by Reyes Mata III, Maria Sacchetti, Dan Lamothe (c) 2025 , The Washington Post
LAS CRUCES, N.M. – The swift expansion of the Trump administration’s new “national defense areas” on the southern border – enabling U.S. troops to detain migrants so that prosecutors can charge them with trespassing on military property – is sowing confusion among defendants, their lawyers and judges, one of whom called the move “unprecedented.”
The Defense Department in recent days has taken control of most of the southern boundary of New Mexico as well as part of the border in West Texas, transforming a 60-foot-wide strip of borderland into a military zone and warning that anyone who enters it risks criminal charges. More than 200 migrants have been charged with at least two crimes, for unauthorized entry into the United States and a military installation. Some also face an additional charge.
Defense Secretary Pete Hegseth announced the expanded prosecutions in April during a visit to New Mexico as part of the Trump administration’s quest to obtain “100 percent” operational control of the border, where illegal crossings have plunged since Inauguration Day. But defense lawyers say the criminal charges are excessive, because most migrants were unaware that the rugged and remote terrain they stumbled into had recently been transformed into military territory.
Defense lawyers said it is unclear whether migrants could even see the warning signs Hegseth said would be posted in English and Spanish. “People have no idea they are committing this new offense,” Rosanne Camunez, a defense attorney, said in an interview Friday as dozens of migrants appeared in court in Las Cruces to face the new criminal charges.
The military-related charges are so unusual that Chief Magistrate Judge Gregory B. Wormuth in New Mexico ordered government lawyers last week to submit a brief explaining, in their view, the legal standards required to convict someone of trespassing on military property. “As with all criminal offenses, the government must establish that a defendant possesses the requisite mens rea,” Wormuth wrote in his order Thursday, referring to the Latin term for the defendant’s state of mind and the requirement for most federal crimes that prosecutors prove the defendant intended to break the law. “The scarcity of case law 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.”
In his order, Wormuth asked whether, to be found guilty, defendants must have known that the property they trespassed on is under military control and restricted from the public and that the migrants intended to violate the rules anyway. In a response Monday, U.S. Attorney Ryan Ellison in New Mexico said that anyone who crosses into the border zone is “now unlawfully entering both the United States and a restricted military area.”
His office vowed in a news release last week to prosecute the cases aggressively, and said the effort is the “first large-scale use of a novel criminal statute” targeting undocumented immigrants. “Trespassers into the National Defense Area will be Federally prosecuted – no exceptions,” Ellison said in a statement last week.
Migrants who slip over the border have been at risk of facing criminal charges for years, mainly for illegally entering the United States, a minor crime under Title 8, which governs federal immigration laws. With the expanded military zone, Ellison wrote, migrants are being charged with entering military property in violation of an Army security regulation under Title 50, the national defense and intelligence code. They also might face charges for violating part of Title 18, the federal criminal code, which makes it unlawful to enter a military property “for any purpose prohibited by law or lawful regulation.”
Some have been charged with all three offenses. All are misdemeanors, but the military charges increase the penalties. The Title 50 charge, for instance, carries up to a year in custody and $100,000 in fines, while the more traditional illegal entry charge under Title 8, which governs immigration laws, has a penalty of up to six months in jail and up to $5,000 in fines. The Title 18 charge is punishable by up to six months in jail.
Ellison wrote that a defendant is guilty of violating the Title 50 Army security regulation if they enter the military zone through an area that is “not a designated port of entry – and knows that such conduct is unlawful.” Separately, a person may be guilty of violating the Title 18 section if they crossed into the zone for the purpose of sneaking into the United States, an additional violation of law. Ellison said someone may be found guilty whether they saw the posted warning signs or not. Nonetheless, he wrote that the government has posted 199 signs along New Mexico’s southern border in English and Spanish alerting people not to enter the area, which he described in court records as “difficult and unforgiving desert and mountainous terrain.”
The signs say that the area is restricted Defense Department property and that all people who enter may be detained and searched. The signs also forbid unauthorized photography, note-taking or mapmaking of the area. The signs do not warn people that they could be prosecuted for trespassing. Defense officials referred questions about the signs and the prosecutions to the Justice Department, which did not respond to inquiries.
Ellison also did not respond to requests for comment. Migrants charged with the offenses have told law enforcement they are from mostly Spanish-speaking countries, including Cuba, the Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Mexico and Venezuela. But some were from Turkey, where the main language is Turkish, and Pakistan, where the official language is Urdu.
In U.S. District Court in Las Cruces on Friday, there was great confusion as about 100 migrants were escorted into Wormuth’s court to face the new charges. Most defendants were weary-looking young men, with metal shackles around their hands, waist and feet. They sat quietly on wooden benches wearing jail garb and slippers and listened to simultaneous translations of the legal proceedings through court-issued headphones. Some did not have attorneys yet.
One man said he had epilepsy and needed medication. “I know we are in court. But if I can get my medication, I would be very grateful to you,” the man told Wormuth, who said there was a process to ensure he could get his medicine. Migrants charged with the traditional crime of crossing the border historically have been recent arrivals who quickly plead guilty, are sentenced to time served and deported. But in court Friday, defense lawyers said the military-related charges were too murky to enter guilty pleas so quickly.
“They may have known they were coming in illegally, but did they know they were in a prohibited military area?” Camunez, a defense attorney for some of the migrants charged in recent days, said in the interview Friday. “For any criminal charge, it has to be shown that they knew.” She noted that many migrants don’t speak English or Spanish – so the signs might not be effective. “People come from many different countries,” Camunez said. “So, what about non-Spanish speakers? … And what about those who do not know how to read?”
Amanda Skinner, an assistant federal public defender, asked Wormuth during a hearing Friday to require prosecutors to provide “photos and visuals” of the “no trespassing” signs in the areas where the migrants allegedly broke the law. “Where are they? And where was the client?” Skinner said in an interview after the hearing.
Ramon Hernandez, another defense attorney, said his clients also did not know about the new border buffer zone. “It strikes all of us as odd,” Hernandez said. “This is out of nowhere. People have to actually know they are doing something illegal.” The confusion comes despite Trump administration officials having pondered adoption of the national defense areas for months.
In March, defense officials familiar with the plan, first reported by The Washington Post, said discussion of it already involved the White House and went back weeks. The Trump administration announced in April that it would adopt the first national defense area in southern New Mexico, running parallel to the Mexican border. It was implemented on federal land known as the Roosevelt Reservation that had been controlled by the Interior Department and was turned over to Defense. The Pentagon created a second national defense area last week that stretches southeast roughly 55 miles from El Paso to Fort Hancock in Texas.
That strip of land, known as the Texas National Defense Area, has gaps in it because of private land ownership, two defense officials familiar with the process said, speaking on the condition of anonymity because of the sensitivity of the issue. Kenneth Del Valle, one of the defense attorneys, said creating a 60-foot-wide military zone to file additional criminal charges against migrants seemed illogical. “What happens if [a migrant] makes it to 61 feet?” he said, noting that they would no longer be on military property at that distance but would still be inside the United States. “It’s stupid,” he said. “Just stupid.” Del Valle said it added to his frustrations about the military buildup along the southern border. “I don’t like the Army participating in civilian matters,” he said.
“What if they declared your backyard was a military base tomorrow, and from one day to the next you’d have soldiers there?” Defense officials have said that the administration is considering adopting similar national defense areas that would stretch all the way from El Paso to the Pacific Ocean.
It’s not yet clear whether they will choose to do so, or whether the recent legal issues have complicated their thinking. – – – Sacchetti and Lamothe reported from Washington. Aaron Schaffer and Jeremy Roebuck contributed to this report.
