North Korean Refugees in the US: Still More Legal Arcana

Stephan Haggard (PIIE) and Jaesung Ryu (East Asia Institute)
March 7, 2012 7:00 AM

As we pointed out in an earlier post with some data, the US has not succeeded in accepting many North Korean asylum seekers. Britain has had trouble too, but is outperforming the US by a wide margin. So what exactly is the problem?

In an upcoming post, we look at the issue of persecution and prosecution. Fortunately, we have cut through that knot; those facing severe punishment as a result of leaving their country can indeed be considered the victims of persecution.

But there are other unremarked legal barriers that the North Korean Human Rights Act of 2004 and its 2008 amendment failed to fix. Moreover, a decision by the Board of Immigration Appeals basically drives a stake through the amended legislation’s stated intent of stepping up the intake of asylum-seekers.

The problem centers on the fact that North Korean refugees have access to South Korean citizenship. Partly as a result of courtesy and custom, asylum-seekers who reach third countries are channeled to South Korean embassies and consulates and not made aware of the fact that they also have the option of seeking asylum in the US.

Fine, but once a refugee avails herself of South Korean citizenship, they are “firmly settled” in refugee legal speak. To get asylum standing in the US they have to claim persecution in South Korea. Obviously that is difficult though not impossible to do. For example, some refugees in South Korea have faced threats—even to their lives—and there is the issue of both official and societal discrimination (see for example the well-done International Crisis Group report on South Korean policy).

There is also the interesting legal question of whether the North Koreans still consider defectors North Korean citizens, in which case they could be considered refugees even if they had taken South Korean citizenship.

The logical thing to do would be to coordinate more effectively with South Korea on the issue, allowing the refugee burden to be shared. We would even favor allowing firmly-settled North Koreans the right to move to the US. In a useful post at 38North, Roberta Cohen notes that where there is a will, there is a way. She notes that the cases of Soviet Jews who had gone to Israel was “statutorily eased”: “Soviet Jews…who first moved to Israel and then sought to go the United States, were sometimes able to qualify for refugee admission in the U.S. on the grounds that they were not “firmly resettled” in Israel.” Cohen argues for such flexibility with respect to North Korean refugees, even if it requires Congressional involvement.

Other solutions, such as tackling the question through the back door through adoptions—as proposed legislation has sought to do—strike us as suboptimal.

Following are the operative portions of the two North Korean Human Rights Act and the Board of Immigration Appeals decision that is giving everyone such trouble.

2004 North Korean Human Rights Act: The act calls on the government to report on refugees, but contains the following section on eligibility; italics added. It states clearly that the potential right of citizenship in South Korea should not be considered a barrier, but tries to shut the door to those who have availed themselves of the option.

SEC. 302. ELIGIBILITY FOR REFUGEE OR ASYLUM CONSIDERATION.

(a) PURPOSE.—The purpose of this section is to clarify that North Koreans are not barred from eligibility for refugee status or asylum in the United States on account of any legal right to citizenship they may enjoy under the Constitution of the Republic of Korea. It is not intended in any way to prejudice whatever rights to citizenship North Koreans may enjoy under the Constitution of the Republic of Korea, or to apply to former North Korean nationals who have availed themselves of those rights.

(b) TREATMENT OF NATIONALS OF NORTH KOREA.—For purposes of eligibility for refugee status under section 207 of the Immigration and Nationality Act (8 U.S.C. 1157), or for asylum under section 208 of such Act (8 U.S.C. 1158), a national of the Democratic People’s Republic of Korea shall not be considered a national of the Republic of Korea.

North Korean Human Rights Act, amended 2008: The 2008 amendment to the act clearly expressed throughout Congressional frustration with the pace of asylum uptake. Nonetheless, despite this frustration the Act still appears to cleave to the existing definitions. Again, italics added.

SEC. 3. SENSE OF CONGRESS.

