A PRIMER ON NORTH KOREA

Most of us know little about North Korea.  However over the recent holiday period we learned that  North Korea’s leader,  Kim Jong Il, died after seventeen years of ruling over his impoverished country. His youngest son, Kim Jong Un has now taken over power.

My refugee seminar student, Jessica Smith, has written and interesting and timely study about North Korea and it’s refugee problem.  Read it and learn.

Escaping the Scariest Place on Earth: How the United States Has Helped and Hindered the North Korean Refugee Situation

By: Jessica M. Smith[1]

1. I.                   Introduction:

It seems odd that a Communist country, which has its fair share of asylum seekers to the United States, would be seeing an influx of refugees but that is the current case for China. Geographically speaking, North Korea is an isolated nation, which makes migration to countries other than China and South Korea a virtual impossibility. North Korean leader Kim Jong Il has used this isolation to his benefit in order to enslave his people in work camps and has been able to censor the media to such an extreme that many North Koreans are unaware that a man has walked on the moon.[1] North and South Korea have been separated by a heavily guarded DMZ line where those who attempt to defect from North Korea will be shot on sight. Logically speaking, the “easiest” way for North Korean defectors is to escape into China. However, as China is bursting at the seams with over a billion citizens and has implemented a one child per family policy, coupled with the added pressure of not upsetting fellow comrade Kim Jong Il, those lucky North Korean defectors who make their way into China have a strong possibility of being sent back to North Korea.

China labels these North Korean defectors as “economic migrants” so they are not afforded the same protections as they would receive under a refugee status. Even those Chinese citizens, who help the North Korean refugees on a humanitarian basis, may be jailed for violating Chinese policy against helping the North Korean refugees. There is no Chinese written law that exists to justify the Chinese government’s treatment of those citizens offering humanitarian assistance to the refugees.  Furthermore, because this Chinese “law” is only a highly encouraged policy from the Chinese government, this indicates that any jail sentences or beatings faced by those Chinese citizens for helping North Koreans is persecution rather than legitimate prosecution.

The United States has made an effort to “welcome” North Korean refugees with implemented policies like the North Korean Human Rights Act (NKHRA) of 2004. However, with only 9 successful North Korean asylum cases from 2004 – 2010, it is clear that the policy is not effective at granting or promoting United States asylum as a legitimate option to the North Korean refugees.  Also, in direct contrast to the NKHRA principles, the United States courts have differing opinions on how to view the Chinese citizens who offer humanitarian aid to North Korean refugees and furthermore have denied asylum applications to these individuals on the basis that their humanitarian assistance is not a manifested political opinion against the Chinese government. Additionally, the courts have conflicting views on whether the Chinese government is conducting legitimate prosecution on the Chinese citizens who assist North Korean refugees. The confusion throughout the court system reveals contradictory messages from the executive branch (who promotes this North Korean refugee friendly legislation with the NKHRA); and the judicial branch (who denies asylum applications on the very objectives of promoting human rights for North Korean refugees that the NKHRA is based upon). Additionally, the extra steps added for an asylum application for a North Korean refugee only lengthen the waiting time rather than expediting the asylum process as the NKHRA intended.

Further complicating matters for a North Korean refugee seeking asylum in the United States, is fellow ally South Korea. South Korea has an open door policy in regards to North Korean refugees written into South Korea’s constitution.  However, the North Koreans who avail themselves to the citizenship options or even accept resettlement funds from the South Korean government, are generally disqualified from asylum in the United States on the basis that they are firmly resettled in South Korea. The NKHRA has attempted to distinguish that North Korean refugees are not barred from asylum in the United States simply because of this citizenship language in South Korea’s constitution. However, the firm resettlement law is still in effect and negates any usefulness that the NKHRA would have provided to those North Koreans who resettle in South Korea and then wish to gain asylum in the United States.

The differing opinions from the executive and judicial branches of government need to be consolidated into more of a bright line rule on how to effectively deal with the North Korean refugees. After all the evidence that has emerged in regards to the human rights atrocities faced by North Korean citizens, it is truly a miracle that they are even able to make their way to United States soil, so it would seem logical for the United States government to promote a consistent policy for the North Korean refugees which does not further complicate the lives of those asylum seekers.

1. II.                North Korea
   1. A.    North Korea’s Government Sponsored House of Horrors
      1. 1.      North Korean History and the Current Regime

After World War II, the United States and Russia occupied zones in the Korean peninsula. In 1950, the Korean War began when North and South Korea claimed sovereignty over the Korean Peninsula as a whole. Since there has been no signed peace treaty between the two nations, North Korea has technically been at war with South Korea over fifty years.[2] Even today, at one physical point in the current DMZ, North Korean and South Korean soldiers spend their day staring at each other from across their respective lines.[3] North Korea remains a single-party state led by the Korean’s Workers Party and this totalitarian government controls every aspect of human life.[4] An example of this government control means that North Korea can determine where within its borders its citizens will reside and the State Department confirms that in the past the North Korean government forced the internal resettlement of over ten thousand citizens from the capital Pyongyang to the countryside.[5]  Travel within North Korean borders is also strictly enforced and permission from the government is required to travel out of a village or town.[6] There are no cell phones, no internet and the media is heavily censored.[7] The State Department website advises that “North Korean border officials routinely confiscate visitors’ cell phones upon arrival, returning the phone only upon departure.”[8] No dissent or criticism of Kim Jong-Il or the “Great Leader” is allowed.[9] The North Korean government controls all media outlets.[10] Most North Korean citizens have no access to media sources other than the official media. [11] 

