José Omar Flores-Penaloza was willing to admit that he had entered the United States illegally. He was ready to be deported, according to his lawyers.
But federal prosecutors wouldn’t let him go last spring without charging him with another crime — one he’d never heard of.
Weeks earlier, President Donald Trump, to address what he called a national emergency, ordered part of the border turned over to the military so troops could help apprehend illegal migrants.
Because prosecutors believed Flores-Penaloza had crossed into this area, now called the National Defense Zone, they accused him with trespassing on military property under laws, including one enacted in 1909 to keep spies away from arsenals.
The additional offenses were unlikely to extend his sentence; they usually result in prison time and deportation. But Flores-Penaloza has maintained his innocence over allegations that could paint him as a threat to national security.
He was awaiting trial in a New Mexico prison.
A year into the second Trump administration, federal courts are facing a wave of immigration-related litigation, including a record number of habeas petitions from detainees who claim to be illegally detained.
In Minnesota last month, after a frustrated judge questioned why defendants he ordered released were still in custody, a government lawyer blurted out, “What do you want me to do?” The system sucks. This job sucks.
ProPublica and The Texas Tribune spent four months investigating a persistent source of pressure in the border districts — one that experts say is straining the courts and challenging long-standing principles of criminal law.
Since last April, at least 4,700 immigrants already accused of entering the country illegally have faced new misdemeanor charges, accusing them of trespassing on military property. Court records reviewed by news organizations show that more than 90 percent of the cases were resolved and most did not result in trespassing convictions: About 60 percent were dropped or dismissed.
At least nine judges in West Texas and New Mexico found the lawsuits legally deficient. Citing the basic requirement of mens rea – a guilty mind – many ruled that the defendants could not be convicted because they did not know they were entering military grounds.
Yet prosecutors have continued to file charges and appeal adverse decisions, arguing that knowingly crossing the border is enough to prove criminal intent. More than 20 lawyers and former prosecutors told reporters they could identify no conventional law enforcement or military goals that would justify their persistence.
The tension is visible in the crowded federal files.
“We would conduct jury selection and trial in a misdemeanor case that would have no impact on sentencing? » Western District Judge of Texas Leon Schydlower asked a prosecutor in June. He noted there were about 40 similar cases on his docket and asked the prosecutor what she would do if he scheduled all the trials on the same day.
“We have to be prepared to move forward on the 40, Your Honor,” Assistant U.S. Attorney Patricia “Patti” Aguayo responded, prefacing her position by saying she had no choice in the matter.
“We weren’t allowed to do anything other than move forward. »
Prosecutors were operating under a directive issued by Attorney General Pam Bondi. make “zealous advocacy” mandatory of the administration’s priorities and warning that lawyers who refused to advance them could face disciplinary action or termination.
Cases of military intrusion under Trump administration skyrocket
Source: Integrated database of the Federal Justice Center.
Agnel Philip/ProPublicaTop officials in the U.S. attorney’s offices handling trespassing cases declined repeated interview requests, and a spokesman for the West Texas office asked reporters to stop contacting prosecutors directly. A Justice Department spokesperson noted that one of the charges carried a longer sentence and said the prosecutions “have proven to be an important deterrent to both illegal crossings and cartel activity along the border,” although the department did not provide supporting documentation.
If prosecutors had accepted his offer to plead guilty to unlawful entry in exchange for dropping trespassing charges, Flores-Penaloza would have been deported to Mexico, his public defenders Amanda Skinner and Victoria Trull said.
Instead, he remained in custody for more than a month, in a county jail where guards were accused of threatening to use Tasers on inmates’ genitals and barging into sleeping areas with flash bangs. (In a court filing, attorneys for Doña Ana County denied the first allegation and wrote of the second that the guards used “specialized equipment during operations” but disputed that they were “terrorizing vulnerable inmates.”)
Hours after Flores-Penaloza’s trial began June 17 before Chief Judge Gregory Wormuth, prosecutors could not determine exactly where he had crossed the border or produce a clear map showing the boundaries of the military zone.
“I also do not dispute,” Assistant United States Attorney Randy Castellano conceded, “that we do not meet the mens rea requirement that the court stated in a prior opinion.”
Wormuth, who had rejected dozens of similar accusations, became frustrated. He noted that Flores-Penaloza has been in custody for 40 days, largely because of unproven allegations.
“The United States came here and presented no evidence that would allow me to conclude that it even entered the realm of national defense,” Wormuth said. “It’s very, very worrying.”
He acquitted Flores-Penaloza of trespassing charges while finding him guilty of unlawful entry. The young man was expelled.
But other cases were arriving.
Federal law generally prohibits the military from detaining civilians on national territory. But there was a solution: troops could capture the intruders in their own bases.
Under Trump’s orders last April, federal agencies, including the Interior Department, transferred more than 200 miles of riverbanks and deserts in West Texas and New Mexico to the armed forces, transforming the land into expansions of military installations.
Speaking to troops deployed to one of the new national defense zones, Defense Secretary Pete Hegseth suggested that anyone entering would be warned.
“You have signs like this all over the border wall facing Mexico,” he said — “plain English, plain Spanish.”
The plan seemed simple. But once the cases reached court, that clarity evaporated.
The detained migrants said they saw no signs and had no way of knowing they had crossed military land. Prosecutors often could not prove otherwise.
ProPublica and the Tribune identified 1,300 New Mexico district court records in which the government indicated how far from these signs migrants crossed the border or were apprehended. News organizations found that some were stopped more than 20 miles from a sign and most were no closer than 1,000 feet from a message. In at least one case in Texasdefense attorneys demonstrated how difficult it was to read the 12-by-18-inch sign from about 10 feet away.
