No, dismissing an asylum case is not the same as granting amnesty

In the run-up to the 2024 election, President Biden has announced a series of executive actions on immigration, blocking nearly all processing of asylum cases and creating a path to citizenship for immigrants married to American citizens.

Biden’s critics continue to argue that his policies on the southern border have been too lenient.

Republicans in Congress recently accused the president of granting “mass amnesty” to more than 350,000 migrants who entered the country illegally by dismissing their asylum cases rather than either approving their claims or deporting them.

“Biden has dropped at least 350,000 asylum cases so illegals can stay in the country. This is MASS amnesty,” said Sen. Josh Hawley (R-Mo.) in a post on X.

VERIFY reader Nancy texted us to ask if those claims are true.

THE QUESTION

Does dismissing an asylum case grant the person amnesty?

THE SOURCES

• Transactional Records Access Clearinghouse (TRAC) at Syracuse University

• U.S. Citizenship and Immigration Services

• Council on Foreign Relations

• Aaron Hall, immigration attorney and senior partner at Joseph & Hall P.C.

THE ANSWER

No, dismissing an asylum case is not the same as granting amnesty.

WHAT WE FOUND

It’s true that the Biden administration has dismissed hundreds of thousands of asylum cases, but people whose cases are dismissed are not given amnesty or legal status.

The most common form of asylum is called “defensive asylum.” This is when a migrant crosses the border illegally and intentionally turns themself over to a border protection officer. When the government begins removal proceedings, the migrant argues they shouldn’t be deported because they aren’t safe in their home country.

Whether they’ll be granted asylum is decided in immigration court, a process that can take months or even years. Data compiled by TRAC – Transactional Records Access Clearinghouse, a research group at Syracuse University – says there are more than 1.3 million people awaiting asylum hearings.

Sometimes the government clears that backlog by simply dismissing a migrant’s case, which neither grants them asylum nor orders them deported. 

Immigration attorney Aaron Hall says dismissals aren't always just to clear backlog – sometimes it’s because the applicant has already received legal status through a means other than asylum – but that is a common reason.

“It's really one of the tools that [the government is] using most to try to focus all of their resources – their limited resources – on what they've deemed their priorities. They're trying to clear out other types of cases,” said Hall. “The priorities [for deportation] are people who present a risk to national security, public safety – the public safety one’s usually based on criminal record, and then recent arrivals… defined as post-November 1, 2020.”

According to TRAC data, it’s true that there have been more than 350,000 dismissals under President Biden. They also happened under presidents Trump and Obama, but far less often.

When an asylum case is dismissed, the person is allowed to continue living in the United States, but they aren’t given any actual legal status. This can make it hard for them to obtain a work permit and it means they could get detained again sometime in the future.

“They're not under an order of deportation to leave the country. [But] what it doesn't do is forgive the immigration violations or mean that they're somehow safe,” said Hall. “They're just awaiting the day when they might be put back into the deportation system because they don't have immigration status. So it's kind of putting their situation on hold and in limbo.”

This differs from amnesty, which effectively pardons migrants for illegally crossing the border and gives them legal status.

As a result, immigrants are often upset when their cases get dismissed.

“These are cases that have been in the system for a long time, and people who have spent a lot of time preparing for their hearings to try to get the judge to grant them asylum,” said Hall. “They’ve collected evidence, they’ve filed evidence, they’ve gotten witnesses ready to testify, and then all of a sudden they find out their case has been dismissed years into it.”

Many immigrants whose cases are dismissed choose to reapply for asylum and restart the process so they can obtain a work permit, avoid deportation, and potentially receive legal status in the future.