[House Report 108-478]
[From the U.S. Government Publishing Office]
108th Congress Rept. 108-478
HOUSE OF REPRESENTATIVES
2d Session Part 1
======================================================================
NORTH KOREAN HUMAN RIGHTS ACT OF 2004
_______
May 4, 2004.--Ordered to be printed
_______
Mr. Hyde, from the Committee on International Relations, submitted the
following
R E P O R T
[To accompany H.R. 4011]
[Including cost estimate of the Congressional Budget Office]
The Committee on International Relations, to whom was
referred the bill (H.R. 4011) to promote human rights and
freedom in the Democratic People's Republic of Korea, and for
other purposes, having considered the same, reports favorably
thereon with an amendment and recommends that the bill as
amended do pass.
TABLE OF CONTENTS
Page
The Amendment.................................................... 1
Purpose and Summary.............................................. 11
Background and Need for the Legislation.......................... 11
Hearings......................................................... 17
Committee Consideration.......................................... 17
Committee Oversight Findings..................................... 17
New Budget Authority and Tax Expenditures........................ 17
Congressional Budget Office Cost Estimate........................ 17
Performance Goals and Objectives................................. 20
Constitutional Authority Statement............................... 20
Section-by-Section Analysis...................................... 20
New Advisory Committees.......................................... 23
Congressional Accountability Act................................. 23
Federal Mandates................................................. 23
Changes in Existing Law Made by the Bill, as Reported............ 24
The Amendment
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``North Korean Human Rights Act of
2004''.
SEC. 2. TABLE OF CONTENTS.
The table of contents for this Act is as follows:
Sec. 1. Short title.
Sec. 2. Table of contents.
Sec. 3. Findings.
Sec. 4. Purposes.
Sec. 5. Definitions.
TITLE I--PROMOTING THE HUMAN RIGHTS OF NORTH KOREANS
Sec. 101. Sense of congress regarding negotiations with North Korea.
Sec. 102. Support for human rights and democracy programs.
Sec. 103. Radio broadcasting to North Korea.
Sec. 104. Actions to promote freedom of information.
Sec. 105. United Nations Commission on Human Rights.
TITLE II--ASSISTING NORTH KOREANS IN NEED
Sec. 201. Report on United States humanitarian assistance.
Sec. 202. Assistance provided inside North Korea.
Sec. 203. Assistance provided outside of North Korea.
TITLE III--PROTECTING NORTH KOREAN REFUGEES
Sec. 301. United States policy toward refugees and defectors.
Sec. 302. Eligibility for refugee or asylum consideration.
Sec. 303. Refugee status.
Sec. 304. Pursuit of first asylum policy.
Sec. 305. United Nations High Commissioner for Refugees.
Sec. 306. Humanitarian parole.
Sec. 307. North Korean status adjustment.
Sec. 308. Temporary protected status.
Sec. 309. Right to accept employment.
Sec. 310. Annual reports.
SEC. 3. FINDINGS.
Congress makes the following findings:
(1) According to the Department of State, the Government of
North Korea is ``a dictatorship under the absolute rule of Kim
Jong Il'' that continues to commit numerous, serious human
rights abuses.
(2) The Government of North Korea attempts to control all
information, artistic expression, academic works, and media
activity inside North Korea and strictly curtails freedom of
speech and access to foreign broadcasts.
(3) 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.
(4) The Government of North Korea divides its population
into categories, based on perceived loyalty to the leadership,
which determines access to food, employment, higher education,
place of residence, medical facilities, and other resources.
(5) According to the Department of State, ``[t]he [North
Korean] Penal Code is [d]raconian, stipulating capital
punishment and confiscation of assets for a wide variety of
`crimes against the revolution,' including defection, attempted
defection, slander of the policies of the Party or State,
listening to foreign broadcasts, writing `reactionary' letters,
and possessing reactionary printed matter''.
(6) The Government of North Korea executes political
prisoners, opponents of the regime, some repatriated defectors,
some members of underground churches, and others, sometimes at
public meetings attended by workers, students, and
schoolchildren.
(7) The Government of North Korea holds an estimated
200,000 political prisoners in camps that its State Security
Agency manages through the use of forced labor, beatings,
torture, and executions, and in which many prisoners also die
from disease, starvation, and exposure.
(8) According to eyewitness testimony provided to the
United States Congress by North Korean camp survivors, camp
inmates have been used as sources of slave labor for the
production of export goods, as targets for martial arts
practice, and as experimental victims in the testing of
chemical and biological poisons.
(9) According to credible reports, including eyewitness
testimony provided to the United States Congress, North Korean
Government officials prohibit live births in prison camps, and
forced abortion and the killing of newborn babies are standard
prison practices.
(10) According to the Department of State, ``[g]enuine
religious freedom does not exist in North Korea'' and,
according to the United States Commission on International
Religious Freedom, ``[t]he North Korean state severely
represses public and private religious activities'' with
penalties that reportedly include arrest, imprisonment,
torture, and sometimes execution.
(11) More than 2,000,000 North Koreans are estimated to
have died of starvation since the early 1990s because of the
failure of the centralized agricultural and public distribution
systems operated by the Government of North Korea.
(12) According to a 2002 United Nations-European Union
survey, nearly one out of every ten children in North Korea
suffers from acute malnutrition and four out of every ten
children in North Korea are chronically malnourished.
(13) Since 1995, the United States has provided more than
2,000,000 tons of humanitarian food assistance to the people of
North Korea, primarily through the World Food Program.
(14) Although United States food assistance has undoubtedly
saved many North Korean lives and there have been minor
improvements in transparency relating to the distribution of
such assistance in North Korea, the Government of North Korea
continues to deny the World Food Program forms of access
necessary to properly monitor the delivery of food aid,
including the ability to conduct random site visits, the use of
native Korean-speaking employees, and travel access throughout
North Korea.
(15) The risk of starvation, the threat of persecution, and
the lack of freedom and opportunity in North Korea have caused
many thousands, perhaps even hundreds of thousands, of North
Koreans to flee their homeland, primarily into China.
(16) North Korean women and girls, particularly those who
have fled into China, are at risk of being kidnapped,
trafficked, and sexually exploited inside China, where many are
sold as brides or concubines, or forced to work as prostitutes.
(17) 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.
(18) Despite China's obligations as a party to the 1951
United Nations Convention Relating to the Status of Refugees
and the 1967 Protocol Relating to the Status of Refugees 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.
(19) The Government of China does not provide North Koreans
whose asylum requests are rejected a right to have the
rejection reviewed prior to deportation despite its obligations
under the 1951 United Nations Convention Relating to the Status
of Refugees and the 1967 Protocol Relating to the Status of
Refugees.
(20) North Koreans who seek asylum while in China are
routinely imprisoned and tortured, and in some cases killed,
after they are returned to North Korea.
(21) The Government of China has detained, convicted, and
imprisoned foreign aid workers attempting to assist North
Korean refugees, including the Reverend Choi Bong Il and Mr.
Kim Hee Tae, in proceedings that did not comply with Chinese
law or international standards.
(22) In January 2000, North Korean agents inside China
allegedly abducted the Reverend Kim Dong-shik, a United States
permanent resident and advocate for North Korean refugees,
whose condition and whereabouts remain unknown.
(23) Between 1994 and 2003, South Korea has admitted
approximately 3,800 North Korean refugees for domestic
resettlement, a number small in comparison with the total
number of North Korean escapees, but far greater than the
number legally admitted by any other country.
(24) Although the principal responsibility for North Korean
refugee resettlement naturally falls to the Government of South
Korea, the United States should play a leadership role in
focusing international attention on the plight of these
refugees, formulating international solutions to that profound
humanitarian dilemma, and making prudent arrangements to accept
a credible number of refugees for domestic resettlement.
(25) In addition to infringing the rights of its own
citizens, the Government of North Korea has been responsible in
years past for the abduction of numerous citizens of South
Korea and Japan, whose condition and whereabouts remain
unknown.
SEC. 4. PURPOSES.
