Devyani Khobragade incident: Difference between revisions

On December 11, 2013, Devyani Khobragade, then the Deputy Consul General of the Consulate General of India in New York City, was charged by U.S. authorities with committing visa fraud and providing false statements in order to gain entry to the United States for Sangeeta Richard,^[1] a woman of Indian nationality, for employment as a domestic worker for Khobragade in New York.^[2] Khobragade was arrested the next day by U.S. federal law enforcement authorities^[3] and was then subjected to a search of her body cavities commonly called a "strip search".^[4][5] Her arrest and treatment have received much media attention particularly in India, and have led to a major diplomatic standoff between India and the United States.^[6][7]

On December 18, 2013, Khobragade was transferred by the government of India to the UN mission in New York, subject to clearance from the United States Department of State, which would entitle her to full diplomatic immunity.^[8] Her former post only entitled her to consular immunity.

On January 8, 2014, the U.S. issued Khobragade the G-1 visa that granted her full diplomatic immunity.^[9] Following this an unknown US State official is reported to have stated "The US requested waiver of immunity (of Devyani Khobragade). India denied that request. We then requested her departure, as per the standard procedure and the charges remain in place."^[10]

On January 9, 2014, Khobragade left the United States by plane to India.^[11] That same day she was indicted by a federal grand jury with visa fraud and making false statements.^[11]

Dr. Devyani Khobragade, 39, is an Indian Foreign Service officer and a medical doctor who until 18 December 2013 was deputy consul general in the Consulate General of India in New York. She joined Indian Foreign Service in 1999. In her capacity of deputy consul general for India, she handled women's affairs as well as political and economic issues. Khobragade is married to a U.S. citizen, Aakash Singh Rathore whose birthplace has not been verified, is a Visiting Scholar in the School of Arts & Sciences at the University of Pennsylvania; they have two children.^[12][13]

Sangeeta Richard, 42, an Indian national and earlier holder of an Indian diplomatic passport, worked as nanny domestic help for Khobragade from a period from November 2012 until June 2013. Her husband, Philip Richard, used to work as a driver with the Mozambique mission in New Delhi.^[14] It has been reported that the mother-in-law of Sangeeta Richard was employed with a senior US diplomat, who was posted in India between 2002–2007. It is also reported that the father-in-law of Richard is still working in the US embassy in India.^[15][16]

In November 2012, Khobragade employed Richard, as a nanny and domestic servant for residence in New York. Richard traveled on an Indian Diplomatic Passport issued by the Government of India for its diplomatic staffs. Richard entered the U.S. under an A-3 visa, which is a non-immigrant visa and permits the holder to work anywhere in the US for a specified employer.^[14][17][18]

In a legal complaint later filed by Richard and the United States government, it is described that before hire Khobragade and Sangeeta Richard verbally agreed in India to a starting salary of 25,000 rupees per month, plus an additional 5,000 rupees for overtime. Based on the exchange rate at that time, 30,000 rupees is equivalent to $573.07 U.S. dollars or about $3.31 an hour assuming a 40-hour work week.^[19] Khobragade signed a written contract with Richard which stipulated her hourly salary in the U.S. would be $9.75 and that the normal working hours per week shall be 40. This contract was submitted to the U.S. government as part of the visa application where Khobragade stated Richard would be making "around $4,500 per month".^[19] The complaint claims that Khobragade instructed Richard not to say anything to the embassy interviewer about being paid only 30,000 rupees per month, but to say she would be paid $9.75 an hour and work 40 hours a week.^[19]

The complaint then alleges that Khobragade asked Richard to sign another employment contract shortly before leaving India, which was not intended to be revealed to the U.S. government.^[20] This second contract allegedly says she was to be paid an expected salary of Rs. 30,000 per month with no mention of sick days or vacation time.^[19]

On June 21, 2013, Khobragade left her children in the care of Richard and went on an out of the town trip. On returning on June 23, 2013, Khobragade found Richard missing from her home.^[17][18] On June 24, 2013, Khobragade informed the Office of Foreign Missions (OFM) and requested help in tracing Richard. The OFM directed her to file a missing person report with New York City Police Department (NYPD). Initially NYPD refused to file the report, since Richard was not a family member. After written requests made on June 25, 2013, the NYPD filed a missing person report.^[17][18] The NYPD then closed the case and it determined that Richard had simply left.^[21]

