McALLEN, Texas (Border Report) — Although President-elect Joe Biden has promised not to build more border wall along the Southwest border, Congress recently funded an additional $1.375 billion for border wall construction. But a South Texas congressman who sits on the House Appropriations Committee told Border Report on Monday that the Biden administration doesn’t have to use the money for wall construction this year and can funnel it for other border security methods.

U.S. Rep. Henry Cuellar, a Democrat from Laredo who is vice chairman of the House Appropriations Homeland Security Subcommittee, said Democrats in the House had initially put “zero dollars for the border wall” in the fiscal year 2021 spending package. But he said that didn’t fly with Senate Republicans and White House officials who ultimately compromised with House leaders to allocate $1.375 billion for a “barrier system.”

This is the same amount of funds that were appropriated in the past three fiscal budgets, including in FY 2019, when a fight over the border wall led to a 35-day federal government shutdown.

However, the $1.4 trillion Omnibus spending bill, which was passed in the last days of 2020 and signed by President Donald Trump, does not mention the word “wall.” Therefore, Cuellar says once Biden takes over he can redirect the funds.

“There is no definition of ‘barrier systems’ and, therefore, the Biden administration can use that for so many options,” Cuellar told Border Report via phone on Monday from Washington, D.C. “It could be used for technology, for roads, for lighting along the border, it can replace older existing fencing so therefore we don’t have to go w the new fence. It gives the administration a lot of leeway.”

Cuellar, who on Sunday was sworn in for his ninth term in Congress, said he was not happy with the inclusion of these funds. But he reiterated his support for border security, especially the use of technology and special cameras, which cost about $1 million per mile to install, as opposed to $26 million per mile (and upwards of $41 million per mile in some places in Arizona) to build 30-foot-tall metal bollard fencing.

He isn’t alone in expressing disappointment for the funding.

U.S. Rep. Lucille Roybal-Allard, who chairs the House Appropriations Homeland Security Subcommittee, wrote in a Dec. 21 memo to lawmakers: “We pushed back hard against this funding, and it was one of the last things resolved in our bill. The White House made clear to leadership, however, that if the omnibus did not include this funding level and reference the, ‘construction of border barrier system’ purpose from the FY20 bill, there would be no omnibus.”

“That could have led to a government shutdown right before Christmas and could also have put in jeopardy the coronavirus pandemic funding,” she wrote.

But missing from the measure is language “requiring that the funding be used for the Border Patrol’s highest priority areas for new border wall construction, which would have significantly tied President Biden’s hands,” Roybal-Allard, a Democrat from California, wrote.

Even if Trump obligates all of the $1.375 billion for new border wall before Jan. 21, “Biden will be able to cancel those contracts with little loss of funding since the contracts will have been signed so recently and the federal government has wide discretion to cancel contracts for convenience,” she wrote.

Once Biden takes office on Jan. 20, he can do the following with any unspent funds:

• Ask Congress to rescind and re-appropriate the remaining funds for another purpose at U.S. Customs and Border Protection or other agencies within the Department of Homeland Security.
• If he doesn’t reassign the funds, it must be used for “barrier system” which could include technology, roads and lighting for already built wall areas; and/or to replace existing fencing.

The spending bill also stipulated that border wall exemptions would remain for several historic locations in South Texas, including: the Santa Ana Wildlife Refuge, Bentsen-Rio Grande Valley State Park, La Lomita Historic Chapel, the National Butterfly Center, the Lower Rio Grande National Wildlife Refuge and historical cemeteries.

The Omnibus spending bill also includes $61 million to fund an additional 100 immigration judges and courts, however currently there is a dispute with Executive Office for Immigration Review Director James McHenry over whether that funding is adequate or too much, Cuellar said.

“There is a disagreement between us, the appropriators, and him,” Cuellar said. “But we still made the request for 100 judges.”

Currently, there is a backlog of over 1.2 million immigration cases and Congress for the past few years has put aside funds to add hundreds of new immigration judges and their staff. But the hiring has been slow and there has been a lack of court space to house everyone. Cuellar said they put in this bill provisions to lease more courtroom space and are working out the discrepancies with McHenry’s office.

In October, EOIR announced the hiring of 20 new immigration judges, bringing the total to 520, and said that the agency had expanded by 20% since 2017. Nevertheless, migrant advocates say the court system is woefully backed up and the average wait time is three years for cases to be completed.