that a concentrated effort of removal can actually discourage illegal entries by non-Mexicans on the southwest border.”43 Secretary Johnson has seen similar results. Recently, organized smugglers in the Dominican Republic have taken advantage of a U.S. policy that eliminated expedited removal of Haitians after the 2010 earthquake by smuggling Haitian immigrants to Puerto Rico. 44 By the end of 37 Id. at Appendix 2: Wage Gap and Other Trends in Central American Source Countries, http://www.cfr.org/immigration/managing-illegal-immigration-united-states/p30658. 38 Michael Clemens, Claudio E. Montenegro, and Lant Pritchett, The Place Premium: Wage Differences for Identical Workers across the U.S. Border, CENTER FOR GLOBAL DEVELOPMENT (2008). 39 See The Homeland Security Department’s Budget Submission for Fiscal Year 2016: Hearing Before the S. Comm. on Homeland Security & Governmental Affairs, 114th Cong. (2015). 40 Chris Kraul & Nicole Gaouttte, No-Visa Agreement Backfired on Mexico, L.A. TIMES (Sept. 14, 2005), http://articles.latimes.com/2005/sep/14/world/fg-mexbrazil14. 41 Id. 42 Comprehensive Immigration Reform II: Hearing Before the S. Comm. on Judiciary, 109th Cong. (2005) (statement of Michael Chertoff, Secretary, U.S. Department of Homeland Security). 43 Id. 44 See Securing the Border: Understanding Threats and Strategies for the Maritime Border: Hearing Before the S. Comm. on Homeland Security & Governmental Affairs, 114th Cong. (2015); U.S. COAST GUARD, MARITIME BORDER SECURITY (2015) (on file with Majority Staff). 12 FY2013, 1,760 Haitian migrants attempted to enter the U.S. through the Mona Passage, as compared to 39 Haitians in FY2012. 45 In FY2014, 1,994 Haitian migrants made the same dangerous attempt. 46 DHS resumed expedited removal in October 2014 for non-criminal Haitian migrants who landed on U.S. Territories in Puerto Rico and the islands of the Mona Passage. 47 After the first removal, Haitian maritime flow in the Mona Passage decreased by 80 percent. 48 In the first three quarters of FY2015, only 277 Haitian migrants attempted to enter the U.S. via the Mona Passage compared to 1,430 for the same period in FY2014. 49 Similarly, after the President’s December 17, 2014 announcement regarding the U.S.’s change in policy towards Cuba, Cuban migration increased, as many feared that the current “wet-foot, dry- foot” policy—allowing any Cuban reaching U.S. land to stay and pursue citizenship, while those caught at sea are returned to Cuba 50���would end. Prior to the President’s announcement, from December 1-16, 2014, the Coast Guard interdicted 80 Cubans. 51 After the President’s announcement, from December 17-31, 2014 the Coast Guard interdicted 419 Cubans—a 423 percent increase. 52 To address this, the Coast Guard deployed direct repatriation and immediately began sending those interdicted in the waterways back to Cuba. 53 As a result, Cuban interdictions fell to 254 from January 1-21, 2015 and have returned to normal levels. 54 While employing expedited removal at our maritime border has kept Cuban migration at normal levels, due to the U.S. wet-foot, dry-foot policy, Cubans may not be removed once they reach U.S. soil. As a result, Cubans arriving at U.S. POEs has increased by 78 percent since the President’s announcement.55 c. Due to powerful incentives, immigration of unaccompanied minors from Central America has exceeded that of Mexican unaccompanied minors. To combat this, both pull and push factors should be analyzed and addressed. In FY2012, more than 24,000 unaccompanied alien children (UACs) were apprehended at the U.S.-Mexico border. 56 In FY2014, that number grew to nearly 69,000. 57 Also in FY2014, for the first time, the number of UACs from Northern Triangle Countries—El Salvador, Guatemala, 45 Id. 46 Id. 47 Id. 48 Id. 49 Id. 50 Id. 51 Id. 52 Id. 53 Id. 54 Id. 55 Data Provided to Majority Staff by the U.S. Customs and Border Protection (Sept. 15, 2015); see Miriam Jordan, U.S. News: More Cubans Migrate to U.S., WALL STREET JOURNAL (Sept. 21, 2015). 