On April 24, the Board of Immigration Appeals (BIA) — the DOJ tribunal that reviews administrative immigration decisions — issued an opinion in Matter of Santiago-Santiago, concluding that an immigration judge had “erred in terminating removal proceedings based solely on the fact that the [alien] respondent has been accorded Deferred Action for Childhood Arrivals (DACA) and without considering the reasons” ICE offered in opposing termination. It’s a unique and complicated opinion that nonetheless triggered strong backlash — largely undeserved, because all the Board did was tell immigration judges that they must comply with a Biden-era rule before axing cases involving aliens with “deferred action”.
DACA
For nearly 25 years, congressmen from both parties have attempted to pass some form of “DREAM Act”, that is, an amnesty for aliens who have been living in the United States illegally after arriving here — with and without their parents — as children.
And for nearly a quarter century, their proposals have been unsuccessful.
The failure of DREAM Act legislation led the Obama administration to create DACA, which grants quasi-legal status to aliens who entered the United States while under the age of 16 before June 15, 2007, who were born after June 15, 1981, who meet certain educational standards, and who have not been convicted of certain crimes.
DACA was not created by Congress, or even by executive order or executive action, for what that’s worth. Rather, it’s the product of a memo issued by then-DHS Secretary Janet Napolitano on June 15, 2012, that ever since has taken on a life of its own.
As its name suggests, DACA is a variety of “deferred action”, that is “a discretionary determination to defer removal of an individual as an act of prosecutorial discretion”, and aliens granted deferred action don’t accrue periods of unlawful presence in the United States while they are in deferred status and are eligible to apply for employment authorization.
That said, USCIS is also quick to add that “deferred action does not confer lawful immigration status upon an individual”, meaning that an alien granted DACA exists in a nether zone between legal and not.
Generally, DHS won’t place an individual who has been granted DACA into removal proceedings unless and until the department terminates the alien’s DACA status or until DACA itself ends. That said, all deferred action determinations are discretionary, and so the decision to place a given alien into removal proceedings is made on a “case-by-case” basis.
Catalina Santiago-Santiago
The BIA didn’t say much about the respondent in the case, Catalina Santiago-Santiago, aside from that she was placed into removal proceedings that commenced on August 5, 2025, with the filing of a Notice to Appear (“NTA”, the charging document in removal proceedings, akin to a complaint in a criminal case) with the immigration court and that she is charged under section 212(a)(6)(A)(i) of the Immigration and Nationality Act (INA), as an alien present without admission or parole.
As NPR reported in its coverage of the BIA opinion, however, the respondent is better known as “Xóchitl Santiago”, and her “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”.
Santiago thereafter filed a habeas petition seeking release from DHS custody, and as Judge Kathleen Cardone of the U.S. District Court for the Western District of Texas (W.D. Tex.) explained in her October 1 order directing DHS to cut Santiago loose, she entered the United States illegally at the age of eight and applied for and received DACA in 2012.
Judge Cardone continues:
In or around 2015, Santiago pled guilty to disorderly conduct for her participation in a civil disobedience action. In 2017, Santiago received similar charges associated with civil disobedience, but they did not result in a conviction. Id. In 2020, Santiago was arrested for alleged drug and paraphernalia possession in Arizona, but no charges were filed against her.
In March 2022, per the court, DHS granted her advance parole to depart the United States to attend the Summer 2022 California-Mexico Dreamers Study Abroad Program in Mexico. She left, returning on June 12, 2022, at which point she was paroled back into the United States.
On August 3, according to the October 1 order, Santiago was arrested by CBP at El Paso International Airport in Texas and transferred to ICE custody. Thereafter, ICE drafted and filed the NTA in her case charging her with inadmissibility under section 212(a)(6)(A)(i) of the INA.
“On September 8”, according to Judge Cardone, the immigration judge hearing her case “issued a decision terminating Santiago’s removal proceedings ... because Santiago ‘has been accorded DACA’ and ‘[h]er grant of DACA has not been terminated’”, to which DHS “reserved its right to appeal”.
Judge Cardone ordered Santiago released from custody, and while DHS complied, on December 18 DOJ appealed that decision to the Fifth Circuit, where it remains pending.
There are two other salient facts in the W.D. Tex. order that deserve emphasis.
The first is that on January 8, 2025, Santiago married a U.S. citizen, who as of October 1 had failed to file a Petition for Alien Relative (Form I-130) on her behalf.
If, as Judge Cardone found, Santiago was paroled back into this country in June 2022, she may be eligible to apply for adjustment of status under section 245(a) of the INA and receive a green card.
That said, if she’d been paroled, the proper charge on the NTA should have been inadmissibility under section 212(a)(7)(A)(i) of the INA, alien “not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document”, not as an alien present without admission or parole who’s inadmissible under section 212(a)(6)(A)(i) of the INA, as stated in the BIA opinion.
The second salient fact is the identity of the immigration judge who terminated Santiago’s case. Even though he is a judge, he’s not a public figure and therefore in the exercise of my own discretion I will opt not to name him — though as I will explain, his unique situation is relevant to the BIA’s opinion.
The Biden Regulation Governing Discretionary Terminations of Removal Proceedings
In October 2024, the staff of the House Judiciary Committee issued a report captioned “Quiet Amnesty: How the Biden-Harris Administration Uses the Nation’s Immigration Courts to Advance An Open-Borders Agenda”.
It explained how the Biden administration used its burgeoning “immigration court backlog as an excuse to allow even more aliens to remain in the country”:
Instead of actually adjudicating illegal aliens’ cases based on the merits of aliens’ claims for relief — such as whether an alien has a valid and successful asylum claim — immigration judges under the [then] Administration [were] tasked with rubberstamping case dismissals, case closures, and case terminations, all of which allow illegal aliens to remain in the United States without immigration consequences.
