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Jose Omar Flores-Penaloza was willing to admit that he had entered the United States illegally. He was ready to be deported, according to his attorneys.
But federal prosecutors would not let him go last spring without making him answer for another crime — one he had never heard of.
Weeks earlier, President Donald Trump, to address what he called a national emergency, ordered a stretch of borderland transferred to the military so that troops could help apprehend unauthorized migrants.
Because prosecutors believed Flores-Penaloza had crossed through that zone, now called a national defense area, they charged him with trespassing on military property under statutes including one enacted in 1909 to keep spies away from arsenals.
The added misdemeanors were unlikely to lengthen his sentence; they typically result in time served and deportation. But Flores-Penaloza maintained his innocence in the face of the allegation that could cast him as a national security threat.
So he awaited trial in a New Mexico jail.
One year into the second Trump administration, federal courts are facing a surge of immigration-related litigation, including a record number of habeas petitions from detainees who say they are being unlawfully held.
In Minnesota last month, after a frustrated judge asked why defendants he had ordered released were still in custody, a government attorney blurted out: “What do you want me to do? The system sucks. This job sucks.”
ProPublica and The Texas Tribune spent four months investigating a persistent source of pressure in border districts — one experts say is taxing the courts and challenging long-standing principles of criminal law.
Since last April, at least 4,700 immigrants already charged with entering the country illegally have faced additional misdemeanor counts accusing them of trespassing on military property. Court records reviewed by the news organizations show that more than 90% of cases have been resolved, and that most did not end in convictions on the trespass charges: About 60% were dropped or dismissed.
At least nine judges in West Texas and New Mexico have found the prosecutions legally deficient. Citing the basic requirement of mens rea — a guilty mind — many ruled that defendants could not be found guilty because they did not know they were trespassing on military land.
Yet prosecutors have continued filing the charges and appealing adverse rulings, arguing that knowingly crossing the border is sufficient to prove criminal intent. More than 20 legal scholars and former prosecutors told reporters they could not identify a conventional law-enforcement or military goal that would justify their persistence.
The strain has been visible in crowded federal dockets.
“We would do jury selection and trial on a misdemeanor case that would have no bearing on the sentence whatsoever?” West Texas District Judge Leon Schydlower asked a prosecutor in June. He noted that there were about 40 similar cases on his docket and asked the prosecutor what she would do if he scheduled all the trials on the same day.
“We would have to be prepared to move to go forward on all 40, Your Honor,” Assistant U.S. Attorney Patricia “Patti” Aguayo replied, prefacing her position by saying she had no choice in the matter.
“We have not been allowed to do anything but move forward.”
Prosecutors were operating under a directive issued by Attorney General Pam Bondi mandating “zealous advocacy” of the administration’s priorities and warning that attorneys who declined to advance them could face discipline or termination.
Senior officials in the U.S. attorney’s offices handling trespass cases declined repeated interview requests, and a spokesperson in the West Texas office asked reporters to stop contacting prosecutors directly. A Justice Department spokesperson noted that one of the charges carries a longer sentence and claimed the prosecutions have “proven to be a significant deterrent to both illegal crossings and cartel activity along the border,” though the department did not provide supporting documentation.
Had prosecutors accepted his offer to plead guilty to illegal entry in exchange for dropping the trespass charge, Flores-Penaloza would have been processed for deportation to Mexico, his public defenders Amanda Skinner and Victoria Trull said.
Instead, he remained in custody for more than a month, in a county jail where guards have been accused of threatening to use Tasers on inmates’ genitals and bursting into sleeping areas with flash-bangs. (In a court filing, attorneys for Doña Ana County denied the first allegation and wrote, about the second, that guards used “specialized equipment during operations” but disputed they were “terrorizing vulnerable detainees.”)
Hours into Flores-Penaloza’s June 17 bench trial before Chief Magistrate Judge Gregory Wormuth, prosecutors could not pinpoint exactly where he had crossed the border or produce a clear map showing the boundaries of the military zone.
