Defense lawyer: Montana Border Patrol made 'irresponsible' gang allegations

Last month, the U.S. Border Patrol in Havre labeled three men who entered the country illegally as Tren De Aragua gang members on Facebook and posted their mugshots to the public.

But the attorney for one of the men told Lee Montana there was no proof of any gang membership and the lack of evidence is a concerning trend around immigration enforcement in the United States.

"Border Patrol really created a mess here with this," said Nate Ellis, a defense attorney based in Helena. "They are spouting off irresponsibly, it appears. They can't back up their claims and they are putting these people's lives in danger, and their families. It is horribly irresponsible."

The three foreign nationals and one U.S. citizen were arrested in Shelby on March 4 following an investigation by local sheriff deputies and agents from U.S. Border Patrol, according to charging documents.

Kledyber Diaz Rivas, Carlos Alexis Ponce-Lopez and Portfino Alexander Suarez were staying with Kristin Louis Mitchell, a U.S. citizen, at her house in Shelby.

Diaz Rivas and Suarez are from Venezuela, while Ponce-Lopez is from Honduras.

Mitchell was allegedly harboring the three men at her residence, according to charging documents. She pleaded not guilty in federal court last week.

Her mugshot was originally blurred in the Border Patrol's Facebook post.

After the four were arrested, the Havre Border Patrol posted on Facebook claiming the three men were members of the Tren De Aragua gang, which is based out of Venezuela. However, no charging documents in the case allege gang membership for the men, and Ellis said U.S. district attorneys prosecuting the case could find no connection to gang membership.

Immigrations and Customs Enforcement uses a "point system" known as the "Alien Enemy Validation Guide" to determine gang affiliation, according to a filing by the American Civil Liberties Union in a court case against the Trump Administration.

The 156-page legal document aimed at unveiling how the Trump Administration is using the Alien and Enemies Act of 1798 to send foreign nationals to El Salvador in an effort to stop the process.

The point system counts things like self-admission, criminal conduct, news reports, symbolism (specific tattoos or graffiti) and association with known gang members, among other things.

Ellis said he became aware of the system while handling Ponce-Lopez's case and said there was no connection to his client based on conversations he had with federal prosecutors.

Ellis said he is concerned federal agents are wrongly accusing people of gang membership and said the public should know the truth about the immigration cases.

One requirement to be considered a Tren De Aragua member is to be a citizen of Venezuela, Ellis noted.

"He is a Honduran citizen, the U.S. government has failed to produce any evidence concerning gang involvement or affiliation despite numerous requests," Ellis said. "It appears that these statements from border patrol were completely unsupported by any factual evidence, or they are withholding evidence. Neither of those are good things."

The Montana Free Press also reported of the lack of gang affiliation evidence for the men on Wednesday, including comments from two other attorneys who have also seen a lack of gang affiliation.

When the arrests were first reported last month, other local media outlets reported the men as gang members, which could be used by prosecutors to try to prove gang affiliation.

A spokesperson for the U.S. Attorney's Office in Great Falls declined to comment to Lee Montana about the case.

An official from the U.S. Border Patrol told Lee Montana he was not authorized to speak on the subject because Ponce-Lopez's case is still active. Other requests for comment from the Havre Border Patrol Office were not returned by press time.

Ponce-Lopez has only been charged with illegal reentry into the U.S. He has been convicted of entering the U.S. before and will face civil immigration court after his criminal charges are handled, Ellis said.

Ponce-Lopez is currently being held in Cascade County Detention Center. The two other men had their charges dismissed because of a jurisdiction error when they were arrested, although they still have to face immigration court.

The gang allegations come as border patrol has increased arrests in the Northern Rockies region and the Trump Administration has eyed moving foreign gang members to a prison in El Salvador.

More than 230 people were flown to El Salvador in March, with 10 more people moved there by the U.S. since the initial transfer, according to the New York Times.

Ellis said he is not worried about Ponce-Lopez will be sent to El Salvador, but worries for two other men arrested in Shelby and other similar cases around the country.

Ellis said people must follow the law, but that doesn't mean law enforcement can throw the legal system out of the window.

"The concern here is one the risk, you are putting people at risk, and you need the evidence to do that," Ellis said. "If these people were gang members and they have the proof to back it up, by all means, they can state the truth. There is nothing illegal about that."

Ponce-Lopez is scheduled to appear in court next on April 22 to accept a plea deal with federal prosecutors.