After walking out of the house, Richard lived on the support of strangers within the Indian community in New York City, including a Sikh temple. Later, Richard contacted Safe Horizon, a nonprofit that has an anti-trafficking program, which took Richard to the State Departments with the allegations.^[21]

On July 1, 2013, Khobragade receives phone call from person claiming to be Richard's lawyer and requesting her to process change in visa status of Richard and provide compensation based on 19 hours of work per day. Khobragade refuses to negotiate on the phone and demands the caller identity.^[17][18] On July 2, 2013, Khobragade informs OFM to direct NYPD to identify the caller as the caller was trying to extort money.^[17][18] On July 5, 2013, Khobragade files complaint of "aggravated harassment" with NYPD alleging extortion and blackmail by the caller. In India, officials brief US embassy officials about the reports filed with NYPD and seeks assistance in the matter. The Indian Embassy in Washington also makes similar requests with the State Department in Washington.^[17][18]

On July 8, 2013, 'Access Immigration' a law office representing Richard calls for a meeting with Khobragade. Khobragade with other consulate officers meet Richard. Richard requests payment of US$ 10,000, conversion of her Indian diplomatic passport to an India ordinary passport and assistance for getting required US visa for continued stay in United States. Indian consulate officers inform Richard that she requires to return to India as she was on an Indian diplomatic passport and that compensation regarding work hours will be settled before departure to India.^[17]

On July 19, 2013, Philip Richard, husband of Richard files a petition in the Indian court alleging that Khobragade and Indian government held his wife in police custody in New York and had kept in "slavery-like conditions or keeping a person in bondage". The petition also state that Uttam Khobragade had called Richard's family in India and threatened them with dire consequences if Richard complains.^[22] The petition was withdrawn after four days.^[17][18]

Following this meeting, the Indian government revoked Richard's Indian diplomatic passport with effect from June 22, 2013 and inform OFM about the termination of the passport.^[14][17][18]

On September 4, 2013, the US State Department issues letter to Indian Ambassador to probe the allegation of Richard and for proof of minimum wages paid. Following this, on September 10, 2013, the Indian Ministry of External Affairs lodges strong protest with the US officials at the tone and content of the letter. Then, on September 21, 2013, the Indian Embassy sends reply to the US State Department, highlighting that Richard seeks to subvert both Indian and US laws.^[17][18]

On November 19, 2013, based on a complaint lodged by Khobragade, a Delhi Court issued a non-bailable arrest warrant against Richard, which was forwarded to US State Department and US embassy for her immediate arrest.^[17][18]

On December 10, 2013, Philip Richard, along with two children, went to the U.S, two days before Khobragade's arrest, on a T visa; this visa permits victims of human trafficking and their close relatives to stay in the U.S. to testify against those accused of human trafficking crimes.^[17][23] Indian media claimed that the cost of air tickets for Philip Richard, and two children Jennifer and Jatin, was paid by the U.S. Embassy to India.^[24]

On 11 December 2013, Khobragade was charged with visa fraud. The charges allege that she committed visa fraud willfully and under penalty of perjury under Title 28, United States Code, Section 1746. It further alleges that Khobragade submitted an employment contract to the U.S. Department of State, in support of a visa application filed by Khobragade for another individual, which she knew to contain materially false and fraudulent statements.^[19] The visa fraud charge carries a maximum sentence of 10 years in prison and the false statements charge carries a maximum sentence of five years.^[20]

Based on the charges filed by a special agent with the US Department of State, Bureau of Diplomatic Security, the United States Magistrate Judge Debra Freeman issued an arrest warrant against Khobragade. Khobragade was arrested by US Department of State's Diplomatic Security Service on December 12, 2013 around 9:30 am after dropping off her daughters at school on West 97th Street in Manhattan.^[25]

Around noon, Khobragade was escorted to the federal courthouse in downtown Manhattan, where she was transferred into the custody of the U.S. Marshals Service and strip searched by a female Deputy Marshal in a private setting.^[26] She was presented before a U.S. magistrate judge and pleaded not guilty to the charges. She was released at 4 p.m. the same day on a $250,000 recognizance bond. She also surrendered her passport.^[7]