The purposes of this Act are--
(1) to promote respect for and protection of fundamental
human rights in North Korea;
(2) to promote a more durable humanitarian solution to the
plight of North Korean refugees;
(3) to promote increased monitoring, access, and
transparency in the provision of humanitarian assistance inside
North Korea;
(4) to promote the free flow of information into and out of
North Korea; and
(5) to promote progress toward the peaceful reunification
of the Korean peninsula under a democratic system of
government.
SEC. 5. DEFINITIONS.
In this Act:
(1) Appropriate congressional committees.--The term
``appropriate congressional committees'' means--
(A) the Committee on International Relations of the
House of Representatives; and
(B) the Committee on Foreign Relations of the
Senate.
(2) China.--The term ``China'' means the People's Republic
of China.
(3) Humanitarian assistance.--The term ``humanitarian
assistance'' means assistance to meet humanitarian needs,
including needs for food, medicine, medical supplies, clothing,
and shelter.
(4) North korea.--The term ``North Korea'' means the
Democratic People's Republic of Korea.
(5) North koreans.--The term ``North Koreans'' means
persons who are citizens or nationals of North Korea.
(6) South korea.--The term ``South Korea'' means the
Republic of Korea.
TITLE I--PROMOTING THE HUMAN RIGHTS OF NORTH KOREANS
SEC. 101. SENSE OF CONGRESS REGARDING NEGOTIATIONS WITH NORTH KOREA.
It is the sense of Congress that the human rights of North Koreans
should remain a key element in future negotiations between the United
States, North Korea, and other concerned parties in Northeast Asia.
SEC. 102. SUPPORT FOR HUMAN RIGHTS AND DEMOCRACY PROGRAMS.
(a) Support.--The President is authorized to provide grants to
private, nonprofit organizations to support programs that promote human
rights, democracy, rule of law, and the development of a market economy
in North Korea.
(b) Authorization of Appropriations.--
(1) In general.--There are authorized to be appropriated to
the President $2,000,000 for each of the fiscal years 2005
through 2008 to carry out this section.
(2) Availability.--Amounts appropriated pursuant to the
authorization of appropriations under paragraph (1) are
authorized to remain available until expended.
SEC. 103. RADIO BROADCASTING TO NORTH KOREA.
(a) Sense of Congress.--It is the sense of Congress that the United
States should facilitate the unhindered dissemination of information in
North Korea by increasing its support for radio broadcasting to North
Korea, and that the Broadcasting Board of Governors should increase
broadcasts to North Korea from current levels, with a goal of providing
12-hour-per-day broadcasting to North Korea, including broadcasts by
Radio Free Asia and Voice of America.
(b) Report.--Not later than 120 days after the date of the
enactment of this Act, the Broadcasting Board of Governors shall submit
to the appropriate congressional committees a report that--
(1) describes the status of current United States
broadcasting to North Korea; and
(2) outlines a plan for increasing such broadcasts to 12
hours per day, including a detailed description of the
technical and fiscal requirements necessary to implement the
plan.
SEC. 104. ACTIONS TO PROMOTE FREEDOM OF INFORMATION.
(a) Actions.--The President is authorized to take such actions as
may be necessary to increase the availability of information inside
North Korea by increasing the availability of sources of information
not controlled by the Government of North Korea, including sources such
as radios capable of receiving broadcasting from outside North Korea.
(b) Authorization of Appropriations.--
(1) In general.--There are authorized to be appropriated to
the President $2,000,000 for each of the fiscal years 2005
through 2008 to carry out subsection (a).
(2) Availability.--Amounts appropriated pursuant to the
authorization of appropriations under paragraph (1) are
authorized to remain available until expended.
(c) Report.--Not later than 1 year after the date of the enactment
of this Act, and in each of the 3 years thereafter, the Secretary of
State, after consultation with the heads of other appropriate Federal
departments and agencies, shall submit to the appropriate congressional
committees a report, in classified form, on actions taken pursuant to
this section.
SEC. 105. UNITED NATIONS COMMISSION ON HUMAN RIGHTS.
It is the sense of Congress that the United Nations has a
significant role to play in promoting and improving human rights in
North Korea, that the adoption by the United Nations Commission on
Human Rights of Resolution 2003/10 on the situation of human rights in
North Korea was a positive step, and that the severe human rights
violations within North Korea warrant--
(1) an additional country-specific resolution by the United
Nations Commission on Human Rights that includes the language
necessary to authorize the appointment of a Special Rapporteur
of the United Nations Commission on Human Rights on the
situation of human rights in North Korea; and
(2) country-specific attention and reporting by the United
Nations Working Group on Arbitrary Detention, the Working Group
on Enforced and Involuntary Disappearances, the Special
Rapporteur on Extrajudicial, Summary, or Arbitrary Executions,
the Special Rapporteur on the Right to Food, the Special
Rapporteur on the Promotion and Protection of the Right to
Freedom of Opinion and Expression, the Special Rapporteur on
Freedom of Religion or Belief, and the Special Rapporteur on
Violence Against Women.
TITLE II--ASSISTING NORTH KOREANS IN NEED
SEC. 201. REPORT ON UNITED STATES HUMANITARIAN ASSISTANCE.
(a) Report.--Not later than 180 days after the date of the
enactment of this Act, and in each of the 2 years thereafter, the
Administrator of the United States Agency for International
Development, in conjunction with the Secretary of State, shall submit
to the appropriate congressional committees a report that describes--
(1) all activities to provide humanitarian assistance
inside North Korea, and to North Koreans outside of North
Korea, that receive United States funding;
(2) any improvements in humanitarian transparency,
monitoring, and access inside North Korea during the previous
1-year period, including progress toward meeting the conditions
identified in paragraphs (1) through (4) of section 202(b); and
(3) specific efforts to secure improved humanitarian
transparency, monitoring, and access inside North Korea made by
the United States and United States grantees, including the
World Food Program, during the previous 1-year period.
(b) Form.--The information required by subsection (a)(1) may be
provided in classified form if necessary.
SEC. 202. ASSISTANCE PROVIDED INSIDE NORTH KOREA.
(a) Humanitarian Assistance Through Nongovernmental and
International Organizations.--
(1) Assistance.--The President is authorized to provide
assistance, including in the form of grants, to the World Food
Program and to United States nongovernmental organizations for
the purpose of providing humanitarian assistance to North
Koreans inside North Korea.
(2) Sense of congress.--It is the sense of Congress that
significant increases above current levels of United States
support for humanitarian assistance provided inside North Korea
should be conditioned upon substantial improvements in
transparency, monitoring, and access to vulnerable populations
throughout North Korea, and that significant improvements in
those areas therefore would be required to justify
appropriation and obligation of the full amounts authorized to
be appropriated by this subsection.
(3) Authorization of appropriations.--
(A) In general.--There are authorized to be
appropriated to the President not less than
$100,000,000 for each of the fiscal years 2005 through
2008 to carry out this subsection.
(B) Availability.--Amounts appropriated pursuant to
the authorization of appropriations under subparagraph
(A) are authorized to remain available until expended.
(b) Humanitarian Assistance to the Government of North Korea.--No
department, agency, or entity of the United States Government may
provide humanitarian assistance to any department, agency, or entity of
the Government of North Korea unless such United States Government
department, agency, or entity certifies in writing to the appropriate
congressional committees that the Government of North Korea has taken
steps to ensure that--
(1) such assistance is delivered, distributed, and
monitored according to internationally recognized humanitarian
standards;
(2) such assistance is provided on a needs basis, and is
not used as a political reward or tool of coercion;
(3) such assistance reaches the intended beneficiaries, who
are informed of the source of the assistance; and
(4) humanitarian access to all vulnerable groups in North
Korea is allowed, no matter where in the country they may be
located.
(c) Nonhumanitarian Assistance to the Government of North Korea.--
No department, agency, or entity of the United States Government may
provide nonhumanitarian assistance to any department, agency, or entity
of the Government of North Korea unless such United States Government
department, agency, or entity certifies in writing to the appropriate
congressional committees that the Government of North Korea has made
substantial progress toward--
(1) respecting and protecting basic human rights, including
freedom of religion, of the people of North Korea;
(2) providing for significant family reunification between
North Koreans and their descendants and relatives in the United
States;
(3) fully disclosing all information regarding citizens of
Japan and the Republic of Korea abducted by the Government of
North Korea;
(4) allowing such abductees, along with their families,
complete and genuine freedom to leave North Korea and return to
the abductees original home countries;
(5) significantly reforming its prison and labor camp
system, and subjecting such reforms to independent
international monitoring; and
(6) decriminalizing political expression and activity.
