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The Secure Fence Act of 2006 mandates that DHS prevent all illegal entries

April 8, 2022 By D.A. King

Illegal aliens at the southern U.S. border, 2021 Getty

Why Isn’t Anyone Talking About the Most Important Border Law?

The Secure Fence Act of 2006 isn’t just about fences — it mandates that DHS prevent all illegal entrie

Center for Immigration Studies

By Andrew R. Arthur on April 8, 2022

The Southwest border, which prior to January 2021 was in pretty good shape, is teetering on dissolution due largely to President Biden’s ham-handed rescission of nearly all of the policies his predecessor implemented to deter illegal migration there. States have sued (thus far, successfully) to block Biden from rescinding the most effective of those Trump policies, but for some reason neither they nor reviewing courts have paid attention to the most important border law — the Secure Fence Act of 2006.

Background on the Secure Fence Act. Its title notwithstanding, the Secure Fence Act is not just about building fences at the border, although that is what it is best remembered for.

Rather, the fences and other infrastructure that the bill authorized and mandated were intended to be just a part of a regime to secure the nation’s borders, and in particular the Southwest border. That’s not to say that the Northern border was given short shrift, but the bill simply authorized a study of the need for and feasibility of erecting infrastructure along the 49th parallel, it did not mandate construction there.

By contrast, the Secure Fence Act was rather exacting (and specific) when it came to “fencing and security improvements” between the Gulf and Mexico and the Pacific Ocean.

The bill identified five different areas at the Southwest border where Congress required DHS to construct at “least 2 layers of reinforced fencing, the installation of additional physical barriers, roads, lighting, cameras, and sensors”, and specified two “priority areas” for expedited attention.

Again, however, that border infrastructure was just a means to an end — not an end in itself. Congress’s end, identified in Section 2 of the bill, was “achieving operational control on the border”.

The “Operational Control” Mandate. What is “operational control on the border”? Section 2(b) of the act defines it as “the prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband”. (Emphasis added.)

Given the fact that Border Patrol agents at the Southwest border were so overwhelmed apprehending, processing, and caring for more than 1.659 million illegal migrants in FY 2021 (an all-time record) that more than a half-million others “got away” and entered the United States illegally, preventing the “unlawful entry” of any illegal migrant might seem like a purely aspirational pipe dream.

But it’s not. It is a congressional mandate that the secretary of Homeland Security is required to meet under Section 2(a) of the Secure Fence Act, which states as follows:

Not later than 18 months after the date of the enactment of this Act, the Secretary of Homeland Security shall take all actions the Secretary determines necessary and appropriate to achieve and maintain operational control over the entire international land and maritime borders of the United States.

The Secure Fence Act of 2006 was enacted on October 26, 2006 (I described the entire legislative history of the bill in an August post), which meant that then-DHS Secretary Michael Chertoff had until April 26, 2007, to meet that “operational control” goal.

That said, the mandate did not end on April 26, 2007. It is ongoing and has bound Chertoff and his five permanent (and numerous acting) successors, up to and including current DHS Secretary Alejandro Mayorkas.

There is no “sunset provision” in the Secure Fence Act that would have repealed that mandate at a date certain, or after operational control was achieved once.

In fact, the Secure Fence Act requires the DHS secretary to submit a report “on the progress made toward achieving and maintaining operational control over the entire international land and maritime borders of the United States in accordance with” Section 2 therein annually. If Mayorkas has not simply blown off that requirement, that is one report I would love to see.

To be clear, Section 2 of the Secure Fence Act mandates that Mayorkas “take all actions” he has to in order to “achieve and maintain operational control over the entire international land and maritime borders of the United States”, that is, to prevent even a single alien from entering the United States illegally. More than 500,000 got-aways proves that he is failing to do so.

Of course, it is not just those 500,000 got-aways who have entered the United States illegally. Mandatory court filings in Texas v. Bidenreveal that the Biden administration has released hundreds of thousands of illegal migrants CBP has apprehended into the United States in recent months. Every one of those releases is also in violation of Section 2 of the Secure Fence Act of 2006.

Why The Secure Fence Act Matters. So, why does a 15-year-old (plus) bill matter in 2022?