1. 2.      Ongoing Human Rights Violations
2. a.      Existence of Prison Camps in North Korea

            North Korea is isolated from the rest of the world thanks to its geography and the current repressive regime. Therefore, the human rights violations that occur are largely unreported and undocumented. But a few North Korean defectors have testified to the presence prison or work camps and the ensuing torture. The North Korean Human Rights Act of 2004 (NKHRA) states that “the Governments of China and North Korea have been conducting aggressive campaigns to locate North Koreans who are in China without permission and to forcibly return them to North Korea, where they routinely face torture and imprisonment, and sometimes execution.”[12] Amnesty International reports that “many detainees died due to strenuous, and often hazardous, forced labor with little rest and inadequate access to food or medical care. Many were executed for minor infractions and others were forced to witness the public executions.”[13] The State Department further explains the torture present in prison camps:

Methods of torture and other abuse reportedly included severe beatings, electric shock, prolonged periods of exposure to the elements, humiliations such as public nakedness, confinement for up to several weeks in small “punishment cells” in which prisoners were unable to stand upright or lie down, being forced to kneel or sit immobilized for long periods, being hung by the wrists or forced to stand up and sit down to the point of collapse, and forcing mothers recently repatriated involuntarily from China to watch the infanticide of their newborn infants.[14]

            The U.S. Committee for Human Rights in North Korea published a report in 2003 that described North Korea as having a “system of concentration camps, organized like the Soviet “gulag” system, which houses an estimated 150,000 to 200,000 inmates, including many political prisoners.”[15] The State Department reports that there are two types of prisons in North Korea. There are “re-education prisons” where the prisoners endure forced labor which are typically reserved for those North Koreans sentenced for nonpolitical crimes.[16] However, those citizens that were considered hostile to the regime or who committed political crimes were sent to political prison camps indefinitely.[17] Moreover, “many prisoners in political camps were not expected to survive.”[18]

1. b.      Punishments for Defection in North Korea

However, what does this mean to the North Korean refugees who are returned to North Korea?  Article 47 of the 1987 North Korean penal code lists defection as a capital crime and states that “a defector who is returned to North Korea ‘shall be committed to a reform institution for not less than seven years.’”[19] There are conflicting reports on the possible punishments for defectors returned to North Korea. For example, “Article 233 of the [North Korean] penal code criminalizes border crossing and Article 234 prohibits border guards from assisting border crossers; both articles carry a penalty of up to two to five years of labor correction.”[20] Meanwhile North Korea’s police department, issued a decree on February 1, 2010 that changed the punishment for defectors by “increasing the charge to a ‘crime of treachery against the nation,’ possibly punishable by execution.”[21] Also, the State Department determined that North Korea assigns harsh punishments when repatriated North Koreans contacted South Korean groups (religious groups included) or sought asylum in third party countries.[22] Suffice to say; whether the punishment is an extended stay in a labor camp or execution, the options are bleak for repatriated North Koreans.

1. c.       Food Shortages and Famine in North Korea

In addition to these repressive prison conditions, North Korea is also battling a food crisis. In the mid-1990s, massive flooding led to the deaths of 600,000 to 2 million North Koreans; almost 5 – 10% of North Korea’s total population.[23] The famine and food shortages continue today and over one-third of North Koreans remain chronically malnourished.[24]

1. 3.      International Law and the North Korean Refugees

The parties which are privy to the 1951 Refugee Convention and the 1967 protocol to that Convention, are obligated to provide resources and protection to those who are determined to be refugees.[25][26] The parties to the Refugee Convention have an obligation to follow the non-refoulement provision where no party shall “expel or return a refugee to the territory where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”[27] China, South Korea and the United States are parties to the Refugee Convention and its 1967 protocol.[28]

The 1951 Convention prohibits all signing parties from turning away refugees if they would be returned to a country in which they will likely face persecution.[29] However, in direct contrast to this principle, China has a bilateral agreement with North Korea where the Chinese government repatriates any discovered North Korean refugee within Chinese borders back to North Korea.[30] The State Department reports that the Chinese government “did not provide protection against the expulsion or return of refugees to countries where their lives or freedom would be threatened on account of their race, religion, nationality, membership in a particular social group or political opinion.”[31] Furthermore, China has not implemented any legislation to implement the 1951 Convention or 1967 protocol, into its domestic policies.[32]