(d) Waiver.--The President may waive the prohibition contained in
subsection (b) or (c) if the President determines that it is in the
national security interest of the United States to do so. Prior to
exercising the waiver authority contained in the preceding sentence,
the President shall transmit to the appropriate congressional
committees a report that contains the determination of the President
pursuant to the preceding sentence and a description of the assistance
to be provided.
SEC. 203. ASSISTANCE PROVIDED OUTSIDE OF NORTH KOREA.
(a) Assistance.--The President is authorized to provide assistance
to support organizations or persons that provide humanitarian
assistance or legal assistance to North Koreans who are outside of
North Korea without the permission of the Government of North Korea.
(b) Types of Assistance.--Assistance provided under subsection (a)
should be used to provide--
(1) humanitarian assistance to North Korean refugees,
defectors, migrants, and orphans outside of North Korea, which
may include support for refugee camps or temporary settlements;
(2) legal assistance to North Koreans who are seeking to
apply for refugee status, asylum, parole, or other similar
forms of protection and resettlement; and
(3) humanitarian assistance and legal assistance to North
Korean women outside of North Korea who are victims of
trafficking, as defined in section 103(14) of the Trafficking
Victims Protection Act of 2000 (22 U.S.C. 7102(14)), or are in
danger of being trafficked.
(c) Authorization of Appropriations.--
(1) In general.--In addition to funds otherwise available
for such purposes, there are authorized to be appropriated to
the President $20,000,000 for each of the fiscal years 2005
through 2008 to carry out this section.
(2) Availability.--Amounts appropriated pursuant to
subsection (a) are authorized to remain available until
expended.
TITLE III--PROTECTING NORTH KOREAN REFUGEES
SEC. 301. UNITED STATES POLICY TOWARD REFUGEES AND DEFECTORS.
(a) Report.--Not later than 120 days after the date of the
enactment of this Act, the Secretary of State, in cooperation with the
Secretary of Homeland Security, the Director of Central Intelligence,
and the heads of other appropriate Federal departments and agencies,
shall submit to the appropriate congressional committees a report in
unclassified form that describes the situation of North Korean refugees
and explains United States Government policy toward North Korean
refugees and defectors.
(b) Contents.--The report shall include--
(1) information on North Koreans currently outside of North
Korea without permission (including refugees, defectors, and
migrants), such as their estimated numbers and the countries
and regions in which they are currently residing;
(2) an assessment of the circumstances facing North Korean
refugees and migrants in hiding, particularly in China, and of
the circumstances they face when forcibly returned to North
Korea;
(3) an assessment of whether North Koreans in China have
effective access to personnel of the United Nations High
Commissioner for Refugees, and of whether the Government of
China is fulfilling its obligations under the 1951 Convention
Relating to the Status of Refugees, particularly Articles 31,
32, and 33 of such Convention;
(4) an assessment of whether North Koreans presently have
effective access to United States refugee and asylum
processing, and of United States policy toward North Koreans
who may present themselves at United States embassies or
consulates and request protection as refugees or asylum seekers
and resettlement in the United States;
(5) the total number of North Koreans who have been
admitted into the United States as refugees or asylees in each
of the past five years; and
(6) an estimate of the number of North Koreans with family
connections to United States citizens.
SEC. 302. ELIGIBILITY FOR REFUGEE OR ASYLUM CONSIDERATION.
(a) Purpose.--The purpose of this section is to ensure 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.
(b) Treatment of Nationals of North Korea.--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
such Act (8 U.S.C. 1158), a national of the Democratic People's
Republic of Korea shall not be considered a national of the Republic of
Korea.
SEC. 303. REFUGEE STATUS.
The Secretary of State shall designate natives or citizens of North
Korea who apply for refugee status under section 207 of the Immigration
and Nationality Act (8 U.S.C. 1157), and who are former political
prisoners, members of persecuted religious groups, forced-labor
conscripts, victims of debilitating malnutrition, persons deprived of
professional credentials or subjected to other disproportionately harsh
or discriminatory treatment resulting from their perceived or actual
political or religious beliefs or activities, or others who appear to
have a credible claim of other persecution, as a Priority 2 group of
special concern for purposes of refugee resettlement.
SEC. 304. PURSUIT OF FIRST ASYLUM POLICY.
It is the sense of Congress that the United States should pursue an
international agreement to adopt an effective ``first asylum'' policy,
modeled on the first asylum policy for Vietnamese refugees, that
guarantees safe haven and assistance to North Korean refugees, until
such time as conditions in North Korea allow for their return.
SEC. 305. UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES.
(a) Actions in China.--It is the sense of Congress that--
(1) the Government of China has obligated itself to provide
the United Nations High Commissioner for Refugees (UNHCR) with
unimpeded access to North Koreans inside its borders to enable
the UNHCR to determine whether they are refugees and whether
they require assistance, pursuant to the 1951 United Nations
Convention Relating to the Status of Refugees, the 1967
Protocol Relating to the Status of Refugees, and Article III,
paragraph 5 of the 1995 Agreement on the Upgrading of the UNHCR
Mission in the People's Republic of China to UNHCR Branch
Office in the People's Republic of China (referred to in this
section as the ``UNHCR Mission Agreement'');
(2) the United States and other UNHCR donor governments
should persistently and at the highest levels urge the
Government of China to abide by its previous commitments to
allow UNHCR unimpeded access to North Korean refugees inside
China;
(3) the UNHCR, in order to effectively carry out its
mandate to protect refugees, should liberally employ as
professionals or Experts on Mission persons with significant
experience in humanitarian assistance work among displaced
North Koreans in China;
(4) the UNHCR, in order to effectively carry out its
mandate to protect refugees, should liberally contract with
appropriate nongovernmental organizations that have a proven
record of providing humanitarian assistance to displaced North
Koreans in China; and
(5) should the Government of China begin actively
fulfilling its obligations toward North Korean refugees, all
countries, including the United States, and relevant
international organizations should increase levels of
humanitarian assistance provided inside China to help defray
costs associated with the North Korean refugee presence.
(b) Arbitration Proceedings.--It is further the sense of Congress
that--
(1) if the Government of China continues to refuse to
provide the UNHCR with access to North Koreans within its
borders, the UNHCR should initiate arbitration proceedings
pursuant to Article XVI of the UNHCR Mission Agreement and
appoint an arbitrator for the UNHCR; and
(2) because access to refugees is essential to the UNHCR
mandate and to the purpose of a UNHCR branch office, a failure
to assert those arbitration rights in present circumstances
would constitute a significant abdication by the UNHCR of one
of its core responsibilities.
SEC. 306. HUMANITARIAN PAROLE.
(a) Prerequisites for Eligibility.--Because North Korean refugees
do not enjoy regular, unimpeded, and effective access to the United
States refugee program--
(1) for purposes of section 212(d)(5)(A) of the Immigration
and Nationality Act (8 U.S.C. 1182(d)(5)(A)), the parole of any
alien who is a native or citizen of North Korea seeking to
enter the United States, and who is a victim of North Korean
Government malfeasance, shall be considered to be of
significant public benefit; and
(2) for purposes of section 212(d)(5)(B) of the Immigration
and Nationality Act (8 U.S.C. 1182(d)(5)(B)), the parole of any
alien who is a refugee and a native or citizen of North Korea
seeking to enter the United States, and who is a victim of
North Korean Government malfeasance, shall be considered to be
for compelling reasons in the public interest with respect to
that particular alien.
(b) Definition.--For purposes of this subsection, a victim of North
Korean Government malfeasance is a former political prisoner, a member
of a persecuted religious group, a forced-labor conscript, a victim of
debilitating malnutrition, a person deprived of professional
credentials or subjected to other disproportionately harsh or
discriminatory treatment resulting from his perceived or actual
political or religious beliefs or activities, or a person who appears
to have a credible claim of other persecution by the Government of
North Korea.
