Devyani seeks quashing of visa fraud case in US court

Devyani's lawyer Arschack says that the indictment must be dismissed because the immunity bestowed upon Khobragade "applied retroactively".

New York | Updated: February 8, 2014 12:22 pm
Khobragade was indicted in a New York court on two counts of visa fraud and misrepresentation of facts. (AP) Devyani Khobragade was indicted in a New York court on two counts of visa fraud and misrepresentation of facts. (AP)

Indian diplomat Devyani Khobragade has sought dismissal of the visa fraud case against her on the ground that the indictment was filed in a court here a day after the US accorded her full diplomatic immunity and the country did not have criminal jurisdiction over her. Khobragade’s lawyer Daniel Arshack submitted her reply, in a federal court here, to Manhattan federal prosecutor Preet Bharara’s memorandum that had opposed her motion to dismiss the indictment.

Khobragade was present in the US at the time the indictment was returned and “the State Department’s recognition of her diplomatic position with the Permanent Mission of India to the United Nations conferred diplomatic immunity upon her requiring that the entire ‘proceeding or action’ be dismissed,” Arshack said in his 17-page motion filed late on Friday. “The instant indictment was returned and filed with the Court prior to Khobragade’s departure (from the US) when she was still recognised as a diplomat and still imbued with diplomatic immunity. The prosecution could not then and cannot now proceed further on that invalid instrument,” Arshack said.

He, however, acknowledged that the prosecution is not prevented from prosecuting Khobragade in future, but insisted that the current case against her be dismissed since she had diplomatic immunity when the indictment was filed. Arshack’s motion comes a week after Bharara submitted a US State Department declaration that Khobragade did not enjoy immunity from arrest or detention at the time of her arrest and she does not presently enjoy immunity from prosecution for the crimes charged in the indictment. Arshack said the indictment must be dismissed because the immunity bestowed upon Khobragade “applied retroactively”. The court could now order to hear arguments on the motions.

Khobragade, 39, was arrested on December 12 on visa fraud charges, strip-searched and held with criminals, triggering a row between the India and US. India retaliated by downgrading privileges of certain category of US diplomats among other steps.

Arshack said the “pertinent” facts in the case are that Khobragade was given full diplomatic status by the Department of State at 5:47 pm (local time) on January 8 when it approved her appointment as Counsellor to the Permanent Mission of India to the UN. The grand jury returned the indictment on January 9 “after she was already cloaked with diplomatic immunity”. “It is acknowledged that the prosecution is not forever precluded from prosecuting the defendant. Our application is only that this proceeding must be dismissed. The prosecution is clearly legally able to seek a new indictment at this time or at some point in the future now that Khobragade no longer possesses such diplomatic status and immunity, but it may not proceed further with this case,” Arshack said.

In accordance with the Vienna Convention on Diplomatic Relations, he argued that the case should have been dismissed on January 9, because Khobragade did not become a “former” diplomat until later that evening when she left the country. “The proceeding must be dismissed for lack of jurisdiction because at the time the indictment was issued, the US did not have criminal jurisdiction over Khobragade,” he said.

Arshack rebutted Bharara’s allegation that Khobragade had employed her domestic worker in her personal capacity and not as India’s Deputy Consul General in New York, which made her not immune to criminal prosecution. “The prosecution goes to great lengths in its opposition to make inapposite distinctions between the immunity conferred upon consular officials versus diplomats under the respective Vienna Conventions as the ostensible basis to deny the requested relief. Such distinctions are a clear effort to obfuscate, are irrelevant and do not assist the Court in resolving this matter,” Arshack argued.