Specifically, in the United States, an applicant will only qualify as a refugee when the “applicant is unable or unwilling to return to his home country because of a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”[33] Furthermore, the refugee status will only apply to a person who is outside their country of nationality.[34]  In order to be eligible for asylum in the United States, the refugee seeker has to establish a nexus between the alleged persecution and that they are a member of one of the five protected categories.[35] In the past, the United States has viewed fellow democratic country South Korea as a legitimate resettlement option for North Korean refugees because North Korean refugees are given South Korean citizenship based on the South Korean constitution. This “automatic” citizenship combined with South Korea’s generally good record on human rights issues, means that it is not a violation of the non-refoulement principle to deport North Korean refugees from the United States to South Korea. However, some experts have argued that all North Koreans automatically become refugees when they leave North Korea because based on the reports of deplorable conditions in North Korea, these refugees have a well-founded fear of future persecution upon their return to North Korea.[36] Therefore, as to not violate the non-refoulement principle from the 1951 Convention, the United States should automatically view any North Korean citizen who is in United States territory as a refugee.

1. B.     Persecution In General

Judge Posner provides a clear definition of persecution when he states “persecution means, in immigration law, punishment for political, religious, or other reasons that our country does not recognize as legitimate.”[37] More recently, persecution has been defined as the “infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive.[38] Additionally, violence or “physical harm has consistently been treated as persecution.”[39] Based on the evidence it would appear that North Korea has examples of persecution on several different levels.

1. 1.      Evidence of Persecution Based on Political Opinion in North Korea

The “requirement of persecution on account of political opinion refers not to the ultimate political end that may be served by persecution, but to the belief held by an individual that causes him to be the object of persecution.”[40] In the Bolanos-Hernandez case, the respondent provided general evidence of conditions that affect all El Salvadorans rather than specific testimony that she was targeted by the government for her political opinion.[41] The court further noted that “persecution occurs only when there is a difference between the persecutor’s views and that of the victim.”[42]

If these requirements for persecution based on a political opinion are applied to the situation in North Korea; it follows that the persecution and injustices suffered by a North Korean refugee could automatically rise to the level of persecution as long as the refugee proves that their political opinion was different from that of the repressive North Korean regime. Also this definition of persecution based on political opinion can be applied if it is demonstrated the North Korean government believed that the refugee seeker’s political opinion was different from that of the official North Korean government’s views.[43]  Additionally, the refugee should show evidence of past persecution because this will give rise to a rebuttable presumption that the applicant has a well-founded fear of future persecution.[44]  The existence of prison camps specifically for those North Koreans who disagree with the North Korean government policies should be enough evidence that a North Korean citizen can easily face persecution for the manifestation of a political opinion that differs from the North Korean government.

1. 2.              Evidence of Persecution Based on Religion in North Korea

The “juche” ideology otherwise known as “extreme self-reliance” is the philosophy that is the underpinning of the North Korean government.[45] In the 1960s, the government sought to expel all external religions, especially Christianity because the government wanted complete conformity of its citizens to the state’s ideology and authority.[46] The thought process behind this move to expel religions is that if a person believed in a higher power other than Kim Il-Sung (or Kim Jong-Il), that was deemed as opposition to the national interest because the great leader is supposed to be viewed as the supreme authority.[47] Some scholars have even said that “juche” and reverence for the great leaders (Kim Jong-Il or Kim Il-Sung) appeared to be a type of civil religion.[48] The NKHRA further states that “the Government of North Korea subjects all its citizens to systematic, intensive political and ideological indoctrination in support of the cult of personality glorifying Kim Jong Il and the late Kim Il Sung that approaches the level of a state religion.”[49]

North Korean defectors have reported “that Christians were subjected to harsh punishments if their faith was made public.”[50]  The State Department reports that North Korean defectors stated that they witnessed the arrest and possible execution of underground Christian church members by the government in prior years.[51] Additionally, defectors have testified that those in prison camps held for their religious beliefs were generally treated worse than other inmates.[52] Prisoners who were executed for religious reasons generally had charges of proselytizing or contacting foreigners.[53][54] Proselytizing is deemed an espionage crime by the North Korean government.[55]

Currently, the state capital Pyongyang holds four state-controlled Christian churches, one of which is Catholic.[56] However, there are no Catholic priests residing in North Korea.[57]  Based on Catholic principles, it is impossible to hold an actual Catholic service without a practicing priest so the fact that a Catholic church is present in Pyongyang without any worshipping priests means that the Catholic church in North Korea is merely a façade.  Additionally, numerous defectors from outside Pyongyang have “reported no knowledge of these churches.”[58] Unfortunately since these Christians operate underground, it is difficult to get an accurate estimate of practicing Christians in North Korea.[59] Particularly telling on how the North Korean government views Christianity and other religions, there are no religious holidays celebrated in the North Korea.[60]

