The Board of Immigration Appeals has published a new precedent decision saying being a DACA recipient is not enough reason to provide relief from deportation. In the case Matter of Santiago (Interim Decision #4186), a three-judge panel sided with Department of Homeland Security lawyers who appealed a decision from immigration judge Michael Pleters terminating removal proceedings for DACA recipient Catalina “Xóchitl” Santiago. The ruling transforms how judges evaluate motions to terminate in DACA cases—and narrows a tactical option you may have relied on.
What changed
The Immigration Judge erred in terminating removal proceedings based solely on the fact that the respondent has been accorded DACA protection and without considering the reasons for any opposition to termination. Before this ruling, immigration judges regularly dismissed removal cases when a respondent had valid DACA status. A person in removal proceedings can ask the judge to terminate those proceedings for a number of reasons, including their DACA status. In the Santiago case, the immigration judge ended the removal case because the person had DACA. The judge did not otherwise address the government’s reasons for seeking deportation. This is something immigration judges have regularly done for years, and the BIA has not questioned their decisions.
The BIA reversed this approach. The regulations provide that an immigration judge’s action to terminate is an “exercise of discretion” that involves consideration of “the reason termination is sought and the basis for any opposition to termination.” The BIA said that “the Immigration Judge erred” by basing his decision to terminate removal proceedings solely on Santiago’s DACA status. The panel remanded the case to a different immigration judge for a new hearing.
Why it matters
Although the decision does not mean Santiago will be immediately deported, it potentially weakens DACA protections for hundreds of thousands of others. Operationally, this shifts the burden in motions to terminate. You can no longer walk into immigration court, wave a valid DACA approval notice, and expect the judge to close the file. Instead, judges must now engage with DHS’s underlying removal grounds—criminal history, administrative violations, fraud allegations, or other deportability findings.
If someone with DACA gets arrested and detained by immigration or other law enforcement and ends up before an immigration judge, the judge may now look into their case more closely to comply with the BIA decision. Because of this, it could be harder for them to get their case closed just because they have DACA. Your client’s protective posture changes: you must now prepare affirmative defenses, pursue alternative relief (adjustment, cancellation of removal, asylum, CAT), or build arguments that termination is otherwise warranted—not merely rely on DACA status as a shield.
The change could have serious consequences, especially since DACA is a temporary program requiring renewal every two years and offers no direct path to citizenship. If someone is detained while their status is expiring, they could quickly lose protection and face removal.
Way forward
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Review all DACA clients in removal proceedings. Assess whether cases are currently pending motions to terminate. Amend any pending motions to cite additional grounds for termination (e.g., humanitarian factors, family unity, DACA’s implied covenant of non-removal) rather than resting solely on DACA status.
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Conduct a holistic relief audit for DACA holders at risk of detention or in removal. Determine whether adjustment of status, cancellation of removal, asylum, withholding, CAT, U visa, T visa, or VAWA eligibility exists. Build these applications in tandem with any DACA renewal or motion to terminate.
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Document compliance and humanitarian ties. Courts will now weigh DHS arguments about deportability. Prepare evidence of lawful presence, community ties, family relationships, employment, education, and absence of criminal or administrative violations.
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Brief the Santiago precedent in future termination motions. Distinguish your client’s case if possible (e.g., no criminal record, humanitarian circumstances, family petition pending) and argue that termination remains warranted under discretionary factors enumerated in 8 C.F.R. § 1003.1(d)(3)(ii).
Disclaimer
This article is a plain-English summary of a published BIA decision and does not constitute legal advice. The Board of Immigration Appeals is an administrative appellate tribunal within the U.S. Department of Justice; its precedent decisions bind all U.S. immigration judges unless and until overturned by the Attorney General or a federal court. Policy and case law evolve rapidly. You must verify this summary against the primary source linked above and consult a licensed immigration attorney before advising any client on DACA status, removal strategy, or motion practice.