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First Published on: February 8, 2014 12:09 pm
  1. G
    George
    Feb 10, 2014 at 12:51 am
    Indictment is the formal charging of the crime. Can this be done without criminal jurisdiction? In Devyani's case, since she was granted full immunity which protects her from criminal jurisdiction in US, can she still be indicted? It is clear she can't be arrested or prosecuted when she is cloaked with full immunity. Probably, Preet Bharara's position could be that indictment is allowed. How can otherwise the government expel a diplomat that commits a crime by declaring persona non grata? Also, may be the prosecution will argue that Devyani was asked to leave US by a certain time and that particular time is the deadline for her immunity. Her overstay by a few hours were not covered by her immunity. It will be an interesting case to learn about the immunity law.
    Reply
    1. G
      George
      Feb 10, 2014 at 12:51 am
      Indictment is the formal charging of the crime. Can this be done without criminal jurisdiction? In Devyani's case, since she was granted full immunity which protects her from criminal jurisdiction in US, can she still be indicted? It is clear she can't be arrested or prosecuted when she is cloaked with full immunity. Probably, Preet Bharara's position could be that indictment is allowed. How can otherwise the government expel a diplomat that commits a crime by declaring persona non grata? Also, may be the prosecution will argue that Devyani was asked to leave US by a certain time and that particular time is the deadline for her immunity. Her overstay by a few hours were not covered by her immunity. It will be an interesting case to learn about the immunity law.
      Reply
      1. G
        George
        Feb 8, 2014 at 11:43 am
        Wow, there could be a victory on technical ground due to the timing or delay in Devyani's departure. Once you put aside the visa fraud issue and concentrate on technicality of the immunity issue, yes, there his hope for Devyani on the ground that US has no criminal jurisdiction on her case because she hadn't left the country while the proceedings were taking place against her since she was accorded full immunity the day before. Section 39 of Vienna convention also says, "....immunity shall cease on expiry of a reasonable period of time in which to do so (leave country)....." But the prosecutor will argue that she was declared non-grata and asked to leave ending the immunity and she on her own dela the departure in violation of deportation order. Interesting case any way.
        Reply
        1. G
          George
          Feb 8, 2014 at 11:43 am
          Wow, there could be a victory on technical ground due to the timing or delay in Devyani's departure. Once you put aside the visa fraud issue and concentrate on technicality of the immunity issue, yes, there his hope for Devyani on the ground that US has no criminal jurisdiction on her case because she hadn't left the country while the proceedings were taking place against her since she was accorded full immunity the day before. Section 39 of Vienna convention also says, "....immunity shall cease on expiry of a reasonable period of time in which to do so (leave country)....." But the prosecutor will argue that she was declared non-grata and asked to leave ending the immunity and she on her own dela the departure in violation of deportation order. Interesting case any way.
          Reply
          1. R
            Rudram
            Feb 8, 2014 at 2:37 pm
            Devyani Khobragade should be exonerated in the US but prosecuted and put in jail with her thieving Dad in India for the Adarsh scam -- stealing from our Armed Forces vets is a heinous crime.
            Reply
            1. R
              Rudram
              Feb 8, 2014 at 2:37 pm
              Devyani Khobragade should be exonerated in the US but prosecuted and put in jail with her thieving Dad in India for the Adarsh scam -- stealing from our Armed Forces vets is a heinous crime.
              Reply
              1. V
                Venk
                Feb 8, 2014 at 8:20 am
                Good business for this lawyer - is the Government of India paying his fees?
                Reply
                1. V
                  Venk
                  Feb 8, 2014 at 8:20 am
                  Good business for this lawyer - is the Government of India paying his fees?
                  Reply
                  1. D
                    Desiman
                    Feb 8, 2014 at 12:06 pm
                    It would be wise to keep a low profile and resolve this bureacratic and diplomatic and political matter through the well established administration. And if the this case is brought into the public again there are other similar cases which will cause equal harm and negative publicity for person and nation. Final conclusion for this case should be do not visit US and ask the family to relocate to india for work and life. Future behaviour and working practice of the diplomates abroad should be changed appropriately. Its about time the common mother is respected to such duties for taking care of g children and rewarded accordingly. Please print this comment, every NRI has a right to have a say
                    Reply
                    1. D
                      Desiman
                      Feb 8, 2014 at 12:06 pm
                      It would be wise to keep a low profile and resolve this bureacratic and diplomatic and political matter through the well established administration. And if the this case is brought into the public again there are other similar cases which will cause equal harm and negative publicity for person and nation. Final conclusion for this case should be do not visit US and ask the family to relocate to india for work and life. Future behaviour and working practice of the diplomates abroad should be changed appropriately. Its about time the common mother is respected to such duties for taking care of g children and rewarded accordingly. Please print this comment, every NRI has a right to have a say
                      Reply
