As the asylum seeker explains it, her exodus from North Korea began after her sister was charged with the crime of owning “propaganda.” In this case, the contraband was a CD full of Korean and American TV dramas. Because of this, the asylum seeker has lived in limbo for almost a decade. She has experienced food deprivation, escaped from being trafficked into a forced relationship, and fled from a possible future of prison labor camps.
Fearing persecution while living in South Korea, she flew to Mexico and crossed the southern border into the United States on foot in the spring of 2021. The asylum seeker, who requested Documented use the pseudonym “Usim” to protect her family in North Korea from retribution, is now in New York.
“When I was thinking about my country, I was very afraid, and couldn’t take it,” Usim said.
Still, after arriving in the U.S., Immigration and Customs Enforcement (ICE) is moving forward with deportation proceedings, which has left her lawyer Michelle Doherty of the Brooklyn Defender Services to think: If not her, who are the asylum laws designed to protect?
If she is deported to South Korea, her life would be at risk, Doherty told ICE. Doherty said she filed a request with ICE to have Usim’s deportation case dismissed through a routine process called prosecutorial discretion, which is within the powers of every ICE attorney. Among other actions, prosecutorial discretion allows ICE attorneys to close some immigration cases and deportation proceedings and lets attorneys “decide on which cases to focus their finite resources,” ICE says.
But the response from ICE was decisive: “After thorough review, the Department is declining to exercise its prosecutorial discretion in this case,” the email from December of 2022 read.
Usim has built connections in New York, works a steady job, and is learning English. She has no criminal record or contact with the criminal justice system, and has escaped forms of persecution and abuse in three countries. A Korean-speaking doctor completed a psychological evaluation of Usim and found her story credible, Doherty said in an interview and in a summary of the prosecutorial discretion request.
However, because Usim entered the country unlawfully through the US-Mexico border, ICE has the authority to deport her. If ICE deports her, Usim would be sent back to South Korea where she was treated as an outcast and lived in fear of the North Korean government, Usim and her attorney said in interviews.
“I believe that we presented an extremely compelling argument as to why DHS (the Department of Homeland Security) should agree to dismiss her removal proceedings, given everything that she has suffered through,” Doherty said.
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Still, ICE denied Doherty’s initial request for prosecutorial discretion. Doherty asked ICE for supervisory review of the decision, but the ICE supervisor agreed with the original denial, according to emails shared with Documented.
The journey to the U.S.
Usim, who was born in the 1980s, served her mandated time in the North Korean military for about seven years, before returning home to her family, including parents and two younger siblings, she said through an interpreter.
But their lives were upended when one of her siblings was caught with the TV dramas on a CD — media the government deemed as propaganda — according to Usim’s knowledge of the situation. Members of Usim’s family were arrested and sent to forced labor camps, Usim said. In those camps, prisoners experience starvation, beatings and psychological abuse, the United Nations Office of the High Commissioner for Human Rights has said.
Usim’s father previously held a government job, but lost it as a result of this punishment. So the family lived with limited access to food and in severe economic distress, Doherty said, adding that one family member was never heard from again. Around the end of 2013, Usim decided to flee the country.
“The journey itself is quite a hard journey,” Usim said. “Each time when I remind myself, to tell the other people about this, it’s very stressful.”
Many people may defect from North Korea due to extreme political repression, and a lack of food or economic resources, said Andrew Yeo, a professor at the Catholic University of America, who is a researcher on North Korea. “North Korea is one of the worst countries in the world in terms of human rights, in terms of total lack of freedom,” Yeo said.
If an individual is caught with South Korean “paraphernalia” — like dramas and K-pop — it would be considered a political crime and that person would commonly be sentenced to hard labor in a prison, Yeo said. He added there have even been reports of individuals executed for this kind of crime.
Usim said she crossed the border into China through a broker, but she had been deceived and was unknowingly being trafficked to a man who forced Usim into a relationship against her will. In China, she lived in fear of this man, and of being caught by Chinese police for living in the country without legal documents. If police discovered Usim, she would have been deported to North Korea and believed she could be killed, she said.
While recounting her experience over a Zoom interview, Usim held her head in her hands, and wept. She recalled how she made plans to end her life if she was deported.
Cases of North Korean women being trafficked in China have been well-documented, according to Yeo. “They’re in a very precarious situation,” he said. “They may need money, and so they’re very vulnerable.”
Usim said she was taunted and psychologically abused by the man she had been trafficked to and his family. She soon became pregnant and gave birth to a baby boy. “Everyone in that town was saying that: ‘You’re just a slave here,’ ” Usim recalled.
Living under a state of surveillance and facing verbal and psychological abuse in China, Usim arrived in South Korea in 2016, according to documents reviewed by Documented. She left for South Korea with the help of a broker after about three years in China. She said she had to leave China without her son who was roughly two years old at the time.
In South Korea Usim became a citizen. She went through the program at the Hanawon Institute, a resettlement education facility for North Korean defectors, documents show. But life in South Korea became distressing, too. Usim said her child’s father threatened her while he was still in China. And when she spoke out loud, others targeted her because they could identify that she was North Korean from her accent and tone of voice. She was accused of being a spy or betraying her country, she said.