56 Securing the Border: Understanding and Addressing the Root Causes of Central American Migration to the United States: Hearing Before the S. Comm. on Homeland Security & Governmental Affairs, 114th Cong. (2015) (statement of Alan D. Bersin, Acting Assistant Secretary and Chief Diplomatic Officer, Office of Policy, U.S. Department of Homeland Security). 57 Id. 13 and Honduras—exceeded the number of UACs from Mexico.58 The Committee heard that many factors led to the increased migration of unaccompanied minors from Central America, and these factors can be attributed to both the conditions of violence in Central America, as well as accurate and inaccurate perceptions regarding the American immigration system. 59 According to the El Paso Intelligence Center (EPIC), factors leading to this increased migration include the perception of U.S. policy that led people to believe they would be able to remain in the U.S. 60 Policies contributing to this pull factor include the President’s DACA, DHS’s catch and release policies, and the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA). 61 Meanwhile, factors contributing to the push factor include violence, extortion, and lack of opportunities in the Northern Triangle. 62 The ability of persons from noncontiguous countries to stay in the U.S. pending a hearing has led to campaigns in which smugglers claim that the U.S. is issuing a new “permiso” for minors reaching the U.S. 63 In reality, when unaccompanied minors are apprehended by Border Patrol they are released in the U.S. with a notice to appear (NTA) in court. At this point, many assume that they are “home free” and that “by the time they need to appear, there is going to be an amnesty or legalization.”64 According to one Committee witness, from July 2014 through February 2015, 62 percent of the children who were ordered to appear before an immigration judge for a hearing failed to show up. 65 All of them were ordered deported, but ICE’s recent enforcement priorities make removal highly unlikely. 66 Since 2009, DHS has apprehended approximately 122,700 unaccompanied children from El Salvador, Guatemala, and Honduras, but has only repatriated approximately 7,700, or 6 percent. 67 In this case, reality reinforces perception. 68 58 U.S. CUSTOMS AND BORDER PROTECTION, SOUTHWEST BORDER UNACCOMPANIED ALIEN CHILDREN, http://www.cbp.gov/newsroom/stats/southwest-border-unaccompanied-children. 59 Securing the Border: Understanding and Addressing the Root Causes of Central American Migration to the United States: Hearing Before the S. Comm. on Homeland Sec. & Governmental Affairs, 114th Cong. (2015); The 2014 Humanitarian Crisis at our Border: A Review of the Government’s Response to Unaccompanied Minors One Year Later: Hearing Before the S. Comm. on Homeland Sec. & Governmental Affairs, 114th Cong. (2015). 60 EL PASO INTELLIGENCE CENTER, MISPERCEPTIONS OF U.S. POLICY KEY DRIVER IN CENTRAL AMERICAN MIGRANT SURGE (2014) (finding that children from El Salvador, Guatemala, and Honduras arrived in large numbers after hearing rumors that the U.S. Government would stop issuing free passes or permisos after June 2014). 61 Section 235 of TVPRA codified expedited removals for children from contiguous countries and mandated the transfer of children from non-contiguous countries to the Department of Health and Human Services. Pub. L. No. 110-457 (2008). 62 See Securing the Border: Understanding and Addressing the Root Causes of Central American Migration to the United States: Hearing Before the S. Comm. on Homeland Security & Governmental Affairs, 114th Cong. (2015). 63 Id. (statement of Roger F. Noriega, Visiting Fellow, American Enterprise Institute and Former Assistant Secretary for Western Hemisphere Affairs, U.S. Department of State). 64 See id. 65 Id. (statement of William Kandel, Analyst in Immigration Policy, Congressional Research Service). 