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Issue No.: 560 | February 2014
 

Khobragade: The Next Bollywood Blockbuster?

Erich C. Straub
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Given Bharara’s background, Indians can be forgiven for hatching elaborate conspiracy and revenge theories. Such theories are only fueled by the complicated relationship between India and its diaspora.

This American attorney spent part of his recent holiday watching Dhoom 3, the latest Bollywood blockbuster.  In many ways, the movie presented an updated vision of relations between India and the United States: an Indian detective joins forces with Chicago Police to go after a super-villain.  After countless motorcycle chases, plot twists and spectacularly choreographed dance scenes, team India / America solve the crime.  In the end, all is well as the two nations make the world safe for democracy.

Art following reality?  Perhaps not.  Just as Dhoom 3 was setting box office records, tensions between India and the United States were at their greatest level in over a decade.  The turmoil was over the arrest and prosecution of Devyani Khobragade, a diplomat assigned to the Indian Consulate in New York City.  She was charged in U.S. District Court with visa fraud and making false statements to the U.S. government.

The incident caused outrage in India, particularly over how the U.S. handled the arrest. The India government expressed its displeasure by taking numerous retaliatory measures against the U.S. Embassy in New Delhi. While India’s initial response might be dismissed as largely symbolic, the crisis has become more serious with the U.S. cancelling at least two significant diplomatic missions. The controversy has also found its way into the rhetoric of India’s electoral candidates, which likely ensures that it will linger far beyond any legal resolution in the U.S.

In this article, I will analyze the Khobragade case with an emphasis on the American legal process in both the immigration and criminal context. In doing so, I will not take the side of either Khobragade or her maid, Sangeeta Richard. However, I will make one judgment at the outset: whatever the facts, the matter was handled very poorly by the U.S. from a diplomatic perspective. A dispute between a single employer and employee never should escalate to an embarrassing international incident between two allies. Rather than simply placing blame, however, I will attempt to answer the more important question: why did the U.S. manage it so badly?  I believe the answer will be found in the actions, motivations and agency cultures of the U.S. officials involved.

U.S. Immigration Law

As an employee of the Indian Consulate in New York, Khobragade had an A-1 visa, which is granted to diplomats traveling to the U.S. to engage in official business. She also applied for an A-3 visa for an Indian maid, Sangeeta Richards, to live and work for her in the U.S. The A-3 visa allows a diplomat to hire a personal attendant, employee or servant from his or her own country, but the diplomat is required to comply with all U.S. labor laws, including wage and hour requirements.  The actual employment agreement must be submitted as part of the A-3 visa application, which is scrutinized by the U.S. Department of State (DOS) before the visa is issued.

Khobragade submitted the necessary employment contract, and the A-3 visa was approved. The U.S. prosecutor, Preet Bharara, alleges that Khobragade then executed a second employment contract with Richards, which did not comply with U.S. labor laws. Bharara further claims the first contract was fake, and the second contract actually governed the employment relationship with the maid being paid below the required wage and working beyond the maximum number of hours allowed.

Federal Criminal Law

Khobragade has been charged with two felonies in U.S. District Court. There are two major classifications of crimes under U.S. law: misdemeanor and felony. A felony is the more serious by far. Felons can be sentenced to lengthy terms in prison and even lose some constitutional rights. So why was Khobragade charged with such a serious offense in a situation which seems, to many Indians, like a fairly common employment dispute? The answer lies in the criminal charges and the culture of the two government agencies involved: the U.S. Departments of Justice (DOJ) and State (DOS).

Preet Bharara is the federal prosecutor for DOJ in New York City. Federal prosecutors have a long history of using false statements as one of the primary tools in their arsenal. One of the most celebrated examples is the prosecution in 1931 of the notorious gangster, Al Capone. While Capone was far more infamous for smuggling, prostitution, bribery and murder, federal prosecutors finally got their man on the rather mundane charge of lying on his tax forms. Thus, in charging Khobragade with false statements and visa fraud, Bharara was following a time-honor strategy of federal prosecutors.

There is a similar sensitivity to false statements and fraud at the U.S. Department of State (DOS), particularly in the consular sections that are responsible for issuing visas.  Like DOJ, the culture has a long history, but it has been amplified since the terror attacks of September 11, 2001.  The federal law enforcement agent investigating Khobragade’s case was from DOS, which is significant given the culture of his agency.

