Should a person be evicted because a decade and a half ago they left their toddlers home alone for half an hour to buy them pajamas at Walmart? That’s what the Trump administration is arguing in a little-noticed federal appeals court case underway in California, with far-reaching implications for both the immigration and child welfare systems. A decision is expected in the coming months.
In 2010, Sotero Mendoza-Rivera, an undocumented farmworker who had immigrated from Mexico ten years earlier, made a fateful decision. He drove with his girlfriend, Angelica Ortega-Vasquez, to their local Walmart in McMinnville, Oregon, according to a police report. The store was seven minutes from their apartment. In addition to pajamas, they bought motor oil and brake fluid for their car.
When they returned to the apartment, their 2-year-old son, who had been asleep in bed when they left, had woken up and managed to get out the door. A passerby found him on the street outside the complex, with a bottle in his hand, and called the police.
The responding officer issued Mendoza-Rivera and Ortega-Vasquez a misdemeanor citation, which they resolved with a guilty plea, fine and probation. The officer said in his report that the little boy and his 3-year-old sister were healthy and clean, the apartment was well-kept and stocked with food, and a neighbor said the mother was usually home with the children.
The Obama administration then opened deportation proceedings against Mendoza-Rivera, but did not detain him. He appealed, and the case moved slowly through the court system before ending up in a backlog at the 9th U.S. Court of Appeals, where some immigration issues from nearly a decade ago are still being decided.
But in August, amid the Trump administration’s mass deportation campaign, Immigration and Customs Enforcement arrested Mendoza-Rivera and locked him up in another state. And the Justice Department now says that what he did in 2010 (the current case only concerns him) is a crime that merits his immediate expulsion from the country. A Justice Department lawyer argued before a 9th Circuit panel in Pasadena, Calif., last month that it doesn’t matter if no harm was caused to the children, saying an immigrant parent should still be deported if their parenting decision involved a “substantial” deviation from a “normal” standard of care for the children.
Child welfare officials and experts told ProPublica they are deeply concerned about this case, as well as several other similar cases that have made their way through the courts and are now reaching a watershed. “Imagine what a weapon it would be in the hands of ICE if child welfare were added to all the other areas where a conviction for the most minor offense means deportation,” said Richard Wexler, executive director of the National Coalition for Child Welfare Reform, an advocacy group.
Indeed, if Attorney General Pam Bondi’s team wins this case, thousands of immigrant mothers and fathers could be deported for minor involvement in the juvenile justice system, a new area for President Donald Trump’s deportation regime. There are no exact figures for the number of immigrants charged with minor parental neglect in juvenile courts. But as ProPublica has previously reported, Millions of parents are accused of neglecting their children every year in this country, in many cases for reasons from poverty such as lack of child care or food in the refrigerator, rather than physical or sexual abuse.
Immigrant parents are no more likely than American-born parents abuse their children. But undocumented parents may be more likely to be charged with some mild forms of neglect, according to Legal Aid attorneys. On the one hand, due to their lack of legal status, they sometimes avoid interactions with school and hospital officials, which can lead to allegations against them for neglecting their children’s health or education. They also disproportionately work long, unpredictable hours, sometimes leaving their older children to care for younger ones, which in the United States can be considered inadequate supervision. Different cultural norms regarding the need for hands-on supervision also play a role.
According to interviews with more than a dozen federal and state child welfare officials, there is no evidence yet that ICE is actively seeking cases like these to identify parents for deportation. But data on specific child welfare cases is reported annually by states to the federal government, through the National Child Abuse and Neglect Data System. (The data contains identifiers for the children but not their names, although state agencies have them.)
“The million NCANDS reports would be a gold mine for Noem and Miller,” said longtime child welfare statistician Andy Barclay, referring to Homeland Security Secretary Kristi Noem and top Trump adviser Stephen Miller.
The first Trump administration did not seek to use this data for deportations, according to Jerry Milner, who was appointed to oversee the U.S. child welfare system as head of the federal Children’s Bureau from 2017 to 2021. “I never had any of these discussions around the data,” Milner told ProPublica. “I can’t guarantee that others haven’t done it, but they never reached me.” But, he said, “things are different now.”
“I would be very concerned if any of the data was used for purposes other than what it was intended for,” Milner said.
Medicaid data, for example, is would now be shared with the Department of Homeland Security, and these files may contain more identifying information than NCANDS about families with child welfare records. EDS also has accessed Office of Refugee Resettlement data on migrant children, which can be used to identify the location of young people and the (sometimes undocumented) adults who care for them. Indeed, DHS and FBI agents having visited migrant children into the homes of their guardians, apparently to carry out “welfare checks”.
The White House declined to answer questions for this article. The Department of Homeland Security did not respond to a request for comment. A Justice Department spokesperson in an email accused the Biden administration of letting Mendoza-Rivera’s case languish and said that “as part of this administration’s commitment to making America safe again, the Attorney General will continue to champion efforts to deport criminal illegal aliens, particularly those convicted of offenses that place children in situations that may endanger their health or well-being.”
