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Published: Wednesday January 15, 2014 MYT 2:46:47 AM
Updated: Wednesday January 15, 2014 MYT 2:47:49 AM

Indian diplomat seeks dismissal of U.S. criminal case

Indian diplomat Devyani Khobragade (C) arrives with her father Uttam Khobragade (L) at Maharashtra Sadan state guesthouse in New Delhi January 10, 2014. REUTERS/Stringer

Indian diplomat Devyani Khobragade (C) arrives with her father Uttam Khobragade (L) at Maharashtra Sadan state guesthouse in New Delhi January 10, 2014. REUTERS/Stringer

NEW YORK (Reuters) - A lawyer for Indian diplomat Devyani Khobragade on Tuesday asked a U.S. judge to throw out immigration and employment charges against her that led to a major diplomatic spat between the United States and India.

The lawyer, Daniel Arshack, argued that Khobragade's diplomatic status, granted by the State Department last week as part of a deal allowing her to leave the country, gave her absolute immunity from prosecution, even for incidents that allegedly occurred before her accreditation.

The U.S. Attorney's office in Manhattan, which indicted Khobragade on Thursday, did not immediately comment on the filing.

Khobragade, a U.S.-based consular official, was arrested on December 12 and accused of underpaying her housekeeper. News of her arrest and a subsequent strip search provoked protests in India and strained ties between the two countries.

She was accredited as a member of India's mission to the United Nations on Wednesday, one day before she was indicted and asked to leave the country.

In his motion on Tuesday, Arshack said the State Department's own guidance for law enforcement agencies states that immunity extends to incidents that occurred prior to the granting of that immunity. Thus, he said, the case against Khobragade is a "nullity" and should be dismissed.

If Judge Shira Scheindlin dismisses the indictment, that would presumably permit Khobragade, whose husband and children are U.S. citizens, to travel freely to the United States.

Prosecutors had said last week charges would remain pending against Khobragade until such time as she can be brought to court to face them.

State Department officials have said they do not believe her immunity is retroactive. In a press briefing on Friday, spokeswoman Jen Psaki said Khobragade would face prosecution if she returned to the United States.

"Her accreditation in this case to the UN does not remove existing charges," Psaki said. "In addition, now that she has left the United States, she no longer enjoys immunity."

The case is U.S. v. Khobragade, U.S. District Court for the Southern District of New York, No. 14-cr-00008.

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