Can courts stop deportation of Yancarlos Mendez? Yes.

Mark Curnutte
Cincinnati Enquirer
Yancarlos Mendez, 27, rests next to his fiancee's son, Ricky Solis, after a near-fatal car crash that left the boy paralyzed from the waist down. (Provided)

The hail-Mary effort to prevent the deportation of Yancarlos Mendez, caregiver of a paraplegic 6-year-old boy, has a chance of success against President Donald Trump's Immigration and Customs Enforcement department, according to a former federal judge. 

Late Friday, the U.S. Sixth Circuit Court of Appeals granted Mendez's attorneys' request for a temporary stay of deportation and gave the government until 3 p.m. Tuesday to file its response. Its attorneys are expected to request additional time.

That delay gave Mendez and his attorneys a brief respite, but they also have a reasonable chance of winning their appeal of the deportation itself, according to retired Judge Nathaniel Jones.

Mendez, 27, who had been living in Springdale, remains in federal custody in Morrow County, Ohio, north of Columbus.

The Sixth Circuit delayed the deportation to consider the question of whether it has jurisdiction over the matter. Jones, who retired from the same court in 2002, believes the answer to that will be yes.

"They can hold a hearing on the merits of the case," Jones said. "They could remand it to a U.S. district court or hear it themselves."

On Dec. 15, ICE had ordered Mendez's deportation to the Dominican Republic because he "overstayed his period of admission in the Visa Waiver Program."

The program allows visitors from participating nations — in Mendez's case, Spain, where he has dual citizenship — to travel to the United States for tourism or business for stays up to 90 days.

Mendez, according to his attorney's court filings, entered the United States "about four years ago." His lawyers contend that ICE has not disclosed to them the exact date of Mendez's entry or his visa status.

"We wouldn’t comment on pending litigation," Khaalid Walls, spokesman for the ICE regional office in Detroit, said Tuesday morning in an email to The Enquirer.

Mendez's attorneys say that the Board of Immigration Appeals, which has nationwide jurisdiction to hear appeals of certain decisions rendered by immigration judges and the Department of Homeland Security, ruled in 2015 that federal courts have jurisdiction to determine whether a defendant is or was a Visa Waiver Program recipient. 

The attorneys also cited four federal appeals court rulings in which the courts determined that they have jurisdiction to review a deportation order where the defendant challenges the validity of the visa waiver. 

Mendez went to the Sixth Circuit because the Board of Immigration Appeals ruled that neither it nor federal immigration courts have jurisdiction in his case.

"No court has reviewed the validity of the final order," his attorneys wrote.

On Jan. 4, ICE denied an application for a one-year delay on Mendez's deportation, which was set in motion after he was arrested for driving without a license in Butler County. Attorneys had filed an appeal of the deportation order based on the extreme hardship it would cause Mendez's fiancee, Sandra Mendoza, and her son, Ricky Solis. The boy suffered life-threatening injuries and was left paralyzed from the waist down from a car crash February.

Mendez and Mendoza are engaged to be married. An auto mechanic, Mendez has financially supported the family and, with Mendoza, was trained to medically care for Ricky by staff at Cincinnati Children's Hospital.

ICE denied Mendez's appeal despite national attention to the case.

As the legal questions play out, the couple is trying to marry "as soon as possible," said Nazly Mamedova, one of his lawyers. The process would involve Morrow County deputizing an attorney to conduct the marriage inside the jail.

"You get the person on the outside to sign the marriage license, and then you go into the attorney's room and get the person incarcerated to sign," Mamedova said.