Yoo Seung-jun, a 1990s South Korean pop star whose career came to an abrupt halt in 2002 after he renounced his citizenship — in what much of the public saw as a well-planned effort to avoid conscription — and was denied re-entry into South Korea upon his next arrival, recently asked to be allowed to restore his South Korean citizenship and to have the age limit on military enlistment waived so that he could belatedly join up. Yoo, who became a U.S. citizen, now lives in China. According to a Maeil Business News article, the government had a very negative response to that idea:

Yoo’s next step was to appeal to the public. In a tearful interview last week in Hong Kong, Yoo got down on his knees and begged to be allowed to return to his country of birth, expressing regret for his past immaturity and stating that he wants to be able to accompany his son on visits to the country. (The Korea Herald has a partial translation of the video.) He then requested to meet with officials from the Ministry of Justice to discuss the possibility of restoration of citizenship; however, the Ministry of Justice was just as dismissive, says Money Today:

In a second interview this morning, Yoo broke down in tears and apologised again, but news reports are saying that Yoo or his assistants were heard using foul language and saying “now the articles will keep on coming” (지금 기사 계속 올라오네) in audio that was accidentally broadcast after the camera stopped rolling, and the public is now angrier than ever about Yoo after more than a decade of barely thinking about him. So things aren’t looking good for Yoo himself. But what about the millions of other South Korean emigrants?

Table of contents

1. Background
2. Statutory basis for exile
3. U.S. diaspora tax issues
4. South Korea punished returnees, not emigrants
5. The difference between South Korea & the U.S.
6. Conscription, human rights, and public opinion

Background

Yoo Seung-jun was born in Seoul in 1976, and moved to the U.S. with his family in 1989. After he finished high school, he was scouted by a South Korean talent agency and went back to his birth country, and in 1997 debuted as a pop star in what would turn out to be a wildly successful career. That lasted about five years. In late 2001, after a pre-induction medical examination, he went to Japan to hold a concert, and then flew to the U.S. under the guise of visiting his parents. It later came to light that he naturalised as a U.S. citizen during that trip.

Since an application for naturalisation takes months to process, South Korea generally does not allow people naturalising abroad to retain citizenship, and only citizens are subject to the draft, people came to the conclusion he’d planned this all out in advance, though Yoo stated it was his father who had applied on his behalf for fears that he might otherwise lose his green card. Whatever the reason, one day in 2002, Yoo arrived at Incheon International Airport, attempted to pass through immigration control as a foreigner, and was refused entry and put on a flight back out, all under the glare of TV cameras.

Since then, Yoo has been allowed back into South Korea only once, twelve years ago, for his father-in-law’s funeral. His own parents continue to reside in Southern California. A media poll conducted around the time of his only return trip found that eight-tenths of the public opposed the lifting of his entry ban. This has fallen only slightly since then, to about two thirds, according to the state-sponsored Yonhap News Agency.

Just like in the U.S., there’s a widespread perception in South Korea that local elites use foreign countries as havens to protect themselves from the “duties of citizenship”, and such accusations often turn into political footballs; for example, in 2013, an opposition lawmaker made accusations that 16 sons of high-level ruling party officials had given up their South Korean citizenship and naturalised in the U.S. or Canada in order to get out of the draft.

However, there’s an aggravating factor in Yoo’s case, one which means people thirteen years later are still angry about his choices: rather than remaining abroad after his initial emigration in 1989, he had chosen to come back to South Korea of his own volition to pursue a career which probably would have been unavailable to him in the U.S., and frequently stated in television interviews that he would go and do two years in the army. Everyone genuinely believed him: both before and after Yoo, many other young men, famous and utterly unknown, gave up their green cards or U.S. citizenship to enlist, as the price of continuing their careers in South Korea.

Yoo is now 39 years old, beyond the normal age of conscription. Even back in 2001 when he was only 25 years old, he wasn’t in physical condition for the army but instead received an alternative public-sector assignment, because he’d previously undergone surgery for a slipped disc. Military Manpower Administration officials have accused him of lying for his statement that he enquired about conscription last year but that he was too old even under the then-newly-raised age limit; specifically, they denied the existence of any law or regulation which raised the conscription age limit only for people born in certain years.

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Statutory basis for exile

Although re-naturalisation is far easier in South Korea than in the U.S., the Ministry of Justice still has statutory grounds to reject Yoo’s application for restoration of nationality; Article 9, Paragraph 2, Item 3 of the Nationality Act states that (my translation) “the Minister of Justice shall not give permission for restoration of nationality to … a person who lost or separated from the nationality of the Republic of Korea for the purpose of evading military service”. (This is quite similar to the U.S.’ own 8 USC § 1425, whose origins we previously discussed.) Article 9 was last amended in March 2008.