“I felt discrimination from South Korea,” Usim said. “Being born in North Korea — that’s not my choice, I can’t control that.”
Doherty said that when Usim lived in South Korea, “she described feelings of depression, isolation and things that were much more egregious than just mere discrimination.”
Defectors who move to different countries from South Korea, including the U.S. and Canada, may leave because “they felt that they couldn’t really adjust in South Korea,” Yeo, from the Catholic University of America, said. “There is a bit of a stigma towards North Korean defectors.”
A member of the South Korean government also unlawfully shared Usim’s personal information with another North Korean defector, which placed her and her family at risk, her attorney said in a summary of the prosecutorial discretion request. Usim became fearful that the North would find out that she had defected to the South, and persecute her and her family members.
If North Korea discovers that a defector has left the country and is in South Korea, their family members in the North could be harassed by state security officials, or put in prison, Yeo said. “That’s one of the things that really weighs on the mind of defectors — that they know that if they defect, life is going to be harder for their family,” he said.
Although the biggest risk is for families of people who have defected to South Korea, the defectors themselves may also encounter dangers, Yeo said. High-level defectors, for example, have faced assassination attempts from the North Korean government, he said.
In South Korea, Usim was constantly concerned that the North Korean government would learn that she had left, and her family would pay the price. “I have to be very careful what I’m saying, because if North Korea takes my word as political speech,” she said, “the people I know will suffer.”
Prosecutorial discretion
ICE’s decision to deny prosecutorial discretion in some cases has frustrated immigration advocates who say the practice could be used to reduce the backlog of more than 2 million cases in immigration court.
“We’re seeing very high numbers of denials, no reasoning given for those denials,” said Ellen Pachnanda, the director of the Immigration Practice at Brooklyn Defender Services. There’s an “inherent right” for ICE to use prosecutorial discretion, Pachnanda said, but “they’re just not utilizing it.”
At the American Immigration Lawyers Association (AILA), members have said that ICE is delayed in responding to prosecutorial discretion requests, said Jennifer Ibañez Whitlock, Supervisory Policy & Practice Counsel at AILA. And If those requests are rejected, ICE commonly sends a one-line response without further explanation, Whitlock said.
“Some attorneys have just stopped filing PD requests because the answer was so consistently no,” she said about prosecutorial discretion.
Without any reasoning as to why Usim’s own prosecutorial discretion request was denied, Doherty said she wonders what factors play into ICE’s decision-making. “Is it just that it’s just arbitrary?” she asked. “We’re just left to guess.”
Usim has an upcoming master calendar hearing this year at a New York immigration court.
Through January 2023, there were only 16 pending cases of North Korean nationals in immigration court, according to the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. Five of these were pending at the 26 Federal Plaza immigration court, New York City’s largest immigration court.
Since fiscal year 2001, immigration courts have made decisions on 36 asylum cases for North Korean nationals in the U.S. Asylum status was granted to 25 of these individuals, and 11 were denied asylum, TRAC data shows.
ICE did not respond to specific questions about why the agency denied Usim prosecutorial discretion and about what the review of her case entailed. ICE attorneys from the Office of the Principal Legal Advisor “exercise prosecutorial discretion on a case-by-case basis during their review and handling of cases considering the totality of the circumstances,” Marie Ferguson, a spokesperson for the New York Field Office, said in a statement.
Arriving to the United States
After several years living in South Korea, Usim was determined to reach a country where she could finally feel safe, she said.
She settled on the U.S. because she said it’s “the strongest country, and the land of the free.” After one attempt flying directly to the U.S. from South Korea in 2020, where immigration authorities sent Usim back to South Korea, she flew to Mexico in 2021 and crossed the southern border on foot into Texas.
She was apprehended by immigration officials in the spring of 2021 and was sent to immigration detention in New York, where she stayed until she was released several months later after passing a credible fear interview.
Now, Usim has roots in New York. She takes English classes from a school, spends extra time studying, works at a mall several times a week and has become involved with local community organizations.
“Here in the U.S.,” she said. “I feel comfort.”
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Even so, Usim lives in a constant state of uncertainty without a decision on her immigration case. The process of gaining legal status has dragged on, she said, as she approaches two years living in the country — and almost ten years since she escaped North Korea.
Usim has been diagnosed with major depressive disorder, post-traumatic stress disorder, and general anxiety disorder, according to a summary of her prosecutorial discretion request. She also experiences short-term memory challenges, she said.
It’s been about two years since Usim was able to speak with her family. The last time they communicated, she heard her mother’s voice on the phone for less than a minute. “In North Korea, even though somebody is healthy today, the next day they might just die or pass away, so I’m just hoping that my parents are doing well at this point,” Usim said.
As for her son, it’s been about seven years since she last saw him. She doesn’t know if she’ll ever be able to hold or speak with him again, saying, “The only way I see my baby is in my dreams.”