(c) Discretion.--Nothing in this section shall be construed to
prohibit the Secretary of Homeland Security from establishing
conditions for parole under section 212(d)(5) of the Immigration and
Nationality Act (8 U.S.C. 1182(d)(5)), or from denying parole to such
aliens who are otherwise ineligible for parole.
(d) Length of Parole.--
(1) In general.--Notwithstanding section 212(d)(5) of the
Immigration and Nationality Act (8 U.S.C. 1182(d)(5)), if
parole is granted to an alien who is a native or citizen of
North Korea pursuant to subsection (a), the parole shall be
effective until the final resolution of any application for
adjustment of status made pursuant to section 204 of this Act.
(2) Denial of adjustment of status.--If an application for
adjustment of status made pursuant to section 204 is denied,
the Secretary of Homeland Security may, in the discretion of
the Secretary, parole the alien described in paragraph (1)
pursuant to section 212(d)(5) of the Immigration and
Nationality Act (8 U.S.C. 1182(d)(5)).
(3) Extension of parole period.--If no application for
adjustment of status is made pursuant to section 204 within 18
months after parole is granted to an alien described in
paragraph (1), the Secretary of Homeland Security may, in the
discretion of the Secretary, extend the parole period
temporarily under conditions that the Secretary prescribes.
(4) No grant of parole.--If parole is not granted to an
alien described in paragraph (2), the alien shall be treated
pursuant to section 212(d)(5) of the Immigration and
Nationality Act (8 U.S.C. 1182(d)(5)) as if the purposes of the
alien's parole have been served.
(5) Termination of parole.--Notwithstanding any other
provision of this section, the parole period of an alien
described in paragraph (1) shall terminate when the Secretary
of State determines that--
(A) the human rights record of North Korea,
according to the Country Report on Human Rights
Practices issued by the Department of State, Bureau of
Democracy, Human Rights, and Labor, is satisfactory;
and
(B) North Korea is no longer on the list of nations
designated as State sponsors of terrorism by the
Secretary of State.
(e) Subsequent Removal Proceedings.--Nothing in this section shall
be construed to prohibit the Secretary of Homeland Security from
instituting removal proceedings against an alien paroled into the
United States under this section for--
(1) conduct committed after the parole of the alien into
the United States; or
(2) conduct or a condition that was not disclosed to the
Secretary prior to the parole of the alien into the United
States.
SEC. 307. NORTH KOREAN STATUS ADJUSTMENT.
(a) Status Adjustment.--Notwithstanding section 245(c) of the
Immigration and Nationality Act (8 U.S.C. 1255(c)), the status of any
alien who is a native or citizen of North Korea, has been inspected and
admitted or paroled into the United States subsequent to July 1, 2003,
and has been physically present in the United States for at least 1
year, may be adjusted by the Secretary of Homeland Security, in the
discretion of the Secretary and under such regulations as the Secretary
may prescribe, to that of an alien lawfully admitted for permanent
residence if--
(1) the alien makes an application for such adjustment
within 18 months after parole is granted;
(2) the alien is eligible to receive an immigrant visa and
is admissible to the United States for permanent residence; and
(3) the Secretary of Homeland Security determines that the
alien has complied with the requirements of subsection (b).
(b) Required Cooperation With the United States Government.--The
requirements of this subsection shall be satisfied if--
(1) the Secretary of Homeland Security determines that--
(A) the alien is in possession of critical reliable
information concerning the activities of the Government
of North Korea or its agents, representatives, or
officials, and the alien has cooperated or is currently
cooperating, fully and in good faith, with appropriate
persons within the United States Government regarding
such information; or
(B) the alien is not in possession of critical
reliable information concerning the activities of the
Government of North Korea or its agents,
representatives, or officials; and
(2) the Secretary of Homeland Security determines that the
alien--
(A) did not enter the United States in a then-
current capacity as an agent, representative, or
official of the Government of North Korea, or for any
purpose contrary to the purposes of this Act or for any
unlawful purpose;
(B) is not, since entering the United States or at
the time during which the application for adjustment of
status is filed or in process, an agent,
representative, or official of the Government of North
Korea, or during such period acting for any purpose
contrary to the purposes of this Act or for any
unlawful purpose; and
(C) in the judgment of the Secretary of Homeland
Security, is not likely to become an agent,
representative, or official of the Government of North
Korea, or act for any purpose contrary to the purposes
of this Act or for any unlawful purpose.
(c) Effect on Immigration and Nationality Act.--
(1) Definitions.--The definitions in subsections (a) and
(b) of section 101 of the Immigration and Nationality Act (8
U.S.C. 1101) shall apply to this section.
(2) Applicability.--Nothing in this section shall be
construed to repeal or restrict the powers, duties, functions,
or authority of the Secretary of Homeland Security in the
administration and enforcement of the Immigration and
Nationality Act (8 U.S.C. 1101 et seq.) or any other Federal
law relating to immigration, nationality, or naturalization.
(d) Subsequent Removal Proceedings.--Nothing in this section shall
be construed to prohibit the Secretary of Homeland Security from
instituting removal proceedings against an alien whose status was
adjusted under subsection (a) for--
(1) conduct committed after such adjustment of status; or
(2) conduct or a condition that was not disclosed to the
Secretary prior to such adjustment of status.
SEC. 308. TEMPORARY PROTECTED STATUS.
(a) Extraordinary and Temporary Conditions Considered to Exist.--
(1) In general.--For purposes of section 244(b)(1)(C) of
the Immigration and Nationality Act (8 U.S.C. 1254a(b)(1)(C)),
extraordinary and temporary conditions shall be considered to
exist in North Korea that prevent aliens who are natives or
citizens of North Korea from returning to North Korea in
safety.
(2) Termination of protected status.--The extraordinary and
temporary conditions referred to in paragraph (1) shall be
considered to exist until the Secretary of Homeland Security
determines that--
(A) the human rights and trafficking records of
North Korea, according to the Country Report on Human
Rights Practices issued by the United States Department
of State, Bureau of Democracy, Human Rights, and Labor,
and the country report on trafficking issued by the
Trafficking in Persons Office of the Department of
State, are satisfactory; and
(B) North Korea is no longer on the list of nations
designated as state sponsors of terrorism by the United
States Department of State.
(b) Sense of Congress.--It is the sense of Congress that the United
States should use its diplomatic means to promote the institution of
measures similar to humanitarian parole or the form of temporary
protected status granted under subsection (a), in countries that
neighbor North Korea.
SEC. 309. RIGHT TO ACCEPT EMPLOYMENT.
Section 208(d)(2) of the Immigration and Nationality Act (8 U.S.C.
1158(d)(2)) is amended--
(1) by striking ``Attorney General'' and inserting
``Secretary of Homeland Security''; and
(2) by adding at the end the following: ``In the case of an
applicant who is a citizen or native of North Korea, the
Secretary of Homeland Security shall issue regulations under
which such applicant shall be entitled to employment
authorization, and such applicant shall not be subject to the
180-day limitation described in the previous sentence.''.
SEC. 310. ANNUAL REPORTS.
(a) Immigration Information.--Not later than 1 year after the date
of the enactment of this Act, and every 12 months thereafter for each
of the following 5 years, the Secretary of State and the Secretary of
Homeland Security shall submit a joint report to the appropriate
congressional committees on the operation of this title during the
previous year, which shall include--
(1) the number of aliens who are natives or citizens of
North Korea and have been granted humanitarian parole under
section 306, and the immigration status of such aliens before
being granted humanitarian parole;
(2) the number of aliens who are natives or citizens of
North Korea and have been granted an adjustment of status under
section 307, and the immigration status of such aliens before
being granted adjustment of status;
(3) the number of aliens who are natives or citizens of
North Korea who were granted political asylum;
(4) the number of aliens who are natives or citizens of
North Korea who were granted temporary protected status under
section 308; and
(5) the number of aliens who are natives or citizens of
North Korea who applied for refugee status and the number who
were granted refugee status.
