First N. Korean Gets U.S. Asylum, But What Does This Really Mean for NKHRA Compliance?

Updated 4/30; scroll down

“We can and will do more to protect North Korean refugees. . . . We hope that very, very soon, we can welcome North Korean refugees here in the United States.” — Amb. Jay Lefkowitz, April 28, 2006

WASHINGTON, April 28 (Yonhap) — The Los Angeles Immigration Court has granted asylum to a North Korean defector after he awaited a decision in the U.S. for the past 20 months, his lawyer said Friday.

The final ruling came Thursday for the defector, Seo Jae-sok, a pseudonym, who entered the U.S. through the Mexican border in 2004, according to Miriam Kang of Human Rights Project, a California-based non-profit corporation. Seo is a former North Korean military officer who came to the U.S. with his wife and two children.

At first blush, you could be forgiven for thinking that Jay Lefkowitz had some inside knowledge that he was about to deliver on that implied promise, and while that’s possible, I still count myself among the unpersuaded and refuse to give my government a break here. I will explain.

First, Yonhap reports that “State Department officials said they were not aware of Seo’s case.” That’s plausible, since Seo had actually entered the United States by crossing the border from Mexico. Second, the immigration courts fall under the Executive Office for Immigration Review, which is part of the Justice Department, not State. Third, Immigration courts are not Article III courts, but they do follow the doctrine of judicial independence, meaning that this ought to be viewed as an isolated judicial decision and no reflection of U.S. executive policy, except to the limited extent that the court relied on the most recent State Department country report on North Korea. Fourth, the standard for asylum isn’t especially stringent, either; it’s a basic test of facial credibility. It’s also unclear just how this matter relates to the North Korean Human Rights Act, other than Section 302’s language that,

For purposes of eligibility for refugee status . . . , or for asylum . . . , a national of the Democratic People’s Republic of Korea shall not be considered a national of the Republic of Korea.

Oh, did I mention that Seo and his family had already settled in South Korea? Nothing in the report suggests that he feared persecution in South Korea, but it’s not a very detailed report, and asylum records are .

In other words, nothing about this case suggests that “[t]he Secretary of State” actually “undert[ook] to facilitate the submission of applications . . . by citizens of North Korea seeking protection as refugees,” as Section 303 of the law says the Secretary “shall” do. Whatev. To put a finer point on it, I don’t give Lefkowitz, the State Department, or the Administration any credit here whatsoever. State was of no help to Mr. Seo on his way through the Iron Curtain or the Bamboo Curtain. The only government action that “facilitated” anything for Mr. Seo was the Border Patrol’s failure to catch him when he crossed the Tortilla Curtain. That’s hardly the way we want to accept refugees into this country. Barring evidence of that Seo was persecuted in South Korea, then, I echo this comment by Andy Jackson at the Marmot’s Hole:

Frankly, I would much rather see the US getting North Korean refugees via, say, Mongolia or even Europe. North Koreans are legally citizens of the ROK and I would much rather see our asylum spots going to refugees on the run rather folks who want to upgrade countries.

On the other hand, Andy wonders if he’s missing the evidence that South Korea silences defectors. I think the answer to the latter question is that it does, at least if you believe this recent report by the South Korean National Human Rights Commission. I’m not sure what qualifies as “bush-league” harassement, however, or whether anything the South Korean government did or willfully failed to prevent meets that definition.

I hope we’ll eventually know.

Update: The Donga Ilbo adds much additional detail about the case, including this fact.

Seo said, “From what I know, currently 40~50 defectors in L.A. and 20~30 in New York are preparing for asylum. It’s less than a hundred, but a lot of defectors will come to this region in the future.