California man shot by ICE arrested by FBI and charged with ‘assault’

Federal officials have arrested a California man who was shot by US Immigration and Customs Enforcement (ICE) agents and charged him with “assault” on a federal officer.

Carlos Ivan Mendoza Hernandez, 36, was shot by ICE officers on 7 April in Patterson, a rural town in California’s central valley roughly 80 miles south-east of San Francisco. He was hit by more than six bullets, including in the face, according to his attorney.

Hernandez is the latest person to be injured by immigration officers and then criminally prosecuted by the US Department of Justice (DoJ). In the Los Angeles region, the DoJ has consistently failed to win convictions against people accused of assaulting immigration officers, suffering a string of embarrassing dismissals and acquittals in recent months.

The Department of Homeland Security (DHS) initially accused Hernandez of being a gang member wanted in connection to a murder, but his attorney has strongly denied those claims, and the justice department did not repeat those allegations in its complaint and press release on Tuesday.

Hernandez, who does work rehabilitating buildings damaged in fires, was pulled over on his way to a job. Dashcam footage of the encounter, from a witness in a nearby car, showed Hernandez reversing away from the officers as two officers pointed firearms at him. The car then drove forward and jumped over a median.

The footage, with no sound, does not make clear when officers fired shots, but Hernandez, through his attorney, has insisted he moved his vehicle only after he was shot, to flee the bullets.

A second witness in another car released dashcam footage last week and told reporters that ICE fired its first shot before the car moved.

In its initial statement, DHS alleged Hernandez “weaponized his vehicle in an attempt to run an officer over”, saying officers “fired defensive shots to protect themselves”. That statement did not include any claims the officers were hit by the car or injured, and the videos do not show the car colliding with agents, though the footage is grainy and partially obstructed.

In the complaint filed in federal court, for a single count of “assault on federal officer with dangerous or deadly weapon”, an FBI special agent wrote that the vehicle “hit” an officer identified as agent 1. The complaint does not allege the officer suffered injuries, saying Hernandez drove “toward officers in a manner that would have caused serious bodily injury or death had the officers not taken evasive action”.

Agent 1 and an officer identified as agent 2 both discharged their firearms, according to the complaint. But the complaint is not based on testimony from either officer, the FBI noted, writing: “The FBI has not been able to interview Agents 1 and 2.”

Todd Lyons, ICE’s acting director, alleged in a statement last week that ICE was conducting a “targeted stop” to detain Hernandez, calling him “an 18th Street Gang member wanted in El Salvador for questioning in connection to a murder”.

Those claims were absent from the DoJ’s statements on Tuesday. The complaint said agents were engaged in an operation to “locate and arrest” Hernandez for “immigration violations”, and DoJ’s news release said he was “illegally present” in the US.

Patrick Kolasinski, Hernandez’s attorney, said Tuesday it was notable that after a weeklong investigation, the FBI did not speak with the key witnesses, including the agent who is the alleged victim.

Kolasinski has said Hernandez appeared to be in the US without legal status, but has vehemently disputed the gang claim, noting the 18th Street group is associated with Los Angeles, a city Hernandez has no connection to. He also said El Salvador court records showed Hernandez was accused of murder there, but was acquitted.

“The DoJ press release did not stick to the DHS narrative, which is striking. Maybe the DoJ decided not to overreach,” said Kolasinski. “They know he’s not a gang member, which he is not … ICE did not do their due diligence.”

DHS did not respond to inquiries about those claims and why ICE agents were not interviewed by the FBI. A spokesperson on Wednesday sent the same statement DHS had released last week, calling Hernandez a “wanted gang member”.

Lauren Horwood, a spokesperson for the US attorney’s office prosecuting Hernandez, declined to say whether the DoJ stood by DHS’ claims about Hernandez’s record, writing in an email: “The complaint is written to provide sufficient probable cause for the requested warrant. It does not need to include all the information.”

Asked if agents were targeting him due to a murder or gang investigation, she responded: “They were going to arrest him for immigration violations. This investigation is ongoing and I cannot confirm or deny other details that are not part of the public record, which at this point is the criminal complaint.”

DHS has repeatedly faced scrutiny for making false and unsubstantiated claims about people injured and shot by officers.

In a case in Oregon in January, DHS said a man shot by a border patrol agent was a “vicious” member of a Venezuelan gang, but a justice department lawyer later directly contradicted DHS, saying in court: “We’re not suggesting … [he] is a gang member.”

Hernandez has a two-year-old daughter with his partner, who is a US citizen. He is facing 20 years in prison.

“She was living a happy life engaged to a wonderful caring family man, who was nearly killed,” Kolasinksi said of Hernandez’s partner. “Her life has been turned upside down … her daughter is barely able to sleep because she’s used to daddy putting her to bed.”