(b) Countries of Particular Concern.--The President shall include
in each annual report on proposed refugee admission pursuant to section
207(d) of the Immigration and Nationality Act (8 U.S.C. 1157(d)),
information about specific measures taken to facilitate access to the
United States refugee program for individuals who have fled countries
of particular concern, as defined by the Secretary of Homeland
Security, for violations of religious freedom pursuant to section
402(b) of the International Religious Freedom Act of 1998 (22 U.S.C.
6442(b)). The report shall include, for each country of particular
concern, a description of access of the nationals or former habitual
residents of that country to a refugee determination on the basis of--
(1) referrals by external agencies to a refugee
adjudication;
(2) groups deemed to be of special humanitarian concern to
the United States for purposes of refugee resettlement; and
(3) family links to the United States.
Purpose and Summary
Prompted by the acute suffering of the people of North
Korea, H.R. 4011 seeks to promote human rights, refugee
protection, and increased transparency in the provision of
humanitarian assistance for the people of North Korea.
In terms of human rights, title I underscores the
importance of human rights issues in future negotiations with
North Korea, and authorizes funding for programs to promote
human rights, democracy, rule of law, and a market economy
inside North Korea. It also authorizes funding to increase the
availability of information sources not controlled by the North
Korean government. Finally, it urges additional North Korea-
specific attention by appropriate United Nations (UN) human
rights authorities.
On the humanitarian front, title II authorizes increased
funding for humanitarian assistance to North Koreans outside of
North Korea. It also attempts to secure greater transparency
for humanitarian aid delivered inside North Korea by
authorizing a significant increase in such aid, but connects
increases to substantive improvements in monitoring and access.
Finally, it conditions direct aid to the North Korean
government on human rights and transparency benchmarks, but
allows the President to waive those restrictions for national
security purposes after reporting to Congress.
In terms of refugee protection, title III seeks to clarify
United States policy toward North Korean refugees and to
promote the protection of refugees among the vulnerable North
Korean migrant population, particularly in China. It also
attempts to formulate prudent solutions to the practical and
legal barriers that presently keep North Koreans from having
effective access to U.S. refugee and asylum programs. All of
those solutions are completely discretionary. The bill does not
mandate the admission of any number of North Koreans into the
United States, raise the annual U.S. refugee cap, or in any way
limit the authority of the Department of Homeland Security to
regulate and condition the entry of North Koreans into the
United States on a case-by-case basis.
Background and Need for the Legislation
The people of North Korea have endured some of the great
humanitarian traumas of our time. The terrible human rights
situation inside North Korea, while previously suspected and
suggested by accounts from isolated defectors, remained largely
hidden from the outside world until the past several years. As
greater numbers of North Koreans began escaping from that
country in the aftermath of the famine during the late 1990s,
the situation has come into sharper focus. The resulting
picture is significantly more severe than was previously known.
H.R. 4011 is motivated by a genuine desire for improvements
in human rights, refugee protection, and humanitarian
transparency. It is not a pretext for a hidden strategy to
provoke regime collapse or to seek collateral advantage in
ongoing strategic negotiations. While the legislation
highlights numerous egregious abuses, the Committee remains
willing to recognize progress in the future, and hopes for such
an opportunity. Indeed, credible and substantial improvements
in the human rights practices and openness of the Government of
North Korea would help to build substantial goodwill with the
United States.
The bill was prompted and informed by hearings of the
Subcommittee on Asia and the Pacific during the 107th and 108th
Congresses, and by fact-finding trips along the China-North
Korea border and inside South Korea, where interviews of
numerous refugees, defectors, officials, and aid workers took
place.
HUMAN RIGHTS
North Korea is ruled by a brutal, totalitarian dynasty. The
government is a dictatorship under the absolute rule of Kim
Jong Il, who assumed leadership of the State after the death of
his father, Kim Il Sung, in 1994. The regime rigidly controls
most aspects of life, and classifies the entire population into
categories based on perceived loyalty to the leadership, which
determine access to food, employment, higher education, place
of residence, and other resources.
Both Kim Il Sung and Kim Jong Il are the focus of an
intense, official cult of personality that functions in many
respects as a state religion. Genuine religious freedom does
not exist in North Korea, and the government severely represses
public and private religious activities with penalties
including arrest, imprisonment, torture, and sometimes
execution. The government strictly curtails freedoms of speech,
press, assembly, and association. Numerous ``crimes against the
revolution,'' are punishable by death, including attempted
defection, slander of Party policy, and listening to foreign
broadcasts.
The regime attempts to control the dissemination of all
information, and to deny its populace access to broadcasts and
publications from outside the country. Official media--the only
media allowed in North Korea--extensively glorify the wisdom
and rule of Kim Jong Il, feed paranoia about the threat of
attack by the United States, and misrepresent the conditions
and standards of living that exist in the outside world,
particularly in South Korea. In general, North Koreans are
subject to pervasive, lifelong indoctrination, and lack an
independent frame of reference from which to judge either the
claims of the regime or the genuine disposition of the outside
world (and particularly the United States) toward the North
Korean people. Sections 103 and 104 of H.R. 4011 are intended
to support creative attempts to pierce that veil of
misinformation.
As its most extensive mechanism of punishment, the North
Korean government maintains a system of prison camps that house
an estimated 200,000 political prisoners and family members in
inhumane conditions. Inmates are subject to forced labor,
beatings, torture, and execution, and many also die from
disease, starvation, and exposure. According to multiple
sources (including eyewitness testimony provided to the
Committee by a camp survivor), inmates have been used as
experimental victims in the testing of chemical poisons. In
addition, because officials prohibit live births to prisoners,
forced abortion and the killing of newborn babies are standard
prison practices. Specific information about conditions inside
the camps has become publicly available in the West only in the
past few years, as camp survivors have escaped and reported
their experiences. The publication of the detailed report,
``The Hidden Gulag,'' by the U.S. Committee for Human Rights in
North Korea in October 2003 contributed greatly to public
awareness of the camp system and its many abuses.
In addition to infringing the rights of the North Korean
people, the Government of North Korea has been responsible in
years past for the abduction of numerous South Korean and
Japanese citizens, whose conditions and whereabouts remain
unknown. In addition to affecting the abductees, those
disappearances are the cause of deep anguish among family
members and friends from whom they are separated.
In light of these severe violations, and motivated by a
belief that respect for fundamental human rights is essential
to the development and progress of North Korean society, H.R.
4011 asserts that the human rights of North Koreans should
remain a key element in future negotiations between the United
States and North Korea.
HUMANITARIAN CONDITIONS
The disastrous agricultural and economic policies of the
North Korean regime--coupled with natural droughts and floods--
have led to widespread malnutrition and famine during the past
decade. Since the collapse of the centralized agricultural and
distribution systems, an estimated 2,000,000 North Koreans have
died of starvation and related diseases, most during the famine
of the late 1990s. A United Nations-European Union nutritional
survey in 2002 assessed that around 40 percent of North Korean
children are chronically malnourished.
Since 1995, the United States has provided more than
2,000,000 metric tons of food assistance to the people of North
Korea, primarily through the World Food Program (WFP). That
assistance has saved countless North Korean lives.
The Committee agrees with the proposition that decisions to
provide humanitarian assistance to the North Korean people
should be made on humanitarian grounds, separate from political
and strategic considerations. At the same time, however, there
must be means to ensure that humanitarian assistance is used
for humanitarian purposes, and is not diverted to military or
political use. Concerns about an inability to adequately
monitor food assistance and a lack of access to all vulnerable
populations inside North Korea led some humanitarian non-
governmental organizations (NGOs) to end their assistance
programs inside North Korea in the late 1990s. Although the WFP
has secured minor improvements in transparency and access since
then, the North Korean government continues to deny the WFP the
latitude necessary to properly monitor and deliver food aid
(including permission to conduct random site visits, to use
native Korean-speaking employees, and to have access to the
entire country). Because U.S. resources for humanitarian
assistance are finite, and there are acute, competing needs
elsewhere in the world, a purely humanitarian calculus requires
improvements in transparency, monitoring, and access in order
to justify such high levels of assistance in the years ahead.