“I also don’t dispute,” Assistant U.S. Attorney Randy Castellano conceded, “that we don’t meet the mens rea requirement the court has indicated in a prior opinion.”
Wormuth, who had dismissed dozens of similar charges, grew frustrated. He noted that Flores-Penaloza had been in custody for 40 days largely because of the unproven allegation.
“The United States has come in here and put not a single bit of evidence that would allow me to find that he even entered the national defense area,” Wormuth said. “It is very, very disturbing.”
He acquitted Flores-Penaloza on the trespass counts while finding him guilty of illegal entry. The young man was deported.
But more cases were coming.
Federal law generally bars the military from detaining civilians on domestic soil. But there was a workaround: Troops could capture intruders on their own bases.
Under orders from Trump last April, federal agencies including the Department of the Interior transferred more than 200 miles of riverbank and desert scrub in West Texas and New Mexico to the armed forces, converting the terrain into extensions of Army installations.
Speaking to troops deployed to one of the new national defense areas, Defense Secretary Pete Hegseth suggested that anyone entering them would be on notice.
“You’ve got signs like this one all across the border wall facing into Mexico,” he said — “clear English, clear Spanish.”
The plan appeared straightforward. But once cases reached courtrooms, that clarity evaporated.
Detained migrants said they hadn’t seen signs and had no way of knowing they had crossed military land. Prosecutors often couldn’t prove otherwise.
ProPublica and the Tribune identified 1,300 New Mexico district court records in which the government stated how far from these signs migrants crossed the border or were apprehended. The news organizations found that some were arrested more than 20 miles away from a sign, and that most didn’t come within 1,000 feet of any posting. In at least one Texas case, defense attorneys demonstrated how difficult it was to read the 12-by-18-inch sign from about 10 feet away.
A spokesperson for the U.S. attorney’s office in New Mexico said what matters is not where a defendant was apprehended but where they entered the country. In some cases, such as Flores-Penaloza’s, prosecutors lacked evidence of that as well.
These evidentiary gaps snagged most of the cases that reached judges, underscoring an existential question:
“What is your evidence that he knew he was accessing a restricted national defense area?” a federal magistrate judge, Miguel Torres, asked during an El Paso, Texas, jury trial. Adequate notice was essential, he said, “so that we don’t ensnare innocent people that do not know they are violating this specific law.”
Torres ruled against the government at trial, but many cases didn’t make it that far.
In Texas, many defendants pleaded guilty. To fight the trespass charges meant waiting in jail possibly for weeks or months. They chose to go home instead.
But in New Mexico, within weeks of the first cases, judges began throwing out the trespass charges as soon as they were filed for lack of probable cause.
Prosecutors responded with an unusual maneuver. Rather than abandon the cases, they refiled them using a charging document called an information — a tool commonly used for misdemeanors but, according to the legal experts consulted by ProPublica and the Tribune, rarely deployed to revive cases judges had already deemed unsupported.
Prosecutors used informations to resurrect more than 1,600 military trespass cases, the news organizations found.
“If there is no probable cause, the case is supposed to end,” said Meghan Skelton, a former assistant federal public defender and prosecutor. “They are trying to circumvent that in a way that has not been done in the 30 years I’ve been practicing law.”
The tactic kicked off what one defense attorney called a “ridiculous dance.” Judges would separate the immigration and trespass charges, accept guilty pleas on illegal entry and reiterate that there was no probable cause to detain defendants on the military counts. With deportation imminent, prosecutors would then move to dismiss the trespass charges themselves.
Prosecutors who left the U.S. attorney’s offices in the early months of the second Trump administration told reporters they were alarmed to see the lengths their former colleagues were going to pursue dubious cases. “You’re just losing credibility with the court, and on a bigger picture, credibility with the public,” said Marisa Ong, a former assistant U.S. attorney in Las Cruces.
It was the kind of outcome Matilda “Tilli” Villalobos sought to avoid when she saw the zealous advocacy mandate last February and left the district for private practice. “I don’t want to be the one standing up in court in front of a judge advocating for something that I don’t believe is even legal,” said the decorated former sex crimes prosecutor, who now defends immigrants charged with criminal offenses.