After her release, Khobragade wrote an email to her colleagues in the Indian Foreign Service where she claimed that she "broke down many times," owing to "the indignities of repeated handcuffing, stripping, and cavity searches, swabbing," and to being held “with common criminals and drug addicts."^[27]

The next day, Indian media sources echoed her claims that after her arrest she was handcuffed, strip searched, DNA swabbed and subjected to a cavity search.^{[6][18][28][29]}

On December 18, 2013, Nikki Credic-Barrett, a spokeswoman for the U.S. Marshals Service, stated that Khobragade was strip searched but not subjected to a cavity search. Per agency regulations, a strip search can include a "visual inspection" of body cavities. Credic-Barrett also stated that anyone taken to holding cells of the New York federal courthouse is automatically subjected to a strip search if they are placed among other prisoners.^[30] With reference to DNA swabbing, Credic-Barrett said that the responsibility for collection of a DNA sample was that of the arresting agency, US Department of State, Bureau of Diplomatic Security.^[31]

On December 19, 2013 Preet Bharara, U.S. Attorney for the Southern District of New York, claimed that after her arrest, Khobragade was "accorded courtesies well beyond what other defendants, most of whom are American citizens, are accorded".^[26] For about two hours after her arrest, she was allowed to make numerous phone calls in order to arrange for child care and sort out personal matters.^[26]

The Indian government moved Khobragade to a permanent Indian Mission at the United Nations, New York which may provide her with diplomatic immunity.^[32][33] The US State Department has clarified that full diplomatic immunity which she might receive in that post would not be retroactive.^[34] On December 23, 2013, the United Nations approved a request from India to accredit Khobragade,^[35] but also stated that US approval was still needed.^[36] Khobragade was granted an exemption from personally appearing in court for the case.^[37]

Khobragade was granted a G-1 visa by the United States Department of State on January 8, 2014, under the terms of Section 15 of the Headquarters Agreement between the United Nations and the United States which gives her full diplomatic immunity and would preclude any court jurisdiction over her.^[38][39] The 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.^[40] On January 9, 2014, US grand jury indicted her on two counts, for visa fraud and making false statements to get a work visa for Sangeeta Richard, her housekeeper in New York.^[41] Preet Bharara later confirmed that, the charges against her will remain pending until she can be brought to court to face them, either through a waiver of immunity or her return to the US without immunity status.^[42] However hours after Khobragade was indicted for visa fraud, India refused the US request to waive the immunity and India transferred her to the Ministry of External Affairs in New Delhi.^[43]

On January 9, 2014, Khobragade left the United States by plane to India.^[11] As she left, she commented to an American colleague about her own leaving and Mrs. and Mr. Richard staying by saying that, "You have lost a good friend. It is unfortunate. In return, you got a maid and a drunken driver. They are in, and we are out."^[44] That same day she was indicted by a federal grand jury with visa fraud and making false statements.^[11]

There are other accounts that despite Khobragade's media bravado, she was reluctant to leave US and had to be sternly told to return to India by the Indian External Ministry.^[45]

Khobragade's children, aged 4 and 7, have remained in the U.S. with her husband. All three are United States citizens.^[44] Khobragade may only return to the U.S. to submit to the jurisdiction of a court.^[13] Upon returning to India, Khobragade expressed that she missed her family.^[46] "I wonder if I will be able to ever reunite with my family, my husband, my little kids. I miss them... What if I can never return to the US, which I cannot now. Does it mean we will never be able to live together as a family again?" she said.^[46] On 13 January it was announced that Foreign Secretary Sujatha Singh had placed a gag order on Khobragade.^[47]

On February 8, 2014 Khobragade moved for her visa fraud charge to be dismissed, reasoning that the country had no authority over her as she was granted diplomatic immunity when the indictment case was filed.^[48] The prosecution opposed the motion, reasoning: "Having left the U.S. and returned to India, the defendant currently has no diplomatic or consular status in the U.S., and the consular level immunity that she did have at the relevant times does not give her immunity from the charges in this case, crimes arising out of non-official acts."^[49]

