US Embassy New Delhi RSO Wayne May Given 48 Hours to Leave India Over L’Affaire Khobragade

— Domani Spero

On January 9, a grand jury indicted Indian diplomat, Devyani Khobragade for visa fraud and for false statements.  Around the same time, Washington granted the Indian diplomat accreditation to the Indian Mission to the United Nations and requested that India waive the immunity that her new status conferred.   After India refused, Washington reportedly asked for Ms. Khobragade’s departure from the United States.  By Friday evening, the Indian diplomat was back in New Delhi, embraced as a returning hero. Mayur Borkar, the spokesman of the Republican Party of India is quoted by Reuters saying,  “We will be meeting her soon. She is an inspiration to the people of our country.” 

The State Department spokesperson Jen Psaki says that the charges remain in place and that Ms. Khobragade is not permitted to return to the United States “except to submit to the jurisdiction of the court.”

“[T]he charges against her have not changed. Once she departed – prior to her departure it was conveyed to her and to the Government of India that she is not permitted to return to the United States except to submit to the jurisdiction of the court. Her name would be placed in visa and immigration lookout systems to prevent the routine issuance of any future visa, and upon her departure, a warrant may be issued for her arrest. This does not change the charges. The charges remain in place.”

Ms. Psaki also confirmed the Government of India’s request for the withdrawal of a specific individual from the U.S. Mission in India. Note that both sides are using the polite term “withdrawal” or “expulsion” and did not make a declaration of “persona non grata” for either individual.

“I can confirm that a U.S. official accredited to the Mission India – to Mission India will be leaving post at the request of the Government of India. We deeply regret that the Indian Government felt it was necessary to expel one of our diplomatic personnel. This has clearly been a challenging time in the U.S.-India relationship. We expect and hope that this will now come to closure and the Indians will now take significant steps with us to improve our relationship and return it to a more constructive place. I don’t have any other specific details in terms of the individual and the name of the individual or their specific travel plans at this point.”

Reciprocity also known as equivalent retaliation is the diplomatic version of a stick fight. Nobody dies or the game ends, but no blow goes unreturned, regardless of who is right or wrong.

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(Click on image to read the text of the daily press brief with Ms. Psaki)

We‘ve learned yesterday from our State Department sources that the member of US Mission India who was asked to depart within 48 hours according to news report is Regional Security Officer and Supervisory Special Agent Wayne May. His wife who works at the embassy as a Community Liaison Officer will presumably also leave.  Mr. May has now departed the country according to the Times of India.  On local media, he is alleged as either having issued the visas or alleged to have facilitated the travel to the United States of Sangeeta Richard’s family. The Times of India is reporting a direct connection between RSO Wayne May and the family of the Kohbragade maid.

The parents-in-law of Sangeeta Richard, the domestic help at the centre of the India-US diplomatic spat, worked with US diplomat Wayne May who was expelled by India for his role in the Devyani Khobragade episode. This seems to be the main reason why May is said to have gone out of his way to facilitate the “evacuation” of Sangeeta’s husband Philip and children by arranging T-visas (trafficking) for them.

We don’t know much of the the specifics of this case except through the USDOJ posted documents. We do know this — Mr. May is a member of the Bureau of Diplomatic Security, the law enforcement arm of the US Department of State.  As an RSO, his responsibility includes security,  investigations and threat analysis overseas.  We estimate that he manage about a quarter of the embassy staff in New Delhi.  Since the Khobragade case was a criminal investigation, we doubt very much if Mr. May just woke up one day and decided on his own to piss off the host country by doing whatever he did. Or did not do.  As far as we know, Mr. May is not a consular officer who issues visas nor a travel agent who process airline tickets. But apparently, he is the “it” person in this multi-phase diplomatic rat-tat-tat over a diplomat who allegedly underpaid her maid and was strip searched during her arrest.

It is  our understanding that Mr. May has been the RSO in New Delhi since 2010.  So yeah, he is already due for a regular rotation.

Now, the big question is — who will the GOI demand to leave next, the fingerprint lady on Window #6?

