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U.S. keeps man in legal limbo

Eddie Mendiola faces deportation though charges of entering country illegally were dismissed.

October 30, 2008|H.G. Reza | Reza is a Times staff writer.

Eddie Mendiola thought his troubles were over when a federal judge dismissed the case against him for entering the country illegally. But weeks after the ruling, the Orange County resident remains in custody while the government presses ahead with efforts to deport him.

In August, federal prosecutors in Los Angeles did not oppose his attorney's motion to dismiss the case, seemingly clearing the way for Mendiola's release from custody. David A. Katz said his client had been illegally deported in 2005 to Peru -- where he had not lived since he was 3 years old -- and should not have been prosecuted for returning to the United States without documents.

Mendiola, 39, was a legal U.S. resident before he was deported because of his criminal record. When the illegal entry case was dismissed, he had expected to return home to Foothill Ranch and his wife, Brittany.

Instead, he finds himself caught in an apparent Catch-22. Though he will not be prosecuted on the charge of returning to the country illegally, immigration officials arrested him and used an administrative procedure to reinstate the 4-year-old deportation order.

Mendiola attracted Immigration and Customs Enforcement's scrutiny after his brother Giovanni pleaded guilty in Idaho in 2003 to killing an associate in a drug dealing business. Eddie Mendiola and another brother, Pierro, pleaded guilty to being accessories after the murder and were sentenced to three- to five-year terms. They served only six months at a prison "boot camp."

Upon completing their Idaho sentences in 2004, Eddie and Pierro Mendiola were handed over to ICE for deportation. Idaho is in the U.S. 9th Circuit Court of Appeals, but the brothers were taken to Colorado and the 10th Circuit for their deportation hearings.

Katz and Kari Hong, who is Mendiola's immigration attorney, said ICE purposely took their client to Colorado because there are fewer restrictions on deportation there. ICE spokeswoman Virginia Kice said immigrants in Idaho at the time were routinely sent to the detention center in Colorado for deportation hearings.

Pierro's deportation was blocked by an immigration judge, but the same judge ruled that Eddie Mendiola's misdemeanor drug possession convictions in 1996 and 2000 in California made him eligible to be deported.

These were not his only brushes with the law. An arrest warrant issued in August, when Mendiola was transferred to ICE custody, lists seven convictions between 1996 and 2003, including two for assault with a deadly weapon and one for "dissuading" a witness, all in California.

Mendiola's assault convictions show that he is dangerous, Kice said. He is "exactly the kind of person who should be removed from the U.S." His 2005 deportation, however, hinged on the two drug convictions for possession of steroids.

Tara Naselow, ICE deputy chief counsel in Los Angeles, said the agency is going through with plans to deport Mendiola despite the dismissal of the criminal reentry charge in Los Angeles federal court. The U.S. attorney's decision not to oppose Katz's motion to dismiss the charge does not bar ICE from using civil statutes to deport him, she said.

The criminal case in federal court and the deportation case in immigration court are totally separate, Naselow said. Mendiola is eligible for removal because he has been deported once and is in the country without proper documents, she said -- even if his defense attorney successfully argued that the deportation was illegal.

In addition, Mendiola's two misdemeanor convictions for drug possession justify his deportation under 10th Circuit law, Naselow said: "Those convictions put together under 10th Circuit law are an aggravated felony, which is grounds for deportation."

Katz and Hong said the drug convictions could not have been the basis for the deportation order under 9th Circuit law, which is where, they contend, the case should have been heard.

Immigration statutes are often applied differently in separate jurisdictions, said attorney Lilia Velasquez, who teaches immigration law at California Western School of Law in San Diego.

"It's very confusing," she said. "Immigration judges are looking at the same statute but the way they interpret it is different."

Katz's motion for dismissal said one drug conviction was mistakenly entered in court records as a felony and corrected after Mendiola's deportation. The attorney also said Mendiola's 2004 deportation hearing, held in 10th Circuit, should have taken place in the 9th Circuit where the convictions occurred.

Mendiola was sent to Lima, Peru, in March 2005 and returned four months later by walking across the border at San Ysidro, near San Diego.

"Because as a matter of law Mendiola was not legally deported, he has not committed the crime" of illegal entry, Katz wrote in a 21-page brief.

Hong said none of Mendiola's convictions justify his deportation because they are not considered crimes of moral turpitude or aggravated felonies. She has filed motions to stay his deportation but said his legal options are dwindling.

Mendiola has been a federal prisoner for almost two years and is being housed at Santa Ana City Jail.

"All I want is to go back to my wife and family," he said in a jail interview. He has a daughter, 17, and two sons, 14 and 7, from a previous marriage.

He said he regrets his crimes and wishes he had become a citizen instead of remaining a legal resident.

"Maybe if I'd become a citizen I wouldn't be in this mess," he said. "But I'm so confused. I can't understand how one part of the government agreed that I was wrongfully deported to begin with and another part wants to deport me."

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hgreza@latimes.com

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