The Trump administration’s view, according to Justice Department filings in the Mendoza-Rivera case, is that undocumented parents convicted of even the most minor forms of parental neglect should not be eligible for a type of legal relief called “vacation of removal.” (Mendoza-Rivera sought this relief during her initial deportation proceedings, which is part of what prompted the current appeals case.) This is a route out of deportation that has until now been available to these mothers and fathers if they have been in the United States for 10 years or more, are of “good moral character,” and their deportation would cause extreme hardship to their U.S. citizen children. This would apply to the children of Mendoza-Rivera and Ortega-Vasquez, who are U.S. citizens.
One of the key federal laws the Trump administration is relying on in its efforts to deport millions of people comes from the Bill Clinton era. In 1996, the Illegal Immigration Reform and Immigrant Accountability Act overhauled immigration enforcement in part by stipulating that noncitizens, even legal permanent residents, must be deported promptly if they have been convicted of certain offenses, including aggravated felonies, crimes of “moral turpitude,” crimes related to drugs or domestic violence, or a “felony of child abuse, neglect or abandonment of children.
The motivation for including this type of language, at the time, was clear. In the middle of violent crime wave In the 1990s, the law’s co-author, Bob Dole, told the Senate that the crimes he wanted to make deportable included “cruel acts of stalking, child abuse and sexual abuse.”
Yet in the three decades since, societal norms around what constitutes bad – even criminal – parenting came to include all kinds of non-violent and even harmless behavior. A range of parenting practices that were considered normal for most of the 20th century are now the subject of child abuse investigations and prosecutions in many states; let your children play in the park and go home alone could be “neglect“, especially if you are poor and person of color. It’s also possible to briefly leave them in their car seat with the windows cracked and the car alarm on while you run to a store to buy diapers, or not properly secure their bedroom windows at night.
Some rulings by other courts have blocked deportations of people with these types of alleged parental faults, while the federal government Immigration Appeal Board proposed changing directions on the issue. Immigration advocates fear that the current appeals court proceeding, which consolidates several similar cases, including Mendoza-Rivera’s, could become extremely influential in the legal system — and with much higher stakes now given the current administration’s focus on enforcement.
Although the Obama and Biden administrations have taken similar positions to the Trump administration on this issue, they have generally not pursued deportations as aggressively. “Some discretion was exercised,” said David Zimmer, Mendoza-Rivera’s appellate lawyer. “So it was at least possible, in a given case, that they would have decided not to proceed with the removal if the parent had not done anything serious.” That’s no longer the case in a regime that looks for any reason to deport an immigrant, Zimmer said.
That case could then be heard by the full 9th Circuit and then go to the U.S. Supreme Court, if the justices choose to take it up. Much of the debate rests on the question of after-sales service or whether it matters whether immigrant parents intended to harm their children, given that intent is part of the definition of most crimes. If the parent did not harm their child and was not aware that they might harm their child, advocates say, that should not be considered a “crime” worthy of deportation.
The Oregon tort law under which Mendoza-Rivera was convicted does not require proving intent to harm a child, actual harm to a child or even exposure of a child to any harm, Justice Department attorney Imran Zaidi acknowledged at a 9th Circuit hearing in January. But negligence remains a “culpable mental state” that merits expulsion, he said, because it is “incompatible with a fair consideration of consequences.”
Jed Rakoff, a federal district judge in New York and a guest member of the 9th Circuit panel, responded that he had heard this argument since “my first year of misdemeanor classes.” Negligence, he says, is by definition unconscious; otherwise, it would be “recklessness,” which is a different, more serious act involving conscious negligence of potential harm. In the context of these family court cases, it is often simply conduct that constitutes a slight departure from the subjective opinion of a middle-class “reasonable person” – a neighbor, a social worker – about what “good” parenting looks like.
“I’m talking about the term ‘crime’: what did Congress mean by that one word? ” Rakoff said, referring to the 1996 law’s description of a “crime” as “child abuse, neglect or abandonment.” Lawmakers clearly meant something more serious than briefly leaving children unsupervised, Rakoff continued. After all, the consequence they prescribed – expulsion – was far more serious than any other possible consequence for a similar offense.
Zaidi, the Justice Department attorney, responded that if many state laws say an act constitutes a child neglect crime, then it is a child neglect crime, and Congress has said a child neglect crime is deportable. The two justices other than Rakoff seemed more open to this argument.
The fundamental question the appeals court addresses, then, is whether these basically harmless parental “crimes” alleged by increasingly active local child welfare authorities are the same category of crimes that the U.S. Congress was talking about when it passed a law on immigrants committing violent crimes, domestic violence, and terrorism.
Josh Gupta-Kagan, founder and director of the Columbia Law School Family Defense Clinic, said it appears Mendoza-Rivera and Ortega-Vasquez “did not pose a threat to the safety of their children, much less anyone else,” even though they showed poor judgment by leaving the toddlers alone for half an hour. So it’s “fair to ask,” he said, to what extent pursuing any of their deportations serves the Trump administration’s “stated interest in public safety.”
McMinnville, Oregon, where Mendoza-Rivera and Ortega-Vasquez bought these pajamas at Walmart, is where they have lived for nearly a quarter century and where they had their two children, now teenagers. It’s also where Mendoza-Rivera spent all those years picking and packing his produce.
But he has now been locked up for months in a detention center in Tacoma, Washington, and his family has in turn lost much of their income. His children are without him. And if the Trump administration manages to use a law designed to protect children against him, they will lose their father forever to a foreign country.