66 See The 2014 Humanitarian Crisis at our Border: A Review of the Government’s Response to Unaccompanied Minors One Year Later: Hearing Before the S. Comm. on Homeland Security & Governmental Affairs, 114th Cong. (2015). 67 Data provided to Majority Staff by U.S. Department of Homeland Security (Oct. 20, 2015). 68 Ongoing Migration from Central America: An Examination of FY2015 Apprehensions: Hearing Before the S. Comm. on Homeland Security & Governmental Affairs, 114th Cong. (2015) (statement of Kimberly M. 14 In response to this humanitarian crisis, the Administration has proposed a $1 billion aid package largely focused on the Northern Triangle, advocating that investing in Central American communities can decrease the need to migrate and significantly reduce the business of human smugglers. 69 Absent new accountability and reforms in Central America, experts question the value of additional resources. 70 In many of these countries, “police and prosecutors are often incapable of, or prevented from, carrying out their law enforcement responsibilities,” according to an expert at the Woodrow Wilson International Center for Scholars. 71 This is often the result of “fear or intimidation by criminal networks,” but also from corruption of the state.72 For example, Guatemalan Vice President Roxana Baldetti resigned earlier this year amid a corruption scandal in which officials allegedly “defrauded the state of millions of dollars by taking bribes to charge lower customs duties.”73 On September 2, 2015, Guatemalan President Otto Perez Molina also resigned, just days before a new election, due to implications of his involvement. 74 Shortly thereafter he was jailed in Guatemala City. 75 Meanwhile, at a Committee hearing, one witness testified that Honduras recently “saw millions of dollars stolen from its national hospital system by the very people charged with overseeing the system.”76 A recent GAO report highlighted concerns with the effectiveness of assistance the U.S. is already providing to Central America. 77 For example, in El Salvador GAO observed a computer lab filled with computers recently provided by the U.S. Agency for International Development (USAID) but no teachers in the classrooms. 78 Apparently, the Salvadoran Ministry of Education had not yet provided salaries for the teachers. 79 GAO concluded that such ineffectiveness “could lead to higher levels of migration to the United States, which is not only potentially costly in terms of U.S. taxpayer resources but costly and dangerous to the migrants and their families.”80 Gianopoulos, International Affairs and Trade, U.S. Government Accountability Office) (explaining that children use social media to let those in their home countries know they made it to and were able to remain in the U.S.). 69 WHITE HOUSE, FACT SHEET: PROMOTING PROSPERITY, SECURITY AND GOOD GOVERNANCE IN CENTRAL AMERICA, https://www.whitehouse.gov/the-press-office/2015/01/29/fact-sheet-promoting-prosperity-security-and- good-governance-central-ame. 70 See Securing the Border: Understanding and Addressing the Root Causes of Central American Migration to the United States: Hearing Before the S. Comm. on Homeland Security & Governmental Affairs, 114th Cong. (2015) (statement of Eric L. Olson, Associate Director, Woodrow Wilson International Center for Scholars). 71 Id. 72 Id. 73 Guatemala Vice President Roxana Baldetti Resigns Amid Corruption Scandal, NY DAILY NEWS (May 8, 2015), http://www.nydailynews.com/news/world/guatemala-vice-president-resigns-corruption-scandal-article-1.2216056. 74 Rafael Romo & Greg Botelho, Otto Perez Molina Out as Guatemalan President, Ordered to Jail, CNN (Sept. 3, 2015), http://www.cnn.com/2015/09/03/americas/guatemala-president-arrest-warrant/. 75 Id. 76 See Securing the Border: Understanding and Addressing the Root Causes of Central American Migration to the United States: Hearing Before the S. Comm. on Homeland Security & Governmental Affairs, 114th Cong. (2015) (statement of Eric L. Olson, Associate Director, Woodrow Wilson International Center for Scholars). 