As applied to the North Korean refugees, in order to qualify in the United States for persecution based on a religious belief, these refugees have to show more than general examples of the North Korean government sponsored religious persecution.  For example, one North Korean citizen was denied asylum after she did not mention in her initial asylum application that she was arrested at a family church meeting.[61] Since she omitted a critical fact in her application, her testimony was deemed not credible to grant asylum relief.[62] Furthermore, the court said that the country reports from the State Department regarding China “do not indicate that Sun would face any particular threat of torture beyond that of which all citizens of [China] are at risk.”[63] Her asylum application was denied even though the court concluded that “the pertinent country reports compel the conclusion that Sun is more likely than not to be tortured if removed to China.”[64] Even though Sun was a Chinese national, she was also a North Korean citizen and if returned to China, she faced repatriation to North Korea where it has been established that future persecution based on religion is all but guaranteed. In conclusion, it may be a longer road for the refugee but the end result is still the same: the refugee goes back to North Korea to face an uncertain future or death sentence if there is evidence for the North Korean government to believe that they were furthering their religious beliefs or proselytizing.

1. 3.      Evidence of Persecution Based on Membership in a Social Group in North Korea: Family Members of Political Dissidents or Defectors

The State Department also reports that in January 2011, North Korean authorities executed three citizens who attempted to defect and proceeded to send the family members of the defectors to either political prison camps or rural provinces.[65]  The State Department reports that harsher punishments are given to the families of defectors.[66] Hwang Jang-Yop, was a high ranking North Korean government official who defected to the South Korean embassy in Beijing.[67] However, his family that remained in North Korea did not fare well. His wife committed suicide, one daughter died after a mysterious fall from a truck, and his other daughter and son, as well as his grandchildren, are thought to have been sent to labor camps.[68] Therefore, even though family members of a North Korean defector may have abided by North Korean laws, the North Korean government can detain them simply for their familial ties to the defector.

In one case, an asylum seeker from Guatemala was able to establish that she was persecuted as a member of a particular group (in this case the group was her family) after the army intruders threatened her with rape and beat her father in her presence.[69]  The court points out that “‘acts of violence against a petitioner’s friends or family members may establish a well-founded fear, notwithstanding an utter lack of persecution against the petitioner herself,’ so long as the pattern of violence is “closely tied” to the petitioner.”[70] As for North Korea, the State Department reports that “entire families, including children, have been imprisoned when one member of the family was accused of a crime. Collective punishment reportedly can extend to up to three generations.”[71]  It is clear that a family member can expect harsh treatment and an indefinite prison sentence for the actions of a family member.  Therefore, based on the relevant case law, a North Korean refugee would need to provide specific evidence of their familial relation to a North Korean defector in order to receive refugee status under persecution due to membership in a particular social group or family.

1. III.             United States

1. A.    Introduction

It is astounding that for a country that admitted 60,108 refugees in 2008, only 99 of these refugees are from North Korea.[72][73] Part of this is due to the sheer difficulty in reaching the United States from North Korea as the average North Korean citizen cannot cross a land border into the United States or hop a plane to the United States because only high ranking North Korean officials get authorization to travel abroad.[74] Furthermore, if the North Korean refugees end up in South Korea, the US government can view them as “resettled” and that they will not be eligible for asylum in the United States. The State Department notes that only five North Koreans were granted asylum in 2002, three in 2003 and one in 2004.[75] But in 2004, the Bush administration began to focus on the human rights atrocities that continue in North Korea and enacted the North Korean Human Rights Act (NKHRA).  However, while the NKHRA seems to have opened the door in the United States to all North Korean refugees because it would appear that while the persecution faced by any North Korean refugees is legitimate, the low numbers of granted asylum applications, tell a different story of the effectiveness of the NKHRA.

1. B.     North Korean Human Rights Act of 2004 (NKHRA)

In 2002, two North Korean defectors jumped the wall of the United States Embassy in Beijing and asked for asylum in South Korea.[76] At the time an American official said “it was the first time that North Koreans had sought asylum at the U.S. Embassy but that it was not unexpected.”[77] Two years after this defection, President Bush signed into law the North Korean Human Rights Act or NKHRA.  The NKHRA authorized up to $20 million per year for assistance to North Korean refugees; it asserted that North Koreans are eligible for U.S. refugee status and instructed the State Department to facilitate the submission of applications by North Koreans seeking refugee protection; it also required the President to appoint a Special Envoy to promote human rights in North Korea.[78]

However, there are greater foreign policy implications underlying the NKHRA. For example, one portion of the law states: “the purposes of this chapter are to promote progress toward the peaceful reunification of the Korean Peninsula under a democratic system of government.”[79] Based on this language, it is clear that the NKHRA is not intended for a sole humanitarian purpose. Also, while some view the NKHRA as the United States’ stand against human rights abuses in North Korea, others worry that this legislation risks upsetting relations with South Korea and China.[80] Critics of the NKHRA also believe that the legislation worsens the situation for North Korean refugees as both North Korean and Chinese forces have cracked down on refugees crossing the border.[81] Additionally since North Korea is deemed a terrorist state by the United States, “some argue further that — since asylum is a discretionary form of immigration relief — national security risks should outweigh humanitarian concerns, and thus asylum relief should be restricted and judicial review of asylum cases more limited.”[82]