Today, it is widely reported on Indian media that India is also insisting that the US should drop the charges of visa fraud against its diplomat as she was not guilty of any wrongdoing according to External Affairs Minister Salman Khurshid. That indictment could actually be more problematic for the GOI.  Besides its missions in Washington, D.C. and New York, India has consulates general in San Francisco, Chicago, Houston and Atlanta. The minimum wages for those locations are as follows: California-$8.00 per hour; becomes $9.00 on July 1, 2014 (San Francisco minimum wage is higher at $10.55 per hour); Illinois-$8.25 per hour; Texas -$7.25 per hour; Georgia-$5.15 per hour. California’s Domestic Worker Bill of Rights also went into effect on January 1, 2014.  Writing for Hindustan Times, former Indian foreign secretary Kanwal Sibal (via) said this: “Indian diplomats taking domestic staff to the US accept the minimum wage requirement when all concerned, including the US visa services and the State Department, know this is done pro-forma to have the paper work in order.” NDTV reports that Indian diplomats in the US are worried “since their domestic helps also come on A3 visa like Ms Richards.” The report using unnamed sources says that there are “around 14 such ‘ticking time bombs’ in the US right now.”

A side note on the “T” visas for victims of human trafficking and qualifying family members — that’s not something that one office or one person can just issue because the official feel sorry for the applicant.  The “T” visa status is obtained from the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS). One of the eligibility criteria is for an applicant to “Demonstrate that [he/she] would suffer extreme hardship involving unusual and severe harm if removed from the United States.”  Victims of trafficking applicants are also strongly encouraged to submit Form I-914, Supplement B, Declaration of Law Enforcement Officer for Victim of Trafficking in Persons, to show law enforcement agency support.  That declaration, signed by a law enforcement officer and a supervisory officer serves as primary evidence that the applicant is a victim of trafficking and that he/she has complied with reasonable requests from law enforcement. Once USCIS approves the change of status to a “T” visa, the applicant then had to deal with USCIS Vermont Service Center in St. Albans, VT.  to obtain derivative approval for qualifying family members.  Family members overseas then have to apply for their visas at their nearest embassy overseas.

To imagine that all this was orchestrated by one officer, including the investigation in the United States, and the actual filing of charges by the Southern District of New York because the escaped maid’s in-laws work for the officer’s family in New Delhi is simply ludicrous.

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U.S. Grand Jury Indicts Indian Diplomat Devyani Khobragade (See Documents)

— Domani Spero

On January 9, a U.S. Grandy Jury indicted Indian diplomat, Devyani Khobragade for visa fraud (count one) and for false statements (count two). The U.S. Attorney’s Office for the Southern District of New York has now posted copies of the indictment and the exhibits (includes the alleged fake employment contract and alleged real employment contract).

INDICTMENT, EXHIBITS & RELATED LETTER: U.S. v. Devyani Khobragade

A U.S. government official told Reuters that the State Department accepted India’s request to accredit Ms. Khobragade at the Indian Mission to the United Nations and then asked India to waive her diplomatic immunity that the status conferred.  India reportedly denied the request which resulted in Washington asking for Ms. Khobragade’s departure from the United States.

Apparently, one of Ms. Khobragade’s attorneys told CNN late Thursday afternoon that she was still in the United States, but declined to say whether she planned to leave later. The U.S. Attorney’s Office for the Southern District of New York subsequently released the following statement:

“This Office had been advised by the State Department that, pursuant to their request, Devyani Khobragade was to have left the United States this afternoon. In a letter sent to the Court upon the filing of the Indictment of Ms. Khobragade, we stated our understanding that she had left the country. Subsequent to the filing of the letter, Ms. Khobragade’s lawyer advised that she has not, in fact, departed the U.S.”

This may end the contentious U.S.-India row but this is not the end of the case against Ms. Khobragade.  In a filing to the New York court, Manhattan US attorney Preet Bharara writes that “the charges will remain pending until such time as she can be brought to Court to face the charges, either through a waiver of immunity or the defendant’s return to the United States in a non-immune status.”

Pending charges could complicate future plans of visiting or residing in the United States as Ms. Khobragade is reportedly married to a U.S. citizen.

