The 2026 BIA Decision That Quietly Rewrote How DACA Works in Court
Shawn Sedaghat
Immigration Attorney, Cal Bar No. 188763 | AILA member since 1996
Last reviewed: April 2026 by Shawn Sedaghat
Anyone who has built a life around DACA in California, including the more than 100,000 active recipients in this state alone, now faces a quieter but more serious question than they did a year ago: not whether DACA still exists, but whether it still does the work in immigration court that most people assumed it did.
The Board of Immigration Appeals’ 2026 decision in Matter of Santiago-Santiago does not strip DACA from anyone’s hands. It does something more procedurally consequential. It removes a soft, informal layer of protection that immigration judges, ICE prosecutors, and even some immigration lawyers had been quietly relying on for years. Understanding what shifted, what did not shift, and why the difference matters in your specific posture before USCIS or EOIR is now the central question for every DACA recipient who has not yet built a path to permanent status.
The rest of this article unpacks that shift in the order it actually plays out, not as a tidy summary, because the answer to “am I at risk?” depends on facts the next sections walk through carefully.
Why You Cannot Read Santiago-Santiago Without First Reading the Statute Behind It
Before the holding makes sense, the underlying legal architecture has to be on the table. DACA, as established by the USCIS DACA program page and codified in 2022 at 8 C.F.R. § 236.22, is a discretionary exercise of prosecutorial enforcement authority under INA § 103, 8 U.S.C. § 1103. It is not lawful status. It is not admission. It is not parole. The 2022 final rule at 87 Fed. Reg. 53152 formalized DACA as a regulation, but did not change its underlying nature.
What that means in practice is that the vast majority of DACA recipients remain charged as removable under INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), for entry without inspection. Deferred action defers, it does not erase, that removability. In the cases I’ve handled before the Los Angeles Immigration Court since 1997, this distinction was always real on paper, but it usually stayed on paper. Judges across the country, mine included, often treated active DACA as a practical reason to administratively close or terminate proceedings. The Board has now told them they were wrong to do so without more.
What the Board Actually Held, and What It Carefully Did Not
In Matter of Santiago-Santiago, 29 I&N Dec. 589 (BIA 2026), the Board addressed a question that had splintered immigration courts for years: whether DACA, by itself, justifies termination of removal proceedings over DHS opposition.
The procedural ruling
The Board said no. An immigration judge cannot terminate removal proceedings simply because the respondent has DACA. The judge must instead weigh DHS’s position, the public interest in completing pending cases (echoing the Board’s earlier reasoning in Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017)), and the full set of discretionary factors. DACA is one factor in that weighing. It is not the controlling factor.
What the Board did not decide
The Board did not strip DACA of its enforcement-deferral effect at the agency level. It did not invalidate the 2022 regulation. It did not say DACA recipients should be deported. The decision is procedural, addressed to immigration judges, and it is exactly that procedural narrowness that produces the strategic shift the next section describes.
Why the Practical Effect Is Bigger Than the Legal Effect
Statutorily, almost nothing changed. Operationally, three things did, and you cannot evaluate your own exposure without holding all three together.
The shortcut is gone
Before Santiago-Santiago, an experienced immigration practitioner could often quietly negotiate, or simply move for, termination on the strength of active DACA. That motion is now legally vulnerable on appeal. ICE prosecutors who once acquiesced will increasingly oppose, because they now have clean appellate cover.
DHS has a citation it did not have before
What USCIS officers and ICE attorneys in the Los Angeles field office tend to argue when they have binding precedent on their side is very different from what they argue when they don’t. Santiago-Santiago gives them a one-line quotation. That changes posture across hundreds of dockets without any change in underlying enforcement priorities.
The default has shifted from informal resolution to litigation
In a recent matter I handled in early 2026, a respondent with active DACA, a clean record, and a pending I-130 from a U.S. citizen spouse would, two years ago, have been a reliable termination candidate. Today, the same case is being litigated to a substantive merits decision because DHS is no longer willing to acquiesce on DACA alone. Multiply that case by every immigration court in the country and the volume effect is significant.
Who Carries the Most Exposure After This Decision
Risk after Santiago-Santiago is not uniformly distributed. The next two subsections only make sense when read together, because the same fact can place a person in either category depending on what surrounds it.
The profiles I’m now triaging more aggressively
I’ve seen this issue play out three different ways in the first quarter of 2026, and the higher-risk pattern usually involves at least one of the following: entry without inspection with no qualifying immediate relative or employer-sponsor in the pipeline, no I-130 or I-140 ever filed, prior contact with immigration enforcement (even if the case never proceeded), any criminal history including misdemeanors that did not bar DACA initially, or a lapsed or non-renewed DACA grant. Any one of these elevates exposure. Two together compound it.
Lower exposure, but not zero
A documented marriage-based case with an I-130 already filed and supporting evidence assembled, a prior advance parole departure and lawful reentry that creates a viable INA § 245(a) adjustment argument, or a strong equities profile (long residence, U.S. citizen children, no criminal contact, stable employment) all reduce risk. They do not eliminate it. The reason they do not eliminate it is the same reason this article exists: DACA itself no longer carries the procedural weight it used to, so everything else has to do more work.
Where DACA Still Carries Real Weight, and Where It Stops Working
DACA continues to provide work authorization through Form I-765 and the regulatory framework at 8 C.F.R. § 236.22, and a current Employment Authorization Document remains a meaningful protection in the labor market and against certain forms of administrative jeopardy. Active DACA also continues to support discretionary arguments in front of judges and ICE counsel, even after Santiago-Santiago, because it remains a positive equity, just no longer a controlling one.