77 GOV’T ACCOUNTABILITY OFFICE, GAO-15-707, CENTRAL AMERICA: IMPROVED EVALUATION EFFORTS COULD ENHANCE AGENCY PROGRAMS TO REDUCE UNACCOMPANIED CHILDREN MIGRATION (2015). 78 Id. 79 Id. 80 Id. at 41. 15 Part I: The U.S.-Mexico Border Each of the nine sectors of the U.S.-Mexico border has unique terrain and faces endemic challenges. 81 For example, the RGV sector border is in the middle of the Rio Grande, a narrow, often shallow, and easily navigable river. Smugglers cross the Rio Grande by foot, raft, or, in some locations, vehicles. 82 This makes enforcement and security quite daunting. In Arizona, two mountain ranges provide concealment for smugglers and illegal crossers. Additionally, protected lands, including national forests, wildlife refuges, military training ranges, and a Native American Reservation, restrict access to approximately 80 percent of the border in the Tucson and Yuma sectors. 83 Figure 1: Nine Sectors of the U.S.-Mexico Border Image provided by DHS. Securing one high-risk sector usually leads to shifting pressures on other borders sectors. For example, San Diego was previously one of the most highly trafficked areas for illegal crossers between ports of entry. 84 In the mid-1990s, added personnel and other infrastructure resources such as fencing through Operation Gatekeeper in the San Diego sector decreased total 81 Nine border sectors abut the U.S.-Mexico border: San Diego, El Centro, Yuma, Tucson, El Paso, Big Bend, Del Rio, Laredo, and Rio Grande Valley. U.S. CUSTOMS AND BORDER PROTECTION, OFFICE OF BORDER PATROL – SECTORS AND STATIONS, http://ecso.swf.usace.army.mil/maps/SectorP.pdf. 82 On a CODEL in South Texas, Chairman Johnson observed a truck drive across a shallow portion of the Rio Grande River. 83 U.S. CUSTOMS AND BORDER PROTECTION, OFFICE OF INTELLIGENCE, ARIZONA INTELLIGENCE OVERVIEW (2015) (on file with Majority Staff). 84 U.S. CUSTOMS AND BORDER PROTECTION, SAN DIEGO SECTOR CALIFORNIA. http://www.cbp.gov/border- security/along-us-borders/border-patrol-sectors/san-diego-sector-california (“During the seventies, illegal alien traffic steadily increased, rising to more than 100,000 in 1973 and more than 250,000 by 1976. In 1986, the sector recorded its highest number of apprehensions in a single year – more than 628,000. . . San Diego was the busiest sector for illegal entries, accounting for more than 40 percent of nationwide apprehensions in the early nineties.”). 16 apprehensions by 95 percent. 85 These efforts to halt illegal crossers in San Diego did not reduce the overall flow of illegal activity. Instead, the flow shifted to Arizona in the El Paso and Tucson sectors. 86 Today, RGV is the busiest sector for illegal crossers between ports of entry, and was at the epicenter of last year’s UAC crisis.87 Figure 2: Timeline of Southwest Border Apprehensions by Sector 1980-2014 Physical Barriers and Technological Detection Capabilities in the Sectors DHS has worked to address these challenges through deploying various different technologies and tactical infrastructure along the southwest border, including nearly 700 miles of fencing, 70 miles of border lighting, 11,863 border sensors to detect illicit migration, 107 aircraft from the Office of Air and Marine, 8 unmanned aerial systems, 84 vessels patrolling waterways on the 85 San Diego Fence Provides Lessons in Border Control, NPR (Apr. 6, 2006), http://www.npr.org/templates/story/story.php?storyId=5323928. 86 H. COMM. ON HOMELAND SECURITY, U.S. HOUSE OF REPRESENTATIVES, BLUEPRINT FOR SOUTHERN BORDER SECURITY 2 (2014). 87 U.S. CUSTOMS AND BORDER PROTECTION, SOUTHWEST BORDER UNACCOMPANIED ALIEN CHILDREN, http://www.cbp.gov/newsroom/stats/southwest-border-unaccompanied-children. 17 southwest border, and other new surveillance tools. 