Cases of migrants caught in new military zones on the U.S.-Mexico border have been stalled over legal confusion, and lawyers and a U.S. senator on Wednesday raised concerns over whether people actually know when they are entering the zones.
The U.S. Army starting last month set up the zones in New Mexico and Texas as part of President Donald Trump's crackdown on illegal immigration. Troops are allowed to detain trespassers.
Defense lawyers say migrants are unaware they are entering the zones and locals fear being charged for trespassing in desert areas popular with hikers, mountain bikers and hunters.
On May 1 a U.S. judge asked New Mexico's U.S. attorney to explain his legal basis for charges against migrants caught in the so-called National Defense Areas.
Secretary of Defense Pete Hegseth said in a May 9 social media post that migrants faced combined charges of up to 10 years in prison when they crossed the border illegally into a military zone.
At issue is whether migrants, or U.S. citizens, know they are trespassing in a military zone, which in New Mexico spans a 180-mile-long strip of border.
In a letter to Hegseth on Wednesday, U.S. Senator Martin Heinrich, a Democrat of New Mexico, said the military zones raised public access issues for people who use the area for outdoor recreation and ranching. He asked whether the Army would install signs to mark the New Mexico zone's boundaries, if the entire 110,000-acre (44,515 hectare) area was not open to the public.
Over 300 people have been reported detained in the New Mexico military area, according to Heinrich.
“I have deep concerns that the Trump Administration is bypassing due process for individuals who either intentionally or unintentionally enter this newly restricted area,” Heinrich wrote.
The Department of Defense did not immediately respond to a request for comment.
Ray Trejo, a New Mexico hunter, is among citizens worried about the new zones. Trejo, a Luna County Commissioner, wondered if he could go ahead with hunting in an area of Chihuahuan desert now under Army control.
“I'm out there, in my hunting gear, which is camouflaged, and I’ve got my rifle with me, do I have to fear that I might get shot from somebody?" he said.
Hegseth in his social media post said the Army had put up over 1,300 signs around the areas saying entry was prohibited.
New Mexico's U.S. attorney, Ryan Ellison, said in a May 5 court filing that a migrant who knowingly crossed the border illegally could also be prosecuted for entering an adjacent military area, even without seeing a sign.
A defense lawyer said migrants' attorneys had delayed plea deals while they waited for the judge's ruling on the novel charges.
"We can't move forward with these cases without knowing how these judges are going to interpret the law," said Barbara Mandel, branch supervisor of the Office of the Federal Public Defender in Las Cruces.
Chief U.S. Magistrate Judge Gregory Wormuth is expected to rule next week on evidence required to prosecute migrants caught in the areas.
"The government must establish that a defendant possesses the requisite mens rea," Wormuth wrote in his May 5 order, using the legal term for the intention or knowledge of wrongdoing.
