Federal prosecutors score first wins on NM border trespass cases
Jun. 19—The first two migrants convicted of trespassing into the so-called New Mexico National Defense Area this month should have known better.
The two Mexican nationals had previously faced the same "novel" immigration-related trespassing charges just a month ago when they illegally crossed into the U.S. and were arrested by the U.S. Border Patrol in Doña Ana County.
But like dozens of others caught in the Trump administration's new southern border enforcement crackdown, their misdemeanor trespassing charges didn't stick because of legal issues.
So Eduardo Herrera-Juvencio and Andres De Los Santos-Martinez ended up being released from custody and deported back to Mexico, only to illegally cross into the same New Mexico military zone, west of the Santa Teresa port of entry, on June 1.
This time, the defendants' prior prosecutions meant that they had been forewarned, making it more difficult to argue they didn't know they had stepped into the 60-foot-wide buffer zone, which was designated as a military property in mid-April. The U.S. Army assumed authority over a 170-mile-long buffer zone adjacent to the U.S.-Mexico border in New Mexico. A similar zone was created for a 63-mile-long strip in West Texas.
Federal authorities charged the two men with reentry after deportation and the military trespass charges, which carry additional potential prison time of up to a year.
On Thursday, the U.S. Attorney's Office in New Mexico announced the defendants had pleaded guilty to all three misdemeanors.
"These first convictions reflect the resolve of the United States Attorney's Office to do its part in securing our nation's southern border," U.S. Attorney for New Mexico Ryan Ellison said in a statement. "I am tremendously proud of our staff in the Las Cruces branch office, the U.S. Border Patrol and the U.S. military for their relentless efforts to secure our southern border. New Mexico — and the entire country — is more secure because of these efforts."
The men's federal public defenders couldn't be reached, and it wasn't clear from court records on Thursday when they will be sentenced.
Over recent weeks, federal defense attorneys have argued that such prosecutions are flawed because of legal issues over whether migrants knew of the military restriction and whether federal prosecutors had probable cause to charge them.
The rollout of the new federal enforcement strategy on the border has also faced pushback from several U.S. magistrate judges, who have found the military trespass charges defective.
That includes Chief U.S. Magistrate Judge Gregory Wormuth of Las Cruces, who in mid-May began to dismiss such charges in nearly 100 cases where defendants had also been charged with illegal entry, typically a first-time offense. Both De Los Santos-Martinez and Herrera-Juvencio had their military trespass charges dismissed at that time.
In El Paso, in the first trial in such a case, a federal court jury on June 5 acquitted a Peruvian woman of the military trespass charges. But this week, an El Paso federal district court judge found an Ecuadorian man guilty of the trespass charge along with illegal entry.
Since facing scrutiny over whether migrants are adequately warned they are entering a military defense zone on the border, charging documents give greater detail about where the defendant was caught and note that 1,100 warning signs are posted every 100 to 200 meters in the zone in Spanish and English.
In Herrera-Juvencio's case, he had already walked through the defense area before he was captured 1,423 yards north of the international border, court records show. By that time, he was more than three-fourths of a mile from a posted sign, the records show.
His criminal complaint states that after his first arrest on May 7, the U.S. Border Patrol provided him with a written notice in Spanish that any unauthorized entry into the restricted military area was prohibited and subject to federal prosecution. De Los Santos-Martinez also received the same notice after his first arrest, records state. Both men also pleaded guilty to re-entry after deportation.
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