BIA Rules DACA Status Alone Not Enough to Block Deportation

The Trump administration is making it easier to deport immigrants protected by the Deferred Action for Childhood Arrivals program, or DACO. A new precedent decision published Friday by the Board of Immigration Appeals (BIA) says being a DAC0 recipient is not enough reason to provide relief from deportation.

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 DAC0 status. They sent the case back to a different immigration judge for review.

Although the decision does not mean Santiago will be immediately deported, it potentially weakens DAC0 protections for hundreds of thousands of others. Santiago's case gained national attention after she was detained by Customs and Border Protection officers while boarding a domestic flight at the El Paso airport in August. She was placed in immigration detention until a federal judge granted her release last October. She has been fighting the threat of deportation in the immigration court system since.

The BIA is an administrative court within the Justice Department. After a case is heard by an immigration judge, both the immigrant and DHS have the right to appeal that decision to the BIA. 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.

Friday's order is the latest step by the Trump administration to strip away protections from DAC0 recipients. "For over a decade, DAC0 has endured relentless, politically motivated attacks," said Juliana Macedo do Nascimento, deputy director of Advocacy and Campaigns at United We Dream, an organization fighting for the rights of immigrants. "This decision is yet another step in dismantling the program without the government taking responsibility for ending it outright. ... This is a quiet rollback of protections, and our communities are paying the price in real time."

The BIA order, which is technically known as an interim decision, notes that DHS argued Pleters, the immigration judge, should be recused from the case because he is married to Democratic Rep. Veronica Escobar of Texas, who has been outspoken about DAC0 issues on Capitol Hill, this case specifically and whose district includes El Paso. Neither the judge nor Escobar are identified by name in the interim order.

The BIA did not sustain DHS' appeal based on that argument, however, instead saying that "the Immigration Judge erred" by basing his decision to terminate removal proceedings solely on Santiago's DAC0 status.

DAC0, created in 2012 to protect children who arrived in the country illegally prior to 2007 from deportation, now covers around half a million people. Starting last year, DHS officials began urging DAC0 recipients to self-deport, arguing that the program itself does not equate to automatically providing legal status. The DAC0 program is meant to offer temporary protection from deportation but is not an immediate path to citizenship or a green card. Participants have to renew their protection every two years.

This second Trump administration has tried to strip 505,000 DAC0 recipients, also known as Dreamers, of benefits, though no regulatory changes have been made to end the program. Last year, the Department of Health and Human Services said it would make DAC0 recipients ineligible for the federal health care marketplace and the Education Department said it was looking into five universities that offer financial help for DAC0 recipients.

In a letter to senators earlier this year, then-Homeland Security Secretary Kristi Noem said that between January and November of last year, 261 DAC0 recipients were arrested and 86 were removed from the country. In the letter, Noem reiterated that DAC0 is temporary. "It comes with no right or entitlement to remain in the United States indefinitely," she wrote.

DHS did not respond to an immediate request for comment on whether active DAC0 recipients are at risk of removal.

Board of Immigration Appeals underscores Trump's policies

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.

The board's decisions have made it harder for immigration courts to offer immigrants bond in lieu of detention. It's eased the way to deport migrants to countries other than their own. And a new proposed regulation would make it harder for people to appeal their immigration decisions at all.

All these actions over the last year came as the board pumped out 70 published decisions, a record number of precedent-setting cases. Immigration courts are housed within the Executive Office for Immigration Review, or EOIR, at the Justice Department. They are not a part of the judiciary.