What DACA does not do, and never legally did, is stop DHS from initiating removal proceedings, require an immigration judge to terminate a case, cure unlawful entry under INA § 212(a)(6)(A)(i), or substitute for any path to permanent status. The change Santiago-Santiago introduces is not in this legal list. It is in how often the difference between this list and the popular understanding now produces a contested hearing.
What I Recommend to DACA Clients in 2026
The cases that come out well in this environment have something in common, and it is not luck. It is sequence. The recipients who are insulated are the ones who started building a path to permanent status before they had to. The ones who are exposed are the ones who treated DACA as the destination.
If you have a U.S. citizen spouse, the I-130 should already be filed. If you have a U.S. citizen child turning 21 within five years, the planning calendar should already exist. If you traveled on advance parole, the I-94 and parole document should be saved and indexed, because they are now central to your INA § 245(a) eligibility argument. If you have an employer willing to sponsor, the labor certification analysis should be run now, not after enforcement begins. The leverage you have before proceedings start is structurally different from the leverage you have once an NTA is filed.
The Mistakes That Are Now More Expensive Than They Used to Be
Three patterns are surfacing repeatedly in consultations I’ve taken since the decision came down. First, the assumption that “I have DACA, so I’m safe,” which was never accurate but was often functionally true. Second, waiting on a marriage-based or employment-based filing, which used to cost time and now costs leverage. Third, walking into court without having prepared for DHS opposition that did not exist a year ago. None of these are dramatic. All of them are the difference between a case that resolves and a case that escalates.
Frequently Asked Questions
If I have valid DACA, can ICE still arrest me?
Yes. DACA is a discretionary decision by DHS to defer enforcement, not a status that immunizes you from arrest. ICE retains legal authority to detain DACA recipients, and Santiago-Santiago reinforces that the agency retains broad enforcement discretion. In practice ICE has historically deprioritized DACA recipients without aggravating factors, but enforcement priorities shift with each administration. If you are detained, do not sign anything before speaking with an immigration attorney.
Does Santiago-Santiago apply retroactively to cases that were already terminated?
BIA precedent generally applies to pending and future cases rather than reopening closed matters. A previously terminated proceeding is not automatically reinstated because of Santiago-Santiago. However, if DHS files a motion to recalendar a case that was administratively closed rather than terminated on the merits, the Board’s reasoning will likely make that motion harder to defeat. Anyone whose case was administratively closed should review the file with counsel before assuming it is permanently resolved.
I have DACA and married a U.S. citizen last year. Should I file an I-130 immediately?
For most DACA recipients in this position, yes, and timing matters more after Santiago-Santiago. An approved I-130 establishes a documented path to permanent residency, which strengthens any discretionary argument if removal proceedings begin. Whether you can adjust status inside the United States depends on whether you entered with inspection or used advance parole. That eligibility question should be resolved before the petition strategy is locked in, not after.
I traveled on advance parole in 2019. Does that still help me adjust status after this decision?
Often yes, but the answer depends heavily on your records. A documented lawful reentry on advance parole can satisfy the “inspected and admitted or paroled” requirement for adjustment under INA § 245(a). The 5th Circuit’s ongoing DACA litigation has not eliminated this pathway for DACA recipients who already traveled and reentered. The I-94 and parole document from that trip are now central evidence and should be preserved.
I had a misdemeanor arrest five years ago. Does DACA still help me?
Possibly, with much narrower margin than before. DACA’s own eligibility framework includes criminal bars, and any contact with the criminal system can affect both renewal and how DHS counsel weights your case in proceedings. After Santiago-Santiago, judges have less room to use active DACA as a reason to terminate, which means a clean disposition record carries more weight than it used to. Bring your full criminal history, including dismissed charges, to any consultation.
Is DACA going to be eliminated entirely?
The DACA program remains under active litigation in the 5th Circuit and related forums. The 2022 final rule at 87 Fed. Reg. 53152 formalized DACA as a regulation rather than a policy memo, which strengthens its legal footing. Renewals continue to be processed for current recipients. Initial filings for first-time applicants have been restricted by court order. The program’s long-term future remains a contested legal and political question.
What is the single most important step a DACA recipient should take in 2026?
Build a path to permanent status, or confirm in writing with an attorney that no such path currently exists. That single analysis, done by someone who has handled adjustment of status, consular processing, and removal defense, tells you everything about how exposed you actually are after Santiago-Santiago. DACA was never designed as a destination. Treating it as one is the most expensive mistake I see DACA recipients make in 2026.
About the Author
Shawn Sedaghat is the founding attorney of Sedaghat Law Group in Los Angeles. He has practiced immigration law continuously since 1997, with more than 28 years of experience before USCIS, the Executive Office for Immigration Review, and the federal courts. Cal Bar No. 188763. AILA member since 1996. Admitted to practice before the U.S. Court of Appeals for the 9th, 5th, and 3rd Circuits. J.D., University of La Verne College of Law. Languages: English and Farsi. Office located in Los Angeles, California.
Legal Disclaimer
This article provides general information about immigration law and the implications of Matter of Santiago-Santiago for DACA recipients. It is not legal advice for any individual’s specific situation, and reading it does not create an attorney-client relationship with Sedaghat Law Group. To evaluate your own facts, your own record, and your own pathway forward, schedule a confidential consultation with Sedaghat Law Group.