Does this mean that Khobragade was treated like Al Capone, or that she deserved to be so?  My emphatic answer to both questions is no. However, the culture biases of both agencies must be considered. When examined, they begin to offer an explanation (not an excuse) for how U.S. law enforcement was so blind to the international political firestorm that it was about to unleash. Preet Bharara’s news conference is a perfect example. One of the strongest reactions from India was to the strip search of Khobragade. Bharara’s response was telling: "this is standard practice for every defendant, rich or poor, American or not . . . .”  While Bharara’s explanation certainly would satisfy a DOJ checklist of standard operating procedures, it is utterly devoid of the sensitivity that is expected when one ally criminally charges the diplomat of another.  

Preet Bharara – The Indian-American Prosecutor

It is also critical to examine the background of Bharara, who is perhaps the primary actor in this drama in his role as prosecutor. In an almost delicious, Bollywood-esque bit of irony, Bharara was born in India. He moved to the U.S. at the age of 3 and is a naturalized U.S. citizen. His father is Sikh and his mother is Hindu. His wife has Pakistani/Muslim and Jewish roots. It is difficult to imagine an American who is better equipped to understand the political and cultural complexities of India and bring diplomatic sensitivity to a case like Khobragade’s.

Given Bharara’s background, Indians can be forgiven for hatching elaborate conspiracy and revenge theories. Such theories are only fueled by the complicated relationship between India and its diaspora. Typically, Indian diaspora are extremely proud of their Indian heritage but are sometimes embarrassed at aspects of the culture that they view as backward. Conversely, Indians are often extremely proud of the accomplishments of their Indian diaspora but are sensitive to any signs of arrogance.  

I am not a fan of conspiracy theories. As an attorney with 20 years experience in the federal legal system, I see a much more plausible explanation for Bharara’s conduct.

First, prosecutors are usually extremely passionate about the justness of their cause, but that can sometimes blind them to other important factors in a case. Other than the claims of fraud, Bharara has made very significant allegations against Khobragade including the following: she grossly underpaid her maid; she made her work long hours; she refused to allow her to return to India and kept possession of her passport; and she retaliated against her in the Indian court system. Again, there are always two sides to every story, and Khobragade has not yet been given an opportunity to tell her side. To an American prosecutor, however, these allegations are unmistakable signs of human trafficking and a very serious crime. I am convinced that Bharara is primarily motivated by what he sees as a grave injustice against Richards.

But the path to hell can be paved with good intentions. I have no doubt Bharara still believes in the justness of his cause, but if the Khobragade drama has not created a bit of hell for him, it most certainly has become a major headache. To this point, Bharara has enjoyed an almost storybook rise to the pinnacle of the American legal system.  He is not just any U.S. Attorney. He is the U.S. Attorney for the Southern District of New York, which is sometimes mockingly referred to by those in the federal system as the "Sovereign” District of New York. Thomas Dewey and Rudy Giuliani are some of his predecessors. Behind Attorney General Eric Holder, he is arguably the most powerful prosecutor in America. He has been on the cover of Time Magazine and is certainly being groomed for greater things. Even the powerful sometimes make seemingly obvious and avoidable mistakes.

Finally, is it possible that Khobragade incident is some greater message from the Obama administration to India? That is highly unlikely in my opinion. No hypothetical foreign policy message emerges from the mess. Further, nothing that Bharara did prior to Khobragade’s arrest would have required the approval of higher officials such as Secretary of State John Kerry, let alone Obama. Historically, U.S. Attorneys exercise tremendous discretion, particularly in criminal prosecutions.  The Department of State has also taken steps to repair relations by granting full diplomatic immunity to Khobragade. The criminal charges still stand, but the Obama administration likely is very reluctant to scold their star prosecutor from New York in public. In the end, the U.S. and India have common enemies on the world stage and need each other too much. Certainly, both countries will soon take their cue from Dhoom 3, and team up once again to go get the bad guys.

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ERICH C. STRAUB is an attorney concentrating in family and business immigration as well as deportation defense. He has been licensed in the U.S. since 1994. In the area of immigration law, he has been listed in Best Lawyers in America since 2006 and in Super Lawyers since 2009.  He was chairperson of the Wisconsin Chapter of the American Immigration Lawyers Association (AILA) and served on the AILA Board of Governors from 2007 to 2009.

Prior to focusing his practice on immigration, Mr. Straub was a criminal defense attorney for almost a decade. During that time, he successfully defended hundreds of cases in state and federal court. Because of this prior experience, he has a unique combination of experience in criminal and immigration law. 

Mr. Straub has spoken to audiences throughout the U.S. and has appeared on local radio and television on the topic of immigration. He has worked to improve laws that affect immigrants on both the state and federal level and has traveled to Washington DC to meet with elected officials regarding immigration issues. He has been described in the media as a "national leader on the federal immigration issue.”
 
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