Feds portray former Venezuelan student protester as gang member

Mistaken identity? Or transnational terrorist threat?

Federal officials last week in Albuquerque contended a Venezuelan national charged with possession of ammunition was identified as a member of the Venezuelan Tren de Aragua gang — an organization targeted by President Trump for deportation to a notorious prison in El Salvador.

The facts before U.S. District Court Judge Matthew Garcia told a different story.

The crime boiled down to a single .45-caliber bullet investigators found in a room that Orleans Fernandez-Monserrat had been renting for several months earlier this year in Albuquerque.

Fernandez-Monserrat told investigators after his arrest that he found the bullet at a construction site where he worked, stuck it in his pants pocket and inadvertently set it on his dresser drawer. He pleaded guilty to the charge in June.

A federal pre-sentence report provided to the judge inserted language tying him to the terrorist gang, citing information from the Homeland Security Investigations.

But the 31-year-old had no gang tattoos, no weapons, no violent criminal history and no evidence was presented to show he was ever in the gang. And, though he is from Venezuela, he vehemently denied being part of the terrorist organization.

The facts presented led Garcia to impose the shortest sentence allowed — the five months and 27 days Fernandez-Monserrat had already served while waiting for his day in court.

Fernandez-Monserrat was to be immediately deported, but where the U.S. government will take him was unclear. There was no telling whether the gang label would follow him.

“I offer an apology to the United States and to Your Honor,” said Fernandez-Monserrat. “Lastly, I would like to be sent to any other country that is not Venezuela.”

Fernandez-Monserrat’s attorney, Erlinda Johnson, said the pre-sentence report never mentioned her client as finding the bullet at his worksite and was based on hearsay. She asked the judge to remove the mention that her client was identified as a member of TdA, as the gang is known.

“Mr. Fernandez requests this Court direct the U.S. Probation Office and the government to remove all references to gang membership as such a reckless label may prove detrimental to Mr. Fernandez’s very existence and human rights,” she stated in a written objection.

In court Wednesday, she stated that the reason “we felt strongly about it ... is this could potentially affect Mr. Fernandez in his removal (from the U.S.) proceedings.

“Many Venezuelan men have been labeled by the U.S. government as members of the TdA simply because they are young Venezuelan males and have had brushes with the law.”

Many Venezuelan males identified as members of the gang by social media posts and everyday tattoos have been sent by the U.S. to El Salvador’s notorious prison, El Cecot, known for its human rights abuses, Johnson stated.

Garcia said it wasn’t material to his sentencing decision, but went ahead and instructed U.S. Probation employees to excise mention of the alleged gang affiliation from the report.

Johnson said in court records that her client had been an idealistic college student in Venezuela in 2016 when “he was compelled to leave his homeland following his participation in protests against Venezuela’s narco-dictator, Nicholas Maduro.”

“Only someone who has lived under or experienced a repressive regime can understand that being forced to flee one’s homeland is a heart-wrenching decision not taken lightly,” Johnson wrote in the sentencing memo. He and his girlfriend fled to Colombia, and he was granted protected status and allowed to remain. There, the couple had two children.

He eventually immigrated to the United States to earn enough money to improve the lives of his new family and was granted temporary admission to the U.S. through the Calexico port of entry. An acquaintance offered him a temporary place to live in Las Cruces.

He then moved to Albuquerque after that acquaintance introduced him to other Venezuelans who had moved to the city, the memo stated.

Fernandez-Monserrat had a connection with some of the individuals who would eventually become targets of a criminal investigation, the memo stated. But, Johnson said, he maintains he wasn’t involved in or aware of any such alleged criminal activity.

Fernandez-Monserrat found work with a painter, who allowed him to live in an apartment he was remodeling, in exchange for lower wages. Eventually, he and a girlfriend rented a room from another Venezuelan and lived there for two months before agents with Homeland Security came calling, the memo stated. A search of the apartment turned up the lone bullet in his room.

In a written response, the U.S. Attorney’s Office refuted the claim that his case was another example of the government’s recent trend to arbitrarily label young Venezuelan men as members of the gang.

Assistant U.S. Attorney Timothy D. Trembley told the judge, “We’re not here to provide evidence (about the alleged gang membership). This is not an allegation that’s come out of thin air.”

He stated that there has been a year-long investigation of the TdA in Albuquerque and elsewhere, and the government has developed several cooperators who identified Fernandez-Monserrat as a member of the gang.

Asked whether the U.S. Attorney’s Office has prosecuted against any TdA gang members in New Mexico, spokeswoman Tessa DuBerry responded in an email, “At this time, no other Tren de Agua members have been identified in publicly available documents.”

Garcia said during the sentencing hearing that when he read in the pre-sentence report that the government was “prosecuting someone for literally possessing one bullet, I was surprised and questioned whether it was an efficient use of government resources.”

Garcia added that in sentencing Fernandez-Monserrat, he could only deal with the federal charge that applied and given it involved only a single bullet, he would impose the prison time Fernandez-Monserrat has served to date.

Fernandez-Monserrat hoped to be deported to Colombia until it was safe to return home to Venezuela, said Johnson.

After the hearing, Johnson said she hoped he would be returned to Colombia, but she added, “I fear for this young man.”