88 Each sector has different physical barriers and technological solutions to address its unique terrain challenges. Fencing and Infrastructure While sometimes cost prohibitive, fencing, where appropriate, is an important and necessary tool in securing our borders. In 1993, Sandia Laboratory issued a study that concluded multiple barriers were needed to stop and delay illegal border crossers in San Diego. 89 The study determined that “[a] three-fence barrier system with vehicle patrol roads between the fences and lights will provide the necessary discouragement.”90 Shortly thereafter, the Border Patrol, with the assistance of the U.S. Department of Defense’s (DOD) Army Corps of Engineers, commenced the first fencing along our southwest border, with a 10-foot-high, welded-steel fence covering approximately 14 miles of the San Diego sector. 91 Under the Illegal Immigration Reform and Responsibility Act of 1996 (IIRIRA), Congress instructed immigration authorities to construct barriers along our international borders to deter unauthorized crossers. 92 Specifically, immigration authorities were instructed to supplement the 14-mile “Sandia fence” in San Diego with two additional layers of fencing.93 However, resulting environmental concerns and litigation significantly delayed the fulfillment of this requirement. 94 DHS has still not completed this project. 95 Today, of its 60 mile border, the San Diego sector has 46 miles of primary fence, 13 miles of which include secondary fencing. 96 Building off the San Diego fence lessons, Congress amended IIRIRA in the REAL ID Act of 2005 to authorize the DHS Secretary “to waive ‘all legal requirements’ necessary to ensure expeditious construction” of security barriers at the U.S. border.97 DHS has executed five environmental waivers related to fence construction along the southwest border to expedite 88 Remarks by Secretary of Homeland Security Jeh Johnson, Border Security in the 21st Century, U.S. DEP’T OF HOMELAND SECURITY (Oct. 9, 2014), http://www.dhs.gov/news/2014/10/09/remarks-secretary-homeland-security- jeh-johnson-border-security-21st-century. 89 Michael John Garcia, CONG. RESEARCH SERV., R 43975, BORDER SECURITY: THE SAN DIEGO FENCE (2007). 90 Id. 91 Michael John Garcia, CONG. RESEARCH SERV., R 43975, BARRIERS ALONG THE U.S. BORDERS: KEY AUTHORITIES AND REQUIREMENTS 4 (2015). 92 Id. at 1; Pub. L. No. 104-208, div. C, §102(a)-(c) (1996). 93 Id. at 7; Pub. L. No. 104-208, div. C, §102(a)-(c) (1996). 94 Michael John Garcia, CONG. RESEARCH SERV., R 43975, BORDER SECURITY: THE SAN DIEGO FENCE 4 (2007). 95 Michael John Garcia, CONG. RESEARCH SERV., R 43975, BARRIERS ALONG THE U.S. BORDERS: KEY AUTHORITIES AND REQUIREMENTS 7, 22 (2015) (while IIRIRA Section 102(c) expressly authorized the waiver of the Endangered Species At and the National Environmental Policy Act, other federal laws remained applicable to border construction projects); see also Michael John Garcia, CONG. RESEARCH SERV., R 43975, BORDER SECURITY: THE SAN DIEGO FENCE (2007). 96 No triple layered fencing currently exists at the San Diego sector. Majority Staff observations during bipartisan, bicameral STAFFDEL to the San Diego Sector (Aug. 2015). 97 Michael John Garcia, CONG. RESEARCH SERV., R 43975, BARRIERS ALONG THE U.S. BORDERS: KEY AUTHORITIES AND REQUIREMENTS 22 (2015); Pub. L. No. 109-13, div. B, §102 (2005). 18 construction. 98 But, issues remain. For example, during the Secure Border Initiative project, land acquisition problems prevented DHS from meeting its goals to complete fencing projects on time. 99 Most fencing in California, Arizona, and New Mexico was built on federal land, but in Texas, DHS had to purchase most of the land from private individuals. 100 In 2006, IIRIRA was amended again by the Secure Fence Act, which called for the deployment of roughly 850 miles of “at least 2 layers of reinforced fencing, [and] the installation of additional physical barriers, roads, lighting, cameras, and sensors” along five stretches of the southwest border. 