ALBUQUERQUE, N.M. (Tribune News Service) — In a blow to the Trump administration’s new military mission on the southern U.S. border, New Mexico’s top federal magistrate judge has ruled the government had no probable cause to charge hundreds of migrants with trespassing onto newly designated military property.

The decision by U.S. Chief Magistrate Judge Gregory Wormuth of Las Cruces resulted in the dismissal of the misdemeanor trespassing charges in nearly two dozen illegal entry cases in federal court in Las Cruces on Thursday. The night before, nearly 100 such dismissals were filed, based on earlier requests by defense attorneys at their clients’ initial court appearances.

And while more dismissals of the trespassing charges are expected, most, if not all, defendants are still facing illegal entry charges and remain in federal custody at jails across southern New Mexico.

The U.S. Attorney’s Office in Albuquerque on Thursday had no immediate response to Journal questions about the ruling, including whether U.S. Attorney for New Mexico Ryan Ellison will appeal Wormuth’s dismissals to the U.S. District Court.

More than 300 people have been charged with entering restricted U.S. Army property and violating security regulations and orders since late April, when federal property was transferred to the Fort Huachuca Army Garrison as a way to add a military presence on the New Mexico border. The additional misdemeanors carry a total maximum sentence of 18 months in prison.

“All these clients have been in this holding pattern waiting for the judge’s decision,” El Paso attorney James Granberg said Thursday afternoon. The prosecutions have filled southern New Mexico jails, and during hearings in U.S. District Court in Las Cruces, defendants have spilled into a second courtroom awaiting their appearances.

In his order, Wormuth found that defendants had to have knowledge they entered what is called the New Mexico National Defense Area, which is the 60-mile-wide strip adjacent to the U.S. border in southern New Mexico. Defense attorneys have argued that their clients had no idea they were stepping onto military land when they crossed the border, and the judge stated that the United States, in filing the charges, provided no facts from which one could “reasonably conclude” that a defendant knew he or she was entering the restricted area.

“... The mere fact that some ‘signs’ were posted in the (zone) provides no basis on which to conclude that the Defendant could have seen, let alone did see, the signs. Relevant facts on the matter would include, the words on the signs, the size of the signs, the height, the density of the signage, evidence regarding how close Defendant was to a sign at any time prior to the apprehension, and the lighting conditions at the relevant time and whether the signs were lighted or otherwise visible,” wrote the judge in dismissing the charges.

Criminal complaints reviewed by the Journal don’t mention how close to any warning signs a defendant was when discovered by the U.S. Border Patrol in the 180-mile long military zone, but Border Patrol agents do specify the distance to the nearest U.S. port of entry.

Wormuth wrote that the factual allegations in the criminal complaints “are virtually identical with respect to the two ‘military trespass’ charges across hundreds of cases. The government’s ‘cut and paste approach’ to factual allegations in the complaints allows this Court to apply the legal analysis contained herein across every criminal complaint charging these crimes filed thus far and still pending.”

Wormuth on May 1 had asked both prosecutors and defense attorneys to weigh in on the legal questions spurred by the new prosecution practice related to the defense zone, citing in part the scarcity of case law on the topic.

In response, Ellison’s office argued that those charged with the trespassing on military property knew they were crossing illegally into the U.S., and that knowledge was enough under the law for someone to be prosecuted on the military trespassing charges.

But Ellison on Sunday filed an unusual objection to Wormuth ruling at all on the issue, going so far as to criticize the judge.

In a footnote to his 16-page order on Wednesday, Wormuth responded, describing Ellison’s objection as “remarkable” in its tone and content. “Incredibly, this histrionic filing is in response to the Court’s order for the United States Attorney’s Office to file a brief on a legal question about a criminal charge it had brought.”

Wormuth added, “Notably, the United States made no timely objection to the briefing order. In fact, the United States filed its brief before apparently realizing days later that the mere request for briefing was ‘an improper exercise of the Court’s authority’ and an ‘extraordinary departure from...foundational principles.’”

Wormuth, a former federal prosecutor, has served as a U.S. Magistrate judge in New Mexico since 2009 and just recently was appointed to another eight-year term.

Granberg told the Journal that the government may have a “stronger case” for prosecuting the trespassing related violations if more warning signs are posted and efforts are made to raise public awareness about the restricted military property.

At the same time, he said, there are people crossing into the U.S. who are from South America “and have very little education.”

Federal authorities “presume they (the migrants) know how to read, but some folks don’t. Some folks are from the mountains of Mexico and Guatemala and they speak in different dialects.”

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