DHS Waiver Justification
DHS claims Big Bend is an “area of high illegal entry.” The actual data tells a very different story.
The Waiver
On February 17, 2026, the Department of Homeland Security issued a Notice of Determination for border wall construction along the Rio Grande from Fort Quitman to Colorado Canyon in the Texas Big Bend. The Determination waived every applicable cultural and environmental law including the National Environmental Policy Act, the National Historic Preservation Act, and the Native American Graves and Repatriation Act, among many others.
The Justification
The justification for bypassing these laws is data on illegal immigration. The Notice of Determination states:
“The United States Border Patrol Big Bend Sector is an area of high illegal entry. Between fiscal year 2021 and fiscal year 2025, Border Patrol apprehended over 89,000 illegal aliens attempting to enter the United States between border crossings in the Big Bend Sector.”
The Actual Numbers
While the claim is technically correct, it is rhetorically misleading since it aggregates a two-year surge period (FY2021–FY2022) with three years of steep declines (FY2023–FY2025).
| Fiscal Year | Encounters |
|---|---|
| FY2021 | 37,359 |
| FY2022 | 31,948 |
| FY2023 | 11,823 |
| FY2024 | 4,921 |
| FY2025 | 3,096 |
| Total | 89,147 |
- 77% of that five-year total occurred in just two years (FY2021–FY2022)
- From FY2021 to FY2025, encounters declined every single year — a total decline of 92%
- FY2025 levels are less than one-tenth of FY2021 levels
Characterizing the sector as an “area of high illegal entry” based on a five-year cumulative number obscures the steep and sustained decline in FY2023–FY2025 and does not accurately reflect current enforcement conditions.
How Does Big Bend Compare With Other Texas Sectors?
The Big Bend Sector is the largest by size but the smallest by number of encounters of all Texas border patrol sectors. When compared to adjacent Texas sectors (Del Rio, El Paso, Rio Grande Valley), Big Bend consistently has the lowest number of encounters.
All sectors show the same pattern: a surge around FY2021–FY2023 followed by a sharp multi-year decline. By FY2025, Big Bend is at roughly 8% of its FY2021 level.
The Big Bend Sector spans approximately 517 miles. With FY2025 total encounters of 3,096, that equates to roughly 6 encounters per mile per year.
What Caused the FY2021–23 Surge?
The FY2021–23 surge was primarily a consequence of:
- Title 42 expulsions during the COVID-19 pandemic — removals without review that carried no consequences, causing repeat crossings that inflated encounter numbers rather than indicating a true immigration surge
- Regional instability in Central and South America (Honduras, Guatemala, Nicaragua, Venezuela) and Cuba
- Post-pandemic labor shortages, especially in construction and agriculture
When Title 42 ended in May 2023, Title 8 consequences resumed, causing repeat crossings to slow dramatically. New legal pathways and asylum processing diverted flow into normal channels. Mexico also increased enforcement of its southern border. The FY2021–23 surge was distorted by the pandemic, influenced by Title 42, and was hemisphere-wide—distinct from traditional Mexican labor migration.
Conclusion
The current trajectory demonstrates sustained multi-year reductions with no evidence of a present escalating trend. Border policy should be grounded in current trends rather than aggregation that masks substantial decline.
Far from “an acute and immediate need to construct additional physical barriers,” there is a more urgent need for sensible border solutions.
Sources
- CBP Data: Nationwide Encounters by Area of Responsibility (FY2020–FY2025)
- DHS Waiver: Federal Register, Notice of Determination, February 13, 2026
- Title 42: Title 42 Expulsions
- Immigration Policy: Migration Policy Institute