Judge finds Colombian man not guilty of illegally entering the United States

McALLEN, Texas (ValleyCentral) — A judge on Wednesday found a migrant from Colombia not guilty of illegally entering the United States after concluding the government couldn’t prove how he crossed the border.

Border Patrol detained Jesus Miguel Pacheco Gamarra, 22, of Colombia on Aug. 14 near Roma.

The government charged Pacheco with illegally entering the United States at a place “other than designated by immigration officers,” which is a federal misdemeanor.

Prosecutors, however, couldn’t actually prove how Pacheco entered the United States. After a bench trial, U.S. Magistrate Judge J. Scott Hacker found Pacheco not guilty.

“There’s just no evidence,” Hacker said, that Pacheco illegally crossed the Rio Grande rather than crossing through a port of entry.

The U.S. Attorney’s Office for the Southern District of Texas, which prosecuted the case, declined to comment.

Most people charged with illegal entry spend a day or two in jail, plead guilty and receive a sentence of time served.

Pacheco didn’t. His attorney, Assistant Federal Public Defender Brian D. Buehler of McAllen, aggressively challenged the government’s case.

“Nobody was present when anybody crossed the river in this case — none of the agents were,” Buehler said during a pretrial hearing on Friday.

Documents prepared by Border Patrol agents contained conflicting information.

A “Memorandum of Investigation” stated Pacheco was part of a group of people that waded across the Rio Grande. Another report claimed that Pacheco confessed to rafting across the Rio Grande.

In court, though, the agent who detained Pacheco couldn’t provide any evidence to support either version of events.

Agent Omar A. Cavazos witnessed a group of people walking down Estrella Street in Roma between midnight and 1 a.m. on Aug. 14.

“Once they approached my vehicle I noticed that they were crying louder than usual — typical,” Cavazos said on Friday, when he took the witness stand. “So I kind of thought: Well, what happened? What’s wrong?”

According to Cavazos, people in the group said they were a family from Colombia that had “crossed over” from Mexico.

“But you don’t know who said that — or not — is that correct?” Hacker asked.

Cavazos paused.

“That’s correct,” Cavazos said.

Pacheco was transported to McAllen, where he met with Yakqueline Lopez, a Border Patrol processing coordinator.

Lopez asked Pacheco a series of standard questions, including whether he crossed the Rio Grande.

“And he stated: ‘Yes,’” Lopez said on Friday, when she took the witness stand.

During her testimony, Lopez said that she verified information provided by Border Patrol agents. Who provided her with that information remained unclear.

“She asked him: You came across the river? Yes,” Hacker said. “Because she saw it in another document that said that, but we don’t know how that got there.”

The government didn’t call any other witnesses.

Pacheco returned to court Wednesday morning wearing a black sweatshirt, silver handcuffs and blue sweatpants.

Hacker announced his decision from the bench.

After hearing the testimony, Hacker said the government hadn’t proven beyond a reasonable doubt that Pacheco had entered the United States at a place “other than designated by immigration officers.”

Agents didn’t witness Pacheco cross the border, Hacker said, and Border Patrol had no video that showed what happened.

The agent who detained Pacheco said “we determined” the group hadn’t crossed through a port of entry, Hacker said, but the government didn’t provide any evidence to support that conclusion.

A report prepared by Border Patrol claimed that, as they approached, someone in the group said they had waded across the Rio Grande.

“But his testimony at trial specifically stated that they did not say that,” Hacker said. “And I tried to clarify that point with him and he either didn’t remember or he didn’t testify that any words like ‘waded,’ ‘swimming’ or ‘rafting’ ever came out. It was just ambiguous vagueness of crossing the river.”

While he was acquitted, Pacheco remained in custody after the verdict.

“The defendant does have an immigration detainer,” said Assistant U.S. Attorney Randy E. Lopez, who prosecuted the case. “And he’s subject to immediate removal proceedings.”

“Alright,” Hacker said. “So he’s remanded into Marshals custody, so they can hold him for immigration.”