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Indian Diplomat Devyani Khobragade Strip Search Video Is Fake – Here’s Proof

— Domani Spero

There is a video circulating on social media which claims to be showing the CCTV footage of the strip search of Indian diplomat Devyani Khobragade after her arrest in New York.   The video was “user submitted” on zemtv.com on January 3, 2013 under the headline CCTV Footage of Indian diplomat Devyani Khobragade being strip searched By U.S Police. The video is online on Tune.pk, Pakistan’s video sharing website where it has 18.9K views, on DailyMotion where it has 123,011 views and on YouTube, where the video is no longer displayed but the following notice is up “Indian diplomat D…” This video is no longer available due to a copyright claim by Arup Bhattacharya.” Both videos are 1:10 minutes in length and appears to be the same footage.

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Click on image to view the video on Tune.pk
(Warning: graphic images)

screen capture of YouTube video

screen capture of YouTube video

This alleged CCTV footage of Indian diplomat Devyani Khobragade’s strip search is a hoax.  It is ill-intentioned and could put Americans, particularly official Americans in danger.  Given that the Khobragade’s case has already spawned a good number of conspiracy theories, particularly in India, we don’t think that people will just accept it when we say this is a hoax. “Allegedly a hoax” is how the official denial that this video is a hoax is referred to in some parts of social media.

This is not/not “allegedly a hoax” but a real hoax. Nothing but video fakery and we’ve got proof.

The woman in the alleged Khobragade video is not/not the Indian diplomat but Hope Steffey, a U.S. citizen strip-searched by the Stark County sheriff’s department in Ohio in 2006.  The video was obtained by Ms. Steffey’s lawyer and released to the public in 2008 (See 12:44 minute video with Tom Meyer for WKYC-TV, Channel 3, Cleveland, OH)

The screen capture from a report by WKYC-TV (uploaded by a different YouTube user) shows the same woman on a blue mattress being strip searched.

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Click on image to view video of Hope Steffey in the Stark Country jail in Ohio, 2008.
(Warning: Graphic images)

In June 2010, WKYC-TV reported that the settlement of the Hope Steffey lawsuit against Stark County Sheriff Tim Swanson, accusing his deputies of using brutal and excessive force resulted in the payment of $475,000. The total cost to Stark County to defend and settle the Steffey lawsuit was reportedly more than $705,000.  It also resulted in the insurance premium for the country county to dramatically jump from $34,261 in 2008 to $195,350 in 2010.

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Balwinder Singh aka ‘Happy’ Charged with Conspiring to Provide Material Support to Terrorism Groups in India and Pakistan

— Domani Spero

The day after Preet Bharara, the United States Attorney for the Southern District of New York, announced the arrest of  Indian diplomat Devyani Khobragade for visa fraud and false statements and caused a diplomatic row, another arrest in Reno, Nevada of Indian national  and U.S. legal resident, Balwinder Singh for conspiring to provide material support to terrorism groups in India and Pakistan barely made the news.

Below via USDOJ:

Reno Man Charged with Conspiring to Provide Material Support to Terrorism Groups in India and Pakistan | December 13, 2013

A Reno, Nev. man has been charged with providing material support to terrorism groups in India and Pakistan in order to intimidate the Indian government and to harm persons that were not supporting their cause, announced John Carlin, Acting Assistant Attorney General for National Security, Daniel G. Bogden, U.S. Attorney for the District of Nevada, and Laura A. Bucheit, Special Agent in Charge of the FBI for Nevada.

“A thorough investigation and cooperation among agencies led to these charges,” said U.S. Attorney Bogden.  “Investigating and prosecuting matters of national security is the top priority of the U.S. Department of Justice.”

Balwinder Singh, aka Jhajj, aka, Happy, aka Possi, aka Baljit Singh, 39, of Reno, is charged in an indictment with one count of conspiracy to murder, kidnap, and maim persons in a foreign country, one count of conspiracy to provide material support to terrorists, one count of making a false statement on an immigration document, two counts of use of an immigration document procured by fraud, and one count of unlawful production of an identification document.   Singh was arrested on Tuesday, Dec. 17, 2013, in Reno, and is scheduled to appear before a U.S. Magistrate Judge on Friday, Dec. 20, 2013, for an initial appearance and arraignment.

