The Board of Immigration Appeals published a precedent-setting decision saying being a DACA recipient is not enough to avoid deportation. This binding BIA decision fundamentally changes how immigration judges nationwide must handle removal proceedings for DACA recipients and has immediate implications for removal-defense practice.
What changed
The Board of Immigration Appeals within the Justice Department published a precedent-setting decision Friday, saying being a DACA recipient is not enough to avoid deportation. The three-judge panel of appellate immigration judges sided with DHS attorneys who appealed a decision to stop deportation proceedings for Catalina “Xóchitl” Santiago, who has active DACA status, and said “the Immigration Judge erred” by basing his decision solely on Santiago’s DACA status.
The BIA ruling establishes that DACA status is no longer enough to automatically protect immigrants within removal proceedings, which can lead to deportation. Immigration judges must now weigh all factors in each case, not treat DACA status as a dispositive bar to removal.
Why it matters
This precedent directly affects removal-defense strategy and client counseling. The decision potentially weakens DACA protections for roughly 506,000 individuals nationwide, including nearly 28% in California, or more than 141,000.
For practitioners, the shift is significant: you can no longer rely on DACA status as a standalone ground to terminate removal proceedings. Immigration judges now have discretion to order removal even where DACA is valid and active, provided they consider the full factual record. DACA recipients are also facing delayed renewals with longer processing times that stretch over five months, compounding the risk—if a work permit expires while renewal is still pending, there is no grace period, meaning recipients immediately lose their authorization to work and their legal status.
The BIA decision reflects a broader pattern in immigration adjudication. 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.
Way forward
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Reassess DACA-only removal strategies: In any pending removal case where your client has DACA, you must now develop additional legal arguments beyond DACA status—humanitarian factors, family ties, equitable considerations, or statutory bars to removal.
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Prioritize DACA renewal: Given processing delays and the risk of status lapse, file renewal applications as early as possible and monitor processing. A lapsed status during removal proceedings is now substantially more vulnerable.
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Appeal or relitigate where possible: If your client’s case was already adjudicated under the prior legal standard (where DACA alone could terminate proceedings), consider whether remand or reopening is available under Matter of S-B-.
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Consult a licensed immigration attorney: Given the rapid legal shifts, obtain representation before any DHS interview, detention, or removal hearing. The landscape has shifted materially.
Disclaimer
This article explains publicly available information about immigration law and policy and is not legal advice. The immigration system is complex, policies change without notice, and your specific facts may differ. You must consult a licensed immigration attorney in your state to understand your rights and obligations. This explanation reflects the source material as of the publish date; verify all details against the primary sources linked above before relying on them in any case.