Cablegate: Laos and U.S. Hold Initial Discussions On Repatriation

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DE RUEHVN #0468/01 2390933
ZNR UUUUU ZZH
R 260933Z AUG 08
FM AMEMBASSY VIENTIANE
TO RUEHC/SECSTATE WASHDC 2173
INFO RHEFHLC/DEPT OF HOMELAND SECURITY WASHDC
RUEHBK/AMEMBASSY BANGKOK 7788

UNCLAS VIENTIANE 000468

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E.O. 12958: N/A
TAGS: PREL CASC KCRM LA

SUBJECT: LAOS AND U.S. HOLD INITIAL DISCUSSIONS ON REPATRIATION

1. (SBU) Summary: A three-member joint State/DHS(ICE) delegation
traveled to Vientiane for "preliminary discussions" about the
repatriation to Laos of Lao nationals and former Lao nationals. The
Government of Laos (GOL) representatives agreed that they are
obligated under international law to take back Lao nationals. Both
sides recognized, however, that the issue of former nationals is
more difficult, and requires further consideration. After an
exchange of views, during which a number of questions were raised,
each side agreed to submit written questions to, and to answer
written questions from, the other side, in the near future, with a
view possibly meeting again in Vientiane in September. The USG
needs to consider what kind of arrangement and provisions will best
meet its objectives. A round of discussions on this topic in 2001
ended without an agreement, but improvements in the bilateral
relationship enhance prospects of success this time. End summary.

2. (SBU) Representatives of the U.S. and Lao governments held
preliminary discussions on repatriation at the Ministry of Foreign
Affairs on July 31. A previous round of discussions in 2001 ended
without agreement. The Lao government agreed to this meeting on the
understanding that it would be a preliminary discussion and not a
negotiating session and that nothing that either side said would be
considered binding in future discussions.

3. (U) Following is a list of participants:

Lao Government:

-- Mai Sayavong, Deputy Director General, Department of Europe and
Americas, Ministry of Foreign Affairs
-- Bounpheng Xaykanya, Deputy Director General, Treaties and Legal
Affairs Department, Ministry of Foreign Affairs
-- Bounliep Hounvongsone, Director, Cabinet Division, Department of
Consular Affairs, Ministry of Foreign Affairs
-- Phounsavath Volalat, Department of Immigration, Ministry of
Public Security
-- Naronglith Norasing, Deputy Director General of Rule of Law in
Lao PDR, Ministry of Justice
-- Souphanh Hadaoheuang, Deputy Director, Americas Division,
Ministry of Foreign Affairs

The U.S. delegation was composed of:

--Mary McLeod, Assistant Legal Adviser for East and South Asia,
Department of State
-- Mary Grace McGeehan, Deputy Chief of Mission, U.S. Embassy
--John Crosson, Deportation Liaison Officer, Office of International
Affairs, U.S. Immigration and Customs Enforcement, Department of
Homeland Security
--Joan Lieberman, Associate Legal Adviser, Office of the Principal
Legal Adviser, U.S. Immigration and Customs Enforcement, Department
of Homeland Security
--Joshua Archibald, Economic and Commercial Officer, U.S. Embassy

4. (SBU) McLeod opened by saying that, as evidenced by recent
reciprocal returns of nationals (20 to Laos within the last year and
one-half, 2 of Americans recently), both sides appeared to agree
that a country has an obligation under international law to accept
the return of its nationals. The question of former nationals was
more difficult, but countries do take them back under certain
circumstances. She noted that the USG has entered into arrangements
with Cambodia and Vietnam and hoped to do so with Laos, and offered
to provide copies of the Cambodia and Laos arrangements if the GOL
requested. (Note: The Lao side did not request these documents.)
She suggested that the two sides discuss international law
principles and the domestic law of each country concerning loss of
nationality. Mai agreed that Lao had an obligation to take back its
nationals, but noted that nationality is often difficult to
determine. This issue has arisen in the current issues with
Thailand on the return to Laos of ethnic Hmong.

5. (SBU) Crosson explained that when we want to return a foreign
national, we currently go to the embassy in D.C. with (1) the order
of removal (2) the criminal or immigration charges and (3) identity
documents. Sometimes consular officials interview the individual to
determine whether he or she is a national. An agreement between the
USG and the GOL on repatriation would outline these procedures. In
the end, the decision whether or not to accept a return is up to the
receiving country on a case by case basis. Mai agreed that
consideration should be on a case by case basis. He added that the
law of the receiving state must be considered, e.g., with respect to
whether a person has lost nationality by escaping and being out of
the country without contacts for a number of years.

6. (SBU) McLeod clarified that repatriation procedures would apply
only to people who have not become U.S. citizens; the U.S.
government would not seek to repatriate a dual national. Lieberman
explained that when a final order of removal is issued against a
legal permanent resident (LPR), which only happens after various
levels of review, LPR status terminates and the individual no longer
has a legal immigration status in the U.S. Mai commented that it is
difficult to make people in Laos understand why the USG expects Laos
to accept the return of LPRs who had lived in the U.S. for many
years before committing crimes.