101 Shortly thereafter, the Consolidated Appropriations Act of 2008 modified the Secure Fence Act to allow for the construction of not less than 700 miles of fence and gave the DHS Secretary waiver authority that reads in part: “nothing in this paragraph shall require the Secretary of Homeland Security to install fencing, physical barriers, roads, lighting, cameras, and sensors in a particular location along an international border of the United States, if the Secretary determines that the use or placement of such resources is not the most appropriate means to achieve and maintain operational control over the international border at such location.”102 Today, according to DHS, there is approximately 652.6 miles of front-line fencing on the southwest border: 352.8 miles of primary fence, 103 36 miles of secondary fencing, 104 and 299.8 miles of vehicle barrier fence. 105 The U.S.-Mexico border is nearly 2,000-miles long. DHS is short of the statutory requirements to construct fencing of “not less than 700 miles of the southwest border.”106 According to the Congressional Research Service (CRS), while there is no deadline for the completion of the fencing, “changes in DHS’s border enforcement strategy and prioritization of resources” appears to have halted further construction of fencing along the U.S.- Mexico border. 107 98 U.S. CUSTOMS AND BORDER PROTECTION OFFICE OF ADMINISTRATION & OFFICE OF BORDER PATROL, FACILITIES MANAGEMENT & ENGINEERING DIRECTORATE BORDER PATROL FACILITIES & TACTICAL INFRASTRUCTURE PROGRAM MANAGEMENT OFFICE (2015) (on file with Committee Staff). 99 Observations on Deployment Challenges: Hearing Before the House Comm. on Homeland Security, 110th Cong. (2008) (statement of Richard M. Stana, Director, Homeland Security and Justice Issues, Government Accountability Office). 100 N. C. Aizenman, Border Fence Would Slice Through Private Land, WASH POST (Feb. 16, 2008), http://www.washingtonpost.com/wp-dyn/content/article/2008/02/15/AR2008021503303.html. 101 Michael John Garcia, CONG. RESEARCH SERV., R 43975, BARRIERS ALONG THE U.S. BORDERS: KEY AUTHORITIES AND REQUIREMENTS 8–9 (2015); Pub. L. No. 109-367, §3(2006). 102 Pub. L. No. 110-161, div. E, §564(a) (2008). 103 Primary fence is designed to prevent (or at least slow down) people on foot from crossing the border and disable a vehicle traveling 40 miles per hour. 104 Secondary fence is also known as “double-layered fencing.” Of the double-layered fencing approximately 9 miles is located in the Yuma, Arizona sector; 13 miles is located in the El Paso, Texas sector; and 13 miles is located in the San Diego, California sector. 105 Vehicle barrier fence consists of barriers used primarily in remote areas to prohibit vehicles engaged in drug trafficking and human smuggling operations to cross the border. These fences can be easily navigated by those on foot. 106 Pub. L. No. 104-208, div. C, §102(a)-(c) (1996), as amended by Pub. L. No. 109-13, div. B, §102 (2005); Pub. L. No. 109-367, §3 (2006); and Pub. L. No. 110-161, div. E, §564(a) (2008). 107 Michael John Garcia, CONG. RESEARCH SERV., R 43975, BARRIERS ALONG THE U.S. BORDERS: KEY AUTHORITIES AND REQUIREMENTS 2 (2015). 19 Many interpret the Consolidated Appropriations Act of 2008 as having eliminated the requirement of double-layered fencing, now only calling for “a single layer of reinforced fencing.”108 This, of course, does not prohibit additional layers of fencing.109 The Act also provides more flexibility in regards to fencing location and border infrastructure. 110 The construction of border infrastructure is complex. Prior to erecting additional fencing, Border Patrol has to 1) determine the environmental impact of the fence; 2) acquire land; and, when possible, 3) secure assistance of the National Guard or U.S. Army Corps of Engineers to reduce labor costs. 