An effort by the Trump administration to arrest undocumented migrants for trespassing on a newly declared “national defense” zone along New Mexico’s border with Mexico may be unraveling after a federal judge this week began dismissing charges against nearly 100 migrants arrested under the new tactic.
The order from a federal magistrate judge, Gregory B. Wormuth, added to the confusion and legal turmoil that have gripped New Mexico in the month since President Trump declared a ribbon of land along the 180-mile length of the state’s southern border to be an Army base.
Around 400 migrants had been charged with willfully violating security regulations — misdemeanor charges that can carry up to a year in jail. The arrests, which Defense Secretary Pete Hegseth was praising just last Friday, had swamped local jails and every day brought dozens of shackled migrants into a federal courtroom to face the novel charges.
“When you cross illegally, you will be prosecuted to the fullest extent of the law,” Mr. Hegseth said in a social-media message.
But Judge Wormuth, a former federal prosecutor, said the federal government had failed to show that the migrants actually knew they were unlawfully entering a restricted military area. He has dismissed charges against 98 migrants so far as he works through the docket.
“The United States provides no facts from which one could reasonably conclude that the Defendant knew he was entering” the New Mexico National Defense Area, the newly declared military installation, Judge Wormuth ruled.
Defense lawyers said some migrants were arrested before the government put up signs warning that the area was restricted, lawyers said. Others crossed between signs, arrived exhausted in the dark or were unable to read the warnings, lawyers said.
“It’s just a bunch of desert,” said Carlos Ibarra, a defense lawyer. “They’re just coming over the same as usual, and all of a sudden, it’s military charges. Nobody knows what’s going on.”
Judge Wormuth appeared to agree, dismissing many of the charges in a flurry of orders issued late on Wednesday. Nearly identical charges against hundreds of other migrants could also soon be thrown out, given what the judge described as the prosecution’s “cut-and-paste approach to factual allegations.”
The migrants still face misdemeanor charges of entering the United States illegally, and are likely to face deportation. They are all being held without bond. Federal prosecutors also have the option of appealing the judge’s dismissal or filing the charges again, with additional facts to make a case that the migrants had willfully trespassed when they crossed the border and stepped onto a 60-foot-wide strip of federal land known as the Roosevelt Reservation.
“If the government has the evidence to support the charges, they’re welcome to refile,” said Amanda Skinner, an assistant federal defender who filed a brief last week challenging the charges. “We’ve been convinced there was no probable cause.”
The U.S. attorney’s office in New Mexico and the Justice Department did not immediately respond to requests for comment on the dismissals.
The judge’s ruling did not address the larger questions that have swirled through the heavily Democratic state of New Mexico since the Trump administration began expanding its legal powers and military presence on the southwestern border.
Since the new military area was established, volunteers who scour the desert for the remains of perished migrants have started to worry that they could be arrested. Hikers determined to traverse the storied, 3,100-mile Continental Divide Trail to Canada face legal uncertainties, since their trek begins or ends at the border. Hunters who frequent the wide-open public lands in the area are worried about running into active-duty troops when they are out stalking quail or white-tailed deer.
“Imagine me hunting in the mountains, and some Army guys see me in camouflage with a gun,” said Ray Trejo, a Democratic commissioner of Luna County, which sits along the border. “The administration didn’t think this through.”
The military zone has drawn praise from conservative farmers and politicians in the area, who credit the president with restoring calm. State Senator Anthony Thornton, a Republican from outside Albuquerque, hailed Mr. Trump’s military maneuvers as a “brilliant solution” to fight drug trafficking and human smuggling.
While active-duty troops have the power to detain migrants on military land, they have largely been providing support and surveillance to help Border Patrol agents make arrests.
Maj. Geoffrey A. Carmichael, a spokesman for the Joint Task Force Southern Border, said military personnel had not detained anyone so far in the administration’s newly declared “national defense areas” along the southern border. He said they had helped detect more than 150 “unauthorized trespassers.”
Still, critics said they were uneasy about thousands of active-duty troops and armored combat vehicles patrolling American soil so close to home.
“It’s beginning to feel like an occupation,” said Sarah Silva, a Democratic state representative from Las Cruces. “It’s putting people on edge.”
In April, the Trump administration declared the border strip would be treated as an extension of the Fort Huachuca Army base in eastern Arizona.
But the Army has ended up taking jurisdiction over at least 170 square miles of public lands — far more than some in New Mexico had anticipated. At some points, the new defense area appears to stretch three miles into the United States, far exceeding the original 60-foot corridor, according to estimates from local officials.
The federal government recently added to that footprint by creating a second military installation that extends 50 miles from Fort Bliss in El Paso.
Local officials said they were still unsure where the military’s authority now began and ended in the unmarked vastness of the Southwest’s open, public spaces.
“What is the current public access status of the lands?” Senator Martin Heinrich, a New Mexico Democrat, asked in a letter to Mr. Hegseth on Wednesday. “Are these areas now closed to public entry, or are they still accessible to U.S. citizens?”
The Bureau of Land Management has said it would work with the Army to allow miners or farmers with grazing leases to continue using the land. But Major Carmichael said that recreational users like hunters and hikers were no longer allowed, and humanitarian aid groups could not operate without permission.
The federal government has started to mark the area by planting “Restricted Area” signs every few hundred feet near the border. The signs, in Spanish and English, warn people that they could be stopped and searched, and forbid photography and note taking.
But most of the signs face only one way: toward the border, in the direction of arriving migrants. They were not readily visible to anyone coming from the north. A popular mapping and navigation app used by hunters, called OnX, still marks the area as being part of the Bureau of Land Management, not the Defense Department.
Outside the tiny border village of Columbus, James Johnson, whose family has farmed the area for a century, said he supported Mr. Trump’s immigration crackdown and the surge of personnel to the area. Migrants crossing his land have pulled down fences and broken pipes to find water, he said. Now the area feels more secure.
“I haven’t seen much of a military presence,” he said, adding, “but the Border Patrol is actually doing what they’re supposed to be doing, patrolling the border.”
So far, no American citizens appear to have been arrested and charged with trespassing in the military areas.
But the federal court in Las Cruces, which handles border-related offenses, had been inundated with undocumented defendants before the judge began dismissing cases. While border crossings are down sharply, public defenders said the legal system in New Mexico was facing an onslaught of cases because federal prosecutors were criminally charging nearly every person apprehended along the border rather than turning them back to Mexico.
The authorities were having trouble finding enough jail beds, defense lawyers said — an issue not likely to be immediately resolved despite the judge’s dismissal of some of the trespassing charges.
Jack Healy is a Phoenix-based national correspondent who focuses on the fast-changing politics and climate of the Southwest. He has worked in Iraq and Afghanistan and is a graduate of the University of Missouri’s journalism school.
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