Alex Uballez, who served as U.S. attorney in New Mexico before being fired by Trump last year, called the prosecutions a “flustering attempt to create fear and chaos by whatever means necessary.”
“It would be laughable if it wasn’t so cruel and chaotic and dangerous,” he added, “both for the people involved and for the justice system as a whole.”
The national defense areas were supposed to allow active-duty troops to apprehend unlawful border crossers for the first time. So far, that outcome has largely failed to materialize.
According to a spokesperson for Joint Task Force-Southern Border, about 1,500 deployed troops had made just 68 apprehensions as of last week, leaving the Border Patrol still responsible for the vast majority of detentions.
Even so, the administration has continued expanding the zones from California to Texas.
Prosecutors began filing military trespass charges in South Texas last month, starting with a man caught crossing the Rio Grande, in an area now designated an extension of the Joint Base San Antonio. Along the river, warnings of prosecution are written across floating buoys and blared in Spanish from loudspeakers that can be heard in Mexico.
Border Patrol agents ask migrants detained in national defense areas to sign a form acknowledging they entered without permission, placing the documents in their immigration files, then-interim El Paso Border Patrol Sector Chief Walter Slosar said in a news conference last June. “And so the next time they cross the border unlawfully, there’s going to be no issue” about notice.
In New Mexico, prosecutors have used that written notice and previous military trespass charges to help secure 20 guilty pleas from defendants who reentered. Still, the news organizations’ analysis of court records found that nearly every trespassing charge in the state has been dismissed or dropped.
The Justice Department continues to press its legal theory in appellate court. In May, prosecutors filed trespass charges against Komiljon Toirov, a man from Uzbekistan detained in New Mexico. Toirov does not speak English or Spanish and could not have understood posted warnings. Prosecutors maintain that does not matter. They wanted him held in jail for trial, but a judge released him.
For months since then, prosecutors have fought that decision. As the case bounced between the district court and the 10th U.S. Circuit Court of Appeals, judges openly bristled at the government’s persistence.
“The defense bar and every judge in the Las Cruces district courthouse disagrees with the government,” U.S. District Judge Sarah Davenport wrote in October. A three-judge appellate panel in December noted that prosecutors had produced “little to no evidence” to support their case for jailing Toirov.
The government has now filed notice that it plans to appeal again, indicating that it will seek a higher court ruling supporting its argument that Toirov didn’t need to know about the military zone in order to trespass onto it.
“We remain confident that our interpretation is consistent with the law and U.S. Supreme Court precedent,” a Justice Department spokesperson said in an email.
Ryan Goodman, a national security law professor at New York University, said the government’s persistence was “jaw-dropping.”
“It appears to be prosecutorial abuse by continuing to bring fatally flawed cases,” he said in an email. “This kind of abuse of the Justice Department’s powers has very significant repercussions for the ability of our democracy to survive.”
Meanwhile, the El Paso courthouse has eased into a new normal. On many mornings, shackled migrants plead guilty to military trespass charges rather than remain jailed awaiting trial.
Occasionally, the routine falters.
On Nov. 3, a young man named Brandon David Munoz-Luna spoke up during his plea hearing. “In my case, I did not know that I was entering a military reservation,” he said through an interpreter.
Federal Magistrate Judge Robert Castañeda turned to Assistant U.S. Attorney Adrian Gallegos. He asked, “Does the government insist on making this a charge you’re pursuing?”
“Yes, Judge,” the prosecutor replied. “Pursuant to DOJ policy.”
Minutes later, Munoz-Luna pleaded no contest, and the court moved on.
For this story, ProPublica and The Texas Tribune analyzed criminal cases filed in district courts in New Mexico, Texas, Arizona and California using records from Public Access to Court Electronic Records, the Free Law Project and the Federal Judicial Center. Reporters used artificial intelligence to assist in extracting information from criminal complaints and court recordings. We manually reviewed every source document that contributed to the findings used in the story.
Paul Ratje contributed reporting.