                      1. A
                        Ashok
                        Feb 8, 2014 at 2:16 pm
                        Enough already. Why does she not talk about the alleged crime? Did she do it or not? Instead of talking about immunity, talk about did you commit the alleged crime or not? Enough of all this gimmickry. I'm just sick of her and her father. Let us move on; please stop your shannanigans, go to another country if not US. Why do you want to go to US anyway; after all they were the ones who strip searched you.
                        Reply
                        1. A
                          Ashok
                          Feb 8, 2014 at 2:16 pm
                          Enough already. Why does she not talk about the alleged crime? Did she do it or not? Instead of talking about immunity, talk about did you commit the alleged crime or not? Enough of all this gimmickry. I'm just sick of her and her father. Let us move on; please stop your shannanigans, go to another country if not US. Why do you want to go to US anyway; after all they were the ones who strip searched you.
                          Reply
                          1. J
                            JMK
                            Feb 8, 2014 at 8:13 pm
                            Mr. Arshack argument is pretty lame. Here is why. The State Dept had already said the full immunity is not retroactive. The alleged crime was committed when she did not enjoy full immunity. She was charged with alleged visa fraud when she did not enjoy full immunity. She was given full immunity on Jan 8, 2014. The indictment, the second part of the proceeding, was handed out to her on Jan 9, 2014 while she was still in USA.The probability of this case being dismissed is slim to none
                            Reply
                            1. J
                              JMK
                              Feb 8, 2014 at 9:48 pm
                              Mr. Arshack’s argument is pretty lame. Here is why. Devyani allegedly committed the visa fraud when she did not enjoy full diplomatic immunity. She was arrested and charged with alleged felonies when she did not enjoy full diplomatic immunity. She was accorded full diplomatic immunity on Jan 8, 2014. The State Dept had said the immunity is not retroactive. She was indicted on Jan9, 2014 while she was still in the USA. It would be a mute point if she had left the country, but she did not. Why would her immunity status matter when she is indicted at the second phase, when she had been arrested and charged with visa fraud when she did not have the full immunity in the first place.Mr. Arshack’s argument is somewhat akin to claiming that the prosecution said the accused had one leg at the time of alleged crime. Now, look, she has procured another leg, a prosthetic one, and therefore , your honor, this case should be dismissed.
                              Reply
                              1. J
                                JMK
                                Feb 8, 2014 at 9:48 pm
                                Mr. Arshack’s argument is pretty lame. Here is why. Devyani allegedly committed the visa fraud when she did not enjoy full diplomatic immunity. She was arrested and charged with alleged felonies when she did not enjoy full diplomatic immunity. She was accorded full diplomatic immunity on Jan 8, 2014. The State Dept had said the immunity is not retroactive. She was indicted on Jan9, 2014 while she was still in the USA. It would be a mute point if she had left the country, but she did not. Why would her immunity status matter when she is indicted at the second phase, when she had been arrested and charged with visa fraud when she did not have the full immunity in the first place.Mr. Arshack’s argument is somewhat akin to claiming that the prosecution said the accused had one leg at the time of alleged crime. Now, look, she has procured another leg, a prosthetic one, and therefore , your honor, this case should be dismissed.
                                Reply
                                1. K
                                  Kuppuswamy Ramani
                                  Feb 8, 2014 at 8:13 am
                                  Who pays for her lawyer . Is that also under SCST category
                                  Reply
                                  1. K
                                    Kuppuswamy Ramani
                                    Feb 8, 2014 at 8:13 am
                                    Who pays for her lawyer . Is that also under SCST category
                                    Reply
                                    1. K
                                      Kush
                                      Feb 8, 2014 at 8:53 am
                                      If she's innocent why did she ran away? Why won't she have her day in court if she has nothing to hide? Why hide behind diplomatic immunity??
                                      Reply
                                      1. K
                                        Kush
                                        Feb 8, 2014 at 8:53 am
                                        If she's innocent why did she ran away? Why won't she have her day in court if she has nothing to hide? Why hide behind diplomatic immunity??
                                        Reply
                                        1. Y
                                          yakna spencer
                                          Feb 8, 2014 at 12:52 pm
                                          This fraudster still at it. Who is paying for her defence? Indian taxpayers are probably footing the bill.
                                          Reply
                                          1. Y
                                            yakna spencer
                                            Feb 8, 2014 at 12:52 pm
                                            This fraudster still at it. Who is paying for her defence? Indian taxpayers are probably footing the bill.
                                            Reply
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