New Mexico's newly militarized border results in jammed courtrooms, legal questions

The new Trump administration border control tactic of charging certain offenders with additional “novel” immigration-related crimes slammed federal court dockets in Las Cruces this week, while also spurring legal questions.

Swamped with dozens of cases of individuals charged with entering a newly created “national defense area” at the U.S.-Mexico border in New Mexico, the chief federal magistrate judge in Las Cruces filed an order Thursday asking the U.S. Attorney’s Office and defense counsel to explain what evidence is needed to find a defendant guilty.

For instance, would a defendant need to know that the property he or she entered is military property? Does the defendant need to know that the military property was restricted to entry?

President Donald Trump issued a memorandum in April that authorized military control of a 60-foot-wide strip of federal land along the southern border of New Mexico called the Roosevelt Reservation.

The narrow 170-mile corridor is now considered an extension of U.S. Army Garrison Fort Huachuca in southeastern Arizona.

The corridor “is subject to enhanced military patrols and surveillance, with U.S. troops authorized to temporarily detain and transfer individuals to federal law enforcement for prosecution,” said a statement issued Thursday by U.S. Attorney for New Mexico Ryan Ellison, an Alamogordo native sworn into office April 18.

But whether those crossing into the zone over the past week knew they would be subject to additional criminal charges wasn’t so clear.

The criminal complaints filed in the cases state that “signs were posted along the NM National Defense Areas stating in both English and Spanish that this is a restricted area.” However, the complaints don’t say how many signs were posted or their size or spacing.

More than 80 people were charged with the misdemeanor offenses of violating security regulations and entering military property on Monday in Las Cruces, and more than 60 defendants packed a courtroom Friday morning to be arraigned, with most facing the new immigration-related charges.

Trump’s action has left defense attorneys and a federal judge uncertain how to respond to the new prosecution strategy.

“It just came up this week,” said Jessica Insurriaga, an Anthony attorney who represents clients in immigration cases. “We’ll probably know more in the next week or so.”

Prosecutors “obviously are just trying to get additional charges” in immigration cases, Insurriaga said. “My thought is they are going to try and detain as they do everybody, but, honestly, I don’t know.”

The U.S. Attorney’s Office said in the statement Thursday that it had charged 82 people with “unauthorized entry into the newly-designated National Defense Area” along New Mexico’s southern border.

“The charges mark the first large-scale use of a novel criminal statute targeting unauthorized entry onto federally protected military defense property,” the statement said.

Chief U.S. Magistrate Judge Gregory B. Wormuth on Thursday ordered federal prosecutors to demonstrate how people charged with entering a “national defense area” are alerted that they are entering an area under military control.

The order asks prosecutors to “establish that a defendant possesses the requisite mens rea,” or a knowledge of wrongdoing, required for any criminal prosecution.

“The scarcity of caselaw relating to these offenses, particularly given the unprecedented nature of prosecuting such offenses in this factual context, leaves the Court unclear about the mens rea standard as applied in these cases,” Wormuth wrote in the order.

The U.S. Attorney’s Office did not immediately respond Friday to the Journal’s request for a response to Wormuth’s order.

The apprehensions are being made by Border Patrol agents from the Santa Teresa Border Patrol Station, federal court records show.

Trump’s action allows federal prosecutors to charge migrants detained in the corridor with three misdemeanor charges for entry into a military property.

Court records show that dozens of people apprehended in the new Roosevelt Reservation have been charged with three federal misdemeanors. They are:

• Entry or attempted entry by an alien of the United States — a charge long used in immigration cases.
• Penalty for violation of security regulations and orders, described as a “Title 50” violation of defense property regulations.
• Entering military, naval or coast guard property.

“The newly filed Title 50 charges carry potential penalties of up to one year in prison, supplementing existing immigration-related offenses,” Ellison’s statement said.

The action is intended “to gain 100% operational control of New Mexico’s 170-mile border with Mexico,” Ellison said.