The Justice Department’s Board of Immigration Appeals has issued a precedent decision making it easier to remove immigrants who hold Deferred Action for Childhood Arrivals protections. The BIA ruled that having active DACA status alone does not justify terminating removal proceedings.
A three-judge panel sided with Department of Homeland Security attorneys who appealed an immigration judge’s order ending proceedings for Catalina “Xóchitl” Santiago after she cited her DACA status. The BIA sent the case back to a different immigration judge for further review. The order does not immediately deport Santiago, but it could weaken protections for hundreds of thousands of other DACA recipients.
Santiago’s case attracted national attention after Customs and Border Protection agents detained her while she was boarding a domestic flight at the El Paso airport in August. She was held in immigration detention until a federal judge ordered her release last October. Her fight against removal has proceeded through the immigration courts since then.
The BIA is an administrative appellate court within the Justice Department. After an immigration judge issues a decision, both the respondent and DHS can appeal to the BIA. Its published rulings establish precedent that guides immigration judges nationwide and shape how immigration law and policy are applied. Advocates say Friday’s interim decision is another step by the Trump administration to erode DACA protections.
DHS had argued the immigration judge in Santiago’s case should be recused because he is married to Democratic Rep. Veronica Escobar of Texas, who has been vocal about DACA and whose district includes El Paso; neither the judge nor Rep. Escobar are named in the BIA order. The BIA did not uphold the recusal argument. Instead, the board found the immigration judge erred by terminating removal proceedings solely on the basis of Santiago’s DACA status.
Created in 2012, DACA offers temporary protection from deportation for people brought to the U.S. as children; roughly half a million people currently have DACA. The program does not provide a direct path to lawful permanent residence or citizenship, and protections must be renewed every two years. Last year, DHS officials began urging some DACA recipients to self-deport, stressing that DACA does not guarantee legal status.
This administration has taken multiple steps to diminish DACA benefits without formally ending the program. Agencies have moved to limit access in other areas: Health and Human Services said DACA recipients would be ineligible for the federal health insurance marketplace, and the Education Department has investigated several 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 were removed, and reiterated that DACA is temporary and carries no entitlement to remain indefinitely.
Over the past year, attorneys for Immigration and Customs Enforcement have appealed more immigration judge decisions to the BIA. A recent NPR analysis found that in publicly posted cases last year, the BIA sided with government lawyers in 97% of decisions—about 30 percentage points higher than the long-term average. The board’s rulings have made it harder for immigrants to obtain bond in lieu of detention and have eased the process for deporting migrants to countries other than their own. A proposed EOIR regulation 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.
