Khobragade’s lawyer seeks dismissal of US case

January 15, 2014 10:35 pm | Updated November 16, 2021 08:45 pm IST - Washington

In this January 14, 2014 photo, Devyani Khobragade arrives at B.R. Ambedkar’s memorial Chaitya Bhoomi, with her father Uttam Khobragade in Mumbai.

In this January 14, 2014 photo, Devyani Khobragade arrives at B.R. Ambedkar’s memorial Chaitya Bhoomi, with her father Uttam Khobragade in Mumbai.

The lawyer for former Indian Deputy Consul-General Devyani Khobragade has sought the dismissal of the visa fraud case brought against her in New York on the grounds that she was protected from prosecution for personal acts during the time of her arrest as well as indictment.

In a filing made to Judge Shira Scheindlin of the U.S. District Court in the Southern District of New York lawyer Daniel Arshack, on behalf of Ms. Khobragade, called for the dismissal of the January 9, 2014 indictment and proceedings against her, in which she faced two felony charges — of visa fraud and making false statements, carrying a total prison sentence of 15 years.

The charges relate to her alleged underpayment and overworking of her domestic employee, Indian national Sangeeta Richard, who left Ms. Khobragade’s residence on June 23, 2013 subsequently saying that she was worked so hard that she didn’t have time to “sleep or eat”.

The case witnessed a spike in diplomatic hostilities between New Delhi and Washington, with India undertaking numerous retaliatory measures against U.S. diplomats there as a measure of reciprocity.

Mr. Arshack this week argued for terminating “any and all conditions of bail previously imposed by the Court at the Defendant’s initial appearance in this matter on December 12, 2013,” after her arrest on the streets of New York and strip-search in the custody of U.S. Marshals.

Ms. Khobragade has consistently argued since then that she should not have been arrested as she had full diplomatic immunity associated with her accreditation to the United Nations between August 26, 2013 and December 31, 2013, linked to the participation of Prime Minister Manmohan Singh in the U.N. General Assembly.

Further, on January 8, 2014 the U.S. State Department granted her request for full diplomatic immunity flowing out of her transfer from the Consulate to the Permanent Mission of India to the United Nations.

However several open questions remained, firstly on whether the indictment remained valid as it came hours after she was granted full diplomatic immunity. Second, it was unclear whether Mr. Arshack’s plea for dismissal would hold good as Ms. Khobragade has since then been reassigned to the Indian Ministry of External Affairs in New Delhi and is no longer in her immunity-linked U.N. role.

When India refused to waive her immunity per a January 9, 2104 request by the U.S., the State Department requested “her immediate departure from the country”, adding that her name would be “placed in the Visa and Immigration lookout systems to prevent routine issuance of a visa to her in the future”.

Although Ms. Khobragade’s husband, U.S. citizen and Pennsylvania University Professor Aakash Singh Rathore, is still in the U.S. along with their two daughters aged four and seven, the U.S. possible issuance of an arrest warrant against her may preclude her seeing them in this country in the future.

Accordingly, Mr. Arshack also pressed the District Judge to terminate “any arrest warrants presently or previously filed in efforts to secure the Defendant’s attendance in any future court proceedings”.

His filings impressed upon the court previous precedents concerning foreign diplomats in the U.S. and the wording of the 1972 Vienna Convention on Diplomatic Relations that suggested, Mr. Arshack said, that proceedings against Ms. Khobragade “shall be dismissed” as she “cannot be prosecuted”.

The prosecuting Attorney’s office said to The Hindu that the deadline for them to file a response to the court regarding Mr. Arshack's motion is January 28, 2014.

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