U.S. Prosecutors Gain Mexican Man’s Release in Unusual Border Arrest Case

In an unusual legal move, federal prosecutors in San Diego last month asked a U.S. magistrate to free a Mexican man who had pleaded guilty to entering the country illegally and was serving a five-month sentence at the downtown Metropolitan Correctional Center.

But then, Gilberto Roman Gaspar’s case has been anything but routine.

It began with a controversial arrest in September, and his release from jail occurred after the Mexican government filed a formal protest of the arrest with the State Department.

“The U.S. government usually is not in the business of recommending that people get out of jail early,” said attorney Gregory Bell, who represented Roman in the criminal case.

Although Roman, 34, returned quietly to his Tijuana home upon his release Dec. 6, the legal maneuverings in the case are far from over. On Thursday, attorney Marco E. Lopez, announced that he has filed an administrative claim for damages on Roman’s behalf with the U.S. Immigration and Naturalization Service and expects to file a civil lawsuit against the agency in March.

The incident that led to Roman’s arrest and prompted the civil litigation occurred at 11:30 a.m. Sept. 14, when U.S. Border Patrol agents ran across the international border at San Ysidro to arrest Roman in Mexico.

Bell said Roman and at least one other illegal immigrant were in a car that was southbound on Interstate 5 with a Border Patrol car in pursuit. According to Bell’s version of the incident, the fleeing car stopped short of the border. Roman jumped out of the car and dashed across the border to Mexico, where he was grabbed by a Mexican customs agent, Bell said.

Several Border Patrol agents crossed the border and “got into a tug-of-war with a Mexican official, who was grabbing on” to Roman, Bell said. He said that at least two Mexican officials informed the U.S. agents they were in Mexico and were making an illegal arrest.

The Mexican officials “were physically pushed aside by the Border Patrol agents and threatened with nightsticks,” Bell said. “The (U.S.) agents literally dragged my client on the ground to the U.S. side. He was screaming and literally grabbing the tires of cars waiting in line in a futile attempt to stop them from bringing him here.”

Border Patrol spokesman Steve Kean has a different version. According to Kean, Roman was one of about 10 immigrants in a large sedan that was spotted heading north on Interstate 5. When a Border Patrol car took up the chase, the sedan turned around and headed south toward Mexico, he said.

“The vehicle stopped about 75 feet north of the boundary, on the freeway. . . . The agents secured the car and the 10 aliens. At that time, an occupant (Roman) threw the door open, pushed an agent aside and began to run toward the border,” Kean said.

According to Kean, Roman was apprehended “about 3 feet inside the U.S.” However, Kean said, Roman resisted arrest and the ensuing struggle pushed both the agent and Roman “about 7 feet into Mexico.”

Kean said several Mexican customs officials struggled with the agent and Roman and that three other Border Patrol agents rushed across the border to the arresting agent’s aid.

“The three agents responded by taking hold of the (arresting) agent and pulling him back to the U.S. side,” Kean said. “In doing so, we were able to extract the suspect also.”

Kean denied charges that the Mexicans were threatened with nightsticks and that the U.S. agents cursed the Mexicans.

Roman pleaded guilty to a misdemeanor count of illegal entry two days after his arrest and was sentenced to five months in custody. It was Roman’s third conviction for entering the United States illegally, Bell said.

However, the controversial arrest led to a diplomatic protest by the Mexican government and a request by Mexican consular officials that Roman’s guilty plea be set aside. A U.S. magistrate appointed Bell to the case, and he promptly entered a motion to withdraw Roman’s guilty plea. In addition, Bell argued that Roman’s arrest was illegal and demanded his client’s immediate repatriation to Mexico.

At a hearing on the defense motions, U.S. prosecutors asked a U.S. magistrate to release Roman from custody on Dec. 6. According to Bell, the U.S. attorney’s office chose not to challenge the motions, but instead asked for Roman’s release. He was released after serving 90 days.

“The issues were never litigated or heard,” Bell said. “That’s too bad, because the next step was to have an evidentiary hearing to determine if he (Roman) was in Mexico when he was arrested.”

Assistant U.S. Atty. Bob Vickers declined to comment on the case until he received clearance from his superiors.