In that vein, on May 29, 2024, DOJ under the Biden administration amended an existing ministerial regulation, 8 C.F.R. § 1003.18, previously captioned “Scheduling of Cases”, to transform it into “Docket management” and thereby facilitate the (“more than 700,000”) “case dismissals, case closures, and case terminations” the House Judiciary staff complained about in its report.
Most notably, new subsection (d) in that regulation, “Termination”, codified a rarely used procedure to end improvidently filed cases and turned it into a case-dropping tool, while proclaiming “Immigration judges shall have the authority to terminate cases before them as set forth in ... this section.” (Emphasis added.)
Matter of Santiago-Santiago
Which brings me to the BIA’s April 24, opinion.
After the NTA was filed, Santiago filed a motion to terminate her removal proceedings “without prejudice” — that is, without reaching the underlying merits — “because she is a recipient of DACA and alleges prima facie eligibility for adjustment of status based on her marriage to a United States citizen”.
DHS opposed, “arguing that deferred action does not confer any right or entitlement to remain in or reenter the United States and does not prohibit DHS from moving forward with removal proceedings” and also because “there is no evidence indicating the respondent’s spouse had filed an immigrant visa petition on the respondent’s behalf”.
On September 8, the immigration judge granted Santiago’s motion to terminate using his authority in 8 C.F.R. § 1003.18(d)(1)(ii)(C), as amended by the Biden-era regulatory change.
That clause states:
In removal, deportation, or exclusion proceedings, immigration judges may, in the exercise of discretion, terminate the case upon the motion of a party where at least one of the requirements listed ... is met. The immigration judge shall consider the reason termination is sought and the basis for any opposition to termination when adjudicating the motion to terminate.
…
(C) The noncitizen is a beneficiary of Temporary Protected Status, deferred action, or Deferred Enforced Departure. [Emphasis added.]
Note that even under the Biden-era regulatory amendments, immigration judges retained the discretion to deny termination requests made by aliens who had received DACA.
In other words, simply because DACA and other forms of deferred action may temporarily bar DHS from deporting an alien, it does not prevent the department from seeking a removal order for that alien.
Or, as the BIA explained, “the fact that the respondent is the beneficiary of deferred action is not the sole, dispositive consideration for whether discretionary termination is warranted”.
In addition, note that even under the Biden-era amendment, an immigration judge cannot terminate a pending removal case involving a DACA recipient without first considering DHS’s opposition.
But as the BIA concluded here, “the Immigration Judge’s decision did not address the reasons for DHS’ opposition to termination” and thus the judge “erred in terminating removal proceedings based solely on the fact that the respondent has been accorded DACA protection and without considering the reasons for any opposition to termination”.
Ignore the headlines claiming that in Matter of Santiago-Santiago the “Justice Department makes it easier to deport those with DACA status”, or this one from Law 360 asserting that the “Board Says DACA Alone Can't End Removal Proceedings”.
The analyses in those articles are more nuanced, but despite what the headlines may make you believe, DACA recipients can still ask immigration judges to terminate their cases, even under the BIA’s opinion.
Before granting those requests, however, the immigration judges must comply with the rules in the May 2024 Biden-era regulation and consider the government’s opposition first. To allow the immigration court to do so, the BIA remanded the case back down.
The Recusal Motion
The case won’t be headed back to the immigration judge who issued the termination order, however.
Before appealing the immigration judge’s termination order to the BIA, DHS first filed two motions with the immigration court: (1) a motion for the immigration judge to reconsider his decision; and (2) “a motion to recuse the Immigration Judge from the case based on a purported email from [ICE] to the Immigration Judge’s spouse, a member of the United States House of Representatives, that discussed the respondent”.
As I explained, the immigration judge is a private citizen, but his wife isn’t (though I will not name her to protect his privacy) and in apparent addition to the purported email from ICE, DHS alleged that “during the pendency of the respondent’s removal proceedings”, she “made a public statement on social media specifically discussing and advocating for the respondent”.
The immigration judge denied the recusal motion as well.
Under the BIA’s 1982 opinion in Matter of Exame, there are four instances where an immigration judge must recuse from hearing a case: (1) the judge previously worked on the case as a prosecutor; (2) the judge “demonstrates bias or prejudice against the [alien] such that he was deprived of a constitutionality [sic] fair hearing”; (3) the judge “had a personal, rather than judicial, bias stemming from an ‘extrajudicial' source which resulted in an opinion on the merits on some basis other than what the immigration judge learned from his participation in the case”; or (4) “such pervasive bias and prejudice is shown by otherwise judicial conduct as would constitute bias against a party".
While the BIA clarified that it’s unclear whether “the Immigration Judge was aware or was made aware of his spouse’s public statements and advocacy on the respondent’s behalf during the course of the proceedings”, it concluded that “remanding the record to a different Immigration Judge is the best course of action to avoid the appearance of partiality or bias and to ensure the integrity of the removal proceedings”.
None of the four factors in Matter of Exame appears to have required recusal, but given the extremely unusual relationship between the immigration judge and his congressman-wife and the statements the latter allegedly made about this case, it was likely all for the best to reassign it to another judge.
Ignore the Hype
Ignore the hype — Matter of Santiago-Santiago isn’t “heartless”, as Sen. Richard Durbin (D-Ill.) claimed; it’s a simple reminder that adjudicators must follow the rules, even for DACA recipients. Democrat senators and advocates usually like it when the BIA tells immigration judges they must comply with Biden-era regulations, but plainly that’s not true in this unique and complicated case.
Or, as a different Santiago explained: “Every day is a new day. It is better to be lucky. But I would rather be exact.”