Trump DOJ Pursued Controversial Military Trespass Charges Against Border Crossers

The Trump administration pursued an unprecedented legal strategy of charging migrants with trespassing on military property, even when they were willing to accept deportation for illegal entry into the United States. This tactic, implemented under the direction of Attorney General Pam Bondi, involved designating areas of the southern border as “national defense areas” and applying statutes originally intended to prevent espionage near military installations.

The Flores-Penaloza Case and the Expansion of Military Zones

Jose Omar Flores-Penaloza, willing to admit illegal entry and accept deportation, found himself facing additional misdemeanor charges of trespassing on military property. This occurred after President Trump ordered a stretch of borderland transferred to the military to aid in apprehending migrants. Prosecutors argued that Flores-Penaloza had crossed through this newly designated “national defense area,” triggering the application of a 1909 law designed to protect arsenals from spies. ProPublica and The Texas Tribune jointly investigated this practice, revealing its widespread implementation.

A Surge in Immigration Litigation and Court Backlash

The implementation of this strategy coincided with a surge in immigration-related litigation, including a record number of habeas petitions challenging the legality of detentions. Frustration within the courts became apparent, with one Minnesota judge reportedly expressing exasperation at the government’s continued detention of defendants he had ordered released, stating, “What do you want me to do? The system sucks. This job sucks.”

Widespread Application and Low Conviction Rates

Since April, at least 4,700 immigrants already charged with illegal entry have faced additional misdemeanor counts of trespassing on military property. However, court records indicate that the vast majority of these cases did not result in convictions on the trespass charges. Approximately 60% were dropped or dismissed, and at least nine judges in Texas and New Mexico found the prosecutions legally deficient.

The “Mens Rea” Requirement and Prosecutorial Persistence

Many judges dismissed the cases based on the legal principle of mens rea – a “guilty mind” – arguing that defendants could not be found guilty of trespassing if they were unaware they were on military land. Despite these rulings, prosecutors continued to file charges and appeal adverse decisions, maintaining that knowingly crossing the border constituted sufficient criminal intent. This persistence was questioned by over 20 legal scholars and former prosecutors, who could not identify a legitimate law enforcement or military rationale for the continued pursuit of these cases.

Internal Dissent and DOJ Directives

Prosecutors operating under a directive from Attorney General Bondi were mandated to demonstrate “zealous advocacy” of the administration’s priorities, with warnings of potential discipline or termination for those who declined to comply. Several prosecutors who left the U.S. Attorney’s offices during the second Trump administration expressed concern over the lengths to which their former colleagues were going to pursue these dubious cases.

Limited Impact on Apprehensions and Continued Expansion

Despite the designation of national defense areas, the impact on actual apprehensions by active-duty troops has been minimal. As of last week, approximately 1,500 deployed troops had made only 68 apprehensions, with the Border Patrol remaining responsible for the vast majority of detentions. Nevertheless, the administration continued to expand these zones from California to Texas.

Ongoing Legal Battles and Concerns About Due Process

The Justice Department continues to defend its legal theory in appellate court, even in cases where defendants lack English or Spanish proficiency and could not have understood posted warnings. Critics argue that the government’s persistence represents an abuse of prosecutorial power and undermines the principles of due process. The case of Komiljon Toirov, a man from Uzbekistan detained in New Mexico, exemplifies this ongoing legal battle.