http://www.justice.gov/usao/nys/pressreleases/December13/KhobragadeArrestPR/Khobragade,%20Devyani%20Complaint.pdf Full text of US State Dept. complaint of Dec. 11, 2013 against Devyani Khobragade
The Full Allegations Against Indian Diplomat Devyani Khobragade
By WSJ Staff
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- Agence France-Presse/Getty Images
- The U.S. Embassy in New Delhi on Dec. 17.
U.S. authorities say Devyani Khobragade, the Indian diplomat arrested and charged with visa fraud in the U.S., submitted an employment contract to the State Department that she knew contained “materially false and fraudulent statements,” when she applied for a visa for another individual.
U.S. Department of State Bureau of Diplomatic Security Special Agent Mark. J. Smith who led the investigation, alleges Ms. Khobragade caused another individual to make statements that she knew to be false to an employee at the U.S. Embassy in New Delhi, in support of the visa application.
Ms. Khobragade is on bail. Repeated attempts to reach her for comment were unsuccessful.
Her lawyer, Daniel Arshack, said in an email that his client was “protected from prosecution by virtue of her diplomatic status.”
“This entire prosecution represents a significant error in judgment and an embarrassing failure of US international protocol,” Mr. Arshack said. “We hope that diplomats with authority at the highest levels of the Indian and U.S. governments will confer and conclude that it is simply not in the mutual interests of our countries to continue with this ill-advised prosecution.”
The State Department investigator’s statement says that Ms. Khobragade “enjoys limited diplomatic immunity with respect to only those acts undertaken in her official capacity.”
Under international law, consular officers such as Ms. Khobragde, who is deputy consul general for India in New York, have limited immunity and can be arrested in the case of “grave” crimes.
A guide for U.S. police on treatment of consular officers and diplomats published by the State Department, notes that the privileges of “personal inviolability” accorded to consular officers is “quite limited.”
Mr. Smith’s statement quotes from the U.S. Department of State Bureau of Consular Affairs website, which says diplomats may obtain visas for their personal employees, domestic workers and servants if they meet certain requirements.
The prospective employees must be interviewed, and have proof that they will “receive a fair wage, sufficient to financially support” themselves and be paid a wage “comparable to that being offered in the area of employment in the U.S.”
Among other stipulations on hours of work, holiday and sick leave, the regulations also make requirements for the minimum wage to be paid to the domestic worker.
“The rate must be the greater of the minimum wage under U.S. Federal and state law or the prevailing wage for all working hours,” the rules say. “The contract must state that wages will be paid to the domestic employee either weekly or biweekly.”
No deductions are allowed for lodging, medical care, medical insurance, or travel. Deductions taken for meals are also no longer allowed.
The investigating officer’s affidavit goes on to say that during a meeting at Ms. Khobragade’s house in Delhi with the prospective domestic worker, Ms. Khobragade agreed to pay 30,000 rupees a month for babysitting and additional household work in New York.
According to the domestic help and her partner, named in the statement as Witness 1 and Witness 2, at a subsequent meeting, Ms. Khobragade agreed to pay the domestic help a starting salary of 25,000 rupees and overtime of 5,000 rupees.
The investigating officer said that at exchange rates at the time, the salary equated to a rate of $3.31 an hour or $573.07 a month.
The visa application form, submitted by Ms. Khobragade, according to the investigator, stated that she would pay the domestic worker $4,500 dollars a month.
The investigating officer went on to record that Ms. Khobragade instructed the domestic worker to tell U.S. Embassy officials that she was being paid $9.50 an hour, and told her not to mention the 30,000 rupee salary.
The statement adds that the diplomat then asked the employee to sign a second employment contract, which stated that she would be paid no more than 30,000 rupees a month, including overtime. The contract did not say anything about working hours, sick pay, time off, or holidays, the investigating officer said, adding that it omitted to state that the employer agreed to abide by federal, state and local laws in the U.S.
Mr. Smith alleges that Ms. Khobragade paid her domestic help less than $3.31 an hour during her employment between Nov. 2012 and June 2013.
Read the full State Department document.
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Statement Of Manhattan U.S. Attorney Preet Bharara
On U.S. V. Devyani Khobragade
FOR IMMEDIATE RELEASE
Wednesday, December 18, 2013
There has been much misinformation and factual inaccuracy in the reporting on the charges against Devyani Khobragade. It is important to correct these inaccuracies because they are misleading people and creating an inflammatory atmosphere on an unfounded basis. Although I am quite limited in my role as a prosecutor in what I can say, which in many ways constrains my ability here to explain the case to the extent I would like, I can nevertheless make sure the public record is clearer than it has been thus far.
