BIA rules DACA no longer automatically blocks deportation

The Board of Immigration Appeals (BIA) is the Department of Justice's appellate body for immigration cases. It's not a federal court; it's an administrative tribunal staffed by DOJ appointees. When the BIA issues a published precedent decision, all 700+ immigration judges nationwide must follow it. Its rulings reshape immigration law without Congress changing a single statute. (DOJ EOIR)

On April 24, 2026, the BIA published Interim Decision #4186 in the case of Catalina Santiago, a 28-year-old immigrant from Oaxaca, Mexico. (BIA Decision) The decision held that an immigration judge can't automatically terminate removal proceedings based solely on the fact that the respondent holds DACA. Instead, judges must also weigh whether the Department of Homeland Security has prosecutorial interests in pursuing the case. If DHS argues it wants to pursue deportation, the judge must consider that argument. DACA status is no longer a shield; it's one factor among others.

Catalina Santiago held DACA status from June 2012 through her continuous renewal. On August 3, 2025, while boarding a domestic flight from El Paso to Dallas, she was detained by Customs and Border Protection at El Paso International Airport. (El Paso Matters) CBP used a removal order from 2019, a final decision that had never been executed, to hold her in detention. Santiago had lived in the United States for approximately two decades, worked as a community organizer, and spoke English fluently. She had been scheduled to speak at a conference on small community farms. (Spectrum News)

Immigration Judge Michael Pleters terminated Santiago's removal proceedings on September 8, 2025, finding her DACA status warranted closing the case. (El Paso Matters) U.S. District Judge Kathleen Cardone ordered her release from ICE custody on October 1, 2025. But the Department of Homeland Security appealed that decision to the BIA, arguing that DACA alone couldn't close her case. The BIA sided with DHS.

DACA was created on June 15, 2012, through prosecutorial discretion, not legislation. DHS Secretary Janet Napolitano issued a policy memo (not an executive order or law) announcing that the agency would defer deportation for certain young immigrants brought to the United States as children. (CRS) Congress never passed it into law. DACA provides temporary work authorization and protection from deportation for two-year renewable periods. It's not a legal status. It doesn't create a path to citizenship or permanent residence.

The Supreme Court blocked the initial attempt to end DACA in 2020 (Department of Homeland Security v. Regents of the University of California), ruling 5-4 that the rescission was arbitrary and capricious under the Administrative Procedure Act. (Supreme Court) Chief Justice Roberts wrote the majority opinion. But DACA remained vulnerable: it depends entirely on the executive branch's willingness to exercise prosecutorial discretion in favor of recipients.

Prosecutorial discretion is the government's authority to decide who to enforce the law against. DHS decides which removable immigrants to arrest, which to detain, and which to deport. In immigration enforcement, prosecutorial discretion determines everything: who gets stopped, who gets into removal proceedings, and who actually gets removed. It's largely absolute; the courts rarely second-guess agency enforcement priorities.

In the BIA's April 2026 ruling, "prosecutorial interests" became the new criterion. (BIA Decision) Even if an immigrant has DACA status, a judge must now ask: does DHS want to pursue this case? If yes, the judge can't simply close it. The ruling shifts the balance sharply. Previously, DACA status strongly suggested a judge should close the case. Now DHS can argue its enforcement interests override DACA status.

The BIA's precedent decisions have become overwhelmingly one-sided. According to NPR's analysis, in 2025 the government won 97% of publicly posted BIA cases, the highest rate in at least 16 years, and at least 30 percentage points above the historical average from 2009-2025. (NPR) The BIA published 70 decisions in 2025, the highest number in years. All but one of those precedent decisions since inauguration favored the government. (NPR) Already in 2026, NPR tracked 21 BIA decisions with DHS winning all but one.

The BIA sits inside the DOJ, not the federal judiciary. Attorney General Pam Bondi oversees the Executive Office for Immigration Review, which houses the BIA. (DOJ EOIR) The Attorney General appoints all 21 BIA members and can direct the board to revisit precedent decisions. This institutional structure means immigration courts lack the independence of federal courts, where Article III judges serve lifetime appointments.

The BIA's composition and mandate come from the Attorney General, not from Congress. If Bondi wanted the BIA to reverse Santiago-Santiago, she could order it. If a future Attorney General wanted to restore DACA's shield, they could direct the BIA to publish a new precedent.

Santiago's case can be appealed to a federal circuit court. Federal appeals courts give "Chevron deference" (now modified by the Supreme Court's 2024 Loper Bright decision) to agency interpretations of ambiguous statutes. (Reeves Immigration) However, federal appeals cases typically take 12-18 months from petition to decision. NILC and other immigration advocacy groups have flagged the ruling as a target for federal court challenge. (NILC)

NILC emphasized that the BIA's decision doesn't take away any protections DACA currently provides. It doesn't give the government more power to place someone in removal proceedings, and it doesn't allow DHS to deport someone with valid deferred action status. But if someone with DACA gets arrested and detained and ends up before an immigration judge, the judge may now look into the case more closely.

Congress could permanently fix DACA's vulnerability by passing the DREAM Act. The bill, introduced multiple times since 2001, would provide a path to permanent legal status for immigrants brought to the United States as children. If Congress codified DACA into statute, no executive branch ruling or policy change could remove recipients' protections without congressional repeal. (CRS)

The 119th Congress (2025-2026) has the DREAM Act pending in both chambers. Without legislation, DACA recipients' protection depends entirely on which administration holds power and how the BIA interprets enforcement priorities. The Santiago-Santiago ruling makes this fragility concrete: a single BIA precedent decision shifted the legal landscape for all 525,000 active DACA recipients.