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May 2025
In a stunning legal blow to the Biden administration’s latest border enforcement strategy, a federal judge in New Mexico has dismissed nearly 120 criminal trespass charges against migrants accused of illegally entering a newly created military zone along the U.S.–Mexico border.
The decision comes just weeks after the federal government quietly transformed a 170-mile swath of New Mexico’s southern border into what’s now called the New Mexico National Defense Area (NMNDA)—a militarized strip of land treated as part of Arizona’s Fort Huachuca. The move allows U.S. troops to detain individuals and enforce military security laws on what was once ordinary public land.
But as U.S. Magistrate Judge Gregory B. Wormuth made clear in his dismissal order, you can’t prosecute someone for trespassing on military property unless they knew it was restricted. And in the vast, rugged terrain of southern New Mexico, that’s far from a given.
A Quiet Yet Sweeping Change
The story starts in January 2025, when President Biden signed National Security Presidential Memorandum 4 (NSPM-4), directing the transfer of over 100,000 acres of land along the New Mexico border from the Department of the Interior to the Department of Defense.
By mid-April, that transfer was finalized. In coordination with the Pentagon, the Army issued General Order No. 12, officially designating the land a National Defense Area and assigning it to Fort Huachuca, a massive military installation headquartered in Sierra Vista, Arizona. Almost overnight, what had been public wilderness became a militarized “no-go” zone.
Secretary of Defense Pete Hegseth described the move as a national security imperative. “This land is now federally protected military ground,” he told reporters during a press tour of the site. “Anyone crossing it without permission is entering a military base. You will be interdicted. You will be detained.”
To enforce the new designation, the government invoked a little-known statute—Title 50, U.S. Code § 797—which criminalizes unauthorized entry into defense property in violation of security regulations. Penalties include fines and up to one year in prison.
That was the plan, anyway.
The First Legal Test Fails
The Department of Justice quickly put the new policy to the test, charging scores of migrants in Las Cruces federal court under the military trespass statute. But in a 16-page ruling, Judge Wormuth dismissed the cases, calling out the government for failing to show that the defendants even knew they were entering a restricted military zone.
The government’s entire case relied on roughly 200 warning signs placed along the 60-foot-wide corridor. But in the judge’s view, those signs were too sparse or poorly placed to support criminal charges.
“There are no facts from which one could reasonably conclude that the defendant knew he was entering the NMNDA,” Wormuth wrote. The complaints were all “cut-and-paste,” he noted, and failed to establish probable cause for any willful violation.
In other words, without proof that the migrants saw or understood the warning signs, the government can’t prove intent—which is required by law.
The dismissals were entered without prejudice, which means prosecutors can refile the charges if they manage to produce new evidence. But for now, the sweeping arrests under Title 50 have hit a major roadblock.
A Controversial Legal Strategy
The administration’s creation of the NMNDA has drawn intense scrutiny from civil liberties advocates, legal scholars, and members of Congress. The biggest concern? It appears to be a workaround of the Posse Comitatus Act, which prohibits the use of active-duty military to enforce domestic laws—like immigration.
By designating the land as a military base, the administration argues that the military is simply enforcing rules on its own property. That’s a legal gray area, and many argue it stretches the limits of presidential power.
“It looks like an attempt to bypass Posse Comitatus entirely,” said Mark Nevitt, a former Navy JAG officer and law professor at Emory University. “The government is treating this like any other base, but it’s not. It’s a public border zone turned into a military enforcement site.”
Even more troubling for some observers is the administration’s reliance on presidential authority rather than congressional action. The military zone was created entirely through executive order and Pentagon directives—raising constitutional concerns about separation of powers.
Critics Sound the Alarm
Immigrant rights groups, civil liberties organizations, and border residents have condemned the policy as excessive and dangerous.
“This represents a dangerous erosion of the principle that the military should not police civilians,” said Rebecca Sheff, an attorney with the ACLU of New Mexico. “The NMNDA turns public land into a zone where civil liberties are blurred and due process is sidelined.”
Environmental groups also point out that the NMNDA includes wilderness areas and even private lands, raising concerns about access rights and the militarization of the border landscape.
New Mexico Senator Martin Heinrich called the policy a “slippery slope,” warning that people—including U.S. citizens—could be detained on public land without clear notice that they’ve entered a restricted area.
“This isn’t just about immigration,” he said in a recent statement. “It’s about executive overreach and the expansion of military powers on domestic soil.”
What Happens Next?
With the charges dismissed and the legal strategy in question, the Biden administration may need to rethink how it uses military resources at the border.
Justice Department officials have yet to say whether they’ll appeal Judge Wormuth’s decision or attempt to refile the charges with additional evidence. For now, the migrants who were arrested under the military trespass statute face only the usual immigration charges—like illegal entry—which carry lower penalties.
Meanwhile, the military presence in the NMNDA continues. Soldiers from Fort Huachuca remain on patrol. The warning signs are still up. And the 60-foot strip of land stretching across 170 miles of desert remains under Army control.
But the legal foundation has already cracked. And with dozens of similar cases potentially headed to court, more dismissals may be on the horizon.
This isn’t just a border story—it’s a constitutional one.
The administration’s aggressive use of military authority to police immigration may have overstepped legal bounds, especially when basic elements like notice and intent are missing.
As the courts weigh in, one thing is clear: the government can’t punish people for breaking a rule they didn’t know existed. And turning public land into a military base doesn’t erase the rule of law.