Last summer, the Trump administration designated more than a third of Arizona’s roughly 370-mile-long border with Mexico a military zone.
It was the fourth so-called National Defense Area created along the border. And since, the Trump administration has detained hundreds of people for trespassing on military property.
And, according to an investigation by the Texas Tribune and ProPublica, since last April, at least 4,700 immigrants who were already charged with illegal entry into the country were also charged with this military trespassing count. But most of them were dropped or dismissed.
To put it into context, The Show spoke with immigration law expert Angela Banks. She’s vice dean and professor of law at Arizona State University’s Sandra Day O’Connor College of Law. And she said the whole thing is unprecedented.
Full conversation
ANGELA BANKS: This is pretty a new approach to thinking about immigration enforcement. And the idea is that land along the border, the president, through his executive order, ordered the government to recharacterize this land as military installations. Which then means anybody who crosses a border without authorization is not only liable for an illegal entry charge, but they're also liable for a trespass on military installation charge.
LAUREN GILGER: Right. And so it added a layer of basically what prosecutors could hit someone with when they're hit with those initial charges for illegally immigrating into the country, right?
BANKS: Correct.
GILGER: OK. We've seen some of these cases play out now, not necessarily here, but in other states along the border, in Texas in particular. What have they looked like? It's not been incredibly successful.
BANKS: No, it hasn't. And so what's interesting is because as a criminal charge, one of the things that you have to demonstrate is mens rea, and that is the sort of intentional knowledge that the person is committing the crime that they're charged with. And interestingly, a lot of the people who are crossing had no idea that this was a military installation.
Now, the government does indicate that there's signage up along the border, but they have to be able to demonstrate where the person entered and that they would have seen the sign where they entered.
And so a lot of the cases that have been brought, the government hasn't been able to pinpoint where the person entered. And they also haven't been able to show that the person would have known that it was in fact a military installation. And the individuals who have been charged have said, "I had no idea."
GILGER: So why do you think the government put these military zones in place all around the border?
BANKS: So, you know, it's a curious question and there are a couple things that I thought about. One is that when people are charged with illegal entry, they often plead guilty and are simply deported that day. With these trespass on the military installation cases, a lot of people are saying, "no, I didn't do that."
And so then they end up being detained while the case is waiting to go to court. And so some individuals have been detained for like, 30 or 40 days. And so it could be the idea that that's just an extra deterrent. So if individuals know that they're going to have to go through these extra legal proceedings, that they won't attempt to enter.
The other possibility is that because it's trespassed on a military installation, it could give rise to the person being viewed as a national security risk in the future.
GILGER: Interesting. Yeah.
BANKS: Which could lead to additional challenges with getting a visa to enter the United States in the future.
GILGER: Right. And that could have some potential impacts on migrants down the line, right. Like, lots of people cross more than once. Lots of people have family in the country, want to try to come back one day, legally or otherwise, right. This could restrict that for folks.
BANKS: Right. Because then it could lead to additional kinds of specific reasons why someone cannot be granted a visa, inadmissibility grounds that deal with national security. And then there are fewer sort of discretionary relief options for national security reasons for not being able to enter.
GILGER: What do you make of the kind of melding of the military and immigration enforcement, which we've seen in other ways across the country as immigration raids have ramped up? It's relatively unprecedented, as we said, in this way, but in other ways as well.
BANKS: Yeah. And so what's interesting is that we, you know, the question is, are we going to get to the point where members of the armed forces are going to be the ones sort of policing the border, and are they going to be deputized to sort of engage in immigration enforcement?
And we haven't seen that to date, but it is something that could be on the horizon now that a lot of territory along the border is deemed a military installation.
GILGER: Yeah. And that changes the ball game a little bit. I know in Arizona, we hear every once in a while, you know, things ramp up and the governor will send National Guard troops down there, things like that, but they're not conducting immigration enforcement. They're helping out in logistic ways, usually things like that.
BANKS: Exactly.
GILGER: So let me turn to another story that's hit the news in recent weeks, Angela, and ask you about it, since we have you here and you're an immigration expert.
The city of Phoenix voted to ban ICE from city property this is sort of in response to immigration enforcement, ICE enforcement. We've seen around the country, lots of cities, jurisdictions, counties have tried to do something to restrict maybe what happened in Minneapolis, for example, from happening in their cities.
But it does raise a legal question I think that has already been raised by at least one Republican lawmaker here, which is that, can they do that? I mean, doesn't in general, immigration enforcement on the federal level trump local and state laws?
BANKS: So what's really interesting is that specifically here in Arizona, there's an Arizona law that specifies that no substate entity can interfere with the enforcement of federal immigration enforcement. And so this puts Arizona in a particularly unique situation, because whatever might be able to happen in other states, there's a real question about whether in the state of Arizona, the city of Phoenix can take any action that would impact the effectiveness of immigration enforcement.
Now, what is interesting about the initiative that was passed by the City Council is it doesn't say that ICE cannot. It just says that any civil law enforcement actions have to get permission from the city authorities. And so one way that this might work out is that it's possible that the city could say, well, we haven't denied anybody, and so we'll have to see how this plays out in practice.
GILGER: OK, so if it is legally challenged, they could answer in that way. And we're talking about a pretty specific thing, right. Like on city property. Not necessarily anywhere in the city.
BANKS: Right. And it specifically, you know, was talking about, like, staging. So when ICE is getting ready to conduct a raid, where they're getting ready, if they were using parks or city parking lots for that kind of action, or if they were trying to process people on city property, that that is what would be prohibited unless they had prior permission from the city.
GILGER: Very interesting. We're seeing, like I said, this happen in many cities, jurisdictions around the country who are trying to kind of preemptively do something to make people feel better, maybe who are concerned about what might happen should ICE come to their place where they live.
What else could they do? Like, what other ideas have you seen local jurisdictions throw out in terms of trying to sort of buffer immigration enforcement in this way?
BANKS: Well, so what's interesting is that this new sort of thinking about, could you physically restrict ICE is a newer approach, because historically the approach has been just not to cooperate, not to have sort of jails cooperate and hand people over, once they have finished their term in a local prison to hand them over to ICE.
GILGER: And we have seen much more of that cooperation happening around the country as well, right.
BANKS: Right. And so that is, you know, sort of what got cities named as sanctuary cities. And many of the actions that the administration has taken have been to target and limit the ability of those cities to take those kinds of actions.
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