1. C.    Additional Obstacles to Asylum in the United States for the North Korean Refugee

First of all, despite the NKHRA, the USCIS identified only 33 North Koreans who have applied for asylum in the United States from October 2004 through March 2010.[83]  Of those 33 North Korean refugees seeking asylum, only 9 have been granted asylum.[84] The asylum process for North Koreans claiming asylum through the affirmative process, who have dual citizenship with South Korea or who claim a credible fear of persecution, their files receive an additional level of review from USCIS.[85] USCIS officials stated that, “because North Korean asylum seekers may attract national media attention or a high-level U.S. government interest, USCIS headquarters must review North Korean asylum cases before rendering a final decision.”[86] Finally, the USCIS asylum field office sends a packet to the USCIS Asylum Division headquarters which contains the asylum application or credible fear worksheet, a draft assessment of the case and other supporting documents.[87]

The asylum officers at the USCIS headquarters have to review the case to ensure proper procedures were followed and that the decision on the case is legally sufficient.[88] According to USCIS officials, “North Korean asylum cases follow the same process as affirmative asylum cases of other nationalities apart from this case review.”[89] Even the NKHRA notes: that the delays in processing asylum applications have led to numerous North Korean refugees “abandoning their quest for United States resettlement.”[90] The long wait is particularly concerning for those refugees that are awaiting resettlement to the United States in unsafe or insecure circumstances.[91]  Supposedly, the NKHRA is intended to reduce the amount of red tape and speed up the application process for a North Korean refugee. However, the numbers indicate the opposite is occurring; the application of an asylum seeker from North Korea is only processed 23 days faster than an asylum seeker application from Burma.[92] Despite the United States’ commitment to the North Korean refugees, based on these procedures it is evident that the NKHRA has not removed any obstacles from the typical asylum application procedure for the North Korean refugee.

1. IV.             China
2. A.    Introduction

China has been the most logical option (at least geographically speaking) for the estimated 50,000 North Korean refugees escaping either famine or political oppression.[93] Unfortunately, China has its fair share of human rights abuses. For example, Chinese prisons still conduct forced labor and the Chinese government does not permit independent monitoring by human rights organizations.[94] The Chinese government denies holding any political prisoners, “asserting that authorities detained persons not for their political or religious views but because they violated the law.”[95] But it is convenient that those who are detained for “other prison-worthy offenses” by the Chinese government also happen to be involved in political or religious groups.  Also,North Korean refugees are labeled in China as “economic migrants” and China does not allow them to apply for asylum.[96] Additionally, China’s government has a policy that bans Chinese citizens from offering humanitarian assistance to North Korean refugees.[97] All of these factors combined; have not led to a hospitable situation for the North Korean refugees in China.

1. a.      “Economic Migrants” Rather than “Refugees”

The NKHRA states that “despite China’s obligations as a party to the 1951 United Nations Convention Relating to the Status of Refugees and the 1967 Protocol, China routinely classifies North Koreans seeking asylum in China as mere “economic migrants” and returns them to North Korea without regard to the serious threat of persecution they face upon their return.”[98] More recently, the NKHRA reauthorized in 2008 notes that “the Government of China is conducting an increasingly aggressive campaign to locate and forcibly return border-crossers to North Korea, where they routinely face torture and imprisonment, and sometimes execution.”[99] Additionally, “the Chinese Government is shutting down Christian churches and imprisoning people who help North Korean defectors and has increased the bounty paid for turning in North Korean refugees.”[100] If China were to recognize North Korean migrants as refugees, China would have to provide them with governmental assistance and would no longer be able to deport North Koreans with a refugee status back to North Korea.[101] By defining North Korean refugees as “migrants,” China is technically able to deport North Koreans back to North Korea under international law standards and not provide governmental assistance to the North Koreans residing within its borders.

1. b.      Additional Note: Human Trafficking Issues with North Korean Refugees in China

Unfortunately, due to their fear of being repatriated back to North Korea, many of the North Korean refugees in China are particularly vulnerable to human trafficking.[102] Women are the most common North Korean migrants and there have been reports of forced marriages, prostitution or labor.[103] “Chinese authorities continue to detain and forcibly deport North Korean trafficking victims who face punishment upon their return to North Korea for unlawful acts that were sometimes a direct result of being trafficked.”[104] Furthermore, there are reports of Chinese border guards working in conjunction with North Korean border guards to procure young North Korean women to work in Chinese brothels.[105] It is important to note that the Chinese government did not provide North Korean trafficking victims with legal alternatives to repatriation.[106] The human trafficking aspect of the North Korean refugee’s life in China is just another example of how the Chinese government refuses to recognize the North Korean as legitimate refugees.

