US says visa fraud case against Khobragade would remain

Washington: The US today continued to insist that senior Indian diplomat Devyani Khobragade will not get retroactive immunity even after her transfer to the Indian mission at the UN even as the two sides said they would remain engaged to resolve the issue. "When immunity is conferred, it does not retroactively take effect at a previous point in time but relates solely to the diplomat's current status," State Department spokesperson Jen Psaki said yesterday. "So, I think some of the confusion here has been if there is a change in status, does that mean that there is a clean slate from past charges. There's not," Psaki said.

"For anyone, it would apply for the length of time that they have that diplomatic status," the State Department spokesperson said. However, the US assertion that retroactive immunity is not possible flies in the face of precedents such as the one involving a Saudi prince in 1982 when he was accused of holding an Egyptian woman against her will in Dade County in Florida state.

Observers say that at the time of the incident, Prince Abdulaziz had no diplomatic credentials. But three weeks later, the State Department granted Abdulaziz and his family full diplomatic immunity. The Circuit Court of Appeals rejected Dade County's counter claims and held that the Prince had been eligible for diplomatic status at the time of the incident even if he had not received it. The Court ruling, in effect, endorsed the concept of retroactive immunity.

The spokesperson said the two countries were trying to resolve the issue. "As you know, we are engaged and in touch with our Indian counterparts. The Secretary has had a call. Under Secretary Sherman has been engaged. And we're continuing the conversation with our Indian counterparts privately. "We've also put out a range of statements over the past couple of days that I would certainly point you to. I also wanted to point you to the comments of External Affairs Minister (Salman) Khurshid's comments earlier today where he talked about the importance of US-India relations, talked about how valuable they are," Psaki said.

"And we certainly fully agree that it's important to preserve and protect our partnership," Psaki said. "So we will continue these discussions through diplomatic channels, through private conversations," she said. Psaki said Secretary of State John Kerry is planning to call Khurshid soon to discuss the issue and discuss a way forward. "We (Kerry) reached out to him (Khurshid), and I believe Parliament was in session; he wasn't available at the time, but he looks forward to speaking with him soon when we can align the two schedules up," she said, adding that Kerry has actively engaged on the issue and has received several briefings on the issue."

Paski contended that "Receiving diplomatic immunity does not nullify any previously existing criminal charges. Those remain on the books. Nor does obtaining diplomatic immunity protect the diplomat from prosecution indefinitely. It relates to the status of a diplomat's current status for the length of the time of that status," Psaki said. Diplomatic immunity means, among other things, that a foreign diplomat is not subject to criminal jurisdiction in the United States for the time they are a diplomat, for the time they have that immunity, she said.

After her arrest on visa fraud charges in New York last week, Khobragade, 39, was transfered this week from the Indian consulate to its Permanent Mission at the UN. Psaki also said that the US is yet to get an official request "through the proper channels for accreditation" and hinted the full diplomatic immunity would remain till the time she is posted at the UN. A 1999-batch IFS officer, Khobragade was arrested and then handed over to the US Marshals Service (USMS). She has since been posted to India's Permanent Mission in New York. Khobragade was taken into custody as she was dropping her daughter to school before being released on a USD 250,000 bond after pleading not guilty in court.

The ill-treatment of its diplomat evoked a sharp reaction from India which initiated a slew of steps to downgrade the privileges enjoyed by the US diplomats and their families. India also asked the US to drop all charges against Khobragade and demanded an apology for mistreatment. Khobragade, if convicted, could face a maximum sentence of 10 years for visa fraud and five years for making a false declaration.

Meanwhile, the UN said it has received official notification from India to register Khobragade as a member of the country's Permanent Mission and the request will be processed according to "standard procedures". "The United Nations has received notification to register Devyani Khobragade as a member of the Permanent Mission of India to the United Nations. The United Nations is processing this request per its standard procedures," Acting Deputy Spokesperson for the Secretary-General Farhan Haq told PTI.

Haq, however, said he had no comment on whether the criminal charges against Khobragade would impact her getting a UN accreditation or whether she would now enjoy full diplomatic immunity in the case.