“After an extensive investigation, the FBI-led Joint Terrorism Task Force (JTTF) of Northern Nevada has disrupted an individual’s involvement in facilitation activities in support of a foreign terrorist organization, targeting an ally of the United States,” said FBI Special Agent in Charge Bucheit. “We will continue to work with our international partners to prevent acts of terrorism on U.S. soil or, as in this case, on that of an ally. This investigation demonstrates the importance of law enforcement coordination and collaboration here and around the world.”

According to the indictment, Singh was a citizen of India who fled to the United States and claimed asylum.  Singh lived in the United States where he eventually obtained a permanent resident card from the United States.  The indictment alleges that Singh is a member of two terrorist organizations, Babbar Khalsa International (BKI) and Khalistan Zindabad Force (KZF), whose members aim to establish an independent Sikh state in part of the Punjab region of India known as Khalistan. These groups engage in bombings, kidnappings and murders in India to intimidate and compel the Indian government to create the state of Khalistan.  These groups also target for assassination persons they consider traitors to the Sikh religion and government officials who they consider responsible for atrocities against the Sikhs.

The indictment alleges that the object of the conspiracy was to advance the goals of BKI and KZF by raising money and obtaining weapons to support acts of terrorism in India.  It is alleged that the conspiracy began on a date unknown but no later than Nov. 30, 1997.  It is alleged that Singh used a false identity and obtained false identification documents in the United States so that he could travel back to India without being apprehended by the Indian authorities.  It is alleged that Singh communicated with other coconspirators by telephone while he was in the United States to discuss acts of terrorism to be carried out in India.  It is alleged that Singh sent money from Reno, Nev., to co-conspirators in India for the purchase of weapons that would be provided to members of the BKI and KZF to support acts of terrorism in India. It is alleged that Singh traveled from the United States to Pakistan, India, and other countries to meet with coconspirators to assist in the planning of terrorism in India, and that Singh provided advice to coconspirators about how to carry out acts of terrorism.

If convicted, Singh faces up to life in prison and fines of up to $250,000 on each count.

The case is being investigated by the FBI-led Joint Terrorism Task Force in northern Nevada, and prosecuted by Assistant U.S. Attorneys Sue Fahami and Brian L. Sullivan, and Trial Attorney Mara M. Kohn of the U.S. Department of Justice Counterterrorism Section.

 * * *

In related news, on December 18, in a widely reported retaliation for the treatment of its diplomat in New York, the Indian government removed the security barriers at the U.S. Embassy in New Delhi.

On December 25, Hindustan Times  writes about the “rumblings” in the U.S. Congress over the removal of the security barriers:  “We can understand the anger and the other measures,” said a senior congressional aide on condition of anonymity, “but removing the barriers has raised security concerns.

On December 29, the Times of India says that Indian officials speaking on background refuted “the US suggestion that they were being vengeful towards the US diplomatic corps and endangering the US embassy.” Seriously.  That’s why there was full press court and cameras when it took the muscular response of dismantling the concrete security barricades and spike strips around Embassy Delhi.  So apparently, the security barriers now have its own mini-drama. The TOI report says  that “A decision to remove the barriers was taken several weeks back when the US side removed a diplomatic parking lane in front of the Indian embassy in Washington DC (that also served as security perimeter) and turned it into public parking.”

Coincidences bumping into each other on the dark side of the moon.

* * *

Maid in Manhattan Case: U.S. Attorney Preet Bharara, the Man Who Makes Embassy Row Tremble

— Domani Spero

On December 12, USDOJ announced the arrest of Indian diplomat, Devyani Khobragade for visa fraud related to her underpaid domestic employee.

The uproar caused by the arrest has only grown in the last several days.  In response to the arrest of its diplomat, India took several retaliatory actions against the U.S. Mission in India. Several examples below according to DNA India, some obviously petty, but others more serious:

  • Indian government officials cancelled their meetings with a visiting US Congressional delegation.
  • Called for details including salaries paid to all Indian staff employed at the US consulates, including Consulate officers & family.
  • Stopped all import clearances for US embassy including food and liquor.
  • “The government has asked for all US Consulate personnel’s ID cards and that of their families immediately. These will now be downgraded on par with with what the US provides to our Consulates in US,” sources said.
  • Asked the US to provide it with visa information and other details of all teachers at US schools and pay and bank accounts of Indians in these schools.