On March 13, 2014, Judge Shira Scheindlin ordered that all charges pressed in the US against Devyani Khobragade be dropped because she had diplomatic immunity at the time of her indictment on visa fraud charges, leaving open the possibility that prosecutors could bring a new indictment now that she no longer has immunity after having departed the U.S.^[50]

On 10 January the Indian government ordered the expulsion of US diplomat Wayne May because he had assisted Richard's family in securing T-visas and traveling to the United States.^[51][52] Media sources stated that May had taken "unilateral actions" in expediting the travel of Richard's family from India and violated various procedures with respect to actions taken related to the case. Media sources also quoted disparaging remarks about India and Indian culture made by May and his wife on their personal social media accounts since their posting to New Delhi.^[53] At the time of his expulsion, May was the head of the embassy's diplomatic security contingent managing a staff of 424 security officers including 10 Marine Security Guards, and had been in India since 2010.^[54][55] The expulsion of a US diplomat by India is viewed as unprecedented as it had never happened before. In the history of the US-India relationships, a similar event has happened only once when India blocked appointment of George G B Griffin, a Reagan appointee to the post of US political counselor, the third-ranking post in the United States Embassy.^[56]

In an email to her Indian diplomatic colleagues released to the media on December 18, 2013, Khobragade wrote:^[27]

I am so grateful for all the outpouring of unequivocal support and backing that has been available to me from the fraternity. I take comfort in the confidence that this invaluable support will also be translated into strong and swift action, to ensure the safety of me and my children, as also to preserve the dignity of our service which is unquestionably under siege. While I was going through it, although I must admit that I broke down many times as the indignities of repeated handcuffing, stripping and cavity searches, swabbing, hold up with common criminals and drug addicts were all being imposed upon me despite my incessant assertions of immunity, I got the strength to regain composure and remain dignified thinking that I must represent all of my colleagues and my country with confidence and pride. I feel I can continue to do so thanks to this strong and prolific support.

In India, much of criticism of the actions of the US authorities centered on the claims made by Indian media that Khobragade was handcuffed in public, subjected to a strip search, and made to share a cell with "drug addicts".^[57]

Government officials and ministers in India reacted strongly against the arrest of the diplomat and cited the Vienna Convention on Consular Relations whereby diplomats enjoy immunity. US government officials maintain that they followed "standard procedures", and that Khobragade has only consular immunity, giving her protection from arrest related to her consular duties but not to crimes committed on US soil. India's Foreign Secretary Sujatha Singh registered a protest with the US ambassador to India Nancy Jo Powell. Powell clarified that immunity from US courts only applies to "acts performed in the exercise of consular functions."^[58]

In further protest, several senior politicians and officials from Indian government refused to meet the US Congressional delegation that was visiting India at that time. These included Speaker of the Lok Sabha Meira Kumar, Minister of Home Affairs Sushilkumar Shinde, Congress Vice President Rahul Gandhi and prime ministerial candidate of NDA for the upcoming 2014 Indian general elections and Chief Minister of Gujarat Narendra Modi.^[7][6] The US Congressional delegation included representatives George Holding, Pete Olson, David Schweikert, Rob Woodall and Madeleine Bordallo.^[59]

Former Finance Minister Yashwant Sinha called for the arrest of same-sex companions of US diplomats, citing the Supreme Court of India's recent upholding of Section 377 of the Indian Penal Code.^[60][61] The Indian government asked US consular officers posted in India to return all identity cards.^[7][6]

On December 17, 2013, Delhi Police removed security barricades on the road outside the US Embassy in New Delhi, citing need for improvement of traffic flow in that area.^[62] India has demanded an unconditional apology from the US government^[62] and asked the details of the salaries of all domestic help, gardeners and other staff employed by US consulates in India to check for inconsistency or frauds.^[62] India moved to block perks such as alcohol and food imports at concessional rates, for embassy employees.^[63] With new restrictions, U.S. Embassy Vehicles will not be immune to traffic violations, the restrictions also requires the embassy not to hold 'Commercial Activities' in its premises.^[64] Indian income tax and immigration authorities are investigating allegations of work-permit, visa and income tax fraud at the American Embassy School.^[65][66][67]

