This is something I wouldn't normally post -- it's my cover story from last Thursday -- but I'm doing so for two reasons:
1. I beat the local daily on the story by four days; I've been spending much of today standing atop my building, beating my chest and bellowing.
2. More importantly, it shows that not all the weird immigration problems are in the Southwest.
The number two has taken on an unusual significance for Jose Vega-Mendoza.
Because of two months on the Cass County, N.D., District Court calendar and two days on a jail sentence, the 26-year-old Moorhead, Minn., man – who has lived there since he was two years old – faces possible deportation to Mexico, where he has virtually no family, knows nobody and, his family fears, could be in mortal danger.
Vega-Mendoza sits in the Cass County Jail, where he’s been for nearly 10 months on unrelated misdemeanor charges. He didn’t bail out from those for fear of being scooped up by Immigration and Customs Enforcement and having deportation proceedings begin immediately.
In October 2004, he and a friend broke into four Fargo-Moorhead car dealerships and stole tires and rims from a number of vehicles. Even now, his own reasons for doing it mystify him a bit. He felt he’d been ripped off by a local car dealer, but it was not one of the four he and his friend broke into.
But aside from his pique at the one car dealer, “we were bored,” he says ruefully. “We always planned on bringing them back.”
Vega-Mendoza’s current attorney, Willie Kirschner (full disclosure: Kirschner is an occasional columnist for The FM Extra), says, “To him it was like kind of a dare kind of thing. He didn’t think they were going to sell them – just to show that they could do it kind of thing. Real stupid.”
Police eventually discovered that his friend, Daniel Trevino, was involved in the theft, and Trevino implicated Vega-Mendoza.
When questioned by police, Vega-Mendoza told all about the thefts; one of the police reports on the case says, “He wanted to cooperate 100 percent.” He had sold one set of the tires and would not identify the buyer to police because he did not want to get the buyer in trouble. But he recovered those tires and turned them over, along with the others he took – which were kept under a tarp in his mother’s garage – and all the stolen property was returned to the dealerships.
Because of the dollar value of the tires taken, Vega-Mendoza was charged in Cass County with dealing in stolen property and felony theft and in Clay County, Minn., with felony theft.
He eventually pleaded guilty to the charges on both sides of the river and served concurrent 90-day jail sentences, with the balance of the time suspended. He also paid all the restitution in the case – $2,800 – because, by the time it was adjudicated, Trevino had died in a motorcycle crash.
Those guilty pleas, the timing of his court appearances and the subsequent sentences are where his troubles began.
The guilty plea Vega-Mendoza signed includes 28 numbered stipulations, the 27th of which reads: “My attorney has told me and I understand that if I am not a citizen of the United States, this plea of guilty may result in deportation, exclusion from admission to the United States of America or denial of citizenship.”
But Kirschner says Vega-Mendoza signed the pleas in both Cass and Clay counties without reading them and neither of his public defenders told him that conviction could mean deportation.
Kirshner agrees that it’s a bit mystifying that Vega-Mendoza didn’t read the pleas before signing them. “I don’t know (why),” he says. “Lazy. Lawyer told him to sign it. He did not even think that this affected him.”
Vega-Mendoza says that he was told by his attorneys – one of whom actually filled out the plea agreement form for him – that all he had to do was sign his name and the matter would be taken care of, so he simply signed without reading.
That wouldn’t even be a problem but for those matters of timing. Immigration law defines the crimes of which Vega-Mendoza was convicted as “crimes of moral turpitude,” Kirschner says. And under immigration law, a person convicted of two “moral turpitude” crimes who has been in the country legally for less than five years can be deported.
Vega-Mendoza was born in Mexico and came to this country with his family at age 2. His parents applied for and were granted legal permanent-resident status in 2001; in fact, he is the only member of his immediate family who has not since taken American citizenship, a process he started but never finished. He gained legal permanent-resident status in June 2001.
Vega-Mendoza pleaded guilty to the Cass County charges just two months before he would have passed the five-year milestone. Had his attorney gotten the case continued for just that much time – something Kirschner said could have been done easily – he would have beaten the five-year time frame and the crimes would not have made him subject to deportation.
A Cass County judge eventually vacated that conviction and on Tuesday, Vega-Mendoza pleaded guilty to criminal mischief, which is not a deportable offense.
In Clay County, the problem is a bit different. His full sentence was 366 days, even though he only served 90 and the rest was suspended. That sentence resulted because the crime was considered an aggravated felony and thus deportable, Kirschner says. But had he been sentenced to less than a year, he would not be subject to deportation.
“I need to get the sentence reduced by two days,” the attorney says. He wants Clay County Attorney Brian Melton to vacate the earlier guilty plea, giving Vega-Mendoza a do-over, and have the original sentence changed to 364 days.
Just last week, Melton turned down a request from Kirschner to vacate the original guilty plea.
The county attorney says he cannot do that. In fact, Melton says, Clay County can do virtually nothing to change the situation and it’s up to an immigration court. Vega-Mendoza and his attorney tried to convince him that “somehow we’re supposed to help him not get deported,” Melton says. But he’s repeatedly referred Kirschner to Immigration and Customs Enforcement. “The issue is, he’s a convicted felon, and you can’t wipe away that felony from six years ago.”
