Indian Diplomat Seeks Dismissal of Visa Fraud Indictment

The Indian diplomat whose arrest in the U.S. for visa fraud roiled relations between the two countries is seeking to have the case dismissed.

Devyani Khobragade was arrested Dec. 12 and charged with visa fraud and making false statements for lying about what she planned to pay her babysitter. Manhattan U.S. Attorney Preet Bharara obtained an indictment on Jan. 9 and Khobragade returned to India later that day.

Her lawyer, Daniel Arshack, told U.S. District Judge Shira Scheindlin in Manhattan in a filing yesterday that because his client was “cloaked” in diplomatic immunity at the time of her arrest and indictment, she can’t be prosecuted.

“Dr. Khobragade now formally moves this court to dismiss the instant proceeding, to rescind the conditions of her release and eliminate her bail conditions as she is immune from criminal prosecution in the United States,” Arshack said in the filing.

Khobragade was arrested in front of her daughter’s school and held by the U.S. Marshals Service in the federal courthouse in lower Manhattan, where she was strip-searched and put with other female suspects. News of her treatment triggered a furor in India, and was followed by the scaling back of security outside the U.S. embassy in New Delhi and protests demanding a ban on U.S. goods.

New Position

Arshack said that on Dec. 20, his client was transferred from employment in the Indian consulate to the position of counselor at the permanent mission of India to the United Nations, a post that carries full diplomatic status.

He said the U.S. State Department sent a notice to Khobragade on Jan. 8 giving her full credentials. A day later, U.S. officials asked India to waive immunity, which it declined to do, he said.

The lawyer also included a copy of a Jan. 9 “diplomatic note” from the U.S. mission to the UN to its Indian counterpart.

“This mission requests her immediate departure from the United States,” according to the note. “Upon her departure a warrant may be issued for her arrest should she seek to enter the United States and should she seek to enter the United States she could be arrested.”

Arshack also argued that the law enforcement agent with the Diplomatic Security Services who was responsible for arresting Khobragade neglected to follow protocol.

Jerika Richardson, a spokeswoman for Bharara’s office, declined to comment on the request for dismissal.

At a Jan. 9 hearing, Scheindlin told prosecutors that the government had two weeks to respond to a request for dismissal once it was filed, according to a court transcript.

The case is U.S. v. Khobragade, 14-cr-0008, U.S. District Court, Southern District of New York (Manhattan).

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