Then the former External Affairs Minister and BJP leader, Yashwant Sinha, called on the government to reciprocate against the alleged mistreatment of its diplomat by arresting the same sex companions of American diplomats using a Supreme Court verdict in India that restored a ban on gay sex.  “Put them behind bars, prosecute them in this country and punish them,” Mr Sinha said.  It appears he wasn’t alone.  According to NPR, a “senior Indian diplomat” told The Hindu that the government could retaliate against the gay partners of U.S. diplomats.  “We also know who all have brought in their gay partners and on what grounds they were given visas though there is a law against it in India,” the official said. “We can’t talk about it because this law is controversial and outdated but if the U.S. wants to go to this extent, then this law and several other options are there.”

On December 17, Delhi Police also removed the security barricades set up outside the American Embassy. “The ministry of external affairs requested us to remove these traffic measures around the US embassy and clear the road. The Nyaya Marg has been opened for public,” Special commissioner of Delhi Police (security) Taj Hassan told PTI.

The Indian Government must think of embassy security as a diplomatic privilege and not an obligation.  The Global Terrorism Index ranked India 4th (after Iraq, Pakistan, Afghanistan) as most affected by terrorism over a 10-year period.  So there is obviously a reason for those barricades.

Meanwhile, the diplomat at the center of the storm has written a letter to her colleagues, which was released online, and certainly adding to the furor about her alleged mistreatment:

My dear colleagues – senior and junior, 

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. I cannot say more now but will later, I did feel the deep need to thank you all so much. 

On December 18, the Embassy of India in Washington, D.C. released a statement that provides additional details of this case including accusations that the maid, Sangeeta Richard, Ms. Khobragade’s “domestic assistant” blackmailed her former employer and also have “taken cash, mobile phone and documents.”

On the same day, Secretary Kerry reportedly called Indian National Security Advisor Menon to discuss the December 12th arrest of Deputy Consul General Khobragade.  According to the State Department, in his conversation with National Security Advisor Menon, Secretary Kerry  “expressed his regret, as well as his concern that we not allow this unfortunate public issue to hurt our close and vital relationship with India.”

Also on December 18, Manhattan U.S. Attorney Preet Bharara  released a statement on the United States v. Devyani Khobragade case, clearing up misconceptions about the circumstances surrounding her arrest. No, she was not arrested in front of her children, and she was not handcuffed or restrained. And yes, 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.” Zing!

Below is the full statement:

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.

The comments directed at Mr. Bharara on Indian media have turned nasty, a sampling here and here, but much worse on social media.

In early December 49 Russian Diplomats/Spouses Charged With Picking Uncle Sam’s Pocket in Medicaid Scam. That was Mr. Bharara’s office.  He, by, the way, has a 77-0 record in insider trading cases in his office’s campaign to root out illegal conduct on Wall Street. According to NYT, the government’s marquee conviction came in 2011, when a jury found the billionaire hedge fund manager Raj Rajaratnam guilty of insider trading.  And don’t forget Rajat Gupta, ex-director of Goldman Sachs and ex-head of consulting at McKinsey & Co., who was sentenced to two years in prison.

In 2011, Mr. Bharara, the man who makes Wall Street tremble, was India Abroad Person of the Year 2011, an event attended by who’s who of the Diaspora and India.

It looks like in 2013, Mr. Bharara is the man who makes Embassy Row tremble.

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Indian Deputy Consul General Arrested For Visa Fraud and False Statements Related to Domestic Worker

— Domani Spero

The United States Attorney for the Southern District of New York, announced the arrest of Devyani Khobragade on charges that “Khobragade allegedly caused a materially false and fraudulent document to be presented, and materially false and fraudulent statements to be made, to the United States Department of State in support of a visa application for an Indian national employed as a babysitter and housekeeper at Khobragade’s home in New York, New York.” Ms. Khobragade  39, is currently employed as the Deputy Consul General for Political, Economic, Commercial and Women’s Affairs at the Consulate General of India in New York, New York. According to the announcement, she was charged with one count of visa fraud and one count of making false statements, which carry maximum sentences of ten years and five years in prison, respectively.

