Mendiola

MEMORANDUM **

Humbert Irra Mendiola (“Mendiola”) appeals the district court’s dismissal of his Petition for Writ of Habeas Corpus. Mendiola asserts that the failure of the Immigration and Naturalization Service (“INS”) 1 to notify his counsel of Mendiola’s impending detention violated his due process rights.

*380 In order to prevail on a due process challenge to a deportation proceeding, the petitioner must show error and substantial prejudice. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000). Assuming, without deciding, that Mendiola was represented by counsel and that the failure to notify such counsel was a violation of Mendiola’s due process rights, Mendiola failed to show the requisite prejudice.

Mendiola’s argument that he was prejudiced because he was deprived of the opportunity to seek a stay of deportation lacks merit. In fact, Mendiola obtained a stay of removal by filing his fifth Petition for Review with this court on February 10, 2004, the day he was taken into custody. Additionally, there is nothing in the record suggesting Mendiola could not have sought a stay prior to this date, since he had done so on four prior occasions by filing Petitions for Review with…

dissenting:

This case is another example of the cruelty inflicted on immigrants by our nation’s immigration laws. Here is a forty-five year-old man who has been living and working in this country for over twenty-one years. Humberto Irra Mendiola came to the United States as an agricultural worker in the 1980s. On October 7, 1991, he adjusted his status to that of lawful permanent resident. Aside from a single California guilty plea in 1992 for a “firearms offense,” Mendiola has committed no crimes. 1 He has worked hard as a laborer to earn an honest living and to support his family.

On January 27, 1995, an Immigration Judge (“IJ”) found Mendiola deportable as a result of his 1992 guilty plea and ordered him deported to Mexico. For the past thirteen years, Mendiola has been diligently trying to reopen his case with the Board of Immigration Appeals so that he may be permitted to remain in this country with his wife Eva and their three children: Guadalupe, age twenty-three; Humberto, Jr., age fourteen; and Samantha, age nine. Mendiola’s wife, two daughters, and son are all United States citizens, and his extended family all live in the United States. 2 *381 Mendiola’s loved ones…