To explain, it is important to note that the Secure Fence Act focuses exclusively on operational control of the border, not on DHS’s actions in any given case.

Biden’s DHS contends that it has the authority to simply release any illegal migrant that it apprehends at the Southwest border in the exercise of its “prosecutorial discretion”. That is, at best, a questionable proposition, given the fact that “prosecutorial discretion”generally refers to the power of the state to “prosecute” an offense, or not.

As ICE’s legal branch (somewhat self-servingly) explains the concept, “prosecutorial discretion” is “the longstanding authority of a law enforcement agency charged to decide where to focus its resources and whether or how to enforce the law against an individual”.

With respect to all those hundreds of thousands of aliens apprehended at the Southwest border, DHS does not really have the discretion not to prosecute them — they are by statute “applicants for admission”, and either DHS or the immigration courts have to decide whether they will be admitted.

But even if DHS had the discretion to decide how and when to make that admission determination, “prosecutorial discretion” does not extend to a decision to release them en masse as it is doing now. Congress has already made clear that they must be prosecuted to determine whether they should be admitted. At that point, I would argue, “prosecutorial discretion” ends.

Why would I argue that? Because Congress has also mandated that illegal migrants be detained while that admission determination is being made, negating any claim that “prosecutorial discretion” allows DHS to release aliens seeking admission, except for one at a time on “parole”. But even that authority is tightly cabined statutory discretion, not “prosecutorial discretion” per se.

Assuming, however, for the sake of argument, that DHS has the discretion to prosecute illegal migrants (or not) and to release them (or not), remember how ICE’s lawyers described “prosecutorial discretion” above — the authority to decide “how to enforce the law against an individual”?

The “operational control” mandate in the Secure Fence Act of 2006 is not amenable to any such “prosecutorial discretion”,… read there rest here.

 

Filed Under: Older Entires

AMNESTY

Barbara Jordan on illegal immigration – Audio from CIS.org ‘Who Was Barbara Jordan and Why Does Her Work Still Matter Today?’

“ILLEGAL ALIEN”

Image: Dreamstime.com

Know the media

Immigration amnesty education

MEDIA WATCH

BIRTHRIGHT CITIZENSHIP

BLACK LIVES MATTER * ANTI-ENFORCEMENT

May Day rally in San Francisco, CA, 2017. CREDIT: Pax Ahimsa Gethen (CC).

The Illegal Alien Lobby

THE ILLEGAL ALIEN LOBBY

11th Circuit Appellate Court: DACA: NO LAWFUL PRESENCE, NO LEGAL STATUS

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The Dustin Inman Society Blog

D.A. King, 1 April 1952 – 5 March 2025

March 23, 2025 By Fred

We are sorry to inform you that D.A. King, President and founder of the Dustin Inman Society, has left us.

Donald (“D.A.”) Arthur King, 1 April 1952 – 5 March 2025.

D.A. King left this life and his work for the nation that he loved, confident that he has done his best. D.A. passed on peacefully after a private battle with cancer.

“Once a Marine, always a Marine” – D.A. was always visibly proud of his service and his honorable discharge from the U.S. Marine Corps (1970-1976).

D.A. described himself as “pro-enforcement” on immigration and borders, an issue on which he dedicated the last 21 years of his life as an expert activist, writer and public speaker.


D.A. King talks amnesty, “hate” and “immigrants” with Jorge Ramos on Univision

https://youtu.be/w6FPMn0h4fk

Illegal immigration is not healthy for Americans

Brian Kemp’s first TV campaign ad, 2018

https://youtu.be/Gx7TsHCH35w

Dustin Inman Society page A-1, New York Times

Photo: New York Times/Twitter

Feb. 21, 2023 National Press Club Panel: OVERRUN – “The Greatest Border Crisis in History” From the Center for Immigration Studies

https://youtu.be/seND4qGrvxY

John Stossell: The Southern Poverty Law Center is a scam

https://youtu.be/k41PI54ExFc

The Great Terry Anderson (RIP) on illegal immigration in Los Angeles. – 2009

https://www.youtube.com/watch?v=dUEl8WYDDus

Terry Anderson video, part 2 – Birthright Citizenship

https://www.youtube.com/watch?v=6SS-5u8CMB4

RECENT BLOG ENTRIES

Open records request to TCSG Dec 2, 2024 – “We anticipate having the documents you are requesting to you no later than Friday the 13th of December. “- “At this time, the requested records do not exist.”

