외국인 강제퇴거절차와 관련한 몇 가지 쟁점 / 최홍엽

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외국인, 강제퇴거, 행정심판, 불법체류 외국인

A Few Points Related to the Removal Procedure of Noncitizen

Hong-Yop Choi

Associate Professor, Chosun University

The contents of protecting rights and interests of non-citizen were not included in removal procedures, as other parts of the Korean Immigration Laws. This paper has been studying various elements of executing removal procedure with more careful regard to a lot of difficulties of noncitizen being removed.

The Non-staying principle of execution was adopted by the Administrative Litigations Act and the Administrative Appeals Act, but it is necessary to restrict that principle. There is a fundamental change of direction into execution staying, but this paper suggested staying limiting to the cases in which administrative appeal was filed against removal enforcement. In main issue of this paper, I am emphasizing that noncitizen suspect has the right to appeal by Administrative Appeals Act, apart from the Korean Immigration Laws, and that the Ministry of Justice can make a decision of administrative review, but has to be bound by the examination and resolution of Administrative Appeals Committee under the Prime Minister. In reality, the Ministry of Justice has hardly accepted the objection to the removal order which was decided by the lower-level officials.

And in this paper I proposed ‘division of examination body and execution body’ and ‘accomplishment of removal hearing’ in reference to the Immigration and Nationality Act of U. S. In Korea district offices of immigration have the responsibility of decision and execution of removal order. If the chief of district office or branch office decided the removal order, the immigration officer under the chief would execute the removal order. Both the decision and execution were carried out by one entity.

But in U. S. immigration judge under the Ministry of Justice has the responsibility of decision. And officials under the Department of Homeland Security are responsible for the execution of removal decision. Moreover, the removal decision can be made without statement of noncitizen in Korea. But in other countries such as U. S. and Japan, the noncitizen has the opportunity to present him/herself and to be heard in his/her case.

[Key Words]

noncitizen(foreigner), removal order, administrative review, undocumented noncitizen