BIA Ruling: DACA Status No Longer Shield Against Removal Proceedings

In a published decision issued on April 24, 2026, the Board of Immigration Appeals (BIA) held that foreign nationals who have been granted deferred action like DACA and Deferred Enforced Departure (DED) can still be ordered removed from the United States.

The case, Matter of Catalina SANTIAGO-SANTIAGO, 29 I&N Dec. 589, involved a high-profile activist and DACA recipient whose removal case was initially terminated by an Immigration Judge. The BIA reversed that decision, ruling that while judges have the authority to end cases for those with deferred action, they must weigh Department of Homeland Security (DHS) opposition and other discretionary factors.

No "Automatic" Termination Based on Deferred Action

The BIA’s logic hinges on 8 C.F.R. § 1003.18(d)(1)(ii), a regulation codified in 2024 that categorizes termination for deferred action beneficiaries as "discretionary." The Board held that DACA is an administrative "promise" not to deport, rather than a legal status that overrides the government’s right to pursue a final order of removal.

For DACA recipients, this means that they can now be forced to undergo a full trial and receive a deportation order that stays dormant until their DACA expires or is revoked.

Impact on DED and Hong Kong Residents

The ramifications of Santiago-Santiago extend directly to those under Deferred Enforced Departure (DED), including thousands of Hong Kong residents currently protected by presidential decree. Because DED is governed by the same regulatory framework as DACA, these individuals now face the same legal vulnerability.

If a Hong Kong resident is in removal proceedings, an Immigration Judge can no longer simply close the case based on their DED status. Instead, the government can move forward to secure a removal order, ensuring that the moment the humanitarian "safe haven" of DED lapses, the individual can be deported immediately without further litigation.

Other Relief from Deportation

This BIA decision means that administrative statuses such as DACA, DED, and TPS can no longer automatically pause removal proceedings. The Board emphasizes that DHS has a strong interest in bringing removal proceedings to a conclusion on the merits; the ruling represents a balance between the government’s interests and the foreign national’s legal rights. It is noteworthy that while Catalina is married to a U.S. citizen, they had not yet filed an immigrant visa petition at the time of the hearing. If she had an approved immigrant visa petition based on her marriage, she would have had a much stronger argument for termination in court.  

This ruling underscores a shift in 2026 toward treating administrative deferred action as a temporary pause, rather than a permanent legal shield against deportation.  DACA and other deferred action recipients should actively seek alternatives to legalize their stay in the United States.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

DED Extended and Expanded for Hong Kong Residents

 

On January 15, 2025, President Biden announced  the extension and expansion of Deferred Enforced Departure (DED) for certain Hong Kong residents.  The DED Hong Kong program was first announced on August 5, 2021, deferring the removal of certain residents of Hong Kong who were present in the United States as of Aug. 5, 2021.  The program has been extended several times with the last extension ending on February 5, 2025. 

DED Extended for 24 Months

Before leaving office, President Biden issued a memorandum, extending DED for Hong Kong residents for another 24 months, until February 5, 2027.  Eligible Hong Kong residents will continue to have employment authorization to work legally in the U.S. 

Additional Hong Kong Residents Covered

The memorandum further expanded DED to include additional pool of individuals.  In addition to the individuals covered by the initial announcement, eligible Hong Kong residents include those who have arrived in the United States from August 5, 2021 until January 15, 2025.  This expansion potentially covers many more eligible residents of Hong Kong for DED.

Meaning of DED 

DED is a form discretionary relief to allow individuals who are otherwise ineligible to stay in the U.S. to remain here temporarily. Although DED is not a specific immigration status, eligible individuals covered by DED are not subject to removal from the United States, usually for a designated period of time.

It is important to note that individuals who are in legal immigration status are also eligible for DED.  Obtaining DED does not affect the individual's nonimmigrant status such as F-1 (student), B-1/B-2 (temporary visitor), H-1B (employment), etc. 

Eligibility Requirements

Residents of Hong Kong, regardless of country of birth, who are present in the United States on January 15, 2025 are eligible for DED, except for those:

(1)  who have voluntarily returned to Hong Kong or the PRC after the date of this memorandum;

(2)  who have not continuously resided in the United States since January 15, 2025;

(3)  who are inadmissible or deportable under the Immigration and Nationality Act because they are deemed threats to U.S. security, foreign policy, or public safety;

(4)  who have been convicted of any felony or two or more misdemeanors committed in the United States, or who are not eligible for asylum (e.g., convicted of particularly serious crimes, pose danger to national security, have persecuted others, etc.)

(5)  who are subject to extradition;

(6)  whose presence in the United States the Secretary of Homeland Security has determined is not in the interest of the United States or presents a danger to public safety; or

(7)  whose presence in the United States the Secretary of State has reasonable grounds to believe would have potentially serious adverse foreign policy consequences for the United States.

Under this memorandum, DHS Secretary may also consider suspending regulatory requirements regarding F-1 nonimmigrant students who are Hong Kong residents as the Secretary determines to be appropriate.  

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

Approvals of Hong Kong DED EAD

We are pleased to report that we have started to receive approvals for EAD for Hong Kongers based on the Deferred Enforcement Departure (DED) program.  The processing time is about 4 months.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)