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The recent Chinese threat to repatriate a group of arrested North Koreans allowed us to once again restate our argument that North Koreans who leave the country seeking permanent resettlement should be treated as refugees. We have also acknowledged that making this case is not entirely straightforward because of the demands of the Refugee Convention. Refugees must have a “well-founded fear of persecution” on the basis of their race, religion, nationality, membership of a particular social group or political opinion. Precisely because of their successful persecution, Christians make up only a small share of the population. The country is racially and nationally homogenous and North Koreans do not necessarily express political reasons for leaving.
Nonetheless, we argue that border-crossers should be treated as refugees because of the fear they all share of repatriation for what can only be considered a “political opinion”: that individuals should have the right to leave their own country. Moreover, the outrageous punishments to which North Korean refugees have been subjected should certainly be considered an extenuating circumstance. It would appear perverse to say that North Korea has the right to enforce laws that not only restrict its citizens movements but incarcerate them under horrible conditions and even torture them on their return.
But we are not lawyers, so we were pleased to hear that this argument has received support in the US courts. Moreover, it has done so in a decision with a devastating concurrence by a judge who was himself a Romanian immigrant. Alex Kozinski cuts through lower court and Board of Immigration Appeals arguments like a hot knife through butter. In doing so, he also exposes the moral bankruptcy of Chinese arguments with respect to North Korea’s refugees (to the extent that there really are any).
Stick with me; you have to read this concurrence. But first, the background.
Under the Immigration and Nationality Act, (§§101(a)(42)(A), 208(a), as amended, 8 U.S.C.A. §§1101(a)(42)(A), 1158(a) to be exact) criminal prosecution for illegal departure is generally not considered to be persecution for purposes of asylum.
A general exception to this rule is where the applicant can show that he or she will be subject to disproportionately severe punishment on account of one of five enumerated grounds for asylum eligibility. This would certainly hold in cases where the refugees did in fact hold political views, and perhaps in cases where North Koreans had contact with South Korean abroad; such violators do appear to be subject to disproportionate punishment in North Korea.
In Li vs. the INS (9th Circuit 1996), a Chinese petitioner was denied asylum because he failed to establish that the exit control laws as applied to him “were especially unconscionable or were merely a pretext to persecute him for his beliefs or characteristics,” as Abedini v. INS (9th Circuit 1992) required. In the eyes of the court, it appeared that “any punishment that awaits Petitioner upon his return to China would be the same punishment that awaits other illegal emigrants.”
If you think this is perverse, you are 100% right. If the punishment for leaving your country is death, but the death sentences are imposed in an even-handed way then that’s OK. Huh?
However, in a landmark decision in Francisco Lucas Rodriguez-Roman vs. INS (9th Circuit 1996), involving a Cuban political dissident, the Court finally swept away such perversities. In the course of doing so, they also provided ample ammunition for providing North Korean refugees asylum.
The Board of Immigration Appeals had reached the conclusion that “Cuba's enforcement of its laws, no matter how severe the penalty or what the prohibited conduct, could not constitute persecution.”
Drawing on the UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status as well as the general exception noted above the decision demolishes these arguments and re-establishes the principle that punishment for the crime of illegal departure constitutes persecution when the punishment would be severe.
Kozinski’s consent really captures the spirit of the decision; sometimes it takes a victim of persecution to speak with directness about it. Quoted here in full:
“Judge Reinhardt's opinion, with which I generally agree, demonstrates the importance of independent judicial review in an area where administrative decisions can mean the difference between freedom and oppression and, quite possibly, life and death.
What happened in this case at the administrative level is chilling. Rodriguez, a refugee from Communist Cuba, established that, if returned to his country, he might be shot, imprisoned for many years or simply made to "disappear." These are not fantasies. Communist countries are known for their brutality in stemming emigration; this brutality is inevitable because Communism so undermines human dignity and economic prosperity that any Communist country that opened its borders would soon be depopulated. Vicious punishment for emigration offenses is thus a means of enforcing political allegiance to governments unable to inspire loyalty by more conventional means.
None of this is new or controversial; the West has known of this seamy practice at least since the early 1960's, when East Germany was first observed shooting its citizens for trying to scale the Berlin Wall.
Where the Immigration Judge and the BIA went astray is in accepting the Newspeak used by the Cuban government to camouflage its atrocities. Rather than admitting that it must cling to its own citizens by brute force, the Cuban government adopts the fairy tale that its citizens, with the exception of a few "traitors" and "deserters," are happy to live under Communism. In so doing, the Cuban government co-opts the use of those terms and subverts them to its own nefarious ends.
Treason, as that term is commonly understood, involves betrayal of one's country by disclosing national security secrets to its enemies or otherwise giving them material aid and comfort, especially in time of war. "Desertion" involves leaving one's military post in time of war. Rodriguez carried away no military secrets; he did not abandon a combat post; he did not attempt to undermine the Cuban government in any way. All Rodriguez wanted was a chance to live his life, and raise his family, in a place where the government serves the people, not vice versa.
Against this backdrop -- which should be self-evident to anyone who has lived through the Cold War -- the IJ's discourse on how Cuba's repressive laws are of a mold with the practice of civilized nations is nothing short of bizarre. The judge stated [citing the earlier judgment, SH] :
‘In socialist Cuba illegal exit, desertion and treason are all crimes. The latter two are also crimes in the United States. . . . Certainly, any government when it passes laws has a political objective as part of the motivation for the statute. I have no doubt that the laws which the respondent violated in Cuba were, in part, politically motivated for reasons best known to the government of Fidel Castro. However, in my opinion that does not mean that these laws become unenforceable as political persecution.
. . . . The Court will concede that sentences [for treason and desertion] appear to be harsh in Cuba[;] however, the Court is also mindful of the fact that our own government has imposed the severest of sentences for desertion in war time upon deserters of its military service. For example, during the closing stages of World War II and at the direction of no less a figure than General of the Army and later to be President Dwight David Eisenhower, Private Slovik was executed for desertion. He was sent before a firing squad with Eisenhower's approval.
It is true from the literature that executions continue in Cuba today. They have, however, in later years diminished. Nevertheless, this Court cannot take on the burden of assessing criminal penalties in a foreign country in the guise of political persecution. The penalty for treason has always been severe. For example, in 17th Century England, the penalty for treason[,] which generally was an assault upon the monarch, was hanging, drawing and quartering. That, be it remembered, was in a civilized country.’
Supplementary Oral Decision of the Immigration Judge, Aug. 9, 1990, at 5-7.
This is not a general indictment of the INS, an agency of the United States Government toward which I feel respect and gratitude. When my family and I arrived in this country -- also refugees from Communism -- we were treated by the INS with dignity and compassion. I believe that the great majority of those who deal with the agency have similar experiences. But agencies are run by people and people make mistakes. Review by a tribunal outside the agency helps correct these rare but tragic errors. In the case of Rodriguez, this may mean the difference between life and death; the effort is surely worth the candle.”
Any questions?
