Determination Pursuant to Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as Amended

Issuing agencies

Abstract

The Secretary of Homeland Security has determined, pursuant to law, that it is necessary to waive certain laws, regulations, and other legal requirements in order to ensure the expeditious construction of barriers and roads in the vicinity of the international land border in the state of New Mexico.

Full Text

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<title>Federal Register, Volume 91 Issue 190 (Friday, October 2, 2026)</title>
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[Federal Register Volume 91, Number 190 (Friday, October 2, 2026)]
[Notices]
[Pages 62739-62740]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-20233]


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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary


Determination Pursuant to Section 102 of the Illegal Immigration 
Reform and Immigrant Responsibility Act of 1996, as Amended

AGENCY: Office of the Secretary, Department of Homeland Security.

ACTION: Notice of determination.

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SUMMARY: The Secretary of Homeland Security has determined, pursuant to 
law, that it is necessary to waive certain laws, regulations, and other 
legal requirements in order to ensure the expeditious construction of 
barriers and roads in the vicinity of the international land border in 
the state of New Mexico.

DATES: This determination takes effect on October 2, 2026.

SUPPLEMENTARY INFORMATION: Important mission requirements of the 
Department of Homeland Security (``DHS'') include border security and 
the detection and prevention of illegal entry into the United States. 
Border security is critical to the nation's national security. 
Recognizing the critical importance of border security, Congress has 
mandated DHS to achieve and maintain operational control of the 
international land border. Secure Fence Act of 2006, Public Law 109-
367, section 2, 120 Stat. 2638 (Oct. 26, 2006) (8 U.S.C. 1701 note). 
Congress defined ``operational control'' 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. Id. Consistent with that mandate, the President's 
Executive Order on Securing Our Borders directs that I take all 
appropriate action to deploy and construct physical barriers to ensure 
complete operational control of the southern border of the United 
States. Executive Order 14165, section 3 (Jan. 20, 2025).
    Congress has provided to the Secretary of Homeland Security a 
number of authorities necessary to carry out DHS's border security 
mission. One of those authorities is found at section 102 of the 
Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as 
amended (``IIRIRA''). Public Law 104-208, Div. C, 110 Stat. 3009-546, 
3009-554 (Sept. 30, 1996) (8 U.S.C 1103 note), as amended by the REAL 
ID Act of 2005, Public Law 109-13, Div. B, 119 Stat. 231, 302, 306 (May 
11, 2005) (8 U.S.C. 1103 note), as amended by the Secure Fence Act of 
2006, Public Law 109-367, section 3, 120 Stat. 2638 (Oct. 26, 2006) (8 
U.S.C. 1103 note), as amended by the Department of Homeland Security 
Appropriations Act, 2008, Public Law 110-161, Div. E, Title V, section 
564, 121 Stat. 2090 (Dec. 26, 2007). In section 102(a) of IIRIRA, 
Congress provided that the Secretary of Homeland Security shall take 
such actions as may be necessary to install additional 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. In section 102(b) of IIRIRA, Congress mandated that in carrying 
out the authority of section 102(a), I provide for the installation of 
additional fencing, barriers, roads, lighting, cameras, and sensors to 
achieve and maintain

[[Page 62740]]

operational control of the border. Finally, in section 102(c) of 
IIRIRA, Congress granted to the Secretary of Homeland Security the 
authority to waive all legal requirements that I, in my sole 
discretion, determine necessary to ensure the expeditious construction 
of barriers and roads authorized by section 102 of IIRIRA.

Determination and Waiver

Section 1

    The U.S. Border Patrol El Paso Sector is an area of high illegal 
entry. Between fiscal year 2021 and August 30, 2026, Border Patrol 
apprehended over 1,248,000 illegal aliens attempting to enter the 
United States between border crossings in the El Paso Sector. In that 
same time period, Border Patrol seized over 1,580 pounds of marijuana, 
over 2890 pounds of cocaine, over 3,450 pounds of methamphetamine, over 
40 pounds of heroin, and over 285 pounds of fentanyl.
    Since the President took office, DHS has delivered the most secure 
border in history. More can and must be done, however. As the 
statistics cited above demonstrate, the El Paso Sector is an area of 
high illegal entry where illegal aliens regularly attempt to enter the 
United States and smuggle illicit drugs, and given my mandate to 
achieve and maintain operational control of the border, I must use my 
authority under section 102 of IIRIRA to install additional barriers 
and roads in the El Paso Sector. Therefore, DHS will take immediate 
action to construct additional barriers and roads in a segment of the 
border in the El Paso Sector. The segment where such construction will 
occur is referred to herein as the ``project area,'' which is more 
specifically described in Section 2 below.

Section 2

    I determine that the following area in the vicinity of the United 
States border, located in the state of New Mexico within the U. S. 
Border Patrol El Paso Sector, is an area of high illegal entry (the 
``project area''): Starting at Border Monument 71 and extending east to 
Border Monument 53, then extending north to Border Monument 40, then 
extending east to Border Monument 1.
    There is presently an acute and immediate need to construct 
additional physical barriers and roads in the vicinity of the border of 
the United States in order to prevent unlawful entries into the United 
States in the project area pursuant to section 102(a) and 102(b) of 
IIRIRA. In order to ensure the expeditious construction of additional 
physical barriers and roads in the project area, I have determined that 
it is necessary that I exercise the authority that is vested in me by 
section 102(c) of IIRIRA.
    Accordingly, pursuant to section 102(c) of IIRIRA, I hereby waive 
in their entirety, with respect to the construction of physical 
barriers and roads (including, but not limited to, accessing the 
project areas, creating and using staging areas, the conduct of 
earthwork, excavation, fill, and site preparation, designing, drilling, 
constructing, operating, maintaining, repairing, and plugging of wells, 
and installation and upkeep of physical barriers, roads, supporting 
elements, drainage, erosion controls, safety features, lighting, 
cameras, and sensors) in the project area, all of the following 
statutes, including all federal, state, or other laws, regulations, and 
legal requirements of, deriving from, or related to the subject of, the 
following statutes, as amended: Public Law 82-495, section 208, 66 
Stat. 549, 560 (July 10, 1952) (43 U.S.C. 666); the New Mexico Water 
Code (NMSA 1978, 72-1-1 through 72-20-103); and the New Mexico 
Administrative Code Title 19, Chapter 27, Part 1 (19.27.1.1 through 
19.27.1.39) and Part 4 (19.27.4.1 through 19.27.4.39).
    This waiver does not revoke or supersede any other waiver 
determination made pursuant to section 102(c) of IIRIRA. Such waivers 
shall remain in full force and effect in accordance with their terms. I 
reserve the authority to execute further waivers from time to time as I 
may determine to be necessary under section 102 of IIRIRA.

Markwayne Mullin,
Secretary of Homeland Security.
[FR Doc. 2026-20233 Filed 10-1-26; 8:45 am]
BILLING CODE 9111-14-P


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