Section 202(a) of the bill attempts to induce such
improvements in transparency, monitoring, and access by
authorizing a significant increase in U.S. humanitarian
assistance to be provided inside North Korea over current
levels, but urges that any such increase be conditioned upon
substantial progress in those areas. However, for such a
strategy to be successful, clarity will be critical. Executive
Branch personnel responsible for raising these issues with
North Korean officials should make clear (preferably in
writing, in Korean): (1) the humanitarian basis for U.S. food
assistance to the North Korean people; (2) the reasons why
humanitarian considerations require improved transparency,
monitoring, and access, including a description of other
humanitarian needs competing for U.S. resources; (3) the
positive consequences of credible, substantial improvements;
and (4) possible negative effects on the level of humanitarian
assistance if aid programs inside North Korea are unable to
meet minimum humanitarian standards.
The funding authorized in Section 202(a) is not limited to
U.S. contributions to the World Food Program, but also allows
for U.S. funding of humanitarian assistance provided through
NGOs. Some smaller scale, private organizations appear to have
had more success than WFP in securing permission to monitor the
assistance they provide inside North Korea. If their activities
fit with the programmatic objectives of U.S. humanitarian
assistance to the North Korean people, they may merit
consideration for U.S. funding in the future.
THE REFUGEE SITUATION
In addition to the repression they face in their country of
origin, North Koreans outside of North Korea are also acutely
vulnerable and exploited. H.R. 4011 attempts to catalyze
increased protection for genuine North Korean refugees, at the
same time that it avoids politicizing the refugee issue or
using refugees as pawns in some larger, strategic calculus.
Since the breakdown of internal controls during the famine
of the late 1990s, the number of North Koreans leaving North
Korea has increased. Most have crossed the northern border into
China, primarily along the porous, eastern portion which is
defined by the meandering Tumen River. Estimates of the number
of North Koreans inside China range from tens of thousands to
300,000. Many, and probably most, border-crossers enter China
temporarily to obtain food or earn money before returning to
North Korea. A significant number of North Koreans are seeking
to leave North Korea indefinitely, hoping to remain in China or
to make their way to third countries, primarily South Korea.
Some of those have suffered severe political or religious
repression. Statistics regarding these issues are inevitably
anecdotal and imprecise because the Government of China refuses
to allow the UN High Commissioner for Refugees (UNHCR) access
to North Koreans inside China to evaluate and identify genuine
refugees among the migrant population. H.R. 4011 does not
presume that all North Koreans inside China are refugees, but
attempts to promote those escapees' access to officials
competent to make such determinations.
Except for those North Koreans who find their way into
foreign diplomatic compounds, China routinely and forcibly
returns to North Korea whatever border-crossers it catches,
uniformly characterizing them as ``illegal economic migrants.''
In the past few years, China reportedly has cracked down on
North Korean migrants and stepped up the pace of its
deportations, both as part of its periodic ``Strike Hard''
anti-crime campaigns and in response to some high-profile
embassy escapes in 2002. The Committee also notes with concern
the report, presented in testimony at a recent hearing, that a
North Korean escapee who was attempting to flee across the
Chinese border into Mongolia was shot in the back and killed by
a Chinese border guard on April 2, 2004.
When considering these issues, it is necessary to
distinguish China's right to secure its borders from its
obligation not to repatriate people who face a well-founded
fear of persecution (an obligation that both the United States
and China share as parties to the 1951 UN Convention on the
Status of Refugees and its 1967 Protocol). China's forced
repatriation of North Koreans and its refusal to allow UNHCR
access to North Korean migrants are particularly egregious
because China is not merely a party to the Refugee Convention;
it is also a member of UNHCR's Executive Committee (EXCOM).
The Committee would like to highlight that, with regard to
China, H.R. 4011 is not solely critical, it is also
aspirational. As underscored in sections 203 and 305(a)(4), the
United States and the international community stand ready to
provide more assistance to help defray the costs associated
with the North Korean refugee presence when China begins
fulfilling its obligations as a party to the 1951 UN Refugee
Convention. We genuinely hope for that opportunity.
North Koreans captured by China and returned into the hands
of North Korean authorities face a broad range of maltreatment.
In less severe cases, many returnees who had crossed into China
looking for food (and whose cases do not raise other concerns
for North Korean authorities) are subjected to detention (that
may include shackling, beatings, or other torture) for a period
of days, weeks, or months before they are released. Some of
those people turn up again inside China.
Being returned to North Korea is far more dangerous for
others. Active-duty military and Party members who have fled
into China are likely to be executed upon their return. North
Koreans who are attempting to escape to third countries (other
than China) are either executed or sent to a political prison
camp. Religious believers, repeat border-crossers, and refugees
who have had contact with South Korean or Christian
organizations while they were in China also face severe
treatment, which may include torture, execution, or internment
in a political prisoner camp. Pregnant returnees are routinely
forced to submit to abortion, or their children are killed at
birth, because authorities fear that the progeny of non-Korean
fathers will pollute the purity of the Korean people (minjok).
Because of their illegal status and their lack of access to
international refugee protection, North Korean women and girls
are particularly vulnerable to exploitation inside China. Large
numbers are trafficked into prostitution or sold as ``brides''
to Chinese husbands. Many are physically abused. Some who
escape from those coercive relationships are captured and re-
sold multiple times.
The principal responsibility for North Korean refugee
resettlement naturally falls to the Government of South Korea,
and South Korea will likely remain the destination of choice
for most escaping North Koreans. In addition to sharing a
language, ethnicity, and history (and in many cases family
ties) with their countrymen in the South, North Koreans who
make it to the Republic of Korea receive a package of publicly
funded benefits that includes a significant, one-time
Settlement Fund payment (currently around $30,000 U.S. for a
single defector). Approximately 1,200 North Koreans per year
entered South Korea in each of 2002 and 2003. The pace so far
this year is roughly similar.
At the same time, the United States should play a
leadership role in focusing international attention on the
plight of these refugees and formulating international
solutions to their profound humanitarian dilemma. Along those
lines, the United States should consider accepting an
unspecified but credible number of North Korean refugees for
domestic resettlement in the United States. As a nation of
immigrants, the United States has maintained a generous,
humanitarian solicitude toward displaced and persecuted people,
as reflected by its longstanding refugee and asylum programs.
In addition, the United States is home to a substantial and
successful Korean-American community of over one million--the
largest Korean population outside of Korea--many of whom have
family ties to North Korea. Finally, such a forward-leaning
approach is important, not merely for the integrity of U.S.
refugee policy, but also to demonstrate our good faith in
humanitarian burden-sharing. At present, North Korea is
externalizing the human costs of its failures into China. To
the extent that the United States hopes to credibly encourage
China to be more hospitable toward North Korean refugees, we
should be prepared to do likewise.
However, the present, perverse reality is that some of the
world's most vulnerable refugees, who are fleeing perhaps the
world's most repressive regime, do not have effective access to
U.S. refugee and asylum processing. This is primarily due to
the fact that UNHCR is not allowed to operate freely inside
China. Thus, North Koreans inside China do not have the ability
to seek a UNHCR status determination--the usual prerequisite to
being considered by the U.S. refugee program. However, even in
the few cases where North Koreans have made it into U.S.
diplomatic facilities and requested direct processing by U.S.
officials for relocation to the United States, those requests
were denied. According to witness testimony at a recent
hearing, some North Koreans who escaped into U.S. diplomatic
compounds have claimed that they were pressured and misled into
abandoning their requests for processing for resettlement in
the United States, in favor of resettlement in South Korea. If
true, those precedents should not be repeated.
At the same time that the status quo is unacceptable, the
Committee recognizes that assessing members of the North Korean
migrant population presents unique challenges. North Korea's
antagonistic disposition toward the United States raises
genuine security concerns. Even average North Koreans who are
not government agents have been subjected to extensive
indoctrination hostile to the United States. Unlike refugees
from the former Communist bloc of Eastern Europe, the North
Korean people do not yet broadly share the idea of America as a
beacon of freedom. Furthermore, the United States possesses
limited information regarding facts and circumstances inside
North Korea. U.S. assessments of defector claims would probably
benefit from and possibly require a significant level of
coordination with South Korean intelligence services. For all
of these reasons, H.R. 4011 does not in any way detract from
the Department of Homeland Security's obligation and authority
to assess North Koreans seeking entry to the United States on a
case-by-case basis. Indeed, such requirements may present
natural limits to the number and pace of North Korean refugee
admissions into the United States. But those challenges should
be regarded as just that: challenges to be addressed, rather
than reasons for inaction.
