(UNITED STATES) – A new challenge led by Sen. Catherine Cortez Masto asks the Justice Department to revisit a recent BIA immigration court ruling that, in lawmakers’ view, narrows a protection many DACA recipients have relied on in removal court.

The dispute centers on Matter of Santiago-Santiago, a Board of Immigration Appeals decision described by lawmakers as holding that an immigration judge may not terminate removal proceedings solely because the respondent has DACA. If that reading stands, respondents with valid DACA may remain in removal proceedings even while the Department of Homeland Security continues to grant deferred action and employment authorization.

That distinction carries immediate consequences. DACA is not a lawful status. It is an exercise of prosecutorial discretion that typically includes deferred action and, for approved recipients, work authorization under DHS regulations. A respondent who keeps DACA but cannot obtain termination of proceedings may still face hearings, future custody questions, and the risk that proceedings continue unless DHS separately moves to dismiss or exercises discretion in another form.

More than 50 members of Congress joined the letter, which was sent to Acting Attorney General Todd Blanche. Cortez Masto led the effort with Sen. Alex Padilla, Sen. Dick Durbin, Sen. Mark Kelly, Rep. Delia Ramirez, and Rep. Sylvia Garcia. Their central claim is legal, not rhetorical: the BIA’s approach conflicts with Justice Department regulations governing dismissal or termination and with Fifth Circuit rulings that preserved DACA’s protection against removal while broader litigation continues.

The case matters beyond one respondent because BIA precedent can shape removal practice nationwide unless a circuit court or the Attorney General says otherwise. Immigration judges sit within the Executive Office for Immigration Review, or EOIR. Their rulings are reviewed by the BIA, and published BIA decisions often become the starting point for later cases in the immigration courts.

Lawmakers’ objection also reflects a long-running structural tension in immigration law. DHS controls deferred action and charging decisions. EOIR, housed within DOJ, controls the court docket. When one agency grants deferred action but the court system declines to terminate proceedings on that basis alone, respondents may find themselves protected from immediate removal in one sense while still defending against removal in another.

Warning: Valid DACA does not erase a charging document, cancel a hearing date, or guarantee that removal proceedings will end. Missed hearings can trigger an in absentia removal order.

The legal fight turns on what Matter of Santiago-Santiago says about termination authority. Under the lawmakers’ account, the BIA concluded that DACA alone is not enough for an immigration judge to terminate proceedings. That reading narrows the practical effect of deferred action in court, because it separates DHS’s decision to forbear from removal from EOIR’s decision to close or end the case on the docket.

Congressional critics argue that DOJ regulations permit termination where deferred action has been granted. The relevant provisions sit in the procedural rules governing removal proceedings, including 8 C.F.R. § 1239.2 and related docket-management regulations. The precise regulatory path can matter. Some rules speak in terms of cancellation of a notice to appear before jurisdiction vests. Others concern dismissal, termination, or administrative closure after proceedings are underway. Small wording differences often decide these cases.

DACA itself arises from DHS policy and implementing regulation, not from the Immigration and Nationality Act as a standalone statutory status. Its core feature is forbearance from removal for a set period, usually paired with work authorization if the recipient shows economic necessity. That forbearance has been central to the federal litigation over DACA. Lawmakers cite Fifth Circuit decisions preserving that feature for existing recipients while the legality of the program continues to be litigated.

The Fifth Circuit context is important because it cuts against any suggestion that DACA is irrelevant in removal practice. Even courts skeptical of DACA’s original creation have treated deferred action and forbearance as real legal consequences while injunctions and stays remain in place. If the BIA treats DACA as insufficient, by itself, to support termination, respondents in the Fifth Circuit may argue that the agency has undervalued the very protection federal courts preserved.

No clear circuit split appears in the material released with the letter. The more immediate conflict is between the BIA’s reading of immigration court procedure and the lawmakers’ reading of DOJ regulations and Fifth Circuit DACA rulings. That said, outcomes may still vary by jurisdiction. Circuit precedent can shape how much deference a court gives the BIA, how it reads docket-control regulations, and how it treats deferred action in the removal context.

Practice point: A respondent with DACA in proceedings may still need separate litigation strategy on termination, dismissal, administrative closure, prosecutorial discretion, bond, and any applications for relief under the INA.

The practical effect on future cases is straightforward. Government counsel may cite Matter of Santiago-Santiago to oppose termination motions that rely only on DACA approval notices. Respondents, in turn, may need broader records. That can include proof of deferred action, equities supporting prosecutorial discretion, pending collateral relief before USCIS, or eligibility for relief such as adjustment of status, cancellation, asylum under INA § 208, withholding under INA § 241(b)(3), or protection under the Convention Against Torture.

Attorneys may also frame the issue as one of agency coordination. DHS grants deferred action. ICE trial counsel represents the government in court. Immigration judges manage proceedings subject to DOJ rules. In many cases, the strongest path may be a joint request from DHS counsel rather than a respondent-only motion. That has always been true to some degree, but a restrictive BIA reading makes government agreement more valuable.

The letter does not identify a dissenting BIA opinion, and none has been publicly highlighted by the lawmakers who objected to the decision. The pressure campaign instead asks the Attorney General to review the precedent. That review power is significant. The Attorney General may refer BIA decisions to himself, vacate them, or issue a new precedent that binds immigration judges and the Board, subject to federal court review.

That is why the next step is institutional rather than legislative. The members asked Acting Attorney General Todd Blanche to revisit the case. If DOJ declines, litigants may test the issue in the courts of appeals. If DOJ intervenes, the department could clarify whether deferred action, including DACA, fits within existing termination rules or whether a new regulation is needed.

Anyone currently in proceedings should treat this dispute as a live procedural issue, not an abstract policy debate. DACA recipients with hearing notices, prior removal orders, denied continuances, or pending relief before USCIS should have their files reviewed promptly. Case posture matters. Venue matters. The contents of the notice to appear matter. So does the position taken by ICE counsel in a particular court.

Official information about the immigration courts is available at [justice.gov/eoir](https://www.justice.gov/eoir). USCIS information on deferred action and related benefits is available at [uscis.gov](https://www.uscis.gov). Attorney referrals are available through [AILA Lawyer Referral](https://www.aila.org/find-a-lawyer) and the Immigration Advocates Network.

⚖️ Legal Disclaimer: This article provides general information about immigration law and is not legal advice. Immigration cases are highly fact-specific, and laws vary by jurisdiction. Consult a qualified immigration attorney for advice about your specific situation.