The Board of Immigration Appeals (BIA), an administrative court inside the Justice Department, issued a precedent decision Friday saying that having active Deferred Action for Childhood Arrivals (DACA) status is not, by itself, sufficient to bar removal proceedings. A three-judge BIA panel sided with Department of Homeland Security lawyers who had appealed an immigration judge’s decision to terminate 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 ruling does not mean Santiago will be deported immediately, but advocates warn it could weaken protections for hundreds of thousands of DACA recipients. Santiago drew national attention after Customs and Border Protection officers detained her while she was boarding a domestic flight at El Paso airport in August. She was held in immigration detention until a federal judge ordered her release in October, and she has since fought removal in immigration court.
DHS had argued the immigration judge should be recused because of his marriage to a member of Congress who has spoken about DACA; the interim BIA order did not sustain the appeal on that ground. Instead, the board said the immigration judge erred by basing termination of proceedings solely on Santiago’s DACA status.
Created in 2012, DACA offers temporary protection from deportation and work authorization to people who arrived as children; it does not provide a green card or citizenship and requires renewal every two years. Roughly half a million people currently hold DACA protections. Starting last year, DHS officials have signaled a tougher stance toward DACA recipients, urging some to self-deport and emphasizing that DACA does not guarantee lawful status.
Advocates criticized the BIA decision as part of a broader rollback of protections. “For over a decade, DACA has endured relentless, politically motivated attacks,” said Juliana Macedo do Nascimento, deputy director of Advocacy and Campaigns at United We Dream. “This decision is yet another step in dismantling the program without the government taking responsibility for ending it outright. … This is a quiet rollback of protections, and our communities are paying the price in real time.”
The second Trump administration has pursued multiple actions affecting DACA recipients, even without formally ending the program. Last year, the Department of Health and Human Services said it would make DACA recipients ineligible for the federal health care marketplace, and the Education Department announced probes into universities offering financial aid to DACA students. In a letter to senators earlier this year, then-Homeland Security Secretary Kristi Noem said that between January and November last year, 261 DACA recipients were arrested and 86 removed, reiterating that DACA “comes with no right or entitlement to remain in the United States indefinitely.”
The BIA’s interim decision comes amid a broader trend: ICE attorneys have been appealing more immigration-judge decisions to the BIA, and the board has overwhelmingly backed government positions in recently published cases. A recent analysis found BIA decisions supported government lawyers in 97% of publicly posted cases last year, roughly 30 percentage points higher than the long-term average. The board has issued a record number of published, precedent-setting decisions—about 70 in the last year—shaping how immigration judges nationwide handle matters like bond, removal destinations, and appeals procedures.
Immigration courts operate under the Executive Office for Immigration Review (EOIR) at the Justice Department and are not part of the judicial branch. Advocacy groups and immigration attorneys say the cumulative effect of BIA rulings, increased appeals by DHS, and proposed regulatory changes could make it harder for immigrants, including DACA recipients, to avoid detention or removal. DHS did not immediately respond to requests for comment about whether active DACA recipients are at heightened risk of removal in light of the decision.