UN ASKS USG TO RECONSIDER ITS REQUIREMENT THAT

C O N F I D E N T I A L USUN NEW YORK 000108

SIPDIS

SIPDIS

VISAS

DEPARTMENT FOR IO/UNP AND L/DL, L/UNA AND L/CA

E.O. 12958: DECL: 02/01/2017
TAGS: CVIS OFDP UN AF
SUBJECT: UN ASKS USG TO RECONSIDER ITS REQUIREMENT THAT
NY-BASED STAFFER BE INTERVIEWED FOR G-4 VISA ABROAD

Classified By: U.S. Representative (Acting),Amb. Alejandro D. Wolff, 1
.5(b)


1. (SBU) Summary and Action Request: Representatives from
the UN's Office of Legal Affairs (OLA),the UN Travel and
Transportation Service, and UNDP met with representatives of
USUN's Host Country and Legal sections on January 30 to
express the UN's serious concerns regarding the USG
determination that a UNDP staffer must apply and be
interviewed abroad to renew his G-4 visa rather than applying
for and being issued the visa by USUN in New York. USUN
conveys the points the UN raised, and in paragraph 7 below
requests guidance for replying to the UN. End Summary and
Action Request.

The precipitating visa case
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2. (SBU/NOFORN) Mohammad Younus, a UNDP staff member and an
Afghani national, applied to USUN in January 2007 to renew
his G-4 visa, as he had done each year since 2002, (Note:
Security Advisory Opinions (SAOs) were not required for
Afghani nationals at the UN until 2006.) The SAO clearance
regarding his 2007 application (referred to as
"administrative processing" when dealing with interlocutors
outside the USG) indicated that there was no objection to
issuing a visa if it could be established that the applicant
was not a member of the Taliban or Afghani-state-run entity
from 1996-November 2001. Making this determination would
seem to require interviewing the applicant, and because the
USG does not interview visa applicants inside the U.S., USUN
informed the UN that Mr. Younus would have to apply for his
visa abroad as the visa was "not clearly approvable" in the
U.S.

USUN position
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3. (U) At a January 30 meeting with representatives of OLA,
the UN Travel and Transportation Service, and UNDP, USUN
MinCouns for Host Country Affairs explained the U.S. response
concerning the processing of Mr. Younus' visa. He noted
that, as a courtesy, USUN in New York handles a caseload of
approximately 7000 visas per year for members of the UN
community, a vast majority of which are issued in New York.
Only a small number of individuals are asked to apply at a
U.S. Embassy or Consulate overseas. In these latter cases
(most of which are due to a UN staffer needing to travel and
realizing too late that his/her visa has expired or was about
to expire, or because administrative processing of the
application has not concluded by the time he/she must
travel),USUN helps facilitate obtaining the individual's
visa, e.g., by requesting from the visa issuing post an
appointment on the applicant's behalf. USUN MinCouns also
noted that G-4 visas are rarely denied, reminding the UN
interlocutors that there are very limited grounds for denying
a G-4 visa, and that a process is in place to deal with those
exceedingly rare cases. USUN MinCouns also noted that in the
current case, the applicant's administrative processing had
been concluded and thus, if he applied promptly at a visa
issuing post abroad, it is unlikely that he would be stranded
or delayed in obtaining visa adjudication.

UN Office of Legal Affairs raises points
--------------


4. (U) OLA's Serguei Tarassenko noted that Younus has been in
NY working for the UN for at least three years and had no
problem renewing his visa at USUN previously. Tarassenko
then cited the Convention on Privileges and Immunities of the
United Nations (1946, Articles V and VII),the U.S.-UN
Headquarters Agreement (1947, Sections 11 and 13) and the
International Organization Immunities Act (1945). Tarassenko
emphasized that the UN does not want to upset its harmonious
relationship with the Host Country, that the UN seeks an
informal resolution of the issue, and that it hopes that
Washington will authorize an exception in Mr. Younus's case.
Specifically, Tarassenko set forth the following points:

--The Convention on Privileges and Immunities of the United
Nations, Article V, Section 18 exempts UN officials and their
dependents from immigration restrictions. Article VII,
Section 25 states that officials who hold UN laissez-passer,
and who bear a cerificate that they are travelling on UN
business, shall be dealt with as speedily as possible, and
that such persons shall be granted facilities for speedy
travel.


--The U.S.-UN Headquarters Agreement, Article IV, Section 11
states that "The federal, state or local authorities of the
United States shall not impose any impediments to transit to
or from the headquarters district of ... officials of the UN,
or of specialized agencies..." The U.S.-UN headquarters
Agreement, Article IV, Section 13 states that "Laws and
regulations in force in the United States regarding entry of
aliens shall not be applied in such a way as to interfere
with the privileges referred to in Section 11...."

--The International Organizations Immunities Act also
underscores the privileges and immunities granted to
officials of international organizations.


5. (CONF/NOFORN) Additional OLA arguments included the
following:

--There are budgetary consequences for the UN (and ultimately
the U.S.which funds 22% of the UN's budget) in requiring a UN
staffer to apply for a visa abroad as the UN must pay the
individual's travel, per diem, and salary while (s)he waits
for the visa.

--Requiring a UN staffer to apply abroad to obtain a visa
sets a problematic precedent. The UN is concerned that the
requirement will be applied to individuals of other
nationalities, and could lead the UN Staff Union to charge
that the Host Country discriminates among staffers of
different nationalities and that UN management has acquiesced
in such discrimination.

--Requiring Younus to apply abroad creates uncertainty among
Secretariat members, as they wonder whether they too will be

SIPDIS
asked to apply or be interviewed abroad and whether they
might be denied re-entry to the United States.

--If the visa were denied, it can be argued that the Host
Country has unilaterally changed the status of a UN employee.

--The UN asked whether the U.S. insistence on requiring
Younus to apply abroad relates to the FBI's efforts in April
2005 to interview him regarding an individual who had tried
to contact him. Younus expressed concern with the FBI's
approach at the time, and the UN called USUN to relay its
strong concerns. Tarassenko did note, however, that in the
end Younus and the UN did cooperate in that investigation,
and Younus received at least one visa renewal from USUN since
that time.

-- Given the Secretary General's responsibility for assigning
staff to perform UN functions, the United States' requiring a
staff member to stop work and travel abroad to obtain a visa
could be deemed as interference in the SG's performance his
duties under the UN Charter to assign functions to the staff
of the Secretariat.

--If the individual were to be denied a visa abroad, the UN
would be "in a legal crunch" and would be looking at the
Charter and the other internationally relevant documents,
including the arbitration provisions in Section 21 of the
U.S.-UN headquarters Agreement. Tarassenko further stated
that the General Assembly might ultimately be compelled to
ask that the matter be referred to the International Court of
Justice for a legal opinion.

USUN MinCouns indicated that USUN would report the UN's
serious concerns to the Department, and would convey to the
UN its response.

Resolving the instant case
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6. (SBU) As Younus is expected to travel for the UN on
mission soon, and his SAO clearance appears to be valid until
April 11, the solution may be for him to be interviewed at a
U.S. visa-issuing post near New York (e.g., Montreal),and if
eligible, be issued his G-4 visa there. Alternatively, if he
is soon going on UN mission near a U.S. visa-issuing post, he
could be interviewed and issued a visa there. USUN could
alert the post at which he applies so that his visa interview
appointment could be expedited.


7. (U) Action request - USUN seeks Department's guidance in
responding promptly to concerns raised by the UN.

WOLFF