“It is the sense of Congress that—

(1) the United States should continue to make it a priority to seek broader permission and greater cooperation from foreign governments to allow the United States to process North Korean refugees overseas for resettlement in the United States, through persistent diplomacy by senior officials of the United States, including United States ambassadors to Asia-Pacific nations;

(2) at the same time that careful screening of intending refugees is important, the United States also should make every effort to ensure that its screening, processing, and resettlement of North Korean refugees are as efficient and expeditious as possible;

(3) the Special Envoy for North Korean Human Rights Issues should be a full-time position within the Department of State in order to properly promote and coordinate North Korean human rights and humanitarian issues, and to participate in policy planning and implementation with respect to refugee issues, as intended by the North Korean Human Rights Act of 2004 (Public Law 108–333; 22 U.S.C. 7801 et seq.);

(4) in an effort to more efficiently and actively participate in humanitarian burden-sharing, the United States should approach our ally, the Republic of Korea, to revisit and explore new opportunities for coordinating efforts to screen and resettle North Koreans who have expressed a wish to pursue resettlement in the United States and have not yet availed themselves of any right to citizenship they may enjoy under the Constitution of the Republic of Korea; and

(5) because there are genuine refugees among North Koreans fleeing into China who face severe punishments upon their forcible return, the United States should urge the Government of China to—

(A) immediately halt its forcible repatriation of North

Koreans;

(B) fulfill its obligations pursuant to the 1951 United Nations Convention Relating to the Status of Refugees, the 1967 Protocol Relating to the Status of Refugees, and the 1995 Agreement on the Upgrading of the UNHCR Mission in the People’s Republic of China to UNHCR Branch Office in the People’s Republic of China; and

(C) allow the United Nations High Commissioner for Refugees (UNHCR) unimpeded access to North Koreans inside China to determine whether they are refugees and whether they require assistance.”

And finally, the infamous 24 I&N Dec. 133 (BIA 2007) Interim Decision #3560

(In re K-R-Y- and K-C-S-, Respondents, Decided April 4, 2007 U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

“(1) The North Korean Human Rights Act of 2004, Pub. L. No. 108-333, 118 Stat. 1287, which provides that North Koreans cannot be barred from eligibility for asylum on account of any legal right to citizenship they may enjoy under the Constitution of South Korea, does not apply to North Koreans who have availed themselves of the right to citizenship in South Korea.

(2) The respondents, natives of North Korea who became citizens of South Korea, are precluded from establishing eligibility for asylum as to North Korea on the basis of their firm resettlement in South Korea.” Nonetheless, there are two footnotes in the decision that raise interesting legal issues that remain unresolved; again, italics added.

“2. Even if the respondents may retain North Korean nationality for some purposes, we understand the NKHRA to treat North Koreans who affirmatively acquire South Korean citizenship as being “former North Korean nationals.” NKHRA § 302(a), 118 Stat. at 1295. If that were not the case, there would be little (and probably no) meaning assignable to the last clause of section 302(a) of the NKHRA.

3.  We do not know whether North Korea would recognize the respondents’ acquisition of South Korean citizenship. But the respondents are now nationals of South Korea. Section 101(a)(42) of the Act, 8 U.S.C. § 1101(a)(42) (2000), defines a refugee, in relevant part, as “any person who is outside any country of such person’s nationality” and “is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution” on account of a qualifying ground. A person must qualify as a “refugee” in order to obtain asylum under section 208 of the Act. The respondents’ acceptance of South Korean citizenship draws into question their eligibility for asylum relating to North Korea.”

Well, as it turns out we do in fact know quite a bit about North Korean attitudes toward the traitors that defect from the motherland: they are fair game as some high-profile assassination attempts have demonstrated. Morever, we have received anecdotal evidence from the North Korean refugee community that there are agents—or sympathizers--that apply pressure to the refugees far short of physical coercion.

Moreover, Jaesung Ryu has looked into the North Korean nationality act (signed 1963, amended 1995 and 1999). It states that North Korean citizens are defined as those who held the nationality of “Chosun” prior to the founding of the DPRK and their decedents who did not forfeit their citizenship (presumably to “Chosun,” raising yet another interesting legal ambiguity). (Section 1, Article 2).

But more chilling is the Orwellian fact that North Korean citizens are legally “protected” by the DPRK without regards to their permanent or temporary residency (Article 3). And we know what kind of “protection” governments will extend to those considered traitors. Could such “protection” itself be a grounds for granting asylum to firmly settled asylum seekers?

The courts need to sort through these details, but the US should be admitting people who have fled North Korea. Period.

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