In August and September of 2017, the Secretary of the Department of Homeland Security (Secretary) published a notice of determination in the Federal Register that waived applicable environmental laws for the construction of the border wall in San Diego and Calexico. On February 11, 2019, a three-judge panel from the Ninth Circuit Court of Appeals determined the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) authorizes the Department of Homeland Security’s (DHS) waiver of environmental laws that environmental groups seek to enforce is appropriate. [Center for Biological Diversity et al. v. U.S. Department of Homeland Security et al.___F.3d___, Case Nos. 158-55474;18-55475; and 18-55476(9th Cir. Feb 11, 2019).]

Factual Background

On August 2, 2017, the Secretary published a notice of determination regarding the construction and evaluation of wall and replacement of fourteen miles of fencing in San Diego County. The Secretary invoked § 102 of the IIRIRA’s authorization to waive all legal requirements that the Secretary herself determines necessary to ensure expeditious construction barriers under the IIRIRA. Similarly, On September 12, 2017, the Secretary again invoked Section 102’s waiver in another notice of determination in the Federal Register in Calexico. The construction in Calexico involved a three-mile replacement of primary fencing along the border near Calexico. The secretary deemed both the projects as “necessary” and waived twenty-seven federal laws in its notice.

Plaintiffs, the State of California, Center for Biological Diversity (Center), and various environmental groups (Coalition) asserted three claims: 1) ultra vires claims, which alleging that the Department of Homeland Security exceeded its statutory authority in working on the border barrier projects and issuing waivers; 2) environmental claims contending that DHS violated various environmental laws by building the wall; and 3) constitutional claims asserting that the Secretary’s waivers violate the U.S. Constitution.

The U.S. District Court rejected the constitutional claims and granted summary judgment to DHS with respect to the others. Plaintiffs each appealed the District Court’s judgment. Now in a consolidated case, the Ninth Circuit Court heard the appeals and chose not to decide the environmental claims at this time stating that the claim was not ripe.

Then Ninth Circuit’s Ruling

Jurisdiction

Section 102(c)(2)(A) states that the U.S. District Courts of the United States:

• . . .shall have exclusive jurisdiction to hear all causes or claims arising from any action undertaken, or any decision made, by the Secretary of Homeland Security pursuant to paragraph (1). A cause of action or claim may only be brought or claim alleging a violation of the Constitution of the United States.

The Ninth Circuit Court interpreted this provision to mean that only constitutionally based claims are under the exclusive jurisdiction of District Courts.

Paragraph 1 includes a waiver provision that the:

• . . .Secretary of Homeland Security shall have the authority to waive all legal requirements…in such secretary’s sole discretion, determines necessary to ensure the expeditious construction of the barriers and roads under this section.

Additionally, § 102(c)(2)(C) states that:

• . . .[a]n interlocutory of final judgment decree, or order of the district court may be reviewed upon petition for a writ of certiorari to the supreme court of the United States.

The Ninth Circuit Court interpreted the three provisions to mean that the Supreme Court’s direct review only applies to claims under the District Court’s exclusive jurisdiction—the constitutional claims—and have no bearing on any other claim including Plaintiffs’ ultra vires and environmental claims.

Ultra Vires Claims Do Not Survive Summary Judgment

Plaintiffs argue that the San Diego and Calexico Projects are not authorized by § 102(a) ad 102(b) and challenge the scope of the Secretary authority to build roads and walls.

Under § 102 (a) of the IIRIRA states that:

• . . .[t]he Attorney General, in consultation with the Commissioner of Immigration and Naturalization, shall take such actions as may be necessary to installadditional physical barriers and roads(including the removal of obstacles to detection of illegal entrants) in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States. (Emphasis added.)

Specifically, plaintiffs argued that § 102(a) only applies to “additional physical barriers” and because the projects aim to replace the border fencing and do not technically create new and additional barriers, they fall out of the scope of the statute’s authority. Plaintiffs contend that legislative intent was to only include construction of barriers that would add to the total miles of the border wall.

By relying on Webster’sDictionary®, the Ninth Circuit Court ultimately held that the term “additional” is equivalent to “supplemental” and that barrier means “a material object…that separates…or serves as a unit or barricade.” The Ninth Circuit Court further opined that, common sense supports the court’s analysis and to suggest that Congress would authorize DHS to build barriers but implicitly prohibit its repairs “makes no practical sense.”

Plaintiffs also argued that the borders were not in areas of “high illegal entry” because there are other places with higherillegal entry. However, plaintiffs’ argument failed because the IIRIRA does not define what constitutes “high illegal entry” and it certainly does not dictate that illegal entry is a comparative determination. Further, the panel found that plaintiffs did not dispute the DHS’s statistics that show that San Diego and El Centro are in the top 35 percent of the border where the most illegal immigrants are apprehended. In essence, plaintiffs were challenging the Secretary’s discretion in selecting where to exercise her authority under § 102(a), which is barred under § 102(c). Finally, the Ninth Circuit determined that § 102(b) does not impose limits on the section’s broad grant of authority.

The Dissent

In her dissent, Ninth Circuit Judge Consuelo M. Callahan’s argued that the plain language of § 102 of limits appellate review of the lower California court’s decision to the U.S. Supreme Court. Judge Callahan disagrees and reasons the majority ignores the plain language of the text which requires that for all actions filed in a District Court that arises from “any section undertaken, or any decision made, by the Secretary of Homeland Security,” —that appellate review is limited to the Supreme Court.

Callahan criticizes majority’s analysis and contends that the opinion ignored the statute’s restriction on appellate jurisdiction by arguing that the ultra vires claims do not “arise out of” the Secretary’s waiver of legal requirements under § 102 (c). Thus, § 102(c) restricts review of this case to the Supreme Court and should have never been determined by the Ninth Circuit.

Conclusion and Implications

In this 2-1 decision, the Ninth Circuit ultimately upheld the Trump administration’s decision to reconstruct a border wall in Calexico and San Diego, supporting the Secretary’s decision. The Ninth Circuit panel’s discussion of its interpretation of the statutes provides a seemingly iron-clad protection for the Secretary’s decisions made under § 102(c) and even bolsters the Secretary’s authority by holding that the section does not impose any limits. The Secretary’s broad authority stems from legislative intent to prioritize border security and sacrifice other federal policy concerns including many environmental considerations. The panel’s ruling in In Re Border Infrastructure Environmental Litigation is available online at: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/02/11/18-55474.pdf

(Rachel S. Cheong; David D. Boyer)