111 Figure 3: Examples of Fencing Styles Bollard Fencing in Tucson Sector (left); Legacy Fencing in Tucson Sector (middle); Vehicle Barrier Fence – Normandy in El Centro Sector (right). Images provided by DHS. Border Patrol determines which fencing style is appropriate based on the topography of each area. 112 DHS considers primary fencing prototypes based on the ability to disable a vehicle traveling 40 miles per hour, its effects on animal migratory patterns, and costs. 113 Similarly, DHS builds secondary fencing in areas with large populations. Border Patrol believes that pedestrian fencing is necessary in populous cities because illicit crossers can easily blend into the community before they can be apprehended. 114 Since Border Patrol’s strategy prioritizes fencing and personnel resources in or near border cities, illegal traffic has shifted to remote areas. 115 Border Patrol claims that this approach disrupts traditional crossing routes in border cities or along highways and redirects illegal crossers to terrain where Border Patrol agents have a tactical advantage and more time to apprehend the illegal crosser. 116 108 Id. at 9. 109 Id. 110 Id. at 9–10. 111 Chad C. Haddal, Yule Kim, Michael John Garcia, CONG. RESEARCH SERV., RL 33659, BORDER SECURITY: BARRIERS ALONG THE U.S. INTERNATIONAL BORDER (2009). 112 GOV’T ACCOUNTABILITY OFFICE, GAO-09-244R, SECURE BORDER INITIATIVE FENCE CONSTRUCTION COSTS 6 (2009). 113 Id. 114 The Rise of the Mexico Drug Cartels and U.S. National Security: Hearing Before the House Comm. on Oversight and Government Reform, 111th Cong. (2009) (statement of Todd Owen, Acting Deputy Assistant Commissioner, Office of Field Operations, U.S. Customs and Border Protection). 115 Securing the Southwest Border: Perspectives from Beyond the Beltway: Hearing Before the S. Comm. on Homeland Security & Governmental Affairs, 114th Cong. (2015) (statement of Mark Dannels, Sheriff, Cochise County, Arizona). 116 U.S. CUSTOMS AND BORDER PROTECTION OFFICE OF ADMINISTRATION & OFFICE OF BORDER PATROL, FACILITIES MANAGEMENT & ENGINEERING DIRECTORATE BORDER PATROL FACILITIES & TACTICAL INFRASTRUCTURE PROGRAM MANAGEMENT OFFICE (2015) (on file with Committee staff). 20 To date, CBP has spent approximately $2.3 billion on fencing. 117 Fencing costs vary based on the type of terrain, materials used, land acquisition, contractors, and the need to meet an expedited schedule. 118 Whether fencing is built on public or private land drives cost differences, as well as whether the fencing is primary fencing or vehicle barrier fencing (see Figure 3). 119 Private land acquisition remains the primary driver of delay in completing border fencing. 120 According to DHS, out of the approximately 400 cases in which the government needed to acquire land, 330 required legal means to acquire property through condemnation proceedings because the landowner would not voluntarily sell to the government (126 cases), ownership was unknown (11 cases), or the government underwent “friendly” condemnation cases in which there was no dispute on price, but titles were not fully cleared by the government or the court because of multiple landowners (193 cases). 121 Of these 330 cases, 136 remain open. 122 DHS estimates that it could cost an additional $50 million to settle these cases. 123 These cases include a class action suit in south Texas challenging the location of 40 border gates. Until this case is settled, large gaps in fencing will remain. 124 During previous projects, Border Patrol agents and DOD personnel built fencing to save money on labor costs. 125 However, during the Secure Border Initiative fencing projects, DHS subcontracted to private companies because using Border Patrol agents removed them from their primary responsibility and DOD informed DHS that it would no longer be able to provide military personnel to build border fencing. 126 Fencing constructed by private contractors is generally more expensive than fencing built by the Border Patrol agents or the military. 127 In 2009, a GAO report found that in a 70-mile fence project, where 40</p>