Hearings
In addition to multiple hearings dealing with North Korean
issues more generally, the Committee's Subcommittee on Asia and
the Pacific held 1 day of hearings on H.R. 4011 on April 28,
2004. Testimony was received from four expert witnesses
representing four organizations, as well as from four North
Korean defectors and refugees. In addition, during the 107th
Congress, the Subcommittee held 1 day of hearings focused
specifically on North Korean humanitarian, human rights, and
refugee issues, on May 2, 2002. At that hearing, testimony was
received from five private sector witnesses, and three North
Korean defectors and refugees.
Committee Consideration
On March 31, 2004, the Committee met in open session and
ordered favorably reported the bill H.R. 4011 with an amendment
by unanimous consent, a quorum being present.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee reports that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of House Rule XIII is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 4011, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, April 13, 2004.
Hon. Henry J. Hyde, Chairman,
Committee on International Relations,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 4011, the North
Korean Human Rights Act of 2004.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Joseph C.
Whitehill, who can be reached at 226-2840.
Sincerely,
Douglas Holtz-Eakin
Enclosure
cc:
Honorable Tom Lantos,
Ranking Member.
H.R. 4011--North Korean Human Rights Act of 2004.
SUMMARY
H.R. 4011 would express Congressional concern about the
human rights of North Koreans and authorize funding for
assistance to North Koreans and to organizations promoting
human rights in that region. The bill would authorize the
appropriation of $124 million each year over the 2005-2008
period to:
LProvide humanitarian assistance to North
Koreans inside North Korea;
LProvide grants to private, nonprofit
organizations to promote human rights, democracy, rule
of law, and the development of a market economy in
North Korea;
LIncrease the availability of information
inside North Korea; and
LProvide humanitarian or legal assistance to
North Koreans who have fled North Korea.
CBO estimates that implementing the bill would cost $69
million in 2005 and $464 million over the 2005-2009 period,
assuming the appropriation of the authorized amounts.
The bill also would provide certain immigration protections
and benefits to North Koreans who have been persecuted by the
North Korean regime. H.R. 4011 would affect the Bureau of
Citizenship and Immigration Services (CIS) fees and direct
spending, and direct spending for federal benefits to refugees,
however, CBO estimates those amounts would be insignificant.
H.R. 4011 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would impose no significant costs on state, local, or
tribal governments.
ESTIMATED COST TO THE FEDERAL GOVERNMENT
The estimated budgetary impact of H.R. 4011 is shown in the
following table. The estimate assumes that the bill will be
enacted late in 2004 and that the authorized amounts will be
provided in annual appropriation acts. The costs of this
legislation fall within budget function 150 (international
affairs).
By Fiscal Year, in Millions of Dollars
----------------------------------------------------------------------------------------------------------------
2004 2005 2006 2007 2008 2009
----------------------------------------------------------------------------------------------------------------
SPENDING SUBJECT TO APPROPRIATION \1\
Spending Under Current Law for Assistance to the North 36 0 0 0 0 0
Korean People
Budget Authority \2\
Estimated Outlays 35 16 6 2 1 0
Proposed Changes 0 124 124 124 124 0
Authorization Level
Estimated Outlays 0 69 104 116 121 54
Spending Under H.R. 4011 for Assistance to the North 36 124 124 124 124 0
Korean
People
Authorization Level \2\
Estimated Outlays 35 85 110 118 122 54
----------------------------------------------------------------------------------------------------------------
\1\ H.R. 4011 also could increase the cost and the amount of fees collected by the Bureau of Citizenship and
Immigration Services (CIS), but CBO estimates the net impact on CIS direct spending would be negligible. CBO
also estimates H.R. 4011 could increase direct spending for federal benefits to refugees but the spending
increase would not be significant.
\2\ The 2004 level is the amount appropriated for that year.
BASIS OF ESTIMATE
H.R. 4011 bill would authorize the appropriation of funds
in each year over the 2005-2008 period to provide humanitarian
assistance to the people of North Korea and would provide
certain immigration protections and benefits to North Koreans
who have been persecuted by the North Korean regime; thus, the
bill would affect both spending subject to appropriation and
direct spending.
Spending Subject to Appropriation
The United States provides no assistance to the government
of North Korea; however, in 2004, the United States is
providing about $35 million in food-aid to the people of North
Korea through the United Nations World Food Program. According
to the State Department, the government also provides a small
amount of assistance (about $1 million) to nongovernmental
organizations for human rights activities and to assist North
Koreans outside North Korea.
The bill would authorize the appropriation for each year
over the 2005-2008 period of the following amounts: $100
million for humanitarian assistance provided in North Korea,
$20 million for humanitarian or legal assistance to North
Koreans who are outside of North Korea without the permission
of the government of North Korea, $2 million for grants to
nongovernmental organizations to promote human rights,
democracy, rule of law, and the development of a market economy
in North Korea; and $2 million to promote access to information
inside North Korea. The bill does not specify which federal
program would receive these funds. For this estimate, CBO
assumes that assistance to North Koreans inside North Korea
would be provided as food-aid, that assistance to North Koreans
outside North Korea would be provided as migration and refugee
assistance, and that the other assistance would be provided
through grants to the National Endowment for Democracy or other
agencies. We used historical spending rates for those programs
to estimate outlays.
Direct Spending
Title III of H.R. 4011 would streamline the process for
North Koreans who have been persecuted by the North Korean
regime to apply for refugee status in the United States. The
bill also would permit some of these persons, after living in
the United States for at least one year, to apply for permanent
U.S. residence. In addition, H.R. 4011 would allow North
Koreans already present in the United States to apply for
temporary protected status, which would permit them to remain
and work here.
The CIS does not charge fees to adjudicate refugee
applications, so enacting H.R. 4011 could increase the agency's
net costs to carry out these activities. However, CBO estimates
that the bill would not significantly affect CIS spending on
refugee programs because of the small number of North Koreans
likely to be affected.
In addition, enacting H.R. 4011 could increase the amount
of fees collected by CIS to grant permanent residence,
temporary protected status, and work permits. The agency would
spend the fees (without appropriation action), mostly in the
year in which they were collected, so enacting the bill would
result in a negligible net impact on CIS spending for these
activities.
Finally, some of the new refugees could become eligible for
certain federal benefits such as Food Stamps and Medicaid, but
CBO estimates the numbers of new entrants would be small and
that any increase in direct spending for benefit programs would
not be significant.
INTERGOVERNMENTAL AND PRIVATE-SECTOR IMPACT
H.R. 4011 contains no intergovernmental or private-sector
mandates as defined in UMRA and would impose no significant
costs on state, local, or tribal governments.
Performance Goals and Objectives
H.R. 4011 will promote: increased protection for the human
rights of the people of North Korea; increased protection for
North Korean refugees; and greater transparency and access for
the delivery of humanitarian aid to the people of North Korea.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in article I, section 8, clause 18 of the
Constitution.
Section-by-Section Analysis
The preamble of the bill contains: detailed findings that
describe humanitarian and human rights conditions inside North
Korea, and the plight of North Korean refugees; declarations of
purpose; and definitions of terms used in the act.
TITLE I--PROMOTING THE HUMAN RIGHTS OF NORTH KOREANS
Sec. 101. Sense of Congress Regarding Negotiations with
North Korea--Expresses the sense of Congress that negotiations
with North Korea and other parties in Northeast Asia should
include the human rights of North Koreans as a key element.
Sec. 102. Support for Human Rights and Democracy Programs--
Authorizes $2 million for each of the fiscal years 2005-2008 to
support programs by private, nonprofit organizations to promote
human rights, democracy, rule of law, and a market economy in
North Korea.
Sec. 103. Broadcasting into North Korea--Expresses the
sense of Congress that the U.S. should increase radio
broadcasts into North Korea by Radio Free Asia and Voice of
America, and requires a report detailing the technical and
fiscal requirements needed to increase those broadcasts to 12
hours per day.