1. c.       Persecution not Prosecution by the Chinese government

For the Chinese citizens, it is a violation of common law to assist North Korean refugees but it is not a violation of a direct Chinese state law.[107] In one case the petitioner Xun Li, provided shelter and assistance to Christian North Koreans and he was arrested and later beaten by the Chinese police.[108] However, since there is no Chinese code or statute that bans offering humanitarian assistance to the North Korean refugees, the 2009 Xun Li case displays how the Chinese officials were involved with persecution, not prosecution of a legitimate Chinese law.[109] Prior to the Xun Li case, the Ninth Circuit has denied asylum applications where the applicant has been interrogated, arrested (or threatened with arrest), and abused as a result of offering humanitarian assistance to North Korean refugees, even when these applicants provided credible testimony.[110] These interrogations were seen as prosecution for criminal activities in China, not persecution on account of political opinion.[111] The Ninth Circuit determined that Xun Li cannot have been legitimately prosecuted because there was and is no Chinese law that prohibits giving humanitarian assistance to North Korean refugees, and Xun Li’s conduct did not violate any other Chinese laws.[112] The Ninth Circuit states that “although prosecution for a common law crime will not ordinarily constitute persecution, a showing of disproportionate punishment may support a claim that the prosecution is a pretext for persecution on account of political opinion.”[113]

The Ninth Circuit states that “because no law prohibits Li’s conduct, when the Chinese officials abruptly arrested Xun Li in his home and took him to a police station where he endured physical abuse as part of a coercive interrogation aimed at locating North Korean refugees and discouraging the provision of humanitarian aid to them, the record compels the conclusion that the officials were not engaged in legitimate criminal prosecution.”[114] Additionally the court determined that “the police–who were implementing the unofficial Chinese policy of discouraging humanitarian aid to North Korean refugees–were motivated by a desire to brutalize Li for defying the policy by providing aid to the North Koreans and for expressing opinions contrary to this policy in his words and deeds.”[115] The Ninth Circuit further states that “we also have determined that the distinction between persecution and prosecution is less than clear cut when the “prosecution” lacks legitimacy or proceeds without the process normally due.”[116]

However, the Third Circuit denied asylum to a Chinese citizen offering assistance to the North Korean refugees in a more recent case.[117] Long Hao Li applied for asylum in the United States and claimed that he would be arrested and jailed for assisting North Korean refugees cross the border if he was returned to China.[118] The Third Circuit denied his petition and stated that “in this case, the law at issue is a generally applicable law that penalizes people for assisting those who cross the border illegally. It does not automatically raise political concerns.”[119] The Third Circuit goes on to explain that the Chinese law’s objective in not allowing Chinese citizens assist the North Koreans is a legitimate goal because these refugees could cause an influx in border crossers which in turn could cause economic havoc in the border region and could ultimately strengthen dormant Korean nationalism there.[120] The Third Circuit then compares the Chinese “law” to the United States immigration laws that those individuals who transport or harbor aliens in the United States can receive up to 10 years in prison.[121] This comparison to American law is erroneous because the United States recognizes a judicial process for violating laws that are actually codified and readily apparent to its citizens and neglects the findings by the Ninth Circuit that due process is necessary for legitimate prosecution, not persecution to take place.[122]

1. d.      Humanitarian Actions Considered as a Manifested Political Opinion

Another problem in Long Hao Li’s case was that he did not present any detail on his own political opinions or any evidence that the Chinese government’s enforcement of their policy against humanitarian action that would be politically motivated.[123] Even though, the court determines that Li’s motivations were humanitarian in nature and “any prosecution involving a humanitarian act cannot be presumed to be politically motivated,” but the Chinese enforcement and prosecution of this law appears to be based on legitimate law enforcement concerns.[124] Therefore, even though Li presented evidence that he provided humanitarian assistance to the North Korean refugees, his claims were denied by the Third Circuit because “Li [does not] provide any detail about his own political opinions, about the Chinese government’s awareness of those political opinions, or about the government’s enforcement of the law that compels the conclusion that any prosecution in his case would be politically motivated.”[125]  However, the dissent disagrees with the Third Circuit’s stance on humanitarian assistance and determined that Li’s petition compels three essential conclusions: “(1) Li manifested his political opinion in assisting North Korean refugees; (2) he faces a clear probability of enduring treatment severe enough to amount to persecution; and (3) his political opinion serves as at least one central reason China seeks to persecute him.”[126]

The dissent continues and notes that Long Hao Li was not helping North Korean refugees for compensation, rather he sympathized with their plight.[127] Therefore, through his humanitarian actions, Long Hao Li manifested his opposition to the refugee policy of the Chinese government.[128] In the Dwomoh case, the court pointed out that in totalitarian governments, like China or North Korea, a person may have only one chance to express or act upon anti-government views.”[129] Essentially, Long Hao Li’s humanitarian efforts to help North Korean refugees were in opposition to Chinese common law, and these humanitarian actions should have been seen as his expression of his differing views regarding the Chinese government’s policy towards North Korea. Further supporting this position, in his affidavit, Long Hao Li “demonstrated that he is acutely aware of the poverty and starvation endemic to North Korea and that he believes China is ‘obligated to . . . protect human rights and provide asylum to the [North Korean] refugees.’”[130] The dissent states that “in other words, a humanitarian action in knowing violation of a state policy constitutes opposition to that policy, and therefore, reflects a political belief.”[131]