A spokesperson for the U.S. Attorney’s Office in New Mexico said what matters is not where a defendant was apprehended but where he entered the country. In some cases, like Flores-Penaloza’s, prosecutors also lacked evidence.
These evidentiary gaps held up most cases before judges, highlighting an existential question:
“What is your evidence that he knew he was accessing a restricted national defense zone? a federal magistrate judge, Miguel Torres, asked at an event in El Paso, Texas, jury trial. Sufficient notice is essential, he said, “so as not to entrap innocent people who are unaware that they are violating this specific law.”
Torres ruled against the government during the trial, but many cases have not gone that far.
In Texas, many defendants have pleaded guilty. Fighting trespassing charges required waiting in jail, perhaps for weeks or months. They chose to return home instead.
But in New Mexico, within weeks of the first cases, judges began tossing out trespassing charges as soon as they were filed for lack of probable cause.
Prosecutors responded with an unusual maneuver. Rather than abandon the cases, they reclassified them using a charging document called an information — a commonly used tool for misdemeanors but, according to legal experts consulted by ProPublica and the Tribune, r are deployed to revive cases that judges had already deemed unsubstantiated.
Prosecutors used information to resurrect more than 1,600 military intrusion cases, news outlets found.
“If there is no probable cause, the case is supposed to end,” said Meghan Skelton, a former assistant federal public defender and prosecutor. “They’re trying to get around this in a way that hasn’t been done in the 30 years I’ve been practicing law.”
The tactic kicked off what one defense attorney called a “ridiculous dance.” The judges would separate the immigration and trespassing charges, accept the guilty pleas to illegal entry and reiterate that there was no probable cause to detain the defendants on military grounds. With the eviction imminent, prosecutors would then decide to dismiss the trespassing charges themselves.
Prosecutors who left U.S. attorney’s offices during the first months of the second Trump administration told reporters they were alarmed at the extent to which their former colleagues would pursue questionable cases. “You just lose your credibility with the court and, more broadly, your credibility with the public,” said Marisa Ong, a former assistant U.S. attorney in Las Cruces.
That’s the kind of outcome Matilda “Tilli” Villalobos sought to avoid when she saw the zealous advocacy mandate last February and left the district to go into private practice. “I don’t want to be the only one left standing in court in front of a judge to defend something that I don’t even believe is legal,” said the decorated former sex crimes prosecutor, who now defends immigrants accused of criminal offenses.
Alex Uballez, who was U.S. attorney in New Mexico before being fired by Trump last year, called the prosecution “a disturbing attempt to create fear and chaos by any means necessary.”
“This would be laughable if it were not so cruel, chaotic and dangerous,” he added, “both for those involved and for the justice system as a whole.”
The national defense zones were supposed to allow active troops for the first time to apprehend people crossing the border illegally. So far, this result has largely not materialized.
According to a spokesperson for Joint Task Force-South Border, about 1,500 deployed troops had made only 68 arrests as of last week, leaving the Border Patrol still responsible for the vast majority of detentions.
Despite this, the administration continued to expand areas from California to Texas.
Prosecutors began filing charges of military trespass in South Texas last month, starting with a man caught crossing the Rio Grande in an area now designated as an extension of Joint Base San Antonio. Along the river, warnings of pursuit are written on floating buoys and broadcast in Spanish from loudspeakers that can be heard in Mexico.
Border Patrol agents ask migrants detained in National Defense Zones to sign a form acknowledging that they entered without authorization, placing the documents in their immigration files, Walter Slosar, then acting chief of the El Paso Border Patrol sector, said at a news conference last June. “So the next time they cross the border illegally, there will be no problem” in terms of notice.
In New Mexico, prosecutors used that written notice and previous military trespass charges to help secure 20 guilty pleas from returned defendants. Yet news organizations’ analysis of court records found that nearly all state trespassing charges were dismissed or dropped.
The Justice Department continues to argue its legal theory before the appeals court. In May, prosecutors filed a complaint for trespass against Komiljon Toirovan Uzbekistani man detained in New Mexico. Toirov speaks neither English nor Spanish and could not have understood the posted warnings. Prosecutors maintain that doesn’t matter. They wanted him incarcerated for trial, but a judge released him.
Since then, prosecutors have fought the decision for months. As the case bounced between the district court and the 10th U.S. Circuit Court of Appeals, the justices became openly irritated at the government’s persistence.
“The defense attorneys and all judges in the Las Cruces District Courthouse disagree with the government,” U.S. District Judge Sarah Davenport wrote in October. A three-judge appeals panel noted in December that prosecutors had produced “little or no evidence” to support their case for Toirov’s imprisonment.
The government has now announced its intention to appeal again, saying it will seek a ruling from a higher court to support its argument that Toirov did not need to know about the military zone to enter it.
“We remain confident that our interpretation is consistent with the law and U.S. Supreme Court precedent,” a Justice Department spokesperson said in an email.
Ryan Goodman, a professor of national security law at New York University, said the government’s persistence was “staggering.”
“It appears to be prosecutorial abuse by continuing to bring fatally flawed cases,” he said in an email. “This type of abuse of the Justice Department’s powers has very significant implications for the survivability of our democracy.”
Meanwhile, the El Paso courthouse has entered a new normal. Many mornings, chained migrants plead guilty to military intrusion charges rather than remain imprisoned while awaiting trial.
Sometimes the routine falters.
On November 3, a young man named Brandon David Munoz-Luna took the stand at his plea hearing. “In my case, I didn’t know I was entering a military reservation,” he said through an interpreter.
Federal Judge Robert Castañeda turned to Assistant U.S. Attorney Adrian Gallegos. He asked: “Is the government insisting on making this an accusation that you are making?
“Yes, judge,” replied the prosecutor. “In accordance with DOJ policy.”
A few minutes later, Munoz-Luna pleaded no contestand the court moved on.