Under ordinary circumstances, ex-citizens and their descendants can get F-4 “diaspora visas” to live in South Korea without applying for restoration of citizenship, but Article 5, Paragraph 2 of the Law on the Immigration and Legal Status of Compatriots Abroad directs the Minister of Justice to deny such visas to men suspected of obtaining foreign citizenship for the purpose of escaping conscription. More generally, South Korean immigration officials can use their broad latitude under Article 11, Paragraph 1, Item 3 of the Immigration Control Act to deny entry to anyone who might harm national interests or public safety; Article 11 was, in fact, the basis for the initial denial of entry to Yoo way back in 2002.

Even in the unlikely event Yoo receives permission to restore his South Korean citizenship, he’d have to give up U.S. citizenship. A May 2010 amendment to Article 10 of the Nationality Act means that people who restore South Korean citizenship do not necessarily have to give up foreign citizenship, but only if they qualify for certain narrow exceptions. However, Yoo does not appear to qualify for any of these: he was previously a citizen and so doesn’t qualify for the special family-based reasons for naturalisation applicants (#1), the government is really unlikely to view him as a person with special contributions to the country (#2), he’s not an adoptee (#3) or a retiree (#4), and the “difficulty in abandoning foreign nationality” exception (#5) under current regulations only includes countries where renunciation is slow or impossible, not those which make it absurdly expensive.

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U.S. diaspora tax issues

Of course, Yoo may not want to keep his U.S. citizenship in the first place. Indeed, at least one source has taken the rather cynical view that the whole point of this exercise is not homecoming but escaping from the Intern(ation)al Revenue Service — especially since Yoo spent years saying he had no plans to try to return. Channel A did a fifteen minute segment on this a few days ago; here’s a summary from Segye Ilbo:

In a statement issued through his production company, Yoo denied that U.S. taxation had anything to do with it.

Though some coverage like the above has made the connection between U.S. citizenship & taxation, none that I’ve seen has made the connection between a green card and taxation. Yoo held a U.S. green card during his entire career in South Korea, meaning he was just as exposed to U.S. taxation back then as he is today in China. For that matter, you might wonder how Yoo managed to convince the old U.S. Immigration & Naturalization Service that he fulfilled U.S. residency requirements even to retain his green card let alone become a U.S. citizen (8 USC § 1427), since he’d been pursuing a career in South Korea for the five years preceding his naturalisation application.

However, as seen in the case of Shahine Fakhourie-Robinson — who was elected to the Jamaican parliament in 2002, naturalised as a U.S. citizen in 2006, and stood for re-election in 2007 — the U.S. government isn’t particularly careful about checking these things. And why would they be? They’re getting a new permanent taxpayer whom they can chase around the globe for past tax problems and fresh ones.

Treasury clearly has wanted for a long time to discourage folks like Yoo Seung-jun from giving up U.S. status. They quietly took advantage of the two-minute hate against ex-citizen emigrants like Kenneth Dart in order to push legislators to extend the exit tax to former green card holders. But this wasn’t just a sudden policy decision in 1996 either; as Monica Gianni discussed in her 2014 paper “PFICS Gone Wild!” and Phil Hodgen explored in more readable terms just recently, four years before the extremely public debate about the exit tax sprung up, the IRS quietly issued regulations (Prop. Treas. Reg. § 1.1291-3, 57 FR 11024, 11041) attempting to tax PFIC appreciation when a resident alien becomes a non-resident alien, in what’s probably the first example of non-citizen exit taxation in the United States.

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South Korea punished returnees, not emigrants

The South Korean public reaction to Yoo was very similar to the American reaction to Kenneth Dart, and I’ve even called this “South Korea’s Kenneth Dart moment” in the past. But between South Korean and the United States there’s huge differences in the composition of the diaspora and the perceived contents of the “social contract”, which ultimately led to different consequences for ordinary emigrants from the two countries who remained abroad rather than trying to return.

Yoo’s defenders described the angry reaction of both the public and the Military Manpower Administration as a sickness in South Korean society — an argument with which I’m not unsympathetic, but which falls down flat when they try to contrast it with alleged American openness:

Also, are we not forgetting that a country like the US doesn’t just hand out green cards or citizenship papers to everybody that requests them? Mr. Yoo is in the same position as thousands of young Korean males who have lived abroad since an early age not by choice, but because of their parents’ decision to immigrate. Should all of these individuals face similar punishment as well? Mr. Yoo’s successful conversion to US citizenship speaks volumes about a country (the US) that is willing to welcome him with open arms versus Korea, which is so quick to turn its back on him …

The narrow view held by officials at [the Ministry of Justice and the Military Manpower Administration] is that all emigrant males are essentially military draft dodgers. There is also a jealous-ridden vengeful attitude that overseas Koreans are living lavish wanton lifestyles.

In fact, over the years following Yoo’s departure, the Military Manpower Administration did not try to reach out and punish every emigrant male and drag them back from overseas. In other words, South Korean military regulations — much unlike U.S. asset reporting laws — at least try to make the distinction between being a citizen and actually benefiting from society, and have done so in at least some form for many years: Koreans in Japan who registered as South Korean citizens after World War II — a diaspora which existed before the state did — have long been exempt from conscription.