One thing notable about this announcement:  “Manhattan U.S. Attorney Bharara thanked the Department of Justice’s Human Trafficking Prosecution Unit for playing an integral role in this investigation, and for providing ongoing support in this prosecution.”

The announcement made no mention of what role, if any, the State Department’s Diplomatic Security or Consular Affairs bureau played in this case. However, the statement in the complaint is made by the lead investigator of this case, DSS Agent Mark J. Smith of the Bureau of Diplomatic Security.

Below is part of the December 12 announcement via USDOJ | Manhattan U.S. Attorney Announces Arrest Of Indian Consular Officer For Visa Fraud And False Statements In Connection With Household Employee’s Visa Application

Manhattan U.S. Attorney Preet Bharara said: “Foreign nationals brought to the United States to serve as domestic workers are entitled to the same protections against exploitation as those afforded to United States citizens. The false statements and fraud alleged to have occurred here were designed to circumvent those protections so that a visa would issue for a domestic worker who was promised far less than a fair wage. This type of fraud on the United States and exploitation of an individual will not be tolerated.”

According to the allegations in the criminal complaint unsealed today in Manhattan federal court:

Diplomats and consular officers may obtain A-3 visas for their personal employees, domestic workers, and servants if they meet the requirements set out in 9 Foreign Affairs Manual (“FAM”) 41.22. As part of the application process, an interview at the embassy or consulate is required. Proof is required that the applicant will receive a fair wage, sufficient to support himself financially, comparable to that being offered in the area of employment in the U.S. To apply for an A-3 visa, the visa applicant must submit an employment contract signed by both the employer and the employee which must include, among other things, a description of duties, hours of work, the hourly wage – which must be the greater of the minimum wage under U.S. federal and state law, or the prevailing wage – for all working hours, overtime work, and payment.

DEVYANI KHOBRAGADE prepared and electronically submitted an application for an A-3 visa (the “Visa Application”) through the website for the U.S. Department of State’s Consular Electronic Application Center for an Indian national (“Witness-1”), who was to be the personal employee of KHOBRAGADE beginning in November 2012 at an address in New York, New York. The Visa Application stated that Witness-1 was to be paid $4,500 per month in U.S. dollars. KHOBRAGADE and Witness-1 also signed an employment contract (the “First Employment Contract”) for Witness-1 to bring to Witness-1’s interview at the U.S. Embassy in India in connection with the Visa Application, which Witness-1 did at KHOBRAGADE’s direction. The First Employment Contract stated, among other things, that KHOBRAGADE would pay Witness-1 the prevailing or minimum wage, whichever is greater, resulting in an hourly salary of $9.75.

KHOBRAGADE knew that the First Employment Contract that KHOBRAGADE caused Witness-1 to submit to the U.S. State Department in connection with Witness-1’s Visa Application contained materially false and fraudulent statements about, among other things, Witness-1’s hourly wage and hours worked. Prior to the signing of the First Employment Contract, KHOBRAGADE and Witness-1 had agreed that KHOBRAGADE would pay 30,000 rupees per month, which at the time was equivalent to $573.07 U.S. At 40 hours per week, with approximately 4.3 weeks in a month, $573.07 equates to a rate of $3.31 per hour. However, KHOBRAGADE instructed Witness-1 to say that she would be paid $9.75 per hour, and not to say anything about being paid 30,000 rupees per month. KHOBRAGADE also instructed Witness-1 to say that Witness-1 would work 40 hours per week, and that Witness-1’s duty hours would be 7 a.m. to 12:30 p.m., and 6:30 p.m. to 8:30 p.m. She told Witness-1 that the First Employment Contract was a formality to get the visa.

After the First Employment Contract was submitted to the United States Department of State, KHOBRAGADE told Witness-1 that Witness-1 needed to sign another employment contract (the “Second Employment Contract”). KHOBRAGADE and Witness-1 signed the Second Employment Contract, which provided that Witness-1’s maximum salary per month including overtime allowance will not exceed 30,000 rupees per month. The Second Employment Contract does not contain any provision about the normal number of working hours per week or month.

