Devyani Khobragade wins dismissal of US indictment, may face fresh charges

Devyani Khobragade
Indian diplomat Devyani Khobragade, center, accompanied by her father Uttam Khobragade, to her right, and surrounded by supporters and policemen, arrives at the domestic airport in Mumbai on Jan. 14, 2014.

Devyani Khobragade, the Indian diplomat whose arrest for visa fraud in New Yorktriggered an international row, may face new charges after winning dismissal of the case, U.S. prosecutors said.

U.S. District Judge Shira Scheindlin in Manhattan today ruled that Khobragade had diplomatic immunity when the U.S. indicted her Jan. 9 on charges of fraud and making false statements for allegedly lying on a visa application about her plan to pay her Indian babysitter less than minimum wage. Khobragade returned to India that day.

Today’s ruling doesn’t bar prosecutors from filing a new indictment against the diplomat, a spokesman for Manhattan U.S. Attorney Preet Bharara said.

“The district court found that Devyani Khobragade had immunity during a limited period of time between Jan. 8 and Jan. 9, when the current indictment was returned by a grand jury,” Jim Margolin, a spokesman for Bharara, said in a statement.

“As the court indicated in its decision and as Devyani Khobragade has conceded, there is currently no bar to a new indictment against her for her alleged criminal conduct, and we intend to proceed accordingly.”

Arrested, Searched

Khobragade was arrested Dec. 12 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.

“We are heartened that the court agreed with our legal analysis and rejected the prosecution’s arguments by dismissing the case,” Daniel Arshack, her lawyer, said today in an e-mailed statement. “Technically, the prosecution remains free to re-indict Dr. Khobragade. However, the decision to do so might well be viewed as an aggressive and unnecessary act. This current circumstance might well present the best opportunity for a lasting and final diplomatic resolution.”

In the original indictment, the U.S. accused Khobragade of making “multiple false representations” to U.S. authorities to obtain a visa for the caretaker, and the State Department later ordered her to leave the country after India denied waiving her diplomatic immunity.

‘Destroys Jurisdiction’

Scheindlin said in today’s ruling that several courts have found that when immunity is acquired while charges or civil allegations are pending, it “destroys jurisdiction” for the government to proceed with criminal charges or a lawsuit.

The judge said she wasn’t deciding whether Khobragade’s conduct alleged in the indictment constituted “official acts” that would be protected by diplomatic immunity. If her actions weren’t “performed in the exercise of official functions,” there was nothing to stop the U.S. from bringing a new indictment against the diplomat, the judge said.

Arshack had argued to Scheindlin in January that the charges should be dismissed because his client was “cloaked” in diplomatic immunity at the time of her arrest and indictment.

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

To contact the reporter on this story: Patricia Hurtado in federal Court in Manhattan at