The Justice Department’s Board of Immigration Appeals has issued a published decision that lowers the bar for removing immigrants protected by Deferred Action for Childhood Arrivals (DACA). In its ruling, the BIA said that having active DACA status alone is not a sufficient reason to terminate removal proceedings.
A three-judge panel sided with Department of Homeland Security attorneys who appealed an immigration judge’s order that had ended proceedings for Catalina ‘Xóchitl’ Santiago after she cited her DACA protections. The board sent the case back to a different immigration judge for further consideration. The decision does not immediately deport Santiago, but it establishes precedent that could weaken safeguards for hundreds of thousands of other DACA recipients.
Santiago’s case drew national attention after Customs and Border Protection agents detained her in August while she was boarding a domestic flight at El Paso’s airport. She remained in immigration custody until a federal judge ordered her release last October, and her removal fight has proceeded through immigration court since then.
The BIA is an administrative appellate body inside the Justice Department. Both respondents and DHS may appeal immigration judge decisions to the BIA; the board’s published rulings set binding precedent for immigration judges nationwide and profoundly influence how immigration laws are administered. Advocates described Friday’s interim decision as another move by the Trump administration to erode DACA protections.
DHS had urged recusal of the immigration judge who ended Santiago’s case, arguing the judge’s marriage to Democratic Rep. Veronica Escobar of Texas created an appearance problem; neither the judge nor Rep. Escobar are identified in the BIA order. The board declined to sustain the recusal argument but found the immigration judge erred by terminating removal solely because Santiago had DACA.
Created in 2012, DACA provides temporary protection from deportation for people brought to the U.S. as children. Roughly half a million people currently hold DACA; the program does not create a pathway to lawful permanent residence or citizenship, and protections must be renewed every two years. Last year DHS officials encouraged some recipients to self-deport, emphasizing that DACA does not guarantee long-term legal status.
The administration has taken several steps that limit DACA-related benefits without formally ending the program. Agencies have moved to restrict access in other areas: Health and Human Services announced DACA recipients would be ineligible for the federal health insurance marketplace, and the Education Department has investigated certain universities over financial aid policies for undocumented students. In a letter to senators earlier this year, then-Homeland Security Secretary Kristi Noem reported that between January and November of last year, 261 DACA recipients were arrested and 86 removed, reiterating that DACA is temporary.
Over the past year, Immigration and Customs Enforcement attorneys have increasingly appealed immigration judge decisions to the BIA. An NPR analysis of publicly posted cases found that the BIA sided with government lawyers in 97% of decisions last year—about 30 percentage points higher than the long-term average. Recent board rulings have made it harder for immigrants to obtain bond and have eased deportation procedures, including sending people to countries other than their own. A proposed regulation from the Executive Office for Immigration Review would further restrict appeals of immigration decisions.
The BIA issued a record number of published decisions last year—70 precedent-setting rulings—shaping enforcement and adjudication across the immigration court system. Immigration courts operate within the Executive Office for Immigration Review at the Justice Department and are not part of the federal judiciary.