Devyani Khobragade, India’s former Deputy Consul-General in New York, has filed a response to the prosecuting U.S. Attorney in the visa fraud case against her.
By doing so, she has further pressed for dismissal of the entire proceedings against her, based on her claim of full immunity on January 9, 2014, the day she was handed an “instant indictment” for criminal charges.
The latest filings follow weeks of turbulence in India-U.S. ties, including retaliatory moves taken by New Delhi against U.S. diplomats, after Ms. Khobragade was arrested on the streets of New York over allegations of visa fraud linked to the underpayment of her domestic employee Sangeeta Richard.
Filing on behalf of Ms. Khobragade, her attorney Daniel Arshack told the Southern District Court of New York on Friday evening that she was given full diplomatic status, including immunity, by the State Department on January 8, and the Grand Jury “returned the instant indictment on January 9 after she was already cloaked with diplomatic immunity.”
Given that Ms. Khobragade was still within the U.S. when the instant indictment was returned and she did not leave for India until 8:30 p.m. on January 9, the State Department’s recognition of Ms. Khobragade’s reassignment to the Permanent Mission of India to the United Nations required that “the entire ‘proceeding or action’ be dismissed,” he argued.
Earlier, the prosecuting U.S. Attorney, Preet Bharara, had rebutted the initial request for dismissal of the indictment based on Ms. Khobragade’s prior assignment to the United Nations in August 2013, when Prime Minister Manmohan Singh was in New York to attend the General Assembly (UNGA).
In that filing, Mr. Bharara argued: “The defendant attempts through her motion to concoct a theory of immunity out of a UNGA ‘Blue Card’ that she purportedly had for a brief Indian delegation visit to the UN that ended close to three months before her arrest. That attempt fails both factually and legally…”
If the court sides with Ms. Khobragade and dismisses either the instant indictment or the entire proceedings, the State Department may be required to remove her from its Visa and Immigration Lookout systems, aimed at preventing the routine issuance of a visa to her in future. It may, however, still have the option to refuse her a visa.
Though Mr. Arshack acknowledged that the U.S. Attorney might be legally entitled to file a new indictment against his client under such a scenario, The Hindu understands that the initial indictment was made before Ms. Khobragade left the U.S. because Grand Jury members, who are ordinary citizens, were less likely to pass an indictment against a person who was no longer on U.S. soil.
No warrant for her arrest is also likely in that case, and she may have improved prospects of returning to the U.S. and being reunited with her husband, U.S. citizen and Pennsylvania University Professor Aakash Singh Rathore, and her two daughters, aged four and seven.