Witness-1 worked for KHOBRAGADE as a household employee in New York, New York, from approximately November 2012 through approximately June 2013. Notwithstanding the terms of the First Employment Contract, Witness-1 worked far more than 40 hours per week, and Witness-1 was paid less than $9.75 per hour by KHOBRAGADE. In fact, notwithstanding the terms of the oral agreement between KHOBRAGADE and Witness-1 and the terms of the Second Employment Contract, Witness-1 was paid less than 30,000 rupees per month, or $3.31 per hour.

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KHOBRAGADE, 39, was charged with one count of visa fraud and one count of making false statements, which carry maximum sentences of ten years and five years in prison, respectively. She is expected to appear this afternoon before U.S. Magistrate Judge Debra Freeman.

Manhattan U.S. Attorney Bharara thanked the Department of Justice’s Human Trafficking Prosecution Unit for playing an integral role in this investigation, and for providing ongoing support in this prosecution.

The Office’s Organized Crime Unit is handling the case. Assistant U.S. Attorneys Amanda Kramer and Kristy Greenberg are in charge of the prosecution.

The charges contained in the complaint are merely an accusation, and the defendant is presumed innocent unless and until proven guilty.

The Embassy of India in Washington, D.C., also released the following statement:

We were informed that Deputy Consul General of India in New York, Dr. Devyani Khobragade, was taken into custody by law enforcement authorities in New York in the morning of December 12, 2013 while she was dropping her daughter at school. Dr. Khobragade was later released that same evening.
Action was apparently taken against Dr Khobragade on the basis of allegations raised by the officer’s former India-based domestic assistant, Ms Sangeeta Richard, who has been absconding since June this year. In this context the Delhi High Court had issued an-interim injunction in September to restrain Ms Richard from instituting any actions or proceedings against Dr Khobragade outside India on the terms or conditions of her employment.
 
The US Government had subsequently been requested to locate Ms Richard and facilitate the service of an arrest warrant, issued by the Metropolitan Magistrate of the South District Court in New Delhi under Sections 387, 420 and 120B of the Indian Penal Code.
The Embassy of India in Washington DC had immediately conveyed its strong concern to the U.S. Government over the action taken against Dr Khobragade. The US side have been urged to resolve the matter with due sensitivity, taking into account the existing Court case in India that has already been brought to their attention by the Government of India, and the Diplomatic status of the officer concerned.

NDTV is reporting that India has summoned US Ambassador Nancy Powell to “lodge a strong protest against what it has called the “unacceptable treatment” of its high-ranking diplomat Devyani Khobragade, who was arrested and handcuffed in public in New York on Thursday for an alleged visa fraud.”

The Times of India reports the reaction from India’s ministry of external affairs in New Delhi with a spokesperson saying, “We are shocked and appalled at the manner in which she has been humiliated by the US authorities. We have taken it up forcefully with the US government through our embassy in Washington. We are also reiterating, in no uncertain terms, to US embassy here that this kind of treatment to one of our diplomats is absolutely unacceptable.”

This is not the first allegation involving a foreign household worker in the United States and a foreign diplomat assigned here. In the Washington Diplomat February 2010 issue, it was alleged that “the State Department has been uninterested in dealing with these cases.”

This is also not the first allegation involving the Indian Mission in the United States. In June 2011, the Consul General (CG) of India in New York, Prabhu Dayal was “slapped with forced labour charges after his 45-year-old domestic help Santosh Bhardwaj accused him of treating her like a “slave.” ( see Back in the Spotlight: Alleged Abuse of Household Workers by Foreign Diplomats with Immunity). According to thehindu.com, in 2012 a New York City Magistrate Judge also ordered Neena Malhotra, an Indian diplomat and her husband Jogesh to pay nearly $1.5 million reportedly arising from their employment of an Indian girl, Shanti Gurung who alleged “barbaric treatment” while she was employed as their domestic worker (see Gurung v. Mahotra).

For additional reading on this subject, see  GAO: July 2008 | U.S. Government’s Efforts to Address Alleged Abuse of Household Workers by Foreign Diplomats with Immunity Could Be Strengthened and GIHR: June 2011 | Domestic Workers in Diplomats’ Households Rights Violations and Access to Justice in the Context of Diplomatic Immunity.   

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