Biden’s latest border moves spur criticism that he’s continuing wall construction

Construction on what the federal government says is a levee improvement project near Bentsen-Rio Grande Valley State Park in Mission on Jan. 12, 2022. Local immigrant advocates and environmentalists say the project is actually a border wall. (Eddie Gaspar/The Texas Tribune, Eddie Gaspar/The Texas Tribune)

MISSION — For the past eight months, Scott Nicol, an environment activist in McAllen, has photographed construction crews erecting 15-foot concrete panels topped with 6-foot steel bollards in the Rio Grande Valley.

On a recent January day, Nicol — dressed in jeans, a gray sweater and a black face mask — carried his camera slung from his shoulder as he walked a muddy trail in Bentsen-Rio Grande Valley State Park to a construction site, where he photographed workers in safety vests and tractors flattening and excavating dirt until two National Guard soldiers armed with rifles told him to leave.

U.S. Customs and Border Protection insists the project isn’t a border wall, saying the crews are repairing old earthen levees by building 13 miles of concrete levees topped with guard rails.

But Nicol said, “I think it’s pretty clear that Customs and Border Protection is still building walls.”

And two recently announced federal projects — one to close gaps in border walls built under former President Donald Trump and another to begin an environmental assessment for what would be 86 miles of new border wall in the Rio Grande Valley — have deepened concerns by anti-wall activists that President Joe Biden has abandoned his campaign promise that “there will not be another foot of [border] wall constructed” during his administration.

Biden quickly halted wall construction and began reversing many of Trump’s other border and immigration policies after taking office. He has left in place the pandemic health order issued in 2020 by the Centers for Disease Control and Prevention, known as Title 42, to rapidly expel migrants at the border without allowing them to apply for asylum.

Just over a year later, Biden has seen some of his new policies thwarted by Republican-led lawsuits and others blasted by border wall opponents.

“The general perception was that when Trump left the White House, all the problems would go away related to immigration, but that certainly has not been the case,” said Efrén C. Olivares, deputy legal director for immigrant justice at the Southern Poverty Law Center.

The Biden administration says the plan it announced in December to close construction access gaps in walls built under the Trump administration — mostly in Arizona — is part of a bigger project aimed at ensuring safety for border agents, preventing flooding and fixing environmental damage caused by contractors rushing to build as much wall as possible before Trump left office.

The gaps, ranging from a few feet to 100 feet across, were left open as construction access areas but were not closed before Biden halted wall construction.

Environmental activists are urging the administration to leave the gaps open so wildlife and endangered species can cross the barrier to find food and mates.

“If you’re talking about 100 feet, that’s 100 feet where an endangered wolf or jaguar could cross,” Nicol said. “If you block that off, now it’s miles in both directions before there’s any kind of an opening, so that gap is really important.”

Republicans, however, want the gaps closed to prevent migrants from using them to cross the border.

The second project, announced in January, seeks public input until March 7 on potential environmental impacts for a proposal to build 86 miles of new border barriers in the Rio Grande Valley. That would be more than four times longer than the 21 miles of new barriers built on the Texas-Mexico border during the Trump administration.

Biden has asked Congress to cancel funding for the border wall, but Congress hasn’t done so.

Customs and Border Protection said the environmental assessment is a way to continue spending the funds Congress appropriated under Trump.

“While the funds remain appropriated … CBP is conducting environmental planning concerning the proposed construction,” Paul Enriquez, the deputy director of the CBP infrastructure division, said in the announcement.

An environmental impact study can take months to several years, depending on the results of the study. The Geroge W. Bush and Trump administrations both issued waivers to bypass federal environmental regulations to fast-track the construction of border barriers.

Texas Republicans have repeatedly sued Biden for reversing Trump’s immigration policies and failing to spend money Congress approved for border wall construction.

In one lawsuit filed by the attorneys general of Texas and Missouri, a federal judge last year ordered the Biden administration to restart Trump’s Migrant Protection Protocols, also known as “remain in Mexico,” a program that forces asylum-seekers to wait in Mexico as their legal cases make their way through U.S. courts.

Texas Attorney General Ken Paxton and Land Commissioner George P. Bush, who is running for attorney general, also have sued the Biden administration for halting border wall construction and claim it is illegal to use the $5.5 billion Congress appropriated for anything other than border barriers.

“The Biden administration’s flat refusal to use funds that have already been set aside by Congress to build the border wall is not only illegal and unconstitutional. It’s also wrong,” Paxton said in October when he filed the lawsuit in federal court.

Citing a September letter from former Border Patrol Chief Rodney Scott to Congress regarding Biden immigration policies, the lawsuit says the Biden administration has been slow-rolling the spending of border wall money.

Scott’s letter says the Biden administration discussed “options to do the least action possible to avoid [breaking the law] without doing any construction” on the wall.

In court documents, Biden administration lawyers say Congress gave the Department of Homeland Security up to five years to spend border wall funds, and the agency can spend it to pay for wall contract cancellation fees, cleaning up abandoned construction sites and conducting environmental impact studies.

The U.S. Government Accountability Office, an investigative branch of Congress, concluded in a report published last June that the Biden administration isn’t permanently withholding funds for border wall construction but instead is delaying spending the money.

The Department of Homeland Security “asserts that it is not impounding funds because it is not withholding funds from obligation or expenditure, and we agree,” the report says.

Ricky Garza, a staff attorney for the Texas Civil Rights Project, which represented families fighting the federal government’s efforts to seize private land in the Rio Grande Valley for federal wall construction, said the Biden administration is sending contradictory messages on immigration and border issues.

“What we’ve seen is this double-speak message, that these are not the Trump years, but when the rubber meets the road they defend Title 42, and now we’re seeing this quiet expansion of physical border wall,” Garza said.

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