In fact, he says the contention that it’s a matter of reducing the sentence by two days is “the biggest make-believe.” Vega-Mendoza was sentenced under state sentencing guidelines that call for a year and a day in jail. In trying to get the sentence changed, Kirschner is “trying to manipulate the system,” Melton says, and is seeking the county attorney’s help in doing that.
“He would like to classify it about the time that he would sit in jail; it’s this thing about two days,” Melton says. “It has nothing to do with two days. It’s a five-year felony. It’s the difference from making it a felony and reducing it down to a gross misdemeanor.
“If anybody would commit a crime such as that, where they steal $7,000 worth of stuff, if anybody did that, any person, whether they’re white, black, Hispanic, Asian, we would convict them for the felony act that they did. It has nothing to do with their race, with their citizenship. We would convict the person and never manipulate the system. We would never be a part of something like that. Justice looks at people equally. It looks at the actions of the person.”
While the eventual disposition of Vega-Mendoza’s case may or may not hinge on matters of timing that seem small, his family and others say that his crimes were small enough to not merit deportation – and they fear that sending him to Mexico could have serious, even fatal, consequences.
Vega-Mendoza’s sister, Sandra Vega, says the family does not know what will happen if he is deported. Their mother has a sister in Mexico that she talks to only occasionally, but the family is aware of the current bloody war between drug cartels and the government. In fact, the family has been directly affected by them; Vega-Mendoza’s father and uncle both were murdered in Mexico, killings that remain unsolved. Just last month, a cousin was murdered there.
“They’re just killing people left and right,” Vega says. “We’re really worried. He doesn’t know anything over there. It’s not good for him to be in Mexico.”
Vega-Mendoza says he speaks only a little Spanish and has never even spoken to, much less met, his distant relatives in Mexico. “I have no idea where they even live,” he says.
The only thing he can think to do, if he is deported, is to make his way to a resort and work there (at the time of his arrest, Vega-Mendoza was studying massage therapy at Minnesota School of Business).
Vega-Mendoza’s supporters also point to his background as a reason for allowing him to stay here. He is a disabled U.S. veteran – a veteran twice over, actually.
He enlisted in the U.S. Army shortly after the 9/11 attacks. He told the recruiter he was not a U.S. citizen but was accepted anyway. After graduating near the top of his class from basic training, he began further training in communications. But a change in Army regulations because of the attacks torpedoed his plans for a military career. As a resident alien, he was unable to get the necessary security clearance to work in communications. He was given an “unclassified” discharge, a sort of catch-all category for those discharged under circumstances that don’t fit under either honorable or dishonorable categories. A captain and a lieutenant colonel under whom he served both recommended him for an honorable discharge, but that was not the ultimate decision. (An information packet put together by his supporters contains several letters of support from Army officials.)
Vega-Mendoza returned home to Moorhead and then enlisted in the National Guard, hoping to attend college while he served. But when he pleaded guilty to the felonies, he was given another unclassifieded discharge. He says he did not know the felonies would affect his status in the Guard, just as he did not know they would make him subject to deportation.
He was later granted disabled-veteran’s status due to shin splints he incurred during his time in the army.
His military service is part of the reason he never took citizenship. From the day he took the oath with the army, July 1, 2002, “I never felt more American,” he says. “If I took a 100-question test and I swore a formal oath, I don’t believe that would make me any more American than I am.” He would like to eventually become a citizen, though, he adds.
The information packet compiled by his supporters also contains letters of support from organizations for which Vega-Mendoza volunteered. A letter from Erin Kerr, manager of the Lake Agassiz Habitat for Humanity ReStore, says he “goes above and beyond the average volunteer. … His respectful, prompt and can-do attitude have made him a pleasure to work with.”
Vega-Mendoza has been in the Cass County Jail since last September – ironically enough, Sept. 11 – on misdemeanor charges unrelated to the earlier case. He got into a drunken fight with his girlfriend, pushed her and snatched the phone from her hand when she called police, resulting in misdemeanor charges of assault and interfering with a 911 call. The only reason he has remained in jail, Kirschner says, is that he did not post bail because if he did, Immigration and Customs Enforcement officers would immediately arrest him and take him to Minneapolis for deportation proceedings, which might last only a matter of days before he was kicked out of the country.
A chastened Vega-Mendoza says he is baffleed by his current situation.
“To be exiled from the country that you have served for, that you would fight for, that you would die for, doesn’t make any sense to me,” he says.
He admits that his current situation is a result of both boneheadedness and ignorance.
“I’ve kind of been a person that learns things the hard way,” he says. “I don’t know the laws. I don’t understand the laws. This lesson has made me learn that pride, anger, resentment, unforgiveness, are all things you have to let go of.”
On a practical level, it’s made him stop drinking. Vega-Mendoza said since he only drank a couple of times a month, and only occasionally got out of control due to alcohol, he didn’t consider himself an alcoholic. While in jail, he has attended a 12-step program and he says he’s determined to stop drinking.
And he hopes that he didn’t learn those lessons too late – before he’s sent off to someplace he’s never been, where he knows nobody, doesn’t speak the language and has only the vaguest ideas about how to survive.
“After I got in (jail), it started making me appreciate the things I care about the most,” he says. “The positive things that I’ve done in my life was because of other people – my family.”
And he remains hopeful that somehow he will find a way to avoid deportation, he says.
“I just don’t believe that ultimately it will happen.”
Update: It appears ICE will be taking the kid soon, if they haven't already.