In recent years, the Korean Constitutional Court, the Korean Supreme Court and other appellate courts have provided significant constitutional protections to immigrants, including (1) the right of personal liberty and Habeas Corpus protection, extending them to foreigners who are detained at the border; (2) the rights of vulnerable asylum seekers to be protected against refoulement from within the territory and at the border, balancing the discretion of the sovereign to exclude aliens in the interests of national security with the immutable constitutional and human rights and prerogatives under international and domestic law; and (3) the right to counsel not only in the criminal setting, but also to migrants in administrative detention, including asylum seekers at the border, making it clear that the fundamental protections that are recognized for citizens under Korea law are also applicable to migrants.
This paper compares the foregoing with the long-standing history of immigration policies of the United States, wherein racism buttressed by false or exaggerated crime, employment, and welfare concerns, impacted and shaped immigration policy primarily in opposition to Chinese and other Asian immigrants, often at the behest of politicians acting with the ulterior motive of obtaining popular votes, with deportation and exclusion actions being deemed civil in nature, collateral to any criminal prosecution, and largely extra-constitutional and not subject to significant judicial review pursuant to the Plenary Powers of the sovereign. The author also reviews the recent surge in the domestication of immigration law in the United States, and the potential for expanding the rights of non-citizens, which was significantly increased by the 2010 landmark decision in Padilla v. Kentucky, wherein the United States Supreme Court held that the right to effective assistant of competent counsel in criminal law is also applicable to the advice of counsel concerning the potential for deportation.
The author applauds the recent trend in Korean law, and urges that Korea continue to take the high road and maintain open borders, primarily to conform with the rights of migrant workers, and secondarily, but not insignificantly, to address the labor shortages caused by declining birth rates. Immigration policy must uphold the inherent right of persons to migrate, with special attention to the balance of the positive and negative economic and security issues faced by local administrative districts where migrants may reside and work, and not serve as a substitute for the constitutional protections that are inherent in the enforcement of domestic law, and domestic laws must be fairly administered to provide equal protection, due process and other fitting constitutional protections to nationals and migrants alike.