Q) My friend was convicted of a crime and sentenced to 1-year probation. It was an accident which happened while he was drunken. After then, the immigration officer ordered him to leave South Korea within a month on the ground of the conviction. He is having an E-2 visa and was married to a Korean national. He has a very good reputation around him and planned to live in Korea permanently. I think it is too harsh for him to leave Korea. Does he have any chance to appeal?
A) At the outset, the deportation order or an exit order from the immigration office is subject to the review of the court. It can be overturned by the court based on the theory of misuse of discretionary power. The court has ruled that the decision of the immigration office to deport a foreigner should not only meet the requirements provided by the relevant statute, but also it should not do more harm to the foreigner’s individual life than benefits to the public, otherwise it constitutes an abuse of discretion and therefore shall be revoked by the court’s order.
For example, the court has ruled that the deportation order against a HIV positive personnel is an abuse of discretionary power considering the person’s long-time living base established in Korea. Also a deportation order against the person with one and half year jail time sentence with 3 year suspension for the violation of (then-existing) Anticommunist Act was struck down, as the court found it an abuse of discretionary power after finding his solid living base in Korea supported by other character evidences is a legitimate interest which should be preserved by allowing his legal residency in Korea. Also there have been many successful appeal cases dealing with DUI or unlicensed driving, even if the accident had caused bystander’s injuries.
Interestingly enough, the deportation orders issued in those cases did seemingly fall within the justifiable grounds stated in the relevant statute enabling the immigration office to issue the orders. The Korean court, however, does not interpret laws mechanically. They look into the totality of the facts and circumstances and decide whether or not it goes too far.
Let’s get back to the question. Here, it is hard to predict the outcome of the appeal as the type of the conviction is not disclosed. But, as the question says, the point that he was married to a Korean national would work in great favor of him. Preparing character witness is also helpful. The petitioner must collect and provide sufficient evidence showing there exists significant irreparable harm when he is forced to leave Korea. If he succeeds, the court will hold that the deportation order is void.
By the way, when he files an appeal for the deportation order, at the same time, he must request a preliminary injunction to the court for the stay of the deportation order. The court almost always grants the preliminary injunction which temporally invalidates the deportation order until the court makes the judgment. This means, once the petitioner files the complaint and gets the preliminary injunction order, he can stay in Korea until the judgment is handed down.
If you have any question about the deportation order or other Korean immigration law related issues, please visit our Legal Consultation center or send your inquiry by clicking here. Our Korean licensed lawyers, not a U.S. lawyer residing in Korea, will answer your inquiry.
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