Dec. 25 (Bloomberg) -- The lawyer for an Indian diplomat whose treatment in U.S. custody ignited a diplomatic uproar between the two countries last week claims the case is based on a series of mistakes.
Daniel Arshak, the lawyer for Devyani Khobragade, 39, who is charged with lying on a visa application about the wages she paid her Indian babysitter, said an agent with the U.S. State Department misread a form the diplomat helped the babysitter fill out, along with related documents.
Arshak said Khobragade, who was trying to help the babysitter get into the U.S., entered her own monthly salary on a non-immigrant visa application, a figure the agent interpreted as being what she paid her babysitter.
“This case should never have been brought,” Arshack said in an e-mail Dec. 23. The “agent who processed the arrest and drew up the affidavit to support the charges in this case, simply made an error in reading the” form.
Khobragade was charged Dec. 12 with visa fraud and making false statements. Arrested in front of her daughter’s school on West 97th Street in Manhattan, she was held by U.S. marshals in the federal courthouse in downtown Manhattan. While there, she was strip-searched and held with other female suspects. Later that day, she was presented before a U.S. magistrate judge and released on a $250,000 unsecured bond.
News of her treatment triggered a furor in India, and was followed by government officials there scaling back security outside the U.S. Embassy in New Delhi and protests demanding a ban on U.S. goods.
Arshack said the DS-160 form, which was prepared and submitted online, called for Khobragade’s salary, not that of the babysitter. Khobragade wrote $4,500 per month, whereas the babysitter made about $1,560 a month, the defense attorney said. The U.S. alleged the babysitter in fact made closer to $500 per month, below minimum wage, citing one of two contracts between the two women and the babysitter’s statements.
Arshack said the U.S. government also misconstrued the different payment terms in the two employment contracts.
In a contract prosecutors said Khobragade submitted as part of the visa application, the diplomat said she paid the babysitter $9.75 an hour -- above minimum wage as required by law, State Department Special Agent Mark Smith said in the criminal complaint. In a second contract, the diplomat agreed to pay the babysitter 30,000 rupees a month, or approximately $573, the U.S. said, which came out to about $3.31 per hour. New York minimum wage is $7.25 per hour.
Arshak said the second contract spelled out payments that were to be deducted from the babysitter’s pay and sent to her husband in New Delhi.
After the arrest, Indian Foreign Ministry spokesman Syed Akbaruddin said the nation was “shocked and appalled by the public embarrassment of the diplomat” and called for an immediate apology.
“Khobragade was subject to the same search procedures as other USMS arrestees held within the general prisoner population in the Southern District of New York,” the U.S. Marshals Service said in a statement.
The visa fraud charge against Khobragade carries a maximum penalty of 10 years in prison if she’s convicted, according to the office of Manhattan U.S. Attorney Preet Bharara. The maximum for the false statements charge is five years.
A spokeswoman for the U.S. State Department referred calls to the Department of Justice. Jerika Richardson, a spokeswoman for Bharara in Manhattan, declined to comment on the claims.
Khobragade was recently named by her country to serve as a member of its permanent mission to the United Nations, a position that gives her a higher level diplomatic immunity than she enjoyed as deputy consul general.
Jen Psaki, a State Department spokeswoman, said Dec. 20 that the diplomat’s new posting wouldn’t “nullify any previously existing” charges.
The case is U.S. v. Khobragade, 13-mj-02870, U.S. District Court, Southern District of New York (Manhattan).
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