In the Second Circuit Long case, a Chinese citizen assisted a family of North Korean refugees who knocked on his door seeking help for a sick family member.[132] About 10 months later, he was later questioned about the incident and beaten with electric batons by the Chinese police.[133] The BIA originally decided that he had not made a sufficient nexus between his political opinion and the persecution.[134] While Long did testify that his conduct was humanitarian and not political in nature, “a humanitarian or charitable act may signify a humanitarian or charitable conviction; and a government might construe violation of a law as opposition or resistance to the law’s underlying policy, and punish it accordingly.”[135] The Second Circuit concludes that “if the BIA determines on remand that there was no penal law barring assistance to North Korean refugees, it shall also consider whether the absence of such a law strengthens the petitioner’s contention that he was persecuted for political reasons rather than punished for legitimate law enforcement purposes.”[136]

However, the Long case represents a departure for the Second Circuit from its original stance on humanitarian assistance as a manifested political opinion.[137] Only two years prior to the Long decision, the Second Circuit stated that “specifically, in order to demonstrate persecution on account of a political opinion, the ‘applicant must show, through direct or circumstantial evidence, that the persecutor’s motive to persecute arises from the applicant’s political belief.’”[138] The Second Circuit theorizes that even though the police were entering Jin’s home because he was harboring North Korean refugees, the court believes that “the record does not suggest that the police were motivated, even in part, by Jin’s beliefs when they raided his home.”[139] Due to the inconsistencies in the two Second Circuit opinions, within a two year timeframe, it is troubling that the court’s opinion on humanitarian actions qualifying as a manifested political opinion can change as drastically as demonstrated in these two cases, especially when an individual’s asylum application is on the line.

In conclusion, the Xun Li, Long, Jin and Long Hao Li cases demonstrate situations of Chinese citizens whose humanitarian actions have put them at odds with the Chinese government. However, the humanitarian actions of these Chinese citizens are consistent with United States’ foreign policy towards North Korea and China regarding the predicament facing the North Korean refugees. The Ninth Circuit in the Xun Li case specifically states that “the policy of the United States, however, through the NKHRA, has been to encourage the very type of humanitarian assistance provided [by Xun Li].”[140] It seems illogical for the United States to promote a policy which supports humanitarian assistance for North Korean refugees and then later deny asylum to those who offer humanitarian assistance. Therefore, the United States immigration courts should qualify humanitarian assistance to North Korean refugees as a manifested political opinion against the Chinese government that carries with it a well-founded fear of future persecution.

1. V.                South Korea
2. 1.      Resettlement Infrastructure in Place for North Korean Refugees

 Most of the North Korean refugees have to cross into China first before making their way into South Korea as the DMZ separating North and South Korea is heavily guarded and filled with minefields and other dangers.[141] The NKHRA notes that the primary responsibility for the North Korea refugees falls to the South Korean government.[142] The South Korean government advances its responsibility for the refugees in Articles 2 and 3 of its constitution which affirms that every North Korean refugee has the right to resettle in South Korea.[143] Furthermore, the South Korean government administers a resettlement program and provides cash and training for all defectors.[144] The drawbacks to the South Korean resettlement program include financial cutbacks[145] and thorough investigation from the South Korean government to ensure that each refugee is not a spy for the North Korean government.[146]

It is clear that South Korea has the infrastructure established to assist North Korean refugees and it would seem to be the first logical choice for relocating North Korean refugees based on proximity and cultural similarities, like a shared language. However, by having resettlement and education centers established for North Korean refugees does not mean that the South Korean government wants the financial burden of supporting every North Korean refugee.[147] The cultural divide between North and South Koreans is apparent as “some schools also turn away refugees, refusing to admit them, mostly because of pressure from South Korean parents.”[148] Additionally, the NKHRA notes that the North Korean government abducted numerous citizens of South Korean and Japan, and the whereabouts of these citizens is unknown.[149] Therefore, safety can be another issue for the North Korean refugees residing in South Korea. These examples would make it clear that not all North Koreans refugees will necessarily choose to avail themselves to the laws of South Korea even though they have the opportunity to obtain citizenship in South Korea.

1. 2.      Firm Resettlement in South Korea Bars to United States Asylum

Further complicating matters, what happens to the North Korean refugees who make their way to South Korea, stay at a resettlement center for a period of time, are they now ineligible for asylum in the United States because they have “firmly resettled” in South Korea? Firm resettlement is defined as: “an alien is considered firmly resettled if, prior to arrival in the United States, he or she entered into another nation with, or while in that nation, received an offer of permanent resident status, citizenship, or some other type of permanent resettlement.”[150] Technically, under these resettlement qualifications, it can be said that South Korea “offers” citizenship to all North Korean refugees simply because the South Korean constitution states that “the territory of the Republic of Korea shall consist of the whole Korean peninsula and its adjacent islands.”[151] Therefore, for those seeking asylum in the United States, all North Korean refugees could be considered “firmly resettled” in South Korea because the South Korean government has made an “offer” of citizenship through its constitution. However, the United States attempts to amend this bar to asylum for North Korean refugees with Section 302 of the NKHRA which provides that North Korean asylum applicants are not to be rendered ineligible for asylum in the United States on account of “any legal right to citizenship they may enjoy under the Constitution of the Republic of Korea.”[152]

