Hundreds of migrants arrested after entering military area at NM border

Another 209 people were arrested last week in southern New Mexico after entering the newly established New Mexico National Defense Area along the U.S.-Mexico border. Where they end up could soon be decided by the state’s chief U.S. Magistrate judge.

Traditionally, individuals would face illegal entry charges, but now they are also subject to additional charges of entering a restricted military area and violating a defense property security regulation as part of the Trump administration’s enhanced immigration enforcement. That means up to an additional 18 months of incarceration, if convicted of the two misdemeanors.

“To allow this novel charging theory runs the risk of supporting the Government’s attempt to strike a foul blow against undocumented immigrants,” wrote assistant federal public defender Amanda Skinner, of the Federal Public Defender’s Office in New Mexico, in a filing last week in U.S. District Court in New Mexico.

The U.S. Attorney’s Office in New Mexico has contended that it doesn’t matter if an individual knew he or she was entering a prohibited military zone, as long as the person understood he or she were crossing illegally into the United States. A USAO spokesperson would not say where the 209 migrants are being detained as they await resolution of their cases.

“Most aliens who enter the District of New Mexico from Mexico through an area that is not a designated port of entry ... and thereby enter the (restricted military area) without authorization — are not ‘engaged in apparently innocent conduct,’” federal prosecutors wrote in a May 5 court filing.

Typically, unless there are other charges, those convicted of the misdemeanor of illegal entry without inspection are given time served and deported.

On April 15, the U.S. Department of Interior transferred to the U.S. Army more than 109,651 acres of federal land along the U.S. border in New Mexico, including a 60-foot-wide strip along the Mexican border in Doña Ana, Luna and Hidalgo counties. That enabled the Secretary of the Army to designate the area as the New Mexico National Defense Area and issue a security regulation to formally prohibit any unauthorized entry onto the land.

In the past several weeks, an estimated 300 or so cases have been filed in New Mexico that have also included the trespassing on military property, including 209 such cases in the week that ended Friday, according to the U.S. Attorney’s Office.

Skinner wrote in her filing that her agency “immediately” brought to the government’s and the court’s attention that the additional charges “are unsupported by probable cause.” On April 30, the federal public defender asked that all such charges be dismissed, but chief U.S. Magistrate Judge Gregory Wormuth of Las Cruces denied the motion.

A day later, Wormuth filed an order asking both sides to detail what proof would be necessary for a conviction on the two misdemeanor charges related to trespassing on military property.

In her filing Thursday, Skinner included a sworn affidavit from an investigator with her agency who toured the defense area May 7 with the U.S. Border Patrol. Investigator Horlando Lopez stated that he saw signs attached to stakes in the ground on the military land, but wasn’t permitted to photograph them or their locations.

The 12-by-18-inch signs warned that the area was restricted military property and that unauthorized entry was prohibited. But the words, in both Spanish and English, were not visible from the border wall, which appeared to be about 20-feet tall, Lopez’s affidavit stated. The signs were spaced about 200 to 300 feet apart from each other and seemed to be more than 60 feet away from the border wall, he added. He said he didn’t see any lighting in the area.

Lopez wrote that it appeared to him that someone could scale the border wall in the space between two signs, walk straight into the desert and never see a sign.

“Considering the placement of the signs, even if a migrant saw and read a sign, he or she would have already crossed through and exited the military land,” Lopez stated.

Skinner wrote that she also toured the area and it was “readily apparent...that the location of the signage is wholly inadequate to inform anyone approaching the alleged military land from either side of the border that they are entering the space prior to entering it.”

She asked Wormuth to hold a hearing so attorneys for both sides “may be questioned as to their positions and to develop a complete record on these emerging and important legal issues.” Absent proof that defendants willfully violated a military regulation and entered military property with a prohibited purpose or with knowledge the entry was prohibited, “this Court cannot allow the Government to continue to prosecute (the military property-related) charges.”

The U.S. Attorney Office says offenders by law don’t need to see posted warning signs or know they were violating the no-trespassing edict in order to be found guilty.

“If an illegal alien enters the U.S. from Mexico without going through a designated port of entry and knows that such conduct is unlawful, then he or she has violated the military regulation, even if he or she never saw a sign designating the area as restricted, never knew he or she was entering military property, was unaware the military had restricted entries onto this property, and didn’t specifically intend to violate the security regulation,” stated the government’s filing.

The government, nonetheless, has posted about 199 signs along the 180-mile border with Mexico, and says placement of the signs “in light of the often difficult and unforgiving desert and mountainous terrain” is “conspicuous and appropriate.” The federal government “is currently working on installing additional signs,” the U.S. Attorney’s Office filing added.