The Board of Immigration Appeals (BIA), an administrative court within the Justice Department, issued a precedent decision saying that having active Deferred Action for Childhood Arrivals (DACA) status alone does not automatically bar removal proceedings. A three-judge BIA panel agreed with Department of Homeland Security lawyers who had appealed an immigration judge’s decision to terminate proceedings for Catalina “Xóchitl” Santiago after she invoked her DACA status, and the board 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 remained in immigration detention until a federal judge ordered her release in October, and she has since been fighting removal in immigration court.
DHS had argued the original 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 that recusal claim. Instead, the board ruled the judge erred by terminating proceedings solely because Santiago held DACA.
DACA, created in 2012, provides temporary protection from deportation and work authorization to people brought to the U.S. as children. It does not grant permanent residence or citizenship and requires renewal every two years. Roughly half a million people currently hold DACA protections. Since last year, DHS officials have signaled a tougher posture toward DACA recipients, urging some to self-deport and stressing that DACA does not guarantee lawful status.
Advocacy groups 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 Trump administration’s second term has pursued multiple actions affecting DACA recipients 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 opened probes into some universities’ financial aid practices for DACA students. In a letter to senators earlier this year, then-Homeland Security Secretary Kristi Noem said that between January and November of the previous year, 261 DACA recipients were arrested and 86 were removed, reiterating that DACA “comes with no right or entitlement to remain in the United States indefinitely.”
The BIA decision arrives amid a broader pattern of increased government appeals: Immigration and Customs Enforcement attorneys have been appealing more immigration-judge decisions to the BIA, and the board has sided with government positions in a high share of recently published cases. One analysis found BIA decisions supported government lawyers in 97% of publicly posted cases last year, roughly 30 percentage points above the long-term average. The board also issued a record number of published, precedent-setting decisions—about 70 in the last year—shaping how immigration judges nationwide handle issues 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 DHS appeals, 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 face higher removal risk following the decision.