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Indian diplomat seeks dismissal of charges, return to U.S.

By Allison Malloy, CNN
updated 1:11 PM EST, Wed January 15, 2014
Indian diplomat Devyani Khobragade has filed a motion seeking to dismiss visa fraud and false statement charges against her.
Indian diplomat Devyani Khobragade has filed a motion seeking to dismiss visa fraud and false statement charges against her.
STORY HIGHLIGHTS
  • Devyani Khobragade returned India last week
  • She was indicted on federal counts of visa fraud and making false statements
  • The former deputy consul general was strip-searched after her arrest

New York (CNN) -- The Indian diplomat whose arrest and strip search in New York City ignited a diplomatic spat between nations has filed a motion seeking the dismissal of the charges, her attorney said Wednesday.

The diplomat, Devyani Khobragade, left the U.S. last week amid federal charges that she lied on a visa application for her housekeeper. A dismissal of the charges against her would allow her to reenter the United States, where her husband and two daughters reside, said her attorney, Daniel Arshack. A hearing is set for January 31.

A motion filed in federal court Tuesday asked that the case be thrown out, saying the court "does not have jurisdiction over the Defendant due to the Defendant's diplomatic status which provides her absolute immunity from criminal prosecution in the United States.

"Because Dr. Khobragade was cloaked in diplomatic immunity at the time of her arrest on December 12, 2013, as well as the time of the filing of the subsequent indictment on January 9, 2014 (on which she was not re-arrested or arraigned), she cannot be prosecuted thus necessitating a dismissal of the indictment and proceeding," the motion said.

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U.S. prosecutors accused Khobragade of lying in a visa application about how much she paid her housekeeper. She was indicted last week by a federal grand jury on one count of visa fraud and one count of making false statements.

The Indian government denied a request by the State Department to waive Khobragade's diplomatic immunity so she can answer the charges, U.S. and Indian officials said. The immunity was granted after her controversial arrest.

Khobragade arrived at the New Delhi airport Friday, according to an Indian official who was not authorized to speak to the media.

Khobragade told CNN, through an intermediary, that the charges against her "are false and baseless."

"I look forward to demonstrating that to all of you," she said through the intermediary.

Khobragade "affirmed her determination to ensure that the episode would not leave a lasting impact on her family, in particular, her children, who are still in the United States," the Indian Ministry of External Affairs said.

New Delhi is demanding that Washington apologize and have the charges dropped.

Amid the tensions over the case, the United States announced that it will withdraw one official from its embassy in New Delhi.

Federal prosecutors allege Khobragade promised in the visa application, under which her housekeeper moved from India to the United States, to pay her at least the minimum wage in New York, and to require she work no more than 40 hours per week.

They allege that Khobragade then had the housekeeper, Sangeeta Richard, sign a second contract, which set her pay far below the minimum wage and required that she work much longer hours.

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"I would like to tell other domestic workers who are suffering as I did -- you have rights and do not let anyone exploit you," Richard said in a statement released Thursday.

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Diplomatic status

Khobragade's lawyers have repeatedly said the diplomat is not guilty and is entitled to diplomatic immunity.

Khobragade "did not make any false statements and she paid her domestic worker what she was entitled to be paid," her attorney said.

Richard fled the diplomat's home last summer, and Khobragade started legal proceedings against her and her husband in the Indian courts. Richard has been granted permission to remain in the United States.

Arshack, Khobragade's attorney, said the diplomat and her legal team were pleased that the State Department had done "the right thing" Thursday by recognizing her diplomatic status.

U.S. officials had previously said Khobragade was entitled to consular immunity, which is less broad than diplomatic immunity and covers only actions carried out under official duties.

Khobragade was India's deputy consul general for political, economic, commercial and women's affairs. But after her arrest, Indian officials appointed her as counselor at the country's permanent mission to the United Nations in New York.

Through that post, she was accorded "the privileges and immunities of a diplomatic envoy," the ministry said.

Two senior U.S. officials said that the State Department had no choice but to grant Khobragade full diplomatic immunity once she was accredited to the United Nations because she did not pose a national security threat, which is the only reason for which, in very rare cases, immunity is denied.

When India refused the U.S. request to waive the immunity so that she could face the charges against her, she had to leave the country, the officials said.

Debate: Arrest, strip-search of Indian diplomat 'barbaric?'

Arrest and search

India has expressed outrage about the arrest of Khobragade, who was handcuffed and strip-searched by federal agents on December 12 after a complaint filed by Richard.

Some observers have suggested that Indian officials' protests and repeated demands for an apology are driven by political concerns.

Secretary of State John Kerry expressed "regret" about the situation last month, but stopped short of saying authorities had done anything wrong.

U.S. law enforcement officials have said that Khobragade's strip search was standard procedure and that she received a number of privileges not usually accorded to defendants.

During the spat, Indian authorities removed concrete barriers from outside the U.S. Embassy and took away American diplomats' identification cards.

That was followed recently by an order that the United States shut down "commercial activities" at a recreational facility at the U.S. Embassy in New Delhi. The U.S. Embassy should halt the activities at the property by Thursday, an Indian external affairs official said last week. The property houses a bowling alley, swimming pool and gym.

READ: U.S. withdraws official from its embassy in New Delhi

READ: Did India overreact to diplomat's arrest?

CNN's Jethro Mullen and Harmeet Shah Singh contributed to this report.

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