First, Ms. Khobragade was charged based on conduct, as is alleged in the Complaint, that shows she clearly tried to evade U.S. law designed to protect from exploitation the domestic employees of diplomats and consular officers. Not only did she try to evade the law, but as further alleged, she caused the victim and her spouse to attest to false documents and be a part of her scheme to lie to U.S. government officials. So it is alleged not merely that she sought to evade the law, but that she affirmatively created false documents and went ahead with lying to the U.S. government about what she was doing. One wonders whether any government would not take action regarding false documents being submitted to it in order to bring immigrants into the country. One wonders even more pointedly whether any government would not take action regarding that alleged conduct where the purpose of the scheme was to unfairly treat a domestic worker in ways that violate the law. And one wonders why there is so much outrage about the alleged treatment of the Indian national accused of perpetrating these acts, but precious little outrage about the alleged treatment of the Indian victim and her spouse?
Second, as the alleged conduct of Ms. Khobragade makes clear, there can be no plausible claim that this case was somehow unexpected or an injustice. Indeed, the law is clearly set forth on the State Department website. Further, there have been other public cases in the United States involving other countries, and some involving India, where the mistreatment of domestic workers by diplomats or consular officers was charged criminally, and there have been civil suits as well. In fact, the Indian government itself has been aware of this legal issue, and that its diplomats and consular officers were at risk of violating the law. The question then may be asked: Is it for U.S. prosecutors to look the other way, ignore the law and the civil rights of victims (again, here an Indian national), or is it the responsibility of the diplomats and consular officers and their government to make sure the law is observed?
Third, Ms. Khobragade, the Deputy General Consul for Political, Economic, Commercial and Women’s Affairs, is alleged to have treated this victim illegally in numerous ways by paying her far below minimum wage, despite her child care responsibilities and many household duties, such that it was not a legal wage. The victim is also alleged to have worked far more than the 40 hours per week she was contracted to work, and which exceeded the maximum hour limit set forth in the visa application. Ms. Khobragade, as the Complaint charges, created a second contract that was not to be revealed to the U.S. government, that changed the amount to be paid to far below minimum wage, deleted the required language protecting the victim from other forms of exploitation and abuse, and also deleted language that stated that Ms. Khobragade agreed to “abide by all Federal, state, and local laws in the U.S.” As the Complaint states, these are only “in part” the facts, and there are other facts regarding the treatment of the victim – that were not consistent with the law or the representations made by Ms. Khobragade -- that caused this Office and the State Department, to take legal action.
Fourth, as to Ms. Khobragade’s arrest by State Department agents, this is a prosecutor’s office in charge of prosecution, not the arrest or custody, of the defendant, and therefore those questions may be better referred to other agencies. I will address these issues based on the facts as I understand them. Ms. Khobragade was accorded courtesies well beyond what other defendants, most of whom are American citizens, are accorded. She was not, as has been incorrectly reported, arrested in front of her children. The agents arrested her in the most discreet way possible, and unlike most defendants, she was not then handcuffed or restrained. In fact, the arresting officers did not even seize her phone as they normally would have. Instead, they offered her the opportunity to make numerous calls to arrange personal matters and contact whomever she needed, including allowing her to arrange for child care. This lasted approximately two hours. Because it was cold outside, the agents let her make those calls from their car and even brought her coffee and offered to get her food. It is true that she was fully searched by a female Deputy Marshal -- in a private setting -- when she was brought into the U.S. Marshals’ custody, but this is standard practice for every defendant, rich or poor, American or not, in order to make sure that no prisoner keeps anything on his person that could harm anyone, including himself. This is in the interests of everyone’s safety.
Fifth, as has been reported, the victim’s family has been brought to the United States. As also has been reported, legal process was started in India against the victim, attempting to silence her, and attempts were made to compel her to return to India. Further, the Victim’s family reportedly was confronted in numerous ways regarding this case. Speculation about why the family was brought here has been rampant and incorrect. Some focus should perhaps be put on why it was necessary to evacuate the family and what actions were taken in India vis-à-vis them. This Office and the Justice Department are compelled to make sure that victims, witnesses and their families are safe and secure while cases are pending.
Finally, this Office’s sole motivation in this case, as in all cases, is to uphold the rule of law, protect victims, and hold accountable anyone who breaks the law – no matter what their societal status and no matter how powerful, rich or connected they are.