On December 18, 2013, the Prime Minister of India, Manmohan Singh, criticised the actions of the US authorities as "deplorable".^[68] Bahujan Samaj Party leader Mayawati complained that the Indian government was not reacting strongly enough, asserting that it was insufficiently supportive to Khobragade because she belonged to a Dalit caste.^[69]

Protests took place outside the US consulates in New Delhi,^[70] Mumbai,^[70] Chennai^[71] and Hyderabad.^{[68][70][72][73]}

On January 23, 2014 Indian External Affairs Minister Salman Khurshid raised with US Secretary of State John Kerry, the issue of granting US Visa to the husband of Sangeeta Richard despite a police case pending against him in a Delhi court.^[74]

On January 29, 2014 Indian Ambassador to United States, S Jaishankar opined that this incident should never have happened and called for the need of greater sensitivity, of better understanding and of stronger oversight of ties between two countries.^[75]

On 13 February 2014, the front-runner^[76] in opinion polls to lead the next Indian Government, Narendra Modi, echoed the Indian Government's position in calling for a permanent solution to the Devyani Khobragade issue during his talks with the US Ambassador Nancy Powell.^[77]

On December 18, 2013, John Kerry expressed regret over the arrest and strip-search of the Indian diplomat Devyani Khobragade and empathised as a father of two daughters at similar age as Khobragade.^[78]

Preet Bharara, U.S. Attorney for the Southern District of New York, whose office had filed the charges,^[79][80] defended the handling of the arrest and custody, though his office was not involved. He claimed that Khobragade was accorded courtesies well beyond what other defendants, most of whom are American citizens, are accorded.^[20]

On the evening of December 19, 2013, US under secretary of state for political affairs Wendy Sherman called up Indian foreign secretary Sujatha Singh to convey regrets regarding the episode. Sherman offered a consular dialogue between India and US to resolve the problems of domestic staff and immunity issue.^[81] Sherman spoke with Indian Foreign Secretary Sujatha Singh to stress the importance of ties following the arrest details and pledged to work through the complex issues of the case.^[82]

On December 19, State Department Spokeswoman Marie Harf told reporters Washington is not pressuring U.S. law enforcement to drop the case.

Sangeeta Richard, the domestic worker in the Khobragade case, is being represented by Safe Horizon, a victim assistance agency. On December 20, 2013 Dana Sussman, Staff Attorney in the anti-trafficking programme at Safe Horizon said there was "frustration and disappointment that the media and the officials portrayed this story in the way that they have."^[83] Sussman also denied claims that Richard had sought to extort money from Khobragde after leaving her employment."She essentially worked very long hours, was isolated within the home, and attempted to ask for more time off, ask for more reasonable hours, but those attempts to resolve the issues were unsuccessful." Describing Richard's reaction to the publicity surrounding the case, Sussman said "It's quite overwhelming for her. I think she's been frustrated with the response that somehow has been on the victimization of the defendant."^[21]

In court papers filed in Delhi, Richard's husband Phillip alleged that she was required to work from 6 am to 11pm every day, with just two hours off on Sunday to go to church.^[22] He also claimed that money was deducted from Richard's wages when she fell ill, and that Uttam Khobragade, Devyani's father, had threatened the Richard family with abduction and false drugs allegations if Richard complained about her treatment.^[22]

On December 20 a group of nearly fifty people representing migrant domestic workers protested for an hour outside the Indian Consulate in New York City. Among the rights groups were Safe Horizon, the victim assistance agency representing Richard, The National Domestic Workers Alliance, Damayan Migrant Workers Association and the National Guestworker Alliance. Yomara Velez of the National Domestic Workers Alliance said "We are calling for a fair trial and compensation for Richard. There is a larger issue here about diplomatic immunity and about how do we provide basic labour protections for all domestic workers not just in the US but globally as well."^[84]

• Indictment, exhibits, and related letter: U.S. v. Devyani Khobragade
• Court order dismissing the indictment in March 2014
• Why Indian-American sympathy appears to lie with narrative of the housekeeper, a narrative from The Economic Times