The Board of Immigration Appeals (BIA) recently ruled that DACA status is not enough to spare someone from deportation, a decision that sets a precedent potentially putting hundreds of thousands of people at risk. This binding precedent decision by a three-judge panel changes how immigration judges must treat DACA recipients in removal proceedings and affects how practitioners advise clients with active DACA status.
What changed
The three-judge panel outlined that DACA no longer guarantees protection from deportation for hundreds of thousands of people in the program. The decision came in the case of Catalina “Xóchitl” Santiago, a DACA recipient and immigration rights advocate who was released from ICE detention in October after about two months.
Previously, immigration judges could treat active DACA status as grounds to terminate removal proceedings or grant discretionary relief. This ruling clarifies that DACA is discretionary deferred action, not a legal status that bars deportation. DACA provides “deferred action,” not legal status, so recipients remain technically removable under U.S. immigration law.
Why it matters
This BIA precedent decision binds immigration judges nationwide in how they adjudicate DACA recipients’ removal cases. For practitioners, the shift is significant:
- DACA alone is no longer a bar to removal proceedings. Judges cannot automatically terminate proceedings based solely on active DACA status.
- Collateral consequences expand. A DACA recipient facing removal now faces higher risk even with current status, which affects client counseling and case strategy.
- Discretionary factors control. Immigration judges retain discretion to consider DACA status as a favorable equitable factor in relief determinations (like cancellation of removal or voluntary departure), but DACA no longer acts as an automatic shield.
- Timing and strategy shifts. Practitioners must now build additional equitable factors into case presentations rather than relying on DACA status as a standalone protection.
The targeting of DACA recipients has intensified, with nearly 300 DACA recipients detained last year, and at least 174 have been deported, many after living nearly all their lives in the United States.
Way forward
For practitioners representing DACA recipients in removal proceedings:
- Review all active cases to identify removal or deportation proceedings; re-evaluate litigation strategy now that DACA status alone will not terminate proceedings.
- Shift focus to other equitable factors: family ties in the U.S., employment, community contributions, and hardship to qualifying relatives for relief applications.
- Advise DACA clients of the new risk; discuss whether to seek status under other provisions (I-360, cancellation of removal, T visa, U visa) or to renew DACA proactively while eligible.
- Monitor for any follow-up BIA or circuit court decisions that may narrow or clarify the Santiago precedent.
- Consider challenging the precedent’s application in particular factual scenarios through administrative or judicial appeal.
For DACA holders without pending removal proceedings:
- Do not assume DACA status alone provides immunity from deportation in future enforcement encounters.
- Keep documentation of eligibility and good moral character current.
- Consult an immigration attorney before traveling or engaging in any conduct that could trigger enforcement review.
Disclaimer
This article explains a legal development and is not legal advice. The information is based on publicly available reporting and should be verified against the primary source linked above and the full BIA decision. Immigration law is complex, and DACA policy can change without notice. You should consult a licensed immigration attorney licensed in your state or accredited by the Board of Immigration Appeals (BIA) before making any decisions based on this information. The author is not a law firm and cannot advise you on your individual case. Always verify current policy against official USCIS, DOS, and DHS sources and consult qualified legal counsel.