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 Sarah 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 here 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.