Welcoming Illegal immigration to Georgia with special treatment on college tuition

Retraction demand letter to Atlanta Journal Constitution newspaper (updated, Nov. 2, 5:55 AM)

Media request sent to Technical College System of Georgia – OCGA 50-36-1 – Employers in Apprenticeship program — Updated with response

Open records request of Sept. 24, 2024 to TCSG, Re: HDAP, employer docs and response OCGA 50-36-1 – SB 497

COBB COUNTY SHERIFF CRAIG OWENS IS A DANGEROUS MAN

The AJC was the ‘Dinner Chair’ for the 2004 Atlanta MALDEF fundraiser

Response from Senior Admissions Counselor at the College of Coastal Georgia to inquiry regarding Dual Enrollment, illegal aliens and no-cost classes

Open records request sent to TCSG on July 8, 2024 Re: Compliance with new language added to OCGA 56-36-1 in 2024 SB 497

Media request sent to the Technical College System of Georgia (TCSG) Re: Comment on the Addition of “Apprenticeships” to list of public benefits, OCGA 50-36-1 *Updated with reply

Open Records request sent to the Cobb County Sheriff’s office 4:56 AM, Thursday, June 6, 2024. 287(g) – Updated with response(s)

Biden violates federal law to give millions of migrants work permits

The Dustin Inman Society on the CIS podcast with Jessica Vaughan: HB 1105 and SB 354 – “Enforcement works!”

Why Are the Charities Enabling Illegal Immigration Still Tax-Exempt?

Tyler O’Neil: SPLC Fought Reforms That Might Have Helped Prevent Laken Riley’s Death, Immigration Activist Says

GALEO Inc. donors include the SPLC – $100,000

D.A. King in The Federalist this week: Laken Hope Riley’s Murder Outs Georgia As Largely A Sanctuary State

We remember: Candidate Brian Kemp’s 1st TV campaign ad, 2018 GOP Primary “Conservative candidate Brian Kemp will …enforce the ban on sanctuary cities.”

Illegal Immigration in GA: Dustin Inman Society Statewide Poll of Georgia GOP primary voters – Conducted by Landmark Communications Feb 13-15, 2024

It’s not 1859 – Let’s raise the pay for farmworkers who are here legally

Unaccompanied Alien Children (UACs) released into GA, 2020-2023 – data from U.S. Dept. of Health and Human Services

The SPLC is funding “Latinx” groups to advance foreign language voting

‘Terrorist Entry Through the Southwest Border’ – audio interview with expert Todd Bensman of CIS

Open records request GADOL (#3) – Affidavits/EADs *Updated

List of media members to whom we sent a “news tip” on GA Gov. Brian Kemp ignoring Dem sheriff’s open violation of state law, OCGA 42-4-14

Dustin Inman Society featured in Breitbart story: “For example, King is now trying to get the GOP governor of Georgia, Brian Kemp, to enforce a Georgia law that requires sheriffs to report jailed illegals to the federal government”

We have serious compliance problems in Georgia OCGA 42-4-14

Illegal alien captured in Gwinnett County, GA, detected by 287(g): Aggravated child molestation by sodomy, from ICE report


OLDER ENTRIES


REMEMBERING BARBARA JORDAN ON IMMIGRATION

Barbara Jordan. (Biography.com) "Those who should get in, get in; those who should be kept out, are kept out; and those who should not be here will be required to leave." - Testimony of the late Barbara Jordan, Chair, U.S. Commission on Immigration Reform on February 24, 1995.

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ACCUSED KILLER OF DUSTIN INMAN WILL NOT BE RETURNED TO THE U.S.

Associated Press: “Some illegal immigrants can get Georgia driver’s licenses”

Georgia drivers license issued to non-citizens. Photo DDS

GEORGIA LAW REQUIRES JAILERS TO REPORT ILLEGAL ALIEN PRISONERS TO DHS

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