7. (SBU) The discussion turned to the 2004 GOL nationality law.
McLeod asked for clarification on how an individual loses
nationality under Article 20, which on its face provides for loss of
nationality after a Lao citizen lives abroad 7 years without
authorization, or if his/her authorization to live abroad has
expired and he or she is not registered with a Lao embassy or
consulate abroad, or if he or she is abroad 10 years "without legal
connection" with Laos.

8. (SBU) Norasing and Mai explained that the nationality law was
somewhat in flux. Lao nationals can lose nationality by application
to the National Assembly (apparently similar to renunciation under
U.S. law). The requirement for an exit visa was abolished in
January 2007, but Lao nationals who leave are supposed to register
at a Lao Embassy or Consulate and receive an I.D. card, which is
good for one year, but can be extended. If they do not register for
10 years, they lose their "legal connection" under the statute.
Norasing explained that the nationality law was in flux (for
instance, there are new decrees for granting permanent residency
under consideration now), and undertook to get back to the U.S. side
on how the loss of nationality provisions of the law are currently
implemented.

9. (SBU) McLeod asked whether an individual who stayed away 11
years without contact would be admitted back to Laos. Bounliep said
that was a difficult question. Both Canada and the USG have
submitted applications for the return of such individuals. If they
have Lao identification, Laos has no problem accepting them. If
they don't have identification to prove their citizenship, however,
Laos cannot recognize them as Lao citizens. They are "in the
middle," stateless. He indicated that the GOL had rejected more
than 100 applications of such individuals. (Comment: It was unclear
to the American side in what time frame these applications were
made. End comment.)

10. (SBU) Mai sought clarification about the legal basis in the
U.S. for detention of individuals who had served their criminal
sentences. Lieberman and Crosson explained that immigration
detention is not intended as punishment, but rather to make sure
that their immigration status is adjudicated, and they are removed
if they no longer have the right to remain in the U.S. Lieberman
explained that under U.S. Supreme Court decisions in 2001 and 2005,
immigration detention can only last for a period of time reasonably
necessary to remove the individual, usually six months.

11. (SBU) Bounliep indicated that there are some U.S. LPRs living
illegally in Laos, whom the GOL would like to send back to the U.S.,
and sought clarification on how they could be returned to the U.S.
The U.S. side explained that under some circumstances LPRs who
remain outside the U.S. can lose their right to return, but
undertook to provide a more detailed explanation in writing. McLeod
explained that it is very difficult to lose U.S. citizenship, as
opposed to LPR status. The individual must intend to lose status and
commit the expatriating act voluntarily. Norasing then said that
for a Lao national to lose nationality, he or she should have
acquired another nationality.

12. (SBU) Bounpheng asked whether individuals who do not have
money are provided free legal representation during immigration
proceedings. Lieberman explained that, while they have the right to
representation and there are often pro bono attorneys available, the
USG does not pay for such representation. McLeod added that courts
have found a right to counsel in criminal, but not civil cases. In
any event, the due process concerns in cases involving the removal
of individuals who have been convicted of crimes are not as strong,
because the conviction is the reason for removal, and the individual
had the right to counsel, at government expense if necessary, in the
criminal proceeding. When McLeod asked whether the GOL provided free
legal assistance in immigration proceedings, Norasing indicated that
he was not sure but noted that there are legal aid clinics,
including mobile clinics, in Laos. (Note: The mobile clinic program
is run by the Asia foundation through a grant from a private
foundation.)

13. (SBU) Mai asked how many individuals were under consideration
by the U.S. for return to Lao. McLeod indicated there were about
4100 and gave him the latest figures, but noted that there would
need to be case by case review in each case, and the USG would not
be expecting to send back large numbers at a time.

14. (SBU) As the discussions drew to a close, McLeod suggested
that the two sides exchange written questions and responses in the
near future, with a view to possibly meeting in September. While
making no commitment, Mai indicated receptivity to the USG's
suggesting a date. At a future meeting, he said, the Lao side
would like to have an agenda with concrete questions to address.

15. (SBU) Comment: In addition to formulating questions for the
GOL, the U.S. side will need to consider what we want to come out of
these discussions. In particular, we need to consider whether it
would be preferable to do a less formal MOU (along the lines of the
Cambodian Memorandum specifying procedures for removal and return)
that does not on its face limit the universe of persons for whom we
could seek return, rather than seek a formal agreement (like the
Vietnamese agreement) which would more likely take longer and result
in limitations on the persons for whom we could seek removal. We
note that the representatives on the Lao side of the discussion were
mid-level officials who had been given approval to engage in
preliminary discussion but not to negotiate formally. Therefore,
their comments must be taken as reflecting their own views and
understanding rather than formal commitments or authoritative
statements of Lao law and practice. While the Lao side appeared
receptive to future discussions, it will be up to more senior
officials to decide whether to move forward.

MCGEEHAN

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