Press Trust of India
New York, 8 February: Indian diplomat Devyani Khobragade has sought dismissal of the visa fraud case against her on the ground that the indictment was filedin a court here a day after the USA accorded her full diplomatic immunity and the country did not have criminal jurisdiction over her.
Ms 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 todismiss the indictment.
Ms Khobragade was present in the USA at the time the indictment was returned and “the State Department’s recognition of her diplomatic position with thePermanent Mission of India to the United Nations conferred diplomatic immunity upon her requiring that the entire ‘proceeding or action’ be dismissed,” Mr Arshack said inhis 17-page motion filed late yesterday.
“The instant indictment was returned and filed with the Court prior to Ms Khobragade’s departure (from the USA) 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,” Mr Arshack said.
He, however, acknowledged that the prosecution is not prevented from prosecuting Ms Khobragade in future but insisted that the current case against her be dismissed since she had diplomatic immunity when the indictment was filed.
Mr Arshack’s motion comes a week after Mr Bharara submitted a US State Department declaration that Ms Khobragade did not enjoy immunity from arrest ordetention at the time of her arrest and she does not presently enjoy immunity from prosecution for the crimes charged in the indictment.
Mr Arshack said the indictment must be dismissed because the immunity bestowed upon Ms Khobragade “applied retroactively”.
The court could now order to hear arguments on the motions.
Ms Khobragade, 39, was arrested on 12 December on visa fraud charges, strip-searched and held with criminals, triggering a row between the two countries with India retaliating by downgrading privileges of certain category of US diplomats among other steps.
Ms Khobragade was indicted on visa fraud and making false statements by a US grand jury. She returned to India after she was asked to leave the US by the State Department.
Arshack said the “pertinent” facts in the case are that Ms Khobragade was given full diplomatic status by the Department of State at 5:47 p.m. (local time) on 8 January when it approved her appointment as Counsellor to the Permanent Mission of India to the UN.
The grand jury returned the indictment on 9 January “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 bedismissed. 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 suchdiplomatic status and immunity, but it may not proceed further with this case,” Mr Arshack said.
He said in accordance with the Vienna Convention on Diplomatic Relations, the case should have been dismissed on 9 January, because Ms 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 theindictment was issued, the US did not have criminal jurisdiction over Khobragade,” he said.
Mr Arshack rebutted Mr Bharara’s allegation that Ms Khobragade had employed her domestic worker in her personal capacity and not as India’s Deputy ConsulGeneral 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 versusdiplomats under the respective Vienna Conventions as the ostensible basis to deny the requested relief. Such distinctions are a clear effort to obfuscate, areirrelevant and do not assist the Court in resolving this matter,” Arshack argued.
"For all intents and purposes, she (Khobragade) was a diplomat present in the receiving country and entitled to full diplomatic privileges and immunities whenthese events transpired. As such, she could not have been arraigned by Your Honor on the indictment even if she had appeared in Court because she was still an activediplomat entitled to immunity from criminal prosecution,” the lawyer said.
Seeking to bolster his argument, Mr Arshack has given a timeline of facts and sequence of events as the case unfolded to demonstrate that because “Khobragade wasimmune from prosecution at the time the indictment was returned”, this case should have been dismissed on 9 January.
“Here, the sequence of events to be examined for resolution of the motion is critical. The question is not whether the prosecution may bring a case against Khobragade now that she is a ‘former’ diplomat: it can. But, it cannot do so based upon an indictment that was obtained while she was an active diplomat cloaked inimmunity, as she was on 9 January, 2014 when the grand jury voted a true Bill,” he said.
“So, the factual analysis for the Court to resolve is at what point Ms Khobragade’s diplomatic status was revoked such that she was converted to “former” diplomatstatus,” Mr Arshack said.
He has submitted seven supporting documents with his motion as proof that Ms Khobragade had immunity when she was appointed Deputy Consul General at theIndian Consulate in the city and following her transfer to India’s Permanent Mission to the UN.
Among the supporting documents is a screen shot of the UN Protocol andLiaison Service listing of Khobragade having been accredited as an advisor to the UN for the entire General Assembly meeting.
He has also submitted a declaration by UCLA Law School and Harvard Law School graduate professor Kal Raustiala, an expert on the application of privileges andimmunities to diplomats, who said that Ms Khobragade was immune from criminal jurisdiction of the USA beginning the evening of 8 January when she was accorded fulldiplomatic status by the State Department untill her departure from the USA on the night of 9 January.
Mr Arshack reiterated that Ms Khobragade’s arrest was “illegal and should never have occurred”, adding that the subsequent indictment was “likewise tainted and must, for this additional reason be dismissed”.
He said when a diplomat is cloaked with immunity at the commencement of an action, that action must be dismissed even if the diplomat is later terminated from the diplomatic post.
Further, he said, even if Ms Khobragade enjoyed only immunity only for “officials acts”, that immunity too “precluded her arrest and indictment for the actsalleged by the prosecution.”
Citing the Vienna Convention rules, Mr Arshack said that helping and assisting nationals, both individuals and bodies corporate, of a sending state are legitimate consular functions.
In assisting her domestic worker in the preparation an A-3 visa application to travel to the USA, Ms Khobragade was performing official functions.
Even the employment contract, which prosecutors have said is false has been “submitted in support of the visa application” and so come under Vienna convention rules, the lawyer said.
“The prosecution conflates the issues before the Court by citing legally and factually inapposite case law for their unsupportable position. The truth is thatthere are no cases on the distinct legal issue of whether the acts of submitting a visa application and making statements to the USA fall within a consul official’s’exercise of consular functions’,” Mr Arshack said.
“This is an issue of first impression, which must be decided by this Court if it finds that Khobragade was not cloaked with full diplomatic immunity,” he added.