Under current regulations (here’s the government’s English summary), 1.5 and 2nd-generation Koreans — those born abroad or who moved abroad before age six, and whose parents also have foreign citizenship or permanent residence — won’t be drafted unless they declare permanent return in South Korea. Someone who emigrated later can still obtain deferrals until they pass the age of conscription, as long as they spend less than three months per year in South Korea.

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The difference between South Korea & the U.S.

This is even more remarkable in view of the fact that there’s a starving, nuclear-armed dictatorship within driving distance of Seoul, so supporters of conscripting the diaspora could at least make a credible case that it’s an imperative of survival and that everyone should pitch in because otherwise there won’t be a country to which they can come back in the first place — the same justification which Eritrea uses, in part, for its own diaspora tax. Practically speaking, the social contract in South Korea is that if you want to study or pursue a career there, you should go to the army; you protect your parents who raised you, your younger brothers who are still studying, and your older brothers who have already gone out into the workforce, in exchange for being a beneficiary of that same protection at other times.

In contrast, American CBT supporters (and for that matter, American supporters of conscription during the Vietnam War) have a far weaker case that their preferred policy is remotely so important to the country’s survival, or even that it represents a consistent moral argument about the meaning of citizenship. Despite claims that the U.S. would hemorrhage millions of millionaires to tax havens without CBT, in reality a grand total of a few hundred of the U.S.’ seven million high net worth individuals can be bothered to move even as far away as Puerto Rico. Yet if they moved, they would pay no exit tax, need file no invasive & time consuming forms about their local savings, can keep their U.S. passport for travel abroad, and enjoy an immediate exemption from interest and dividend taxes on mainland assets, and after 10 years an exemption from capital gains tax as well (26 CFR 1.937-2(f)).

South Koreans, unlike Americans, are well aware that millions of citizens of their country have moved overseas. Depending on the change in political winds, people sometimes regard the diaspora with admiration, envy, anger, or pity, but since the emigration wave of the 1960s to the 1990s drew from such a broad cross-section of society, most people personally know several Koreans who live overseas, and those rarely fit whatever stereotype of emigrants the more irresponsible elements of the mass media choose to promote in any news cycle. South Korea is a small country, and most internal migration is towards the capital; thus, especially in Seoul, if someone is moving so far away you’ll never see them again, it’s usually to a foreign country. Ordinary folks and politicians and bureaucrats alike remember these separations when they vote, or propose legislation, or write regulations.

The U.S. is physically a much larger country than South Korea. In a population six times as large against a diaspora of similar size, far fewer people know any emigrants. And on a territory which is ninety times larger than South Korea, far fewer people remember that the emigrants they know are, in fact, emigrants: the average Homelander knows many people who have moved away and whom they now see rarely, but most of those moved domestically rather than internationally, and those few who did in fact emigrate get mixed up in Homelanders’ minds into the larger category of acquaintances who moved to another state. Additionally, many accidental U.S. citizens — specifically, those born to non-citizen parents in the U.S. temporarily — have no American relatives and often few American acquaintances to notice their departure or continued absence. So when Homelanders go wild spreading rumours about tax-evading expats fleeing to golf courses in Bermuda, none of their neighbours contradict them.

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Conscription, human rights, and public opinion

Almost every young man in South Korea, faced with the knowledge that he will either have to spend two years in the army or face social if not statutory exclusion from South Korean society, goes off to boot camp even if he resents it. His willingness to take extreme measures to avoid the sacrifice is tempered by the knowledge that the worst he’ll probably face is abuse, not death — the decades-old standoff between North & South Korea only occasionally flares up into violence. It took until last year to see the first case of a conscientious objector fleeing abroad and making a successful claim for asylum, in that case in France.

Failure to protest does not necessarily indicate acceptance. Václav Havel put it best in his famous open letter:

If every day someone takes orders in silence from an incompetent superior, if every day he solemnly performs ritual acts which he privately finds ridiculous, if he unhesitatingly gives answers to questionnaires which are contrary to his real opinions and is prepared to deny himself in public, if he sees no difficulty in feigning sympathy or even affection where, in fact, he feels only indifference or aversion, it still does not mean that he has entirely lost the use of one of the basic human senses, namely, the sense of dignity.

On the contrary: even if they never speak of it, people have a very acute appreciation of the price they have paid for outward peace and quiet: the permanent humiliation of their human dignity. The less direct resistance they put up to it comforting themselves by driving it from their mind and deceiving themselves with the thought that it is of no account, or else simply gritting their teeth–the deeper the experience etches itself into their emotional memory. The man who can resist humiliation can quickly forget it; but the man who can long tolerate it must long remember it. In actual fact, then, nothing remains forgotten. All the fear one has endured, the dissimulation one has been forced into, all the painful and degrading buffoonery, and, worst of all, perhaps, the feeling of having displayed one’s cowardice — all this settles and accumulates somewhere in the bottom of our social consciousness, quietly fermenting.

Whether out of righteous anger or humiliation, or some combination of the two, the South Korean public brings its full rage to bear on those neighbours of theirs who escape conscription. But even then, they have not demanded that their government chase genuine emigrants & their children to the ends of the earth to share in the humiliation.

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