Jang v. Lynch: North Korean Citizens Who Become South Korean Citizens Are Subject to the Firm Resettlement Bar

Jang v. Lynch


Introduction: North Korean Citizens Who Become South Korean Citizens Are Subject to the Firm Resettlement Bar

On December 22, 2015, the Ninth Circuit published Jang v. Lynch, 812 F.3d 1187 (9th Cir. 2015) [PDF version] in which it held that, notwithstanding the North Korean Human Rights Act of 2004, a North Korean citizen who availed himself to South Korean citizenship is subject to the “firm resettlement” [see section] bar to asylum [see article]. This article will look at the facts of the case, the relevant statutes, and the reasoning underlying the Ninth Circuit's decision.

Facts of Jang v. Lynch

The Petitioner was born in North Korea in 1977 and is a citizen of North Korea. The Ninth Circuit panel noted that “[i]t is undisputed that the Petitioner testified credibly that he suffered persecution in North Korea.” In 1998, the Petitioner escaped to China. After residing in China for a year and making brief stops in two other countries, he arrived in South Korea in 2000.

In South Korea, the Ninth Circuit stated that the Petitioner “settled in.” He attended and completed a two-year college and obtained work subsequent to the competition of his college program. He remained in South Korea for over four years and is a citizen of South Korea. South Korea issued the Petitioner a passport. The Ninth Circuit noted that the Petitioner had the right to hold property, receive education, and obtain public relief in South Korea. In addition, two of his siblings live in South Korea. The Ninth Circuit noted that the Petitioner had stated he did not have a fear of returning to South Korea.

The Petitioner entered the United States in 2004. He was issued a Notice to Appear (NTA), charging him with removability on account of being present in the United States without being admitted or paroled under section 212(a)(6)(A)(i) of the Immigration and Nationality Act (INA). The Petitioner conceded removability but applied for asylum [see article], withholding of removal, and protection under the Convention Against Torture (CAT) on account of his fear of being removed to North Korea.

The Immigration Judge (IJ) denied relief and order the Petitioner removed to South Korea. The IJ's decision was based on the premise that the Petitioner had been firmly resettled in South Korea. The Board of Immigration Appeals (BIA) dismissed the Petitioner's appeal, relying on its precedent decision in Matter of K-R-Y-, 24 I&N Dec. 133 (BIA 2007) [PDF version] which held that the firm resettlement bar applies to North Koreans who have availed themselves to South Korean citizenship. The Petitioner appealed on grounds that the North Korean Human Rights Act of 2004 renders the firm resettlement bar inapplicable to his situation.

The Ninth Circuit's Discussion and Decision: Firm Resettlement Bar Applies Where North Korean Citizen Takes South Korean Citizenship

The Petitioner sought asylum under section 208(b)(1)(A). In order to be eligible for asylum, an applicant must qualify as a “refugee” as defined by section 101(a)(42)(A). Under section 208(b)(2)(A)(vi), an alien who was “firmly resettled in another country prior to arriving in the United States” is not eligible for asylum.

Regulations found in 8 C.F.R. 208.15 state that “[a]n alien is considered to be firmly resettled if, prior to arrival in the United States, he or she entered into another country with, or while in that country received, an offer of permanent resident status, citizenship, or some other type of permanent resettlement…” The regulation includes two exceptions from the firm resettlement bar (paraphrasing):

a. That the alien's entry into the country was a necessary consequence of his or her flight from persecution, that he or she only remained for so long as to arrange onward travel, and that he or she did not establish significant ties in that country;
b. That the conditions of his or her residence in that country were so substantially and consciously restricted by the authority of the country of refuge that he or she was not in fact resettled (adjudicators must consider various factors in making this determination).

The Petitioner conceded that he was “firmly resettled” in South Korea under the meaning of the statute and regulation. The Petitioner also acknowledged that had he been firmly resettled in any other country, he would have been ineligible for asylum. However, the Petitioner argued that section 302 of the North Korean Human Rights Act of 2004 (codified in 22 U.S.C. 7842). The Ninth Circuit included 22 U.S.C. 7842:

  • (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 1157 of Title 8, or for asylum under section 1158 of Title 8, a national of the Democratic People's Republic of Korea [North Korea] shall not be considered a national of the Republic of Korea [South Korea].

The Ninth Circuit focused on subsection (b).1 It noted that the language “[f]or purposes of eligibility for refugee status under [INA 207] or for asylum under [INA 208]” limits the application of the statute. Therefore, even under the statute, an asylum applicant must be definable as a “refugee” under section 101(a)(42)(A) of the INA. The Ninth Circuit reiterated that a dual national must establish a “well-founded fear of persecution” in both countries which he or she is a national of.

The Ninth Circuit noted that the North Korean Human Rights Act of 2004 prevents a national of North Korea from automatically being considered a national of South Korea. In effect, that a North Korean may be able to claim citizenship if and when he or she relocates to South Korea does not by itself cause ineligibility for asylum in the United States. However, while it eliminates one potential dual-nationality bar to asylum, it does not waive the firm resettlement bar for an alien who firmly resettled in South Korea. The Petitioner in Jang v. Lynch was not denied asylum on account of being eligible to claim South Korean citizenship, but rather he was denied asylum because he had firmly resettled in South Korea (and also of note, that he was a citizen of South Korea). Furthermore, the firm resettlement bar does not even require that an asylum applicant have accepted an offer of citizenship or permanent residency in a third country, but rather that a third country had merely offered citizenship or permanent residency.

Because the Ninth Circuit found that nothing in the North Korean Human Rights Act of 2004 applied to a national of North Korea who actually firmly resettled in South Korea, the Ninth Circuit denied the Petitioner's petition.

Conclusion: North Korean Citizens Who Become South Korean Citizens Are Subject to the Firm Resettlement Bar

The Ninth Circuit decision in Jang v. Lynch reaches the same conclusions as the BIA decision in the Matter of K-R-Y-. The North Korean Human Rights Act of 2004 prevents a North Korean national from being considered a South Korean national merely because he or she may be eligible for South Korean citizenship. However, nothing in the Act allows a North Korean national who “firmly resettled” in South Korea to be granted asylum status in the United States. In essence, the Act protects North Korean asylum applicants in a limited way from being barred from asylum on dual nationality grounds, but does not render the firm resettlement bar inapplicable.

A national of North Korea who is seeking asylum should consult with an experienced immigration attorney in asylum issues. An experienced immigration attorney will be able to assess his or her case and help determine whether the North Korean nationa has grounds to apply for asylum in the United States.


  1. Footnote 2 of the decision explains that the Ninth Circuit disagreed with the BIA's approach of relying on subsection (a). Despite the disagreement in how to analyze the statute, the Ninth Circuit arrived at the same result as the BIA.