Indian diplomat Devyani Khobragade has moved a federal court here to dismiss the visa fraud case against her, saying there is lack of personal jurisdiction since she had been accorded full diplomatic immunity by the US Department of State.
Khobragade's lawyer Daniel Arshack submitted a four-page "motion seeking dismissal of action for lack of personal jurisdiction" on January 9 with Magistrate Judge Netburn of the US District Court of the Southern District of New York.
She was indicted for visa fraud and making false statements but flew back to India on the night of January 9 from the JFK airport in New York on an Air India flight after she was accorded diplomatic immunity by the State Department and was asked to depart from the US.
Arshack said in his motion that even as the US Department of State fully credentialed Khobragade as a diplomat assigned to the Permanent Mission of India to the UN, "additionally and unexpectedly, they have required her immediate departure from the US."
"Khobragade hereby moves this court for a dismissal of this prosecution for a lack of personal jurisdiction now that she has been designated as a diplomat and has acquired immunity.
"The case should be dismissed without necessity of any further hearing or proceedings because Khobragade as a diplomat is entitled to absolute immunity from criminal prosecution in accordance with Article 31 of the Vienna Convention on Diplomatic Relations," Arshack said.
"This court is clearly deprived of personal jurisdiction of Khobragade by virtue of her diplomatic immunity but nonetheless retains subject matter jurisdiction to hear this motion and dismiss this criminal proceeding," Arshack said.
The US State department has assured Khobragade that her departure in compliance with their order does not constitute a violation of the terms of her release from the court on bond on the visa fraud and false statements charges she faces.
Arshack said that since Khobragade has been given diplomatic status, she has "automatically" been vested with diplomatic immunity from criminal liability in the US while she continues to maintain such diplomatic status.
Arrested on December 12, Khobragade, 39, was 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.
"Here the State Department's decision to fully grant diplomatic credentials mandates the dismissal of this action in accordance with the Vienna Convention on Diplomatic Relations and the Diplomatic Relations Act. We therefore respectfully ask that the court do so immediately.
"Please accept this letter -- dismissal on motion of action against individual entitled to immunity which holds that 'Such immunity may be established upon motion or suggestion by or on behalf of the individual.'"
Arshack argued that case law has held that diplomats accredited to the UN are accorded the same diplomatic immunity as diplomats accredited to the US.
He said Khobragade had claimed complete immunity when she was first presented before the court on December 12, 2013 after her arrest on visa fraud charges.
On August 26, 2013 she had been appointed "special advisor to the UN" and was given a blue card by the UN during Prime Minister Manmohan Singh's visit for the UN General Assembly session. "Based on this credential, she had full diplomatic immunity as of August 26, 2013," Arshack added.
He further states that law enforcement agent responsible for arresting Khobragade "neglected to follow" the State Department instructions relating to diplomats with full immunity.
"The agent did not call the UN protocol office, had he done so he would have been informed of Khobragade's status and the arrest would not have occurred."
While Khobragade's special appointment as advisor to the UN expired on December 31, 2013 the full immunity she was entitled to on December 12 "establishes the arrest as illegal and the case must also be dismissed for that reason."
Arshack stressed that the Second Circuit court has made clear that courts must dismiss an action against anyone who is entitled to immunity under the Vienna Convention. He cited the US State Department advisory to its officers and judges that "diplomatic agents also enjoy complete immunity from the criminal jurisdiction of the host country's courts and thus cannot be prosecuted no matter how serious the offense unless their immunity is waived by the sending state."
"Despite any sentiments that one may have regarding the unproven merits or lack thereof of this case, the fact remains that Khobragade's diplomatic status and corresponding immunity requires adherence to the decision of the State Department with regards to the consequences of its decision."
Arshack cited the State Department's own instructions on diplomatic and consular immunity which say that "criminal immunity precludes the exercise of jurisdiction by the courts over an individual whether the incident occurred prior to or during the period in which such immunity exists."
He also submitted in court a letter dated January 8, 2014 from the US Mission to the UN to Khobaragde which states that as of 5:47 pm on that day, she has been recorded as a counsellor at the Indian Mission to the UN and is entitled to the "privileges and immunities" of a diplomatic envoy.
The letter said that members of her family living with her also enjoy immunity from the criminal jurisdiction of the US and immunity from civil and administrative jurisdiction consistent with the Vienna Convention.
He submitted another January 9 letter from the Indian Embassy in Washington to Assistant Secretary Nisha Biswal that acknowledged the note from the US mission to the UN requesting Khobragade to depart the US.
India had conveyed to the US that it will not waive the immunity of Khobragade.
Following this, a diplomatic note was sent from the US Mission to the UN, dated January 9 to the Indian mission at the UN.
The note said that "in accordance with the policy of the host country, Khobragade's name would be placed in the visa and immigration lookout systems to prevent the routine issuance of any future visa. Upon her departure a warrant may be issued for her arrest and should she seek to enter the US she could be arrested."
"This departure is based on confirmation provided by US government that in doing so Counsellor Khobragade would not be in violation of the bond conditions set by the US District Court of the Southern District of New York on December 12, 2013," the letter said.