GREAT FALLS - Border Patrol agents arrested three foreign men in northern Montana in March, alleging their affiliations to the infamous Tren de Aragua gang. Prosecutors charged the men with being in the country illegally.
A month later, the criminal cases against two of the men have been dismissed, and defense attorneys say that they’ve seen no evidence that substantiates a claim of gang affiliation. But those allegations could still seal the fates of the two men, putting them at risk of being sent to a notorious prison in El Salvador.
“I’ve seen nothing that suggests gang affiliation,” Jennifer Kaleczyc, a Helena defense attorney representing one of the men, told Montana Free Press. “There are no references to it in discovery. And I think it’s irresponsible for a government agency to put out a statement like that that puts people in danger.”
On March 4 in Shelby, U.S. Border Patrol agents arrested two Venezuelan men, Kledyber Gabriel Diaz-Rivas and Porfirio Alexander Suarez, as well as Carlos Alexis Ponce-Lopez of Honduras. All three were charged with entering the country illegally. They were found traveling with an American woman, Kristin Louise Mitchell, who authorities also arrested and accused of harboring the men in the country illegally.
The Havre Border Patrol office posted about the arrest on Facebook, alleging that Mitchell was smuggling the men. The post blurred out the face of Mitchell, a white American, but showed the faces of the other three men. A Border Patrol spokesperson told MTFP that “Mitchell’s face was blurred because she is a U.S. citizen and DHS [Department of Homeland Security] has privacy restrictions relative to that.”
On social media, the Border Patrol also alleged that the men “have been identified as Tren de Aragua gang members.” Multiple TV news outlets recited the agency’s Facebook post and its allegations of gang membership, reports Montana Free Press.
The Trump administration has used alleged membership of Tren de Aragua as the impetus to send hundreds of people to El Salvador under the Alien Enemies Act with little or no due process. The administration has admitted that one man had been sent to a prison there by mistake, and a New York Times investigation found that while some of the men had faced serious criminal accusations, many had no criminal background. Moreover, the investigation found little evidence to support the government’s accusations of gang affiliation for most of the 238 men already sent to the now notorious El Salvadorian prison.
Doug Keller has seen this happen to his clients. A former federal public defender who now defends migrants in Texas accused of state crimes, he described the criteria used for gang affiliation as “flimsy.” He said authorities accused one of his clients of gang membership based on a social media post in which he wore Nike clothing. The Times investigation noted federal government guidelines that included “high-end urban streetwear” and the Micheal Jordan Jumpman logo as gang indicators.
“This is just so truly shocking and outrageous,” Keller told MTFP. “Never in my lifetime I thought it would happen that based on some vague innuendo someone would be sent to another country.”
After reports of the initial arrest, the cases against Mitchell and three men in Shelby took an unexpected turn. Ponce-Lopez was charged with illegal reentry, a felony, meaning he was accused of coming back into the country after being deported previously at least once. But Suarez and Diaz-Rivas entered the country for the first time in 2023 and were charged with “improper entry by an alien” rather than reentry, according to court documents filed in U.S. District Court. That’s a misdemeanor.
Defense attorneys for the two men seized on the distinction and petitioned to have those cases dismissed. Keller said that someone charged with illegally entering the country at the southern border for the first time can’t be prosecuted months later in another state.
“With illegal entry, you have to charge them where they entered,” he told MTFP.
This is different from the charge of illegal reentry, which Keller said can be prosecuted anywhere a person is arrested.
Chief District Judge Brian Morris in Great Falls dismissed the cases against Suarez and Diaz-Rivas April 9. The judge’s order noted that the “venue for those offenses is not proper in the District of Montana” and that the prosecutor didn’t object to the motion.
The cases against Ponce-Lopez and Mitchell, however, remain ongoing. Because Ponce-Lopez allegedly reentered the country after being deported in the past, he faced a felony charge different from the other two men. A press release from U.S. Attorney Kurt Alme’s office April 11 announced not guilty pleas from both defendants, despite Ponce-Lopez having reached a plea agreement four days earlier. He is scheduled to formally plead guilty to illegal reentry on April 22.
The three men are now scheduled to provide testimony in the case against Mitchell, who has pleaded not guilty to a charge of attempted harboring of illegal aliens. Court documents say that Mitchell has previous convictions for smuggling migrants.
So far, the Border Patrol’s Facebook post appears to be the only public mention of the men’s alleged ties to Tren de Aragua. Nothing in the court record for any of the three men mentions evidence of gang affiliation, nor do press releases about the case. The Border Patrol spokesperson declined to offer any details regarding gang affiliation and wouldn’t comment on what the agency called an active case. Told that two of the defendants’ cases had been dismissed, the spokesperson wrote in an email that “since the cases are all related, comment on a particular case would essentially be a comment on the active case.”
Defense attorney Kaleczyc said that the evidence turned over by federal prosecutors against her client does not mention gang affiliation.
“When I discussed it with [Porfirio Suarez], he was visibly shocked to hear that he was accused of being a gang member,” she said.
The defense attorney for Diaz-Rivas, the second man whose case was dismissed, confirmed to MTFP that he saw no evidence of gang affiliation in the case but declined to comment further.
A U.S. Attorney’s Office spokesperson declined to comment on the case.
Keller said that the lack of gang-related evidence isn’t unusual by itself, because the allegation wasn’t directly related to the charges of illegal entry. But Kaleczyc worries that even with the criminal case dismissed, the gang allegation might be used to imprison her client under the Alien Enemies Act.
Late last month, NPR highlighted a scoring system that the federal government has used to help determine whether someone can be deported under the Alien Enemies Act. Among the incriminating criteria in the checklist are “detailed open-source media (e.g. newspapers, investigative journalism reports) that describe arrest, prosecution, or operations of a subject as a member of TDA,” or Tren de Aragua. Kaleczyc wondered if some of the media’s stories, which relied solely on Border Patrol’s Facebook post, might lend credence to the claim.
“I am worried it’s a possibility,” Kaleczyc said.
On Wednesday, she wasn’t sure what would happen to her client. After being questioned in the case against Mitchell, Suarez is expected to be placed into the custody of U.S. Immigration and Customs Enforcement.
The U.S. District Court of Montana has seen an uptick in immigration enforcement cases this year. Nearly all of them are being heard at the Great Falls federal courthouse, where seven such cases are pending.
One of those cases is against a Mexican man named Jose Carlos Ambrose-Chigo. Court documents say that Ambrose-Chigo had been ordered to remain in Mexico by U.S. authorities at one point, but his current charge is illegal entry — the same charge that a judge dismissed against Diaz-Rivas and Suarez.
But Ambrose-Chigo’s experience is different. In early April, he agreed to plead guilty and faces six months in prison for the charge. He’s set to be sentenced on April 22.