The standard for receiving asylum in the United States becomes more complicated if a North Korean citizen avails themselves to their dual citizenship rights with South Korea. Both USCIS and EOIR officials further explained that “North Korean citizens applying for asylum who have not availed themselves of South Korean citizenship only need to establish a fear of persecution or torture in North Korea, while those North Koreans who have availed themselves of South Korean citizenship must establish a fear of persecution or torture in both countries.”[153] However, as most of these refugees are escaping deplorable conditions in North Korea, and have had limited access to the world outside of the North Korean government sponsored propaganda, it is hard to fathom that these same refugees are going to comprehend that accepting citizenship in South Korea will effectively bar their chances at asylum in the United States.  

In one case, the BIA considered North Korean refugees as South Korean citizens after they fled North Korea in the late 1990s as a result of the food shortages.[154] They were both granted South Korean citizenship after 5 to 6 months after their arrival in South Korea.[155] The BIA summarized that “in short, the respondents argue that the NKHRA provides ‘an exception to the firm resettlement bar.’”[156] The NKHRA states 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.”[157] However, due to the fact that the respondents in this case were willing and able to relocate to South Korea and became South Korean citizens before they came to the United States, the NKHRA is not meant to protect their interests because they have firmly resettled in South Korea.[158]  The BIA further stated “in other words, within the contemplation of the NKHRA, the respondents are ‘former North Korean nationals who have availed themselves’ of the right to citizenship in South Korea, and by its very terms section 302 of the NKHRA is ‘not intended . . . to apply’ to them.”[159]

However, the firm resettlement problem can be overcome by the asylum seeker if they can prove that the entry into that nation was part of their flight from persecution and they only stayed in that nation long enough to arrange onward travel and did not establish significant ties in that nation.[160] Some of the significant factors that were determinative in the BIA’s decision that the respondents had firmly resettled in South Korea were the facts that they were employed, moved freely about South Korea, made public speeches, could travel out of the country and one of the respondents accepted “resettlement money” from the South Korean government.[161] However, the BIA’s decision does not take into account the possibility of a hypothetical North Korean refugee who was unable to assimilate into the South Korean community after an attempted resettlement, and later wished to seek asylum in the United States.  Under the BIA’s standard, this hypothetical refugee would have no chance for asylum in the United States even though the refugee may have faced grave persecution in North Korea.

1. VI.             Proposed Solutions

The numbers of North Korean refugees who successfully gain asylum in the United States shows that the NKHRA needs to be strongly re-worded to allow for a more stream-lined process of accepting North Korean asylum applications. Since the evidence from the U.S. State Department and other sources show that life in North Korea is marked by famine, prison camps and forced political ideology which fall under the our persecution standards for asylum today; the NKHRA should authorize more of an “automatic” granting of asylum if the refugee is able to present evidence that they indeed a former North Korean citizen.

The lack of consistency between the courts’ decisions regarding the Chinese citizens who provide humanitarian assistance to North Korean refugees and the U.S. policy in the NKHRA, needs to be re-evaluated.  This means the drafting bodies should consider adding language to the NKHRA, when it is re-authorized in 2012, that specifically outlines offering asylum opportunities for those Chinese citizens who are persecuted by the Chinese government for rendering humanitarian assistance to North Korean refugees. Furthermore, while there is language in the NKHRA which notes the United States’ displeasure with China’s repatriation policy, the United States has not taken any other measures to punish China directly for this policy. For example, additional trade restrictions may at the very least notify the Chinese administration that the United States is not going to remain idle while China sends North Korean refugees back to their death in North Korea.

Additionally, the immigrations courts should relax the firm resettlement policy with respect to the North Korean refugees who resettle for a period of time in South Korea. Currently, this firm resettlement policy does not recognize the unique situation that North Koreans are cut off from the rest of the world and do not know the United States asylum codes clearly. Therefore many of the North Korean refugees in South Korea are unaware that residing in South Korea for a period of time or accepting a job in South Korea can effectively bar them from achieving asylum in the United States.

1. VII.          Conclusion

In conclusion, each of the above actions could greatly impact the North Korean refugee plight.  Obviously there is a disconnect between the United States policy towards North Korean refugees and the low numbers of accepted North Korean applications for asylum. Additionally adding to this dilemma is the inconsistency in the few asylum applications that are accepted for either North Koreans or those who assist North Korean refugees. Unfortunately, the United States judicial system lacks consistency in its decisions regarding North Korean refugees even though the evidence steadily supports an assumption that persecution based on political opinion, religion or membership in a social group exists in North Korea. While the NKHRA was a positive step in the right direction for the United States taking a stand against the human rights atrocities in North Korea: the judicial system now needs a dependable framework in how to handle the North Korean refugees and those who offer these refugees hum