Litigation Regarding Asylum and the North Korean Human Rights Act

Litigation Regarding Asylum and the North Korean Human Rights Act
By Judith L. Wood

The North Korean Human Rights Act (“NKHRA”) was originally sponsored by Senator Sam Brownback and was signed into law by President George W. Bush on October 18, 2004. The NKHRA was reauthorized in 2008 and again in 2012, thereby extending its effective date until 2017. The goals of the North Korean Human Rights Act are: to provide humanitarian assistance to North Koreans inside the Democratic People’s Republic of Korea (North Korea); to provide grants to private, non-profit organizations to promote human rights, democracy, rule of law and the development of a market economy inside North Korea; to increase the availability of information inside North Korea; and to provide humanitarian or legal assistance to North Koreans who have fled North Korea. An office in the State Department, headed by Special Envoy Robert R. King, is devoted solely to the issue of promoting North Korean human rights.

In passing the NKHRA, Congress was particularly concerned with those North Korean refugees who had escaped to China, and were in danger of being repatriated from China back to North Korea. North Korean policy is and was to imprison, torture, and often execute defectors. In its 2012 reauthorization, Congress noted that the transition to the leadership of Kim Jong-Un has introduced new uncertainties and possibilities, but that the fundamental human rights and humanitarian conditions inside North Korea remained deplorable. Pub. L. 112-172, 126 Stat. 1307, Section 2 (Findings). The regime had authorized on-the-spot execution of attempted defectors.

Refugee resettlement generally applies to North Koreans who have escaped from North Korea and are outside the country. Individuals who are already in the United States or who present themselves at the border for a credible fear interview are eligible to apply for asylum. In the findings section of the 2008 reauthorization of the NKHRA, Congress reported that the United States had resettled only 37 North Korean refugees from 2004 to 2007, while the Republic of Korea resettled 5,961 North Koreans.1 From 2000 to 2006, the United States granted asylum to 15 North Koreans.2 During the same period, the United Kingdom granted asylum to 60 North Koreans and Germany granted asylum to 135 North Koreans.3 By the time of the 2012 reauthorization findings, the United States had resettled 128 North Korean refugees.

The NKHRA provides 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 (South Korea).4 A particular area of controversy in the U.S. treatment of North Koreans arises in the area of asylum law, where North Koreans have been granted citizenship in South Korea and have then sought asylum in the United States. U.S. asylum law generally bars individuals who have been firmly resettled in a third country from a grant of asylum, though they may still qualify for statutory withholding of removal, which bars the removal of refugees to a country where they are more likely than not to be persecuted.

The Board of Immigration Appeals held in a 2007 decision Matter of K-R-Y- and K-C-S-, 24 I&N Dec. 133 (BIA 2007), which was litigated by the author, that there is a difference between the legal right to citizenship in South Korea and the actual exercise of that right, and that where North Koreans have availed themselves of the right to citizenship in South Korea, they may no longer be granted asylum in the United States.

The NKHRA appears to contain two conflicting clauses. Section 302(a) states that the NKHRA “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 these rights.” Section 302(b) provides that 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 the Act (8 U.S.C. §1158), a national of North Korea shall not be considered a national of South Korea. This is despite the fact that neither the North Korean nor the South Korean constitution recognizes the existence of two separate countries, and both countries consider citizens of the entire peninsula to be citizens of Korea. In the 2008 version of the NKHRA, Congress expressed an intention to work with South Korea; to revisit and explore new opportunities for coordinating efforts to screen and resettle North Koreans who have expressed a desire to pursue resettlement in the United States, if they have not yet availed themselves of any right to citizenship they may enjoy under the South Korean Constitution; and to halt the forcible repatriation of North Korean refugees from China.5 While the intent is not to resettle refugees who have been granted citizenship in South Korea, intent with regard to asylees is less clear. In many cases, a lengthy absence from South Korea after a grant of citizenship may call into question whether the individual still has the right to return to live in South Korea.

The author is currently litigating this issue before the Ninth Circuit Court of Appeals, where she is urging the court to find that an offer of citizenship in South Korea does not bar asylum under the North Korean Human Rights Act.

Judith Wood is an immigration attorney in Los Angeles, California. She came to immigration law as a result of a vision in 1984, where she saw hands reaching out of a jail cell and heard her name being called to help. The hands and voices were those of Salvadoran political prisoners, who were stranded in El Salvador during the 1980s when the Civil War was raging. She immediately heeded the call and went to Los Angeles and began working with several refugee and immigrant agencies. She worked to bring concepts of International Human Rights Law into the immigration court and was successful in a number of asylum cases using precepts of international law. Her practice evolved and she began to represent refugees from other countries, including Sri Lanka, Afghanistan, and Iran, among others. She won an important case before the Board of Immigration Appeals, Matter of S-P-, which turned the tide for Tamils seeking asylum from Sri Lanka. She has also prevailed in a number of cases before the Ninth Circuit Court of Appeals representing refugees from various countries seeking asylum. She continues to work tirelessly after 30 years of practice. In addition to the FBA, she is a member of the American Immigration Lawyers Association, the International Bar Association, Los Angeles County Bar Association, Immigration Executive Committee Member, is a frequent presenter at the AILA and LACBA conferences and has taught at the People’s College of Law.

1Pub. L. No. 110-346, §§ 2(9)-(10), 122 Stat. 3939 (Oct. 7, 2008).
2Id. at § 2(12).
4North Korean Human Rights Act, 22 U.S.C. § 7842(a) (2015).
5Pub. L. No. 110-346, § 3, 122 Stat. 3939 (Oct. 7, 2008).


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