Sec. 104. Actions to Promote Freedom of Information--
Authorizes $2 million for each of the fiscal years 2005-2008 to
increase the availability of non-government-controlled sources
of information (such as radios capable of receiving outside
broadcasts) to North Koreans, and requires a classified report
to Congress on such activities.
Sec. 105. United Nations Commission on Human Rights--Notes
the role of the Commission in promoting improved human rights
in North Korea, and urges additional North Korea-specific
attention by the Commission, its working groups, and
rapporteurs.
TITLE II--ASSISTING NORTH KOREANS IN NEED
Sec. 201. Report on United States Humanitarian Assistance--
Requires the State Department and USAID to report annually (for
the next 3 years) on (1) U.S. humanitarian assistance to North
Koreans, (2) any improvements in humanitarian transparency and
monitoring inside North Korea, and (3) specific efforts by the
U.S. and U.S. grantees to secure better monitoring and access.
Sec. 202. Assistance Provided Inside North Korea--This
section:
(a) Authorizes an increased amount (not less than $100
million per year) for humanitarian assistance provided inside
North Korea through NGOs and the World Food Program, but
expresses the policy that any such increases should be
conditioned upon substantial improvements in transparency,
monitoring, and access.
(b) Prohibits U.S. humanitarian assistance directly to the
North Korean government until North Korea takes steps to ensure
that such aid is distributed, provided, and monitored
throughout the entire country according to internationally
recognized humanitarian standards;
(c) Prohibits U.S. nonhumanitarian assistance directly to
the North Korean government until it has made substantial
progress toward respecting basic human rights, providing for
family reunification, resolving abductee cases, reforming its
prison camp system, and decriminalizing political expression;
and
(d) Allows the President to waive the prohibitions in (b)
and (c) for national security reasons, after reporting to
Congress the scope and purpose of such waiver.
Sec. 203. Assistance Provided Outside North Korea--
Authorizes $20 million for each of the fiscal years 2005-2008
for humanitarian and legal assistance to North Korean refugees,
orphans, and trafficking victims.
TITLE III--PROTECTING NORTH KOREAN REFUGEES
Sec. 301. U.S. Policy Toward Refugees and Defectors--
Requires a one-time report from Executive Branch agencies
describing the North Korean refugee situation and explaining
U.S. policy toward North Korean refugees and defectors. The
information and estimates required by subsection 301(b)(1) are
intended to be general aggregates, not specific, identifying
information that would put particular refugees at risk of
discovery and apprehension.
Sec. 302. Eligibility for Refugee or Asylum Consideration--
Clarifies that North Koreans are eligible to apply for U.S.
refugee and asylum consideration (as anyone else is), and are
not preemptively disqualified by any prospective claim to
citizenship they may have under the South Korean constitution.
This does not change U.S. law but makes it clearer, explicitly
endorsing the approach of U.S. Immigration Courts in
proceedings involving North Koreans, in which their asylum
claims were adjudicated with reference to the actual
circumstances they face inside North Korea. It is meant to put
to rest the erroneous opinion (proposed by some State
Department personnel) that, because North Koreans may be able
to claim citizenship if and when they relocate to South Korea,
they must be regarded as South Koreans for U.S. refugee and
asylum purposes, irrespective of whether they are able or
willing to relocate to South Korea.
Sec. 303. Refugee Status--Designates North Koreans who have
been persecuted by the North Korean regime as a ``Priority 2''
group of special humanitarian concern to the U.S., which allows
them to apply for U.S. refugee consideration without need of a
UNHCR referral. In usual practice, in order to be considered by
the U.S. refugee program, a person is referred by UNHCR, which
accords that person ``Priority 1'' status. However, North
Koreans in China do not have access to UNHCR. Priority 2 status
is given to identified groups of special humanitarian concern
to the U.S., and currently applies to: Cubans persecuted by the
Cuban government; Jews and Evangelicals in the Former Soviet
Union; former reeducation camp detainees in Vietnam; certain
Iranian religious minorities; and others. Priority 2
designation does not confer the right to resettle in the U.S.
as a refugee, but merely allows one to apply to the U.S. for
refugee consideration. This bill does not raise the cap on U.S.
refugee admissions (currently around 70,000).
Sec. 304. Pursuit of First Asylum Policy--Expresses the
sense of Congress that the U.S. should pursue an international
agreement to adopt an effective ``first asylum'' policy to
guarantee safe haven to North Korean refugees until conditions
in North Korea allow for their return. (``Countries of first
asylum'' are states that usually border the refugees' country
of origin, to which they flee in the first instance.)
Sec. 305. United Nations High Commission for Refugees--
Notes China's obligations to provide UNHCR with access to North
Koreans in China, urges UNHCR donor countries to press China
for such access, urges the UNHCR to use professionals and NGOs
with proven expertise in aiding North Koreans in China, and
urges the UNHCR to assert its right to arbitration with China
in an effort to secure access to North Koreans in China.
Sec. 306. Humanitarian Parole--Parole is an approved entry
into the U.S. without a visa, which the Secretary of Homeland
Security can authorize on a case-by-case basis for urgent
humanitarian reasons or significant public benefit. However,
because of a systemic preference for processing refugees
through the refugee program, parole is not available to
refugees unless there is a compelling reason in the public
interest. Because most North Korean refugees do not have
effective access to the U.S. refugee program, this section
affirms such a compelling reason in the public interest with
regard to persecuted North Koreans, thus facilitating the
Secretary's ability to approve parole for North Korean refugees
on a case-by-case basis. The bill does not mandate the parole
of any North Korean into the U.S., and does not in any way
limit the authority of the Secretary of Homeland Security to
condition and regulate the entry of North Korean parolees.
Sec. 307. North Korean Status Adjustment--Allows North
Koreans admitted or paroled into the United States to apply to
adjust their legal status to ``immigrant'' (a.k.a. permanent
resident) status after remaining in the U.S. for 1 year, as
refugees are allowed to do. This is available only to those
who: (1) apply for status adjustment within 18 months of entry;
(2) are eligible to receive an immigrant visa; and (3) have
cooperated with the U.S. Government.
Sec. 308. Temporary Protected Status--Declares that until
North Korea's record on human rights, trafficking, and
terrorism improves, conditions exist that prevent the safe
return of North Koreans to that country, thus making North
Koreans who are already present in the U.S. eligible for
temporary protected status (TPS), which allows them to stay and
work in the U.S. until conditions change. Other TPS countries
include Burundi, El Salvador, Honduras, Liberia, Nicaragua, and
others. This section also expresses the sense of Congress that
the U.S. should encourage countries that neighbor North Korea
to adopt similar humanitarian measures.
Sec. 309. Right to Accept Employment--Allows North Korean
asylum applicants in the U.S. to accept employment so they are
able to support themselves and not burden others.
Sec. 310. Annual Reports--Requires annual reports (for the
next 5 years) that include (a) the numbers of North Koreans
admitted pursuant to the provisions of this title, and (b)
information on measures taken to facilitate access to the U.S.
refugee program by persons fleeing countries of particular
concern for violations of religious freedom.
New Advisory Committees
H.R. 4011 does not establish or authorize any new advisory
committees.
Congressional Accountability Act
H.R. 4011 does not apply to the legislative branch.
Federal Mandates
H.R. 4011 provides no Federal mandates.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
SECTION 208 OF THE IMMIGRATION AND NATIONALITY ACT
ASYLUM
Sec. 208. (a) * * *
* * * * * * *
(d) Asylum Procedure.--
(1) * * *
(2) Employment.--An applicant for asylum is not
entitled to employment authorization, but such
authorization may be provided under regulation by the
[Attorney General] Secretary of Homeland Security. An
applicant who is not otherwise eligible for employment
authorization shall not be granted such authorization
prior to 180 days after the date of filing of the
application for asylum. In the case of an applicant who
is a citizen or native of North Korea, the Secretary of
Homeland Security shall issue regulations under which
such applicant shall be entitled to employment
authorization, and such applicant shall not be subject
to the 180-day limitation described in the previous
sentence.
* * * * * * *