The US State Department has contended that Indian diplomat Devyani Khobragade does not enjoy immunity from prosecution on charges of visa fraud and making false statements but her lawyer today rejected the assertion, saying the issue will be decided by the court.
Papers submitted to a court here yesterday by Manhattan's federal prosecutor, India-born Preet Bharara, concluded that US authorities were not wrong in arresting and detaining Khobragade on visa fraud charges on December 12 since she did not have full diplomatic immunity in her capacity as India's Deputy Consul General. The declaration, dated January 29 and signed by Attorney- Advisor in the Office of the Legal Advisor of the Department of State Stephen Kerr, was submitted by Bharara in support of his memorandum opposing 39-year-old Khobragade's motion to dismiss the indictment against her. "The Department of State concludes that Dr Khobragade did not enjoy immunity from arrest or detention at the time of her arrest in this case, and she does not presently enjoy immunity from prosecution for the crimes charged in the indictment," the declaration said.
Responding to Bharara's motion, Khobragade's attorney Daniel Arshack told PTI that the "US Attorney is again wrong on the facts and the law". The court will decide these issues, he said.
Arshack has time till February 7 to file his reply to the government's motion. The declaration was among eight documents that Bharara submitted in court as proof that Khobragade is not immune from prosecution and that the indictment against her should not be dismissed.
Bharara's motion came in response to Arshack's request to the court on January 14 to dismiss the indictment and terminate any "open" arrest warrants or requests for her extradition.
Arshack argued that Khobragade was "cloaked" in diplomatic immunity and cannot face prosecution in the US. Bharara said the State Department, "whose views must be given great weight", has "unequivocally concluded" that Khobragade did not employ her maid Sangeeta Richard in her capacity as Deputy Consul General and so does not enjoy immunity from prosecution for the "crimes" for which she was arrested.
The State Department further determined that her immunity in connection with her short-lived stint at the Indian mission to the UN from January 8 to January 9, before she was asked to leave the US, "is no bar to prosecution".
Khobragade, a 1999-batch IFS officer, was accused of visa fraud and making false declarations in the visa application for her maid. She was arrested, strip-searched and held with criminals, triggering a row between India and the US.
India retaliated by downgrading privileges of a certain category of US diplomats, among other steps. Following her indictment by a US grand jury, she returned to India on January 10 after she was asked to leave the country by the State Department. Bharara, quoting the declaration, said: "From the time of her departure from the US on January 9 through the present, Khobragade enjoys residual diplomatic immunity only for acts she performed in the exercise of her functions as a member of the mission from January 8 to January 9. "The acts giving rise to the charges in the indictment were not performed in Khobragade's exercise of her functions as a member of the mission both because they were performed well before her assignment to the Permanent Mission of India to the UN and because the hiring of Richard was not an official act."
Khobragade "currently enjoys no diplomatic status and at the time of her arrest the defendant's position as a consular official gave her immunity from prosecution for official acts only", he added. He said that Khobragade's claims that she had diplomatic immunity from August to December 2013 as a member of India's delegation to the UN is "incorrect and is flatly rejected by the State Department."