El Paso judge dismisses charges against border crossers accused of violating military rules

Originally published on El Paso Matters.

by Robert Moore

May 15, 2025

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One of the Trump administration’s latest efforts to militarize the U.S.-Mexico border suffered repeated setbacks Thursday when an El Paso federal magistrate judge tossed out a dozen charges alleging that people illegally trespassed on military land by entering the United States in a newly designated “national defense area” in Far West Texas.

U.S. Magistrate Miguel Torres ruled that the government hadn’t established probable cause that people crossing the border without legal authorization were willfully violating a defense property security regulation when doing so on a narrow 63-mile strip of land along the Rio Grande in El Paso and Hudspeth counties. Thursday was the first time an El Paso judge held a hearing on military trespassing charges since the Trump administration established the national defense area May 1.

The key issue for Torres was whether the government had placed signs in “conspicuous and appropriate places” warning people that they were violating a military regulation or order – declaring the land off-limits to people without authorization – by entering the United States in that area. Throughout seven hours of hearings, Border Patrol agents repeatedly testified that they had been told that signs had been placed every 100 feet along the border, but none of the agents said they had actually seen them.

“Conspicuous matters. Where signs are matters. What they look like matters,” Torres said, drawing an analogy to a sign that said “danger, minefield – but the only way you can read the sign is if you’re well into the minefield.”

In addition to the 12 misdemeanor cases dismissed by Torres, prosecutors withdrew three other misdemeanor charges of military trespassing after determining that the defendants were apprehended in areas of Hudspeth County near Fort Hancock that is outside the boundaries of the national defense area.

All 15 defendants remain in custody because they also are charged with entering the United States after previously being removed from the country, which is a felony punishable by up to two years in prison. The dismissed misdemeanor charges carried a maximum penalty of a year in prison.

Torres’ rulings dismissing the charges came a day after a federal magistrate in Las Cruces, Gregory Warmuth, dismissed similar charges against nearly 100 migrants charged with similar violations in a 180-mile-long “national defense area” decreed by the Trump administration in New Mexico.

In the El Paso cases, Assistant U.S. Attorney Scott Wisniewski argued that the government didn’t need to prove that signs gave enough warning that people would be violating military regulations by entering the country. He said the mere fact that they were entering the country illegally was enough proof to show they were breaking the law.

But Torres rejected those arguments, saying prosecutors were trying to “daisy chain” knowledge of one illegal act to another.

“The evidence just isn’t there,” Torres said in the first of his rulings that the government hadn’t shown probable cause to charge someone with violating a military order or regulation.

The ruling in the first case came after a moment drawn from a TV courtroom drama, when defense attorney Erik Anthony Hanshew held up a copy of the 12-by-18-inch sign and asked Border Patrol Agent Alejandro Portillo, who was seated less than 20 feet away, if he could read what the sign said.

Portrillo said he was unable to read the words on the sign from that distance.

Other Border Patrol agents testified throughout the day that they had heard the signs were posted in some cases near the river and in other cases along the border wall, which could be 90 yards away. But none had actually seen the sign until Hanshew brought a picture into court.

“It might not have been a bad idea for the government to bring a picture of the sign to court,” Torres said.

Earlier this week, El Paso Matters drove along the Mexican side of the Rio Grande to look for warning signs. Several were partially visible from the Mexican side of the river, but none could be read from that area.

Border Patrol agents repeatedly testified that they didn’t know whether the signs warning of violating a military regulation were visible from the middle of the Rio Grande, which marks the border between the United States and Mexico in Far West Texas.

“If you have to be right up on the sign to see it, you’ve already committed the offense,” Torres said.

The Defense Department established the “national defense area” in El Paso and Hudspeth counties May 1, transferring land that had been under control of the International Boundary and Water Commission to Fort Bliss.

The area stretches 63 miles from the American Dam at the New Mexico-Texas state line in West El Paso to the Fort Hancock Port of Entry in Hudspeth County. The width of the area varies, but the Defense Department said the area includes 2,000 square miles, which would make the average width about 90 yards.

The defense area designation allows military soldiers to enforce immigration laws in the area, something that is prohibited in almost any other circumstance.

The Border Patrol agents testifying in El Paso on Thursday said all of the defendants were apprehended by the Border Patrol without assistance of soldiers.