The Board of Immigration Appeals has issued a binding precedent decision that materially weakens the legal protection DACA status once afforded in removal proceedings. If you represent DACA beneficiaries in immigration court, your litigation strategy and client counseling must account for this shift immediately.
What changed
A three-judge panel of appellate immigration judges sided with Department of Homeland Security lawyers who appealed a decision from immigration judge Michael Pleters terminating removal proceedings for Catalina “Xóchitl” Santiago, citing Santiago’s active DACA status. They sent the case back to a different immigration judge for review.
The new precedent decision published Friday by the Board of Immigration Appeals (BIA) says being a DACA recipient is not enough reason to provide relief from deportation. The panel rejected the theory that active DACA status, standing alone, provides a legal basis to terminate removal proceedings.
The order in the case involving Catalina “Xóchitl” Santiago came from the Board of Immigration Appeals, an administrative court within the Justice Department. BIA’s public decisions set the precedent and tone for how immigration judges nationwide should make decisions and how the general public should interpret immigration law and policy.
Why it matters
This precedent affects how you must advise and defend any DACA client facing removal. Although the decision does not mean Santiago will be immediately deported, it potentially weakens DACA protections for hundreds of thousands of others.
Prior to this ruling, immigration judges could and did terminate removal proceedings based on a client’s active DACA status as an equitable or statutory relief factor. That pathway is now closed as a matter of binding appellate precedent. You can no longer argue DACA status alone; you must ground your defense in independent statutory relief (cancellation of removal, asylum, etc.) or affirmative discretionary factors.
Over the last year, attorneys with Immigration and Customs Enforcement, who represent DHS in immigration court, have increasingly appealed more decisions to the BIA. According to a recent NPR analysis, BIA decisions backed government lawyers in 97% of publicly posted cases last year; that’s at least 30 percentage points higher than the average over the past 16 years. This decision fits a broader trend of appellate reversals that narrow defenses.
Way forward
- Audit pending DACA cases. If you have clients in removal proceedings who have relied on DACA status as a primary defense, reassess immediately. This precedent applies nationwide.
- Develop independent grounds for relief. Do not rely on DACA status as a standalone argument. Identify and plead alternative statutory relief (cancellation of removal, asylum, U visa, T visa, VAWA) or discretionary factors (family ties, community service, length of U.S. residence).
- Monitor Board decisions. The BIA is issuing precedent decisions at a record pace. All these actions over the last year came as the board pumped out 70 published decisions, a record number of precedent-setting cases. Subscribe to BIA precedent updates via the Executive Office for Immigration Review (EOIR) website.
- Advise DACA clients of litigation risk. Be transparent that DACA status alone will not terminate removal—your client must have an independent legal basis for relief or they face a high risk of deportation.
Disclaimer
Fola is a software company, not a law firm, and this article is not legal advice. Immigration law is complex and precedent changes frequently. You must verify this analysis against the primary source linked above and consult a licensed immigration attorney before advising any client. Policy and precedent can change without notice.