Devyani Khobragade seeks dismissal of visa fraud case, arrest warrants in New York court

Written by PTI | New York | Updated: Jan 15 2014, 20:10pm hrs
Devyani KhobragadeDevyani Khobragade's lawyer is seeking a court order to dismiss the indictment and proceeding against the Indian diplomat. (PTI)
Indian diplomat Devyani Khobragade has asked a court here to dismiss the indictment against her and terminate any "open" arrestwarrants in visa fraud case, arguing that she was "cloaked" in diplomatic immunity and cannot face criminal prosecution in the US.

Devyani Khobragade's lawyer Daniel Arshack yesterday filed a memorandum of law on her behalf in the Southern District of New York in support of themotion to dismiss the case and terminate any future legal action against her "on grounds of diplomatic immunity."

"Dr Devyani Khobragade now formally moves this Court to dismiss the instant proceeding, to rescind the conditions of her release, and eliminate her bail conditions asshe is immune from criminal prosecution in the United States as she was obligated, by the United States government, to leave the jurisdiction," Arshack said in thefiling.

Arshack is seeking a court order to dismiss the indictment and proceeding against the Indian diplomat, terminate any and all conditions of bail previouslyimposed by the court during Devyani Khobragade's initial appearance on December 12 and exonerate any bail or bond previously posted on her behalf.

The motion is alsoseeking termination of any "open arrest warrants" against Devyani Khobragade or "requests for extradition" with regard to the case as "they too are nullities since the instantproceeding is subject to dismissal."

"I make this affirmation in support of Devyani Khobragade's motion to dismiss the instant proceeding as a nullity because both at the time of her arrest, as well as atthe time of her subsequent indictment, defendant was cloaked in diplomatic immunity and has absolute immunity from any criminal prosecution in the United States," hesaid.

Arshack is seeking a ruling on the order by Judge Shira Scheindlin on or before January 31.

The office of Manhattan's top federal prosecutor Preet Bharara, whobrought the criminal charges and indictment against Khobragade said they have "no comment at this time" on the motion filed by Arshack.

The filing states that because of Devyani Khobragade's diplomatic status, the court did not have personal jurisdiction over her at the time of her arrest andindictment, but it still has subject matter jurisdiction to rule over her motion to dismiss the case.

Arshack argued that conditions of Khobragade's post-arrest release and the USD 250,000 bond must berescinded as those restrictions on 39-year-old diplomat's liberty do not apply since she is "absolutely immune from criminal prosecution" being a diplomat.

He also sought "prompt return" of Devyani Khobragade's passport.

The motion informed the court that Khobragade had full diplomatic immunity at the time of her December 12 arrest since she had been appointed a Special Advisorto the United Nations in August last year during the Indian Prime Minister's visit for the UN General Assembly session.

"Obviously, the Government knew when it obtained that indictment that there could be no prosecution of Devyani Khobragade since her diplomatic status had already beenchanged and she was therefore immune from prosecution," Arshack said adding that it was due to her diplomatic status that Khobragade did not get arraigned on theindictment.

Arshack said Devyani Khobragade's immunity "should have prevented" her arrest, handcuffing, jailing, strip searching and imposition of bail conditions.

"This proceeding has been wrongfully commenced against Khobragade. She should not have been arrested in the first place and she was indicted despite the factthat the government knew that her diplomatic status precluded a prosecution of Devyani Khobragade."

Arshack also cited US State Department's instructions which provide that law enforcement officials (particularly in New York) should be "sensitive" andcoordinate with the US authorities if confronted with a situation where a diplomat appears to have committed a crime.

He said the law enforcement agent from theDiplomatic Security Services who arrested Devyani Khobragade "neglected" to follow this instruction and did not call the UN Protocol office.

"Had he only done so he would havebeen informed of Khobragade's status and her arrest and humiliating and invasive personal body search would not have occurred."

According to another State Department instruction cited by Arshack, diplomatic agents also enjoy complete immunity from the criminal jurisdiction of the host country's courts and cannot be prosecuted no matter how serious the offense unless their immunity is waived by the sending state.

"Here, India, the sending state, has not waived Devyani Khobragade's immunity and therefore this criminal prosecution must be dismissed," he added.

Arshack further argued that the Khobragade's immunity applies "retroactively" and can "negate a preexisting matter or prosecution."

"Here, the State Department's decision to fully grant diplomatic credentials mandates the dismissal of this action in accordance with Article 31 of the VCDR and the Diplomatic Relations Act.

"Obviously, a case was clearly commenced. Despite the fact that no arraignment occurred, Devyani Khobragade was arrested, physically searched, processed,brought before the Court, forced to post bail, and abide by conditions of release all in violation of her absolute immunity as a diplomat," he added.

Arshack also submitted in court a letter dated January 8 2014 from the US Mission to the UN to Khobragade which states that as of 5:47 pm that day, she hadbeen recorded as a counsellor at the Indian Mission to the UN and was entitled to the "privileges and immunities" of a diplomatic envoy.

Another exhibit submitted by him is a January 9diplomatic note from the US Mission to the UN to India's Permanent Mission requesting Khobragade todepart the US.