On April 24, the Board of Immigration Appeals made a decision about an immigration case that sounded the alarm for many Deferred Action for Childhood Arrivals recipients. The ruling does not eliminate DACA protections, but it does change how immigration judges must document their decisions in removal cases where a DACA recipient seeks to terminate proceedings based on that status. If you represent DACA clients in immigration court, you need to understand the new procedural requirements.
What changed
A person in removal proceedings can ask the judge to “terminate” those proceedings for a number of reasons, including their DACA status. In this 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.
However, when the government appealed this case to the BIA, the BIA judges sided with the government and said the immigration judge should have explicitly considered the government’s reasons for seeking deportation and included it in the written decision. DACA can still be the reason that an immigration judge terminates a case, but the BIA told the immigration judge to make sure to include other factors like the government’s point of view.
Why it matters
The BIA’s decision does not take away any protections that DACA provides right now. It does not give the government more power to place someone in removal proceedings, and it does not allow the Department of Homeland Security to actually deport someone with valid deferred action status. DACA remains a valid basis for termination.
However, the procedural burden on your client’s case has increased. 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. This means immigration judges will now expect the government to present its deportability arguments on the record, and the written decision will need to address those arguments—not simply note that termination is warranted because of DACA status.
For practitioners, this changes oral argument strategy: you must anticipate and be prepared to rebut the government’s substantive grounds for removal, rather than relying on DACA as a standalone dispositive factor.
Way forward
- Prepare for fuller litigation. In termination motions based on DACA, be ready to respond to the government’s deportability arguments on the merits, not just rely on DACA status as a dispositive basis.
- Document the record. Ensure your oral arguments and written briefs explicitly address—and refute—the government’s stated reasons for seeking deportation, so that the judge can cite your arguments in the written decision.
- Know your client’s underlying case. Obtain and review the Notice to Appear and charging document. Identify factual and legal defenses to the charges of deportability, and develop arguments independent of DACA protection.
- Verify local practice. Immigration courts may implement this ruling differently. Check with your local court and other practitioners to understand how judges in your venue are applying the new standard.
Disclaimer
This article is prepared by a software company, not a law firm, and does not constitute legal advice. Immigration law is fact-specific and precedent evolves. You must consult with a licensed immigration attorney about your client’s case, and verify all guidance against the primary BIA decision and current EOIR practice advisories. Policy and interpretation of BIA precedent can change without notice; confirm current application with your local immigration court and relevant case law.