Table of Contents

Overview

2021/07/19 Defense Motion to Dismiss

Five “Visa Fraud” Cases

Links and References

Overview

On July 23, 2020, the Department of Justice (DOJ) announced the arrest of four scientists from China on claimed visa violation, including Dr. Juan Tang.  A fifth scientist was arrested for similar charges in August 2020.

Dr. Juan Tang has had a successful and award-winning career as a cancer researcher.   She was invited to participate in a cancer research program at the University of California, Davis, as a visiting scholar by a leading professor and researcher at the Cancer Center.

Dr. Tang was issued a J-1 visa in November 2019.  The J-1 visa is often issued to non-immigrant scholars and researchers.

DOJ charged Dr. Tang with one count of visa fraud and one count of making a false statement, alleging that she lied about her affiliation with China’s military. If convicted, she faces a maximum penalty of 10 years in prison and a fine of $250,000.

On July 22, 2021, DOJ motioned to drop their case against Dr. Tang.  U.S. District Judge John A. Mendez granted the motion to dismiss on July 23, 2021.

The other four visa fraud cases were also dismissed at the same time.

The five visa fraud cases including Dr. Tang were identified under the China Initiative, but they were removed from the DOJ online report after their dismissals. 

2021/07/19 Defense Motion to Dismiss

A jury trial of Dr. Tang was scheduled to begin in Sacramento, California on July 26, 2021.

On July 19, 2021, defense attorneys for Dr. Tang submitted a trial brief and memorandum to support dismissal at trial.  The trial brief provided background of the case and included two exhibits.

The defense attorneys contended that the FBI deliberately failed to disclose critical exculpatory evidence to the Court and to the defense, including a heavily-redacted FBI Background Note in Exhibit A.

The defense attorneys opined that China's PLA is not a direct analog to how the US military services are set up, especially regarding the PLA's Civilian Cadre, quoting from Exhibit A that “...Among the Civilian Cadre are a significant number of doctors and nurses and other professionals that at times are required to wear a military type uniform, but who would not necessarily consider themselves soldiers despite being considered as active duty.”

Three days later, DOJ motioned to drop their case against Dr. Tang, which U.S. District Judge John A. Mendez granted on July 23, 2021.

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Five “Visa Fraud” Cases

The Department of Justice (DOJ) announced visa fraud charges against four of five scientists from China on July 23, 2020.  The fifth scientist, Lei Guan, was first charged in August 2020 for Destruction and Alteration of Records in a Federal Investigation with visa fraud charges added in September 2020.

The announcement of the visa fraud cases coincided with the U.S. order to close China’s consulate in Houston, accusing it to be a "spy center" to conduct spying activities with local medical centers or universities.

The five Chinese scientists are:

• Lei Guan (关磊), Visiting researcher (mathematics), University of California at Los Angeles 

• Dr. Chen Song (宋琛), Visiting researcher (neurology), Stanford University​​

• Dr. Juan Tang (唐娟), Visiting researcher (cancer), University of California at Davis 

• Xin Wang (王欣), Visiting researcher (neurology), University of California at San Francisco 

• Kaikai Zhao (赵凯凯), Doctoral candidate (machine learning and artificial intelligence), Indiana University

These five visa fraud cases were abruptly dismissed by DOJ in July 2021 without an explanation for the dismissals. 

Wyn Hornbuckle, a Justice Department spokesman issued a statement that said "[r]ecent developments in a handful of cases involving defendants with alleged, undisclosed ties to the People’s Liberation Army of the People’s Republic of China have prompted the department to re-evaluate these prosecutions...  We have determined that it is now in the interest of justice to dismiss them.”

On July 22, 2021, Reuters reported that there was "recently disclosed evidence of a report by FBI analysts that questioned if the visa application question on 'military service' was clear enough for Chinese medical scientists at military universities and hospitals." In another report by the Washington Post, an unnamed official was quoted to say that "the punishment for visa fraud typically does not exceed a year. That fact, combined with the prospect of prolonged litigation in several instances, led officials to assess that the interests of justice were best served by dropping the cases."

Upon further research, defense attorneys for Dr. Juan Tang filed a Defendant's Trial Brief and Memorandum Supporting Dismissal at Trial on July 19, 2021.  It included a section on "The FBI’s Deliberate Failure to Disclose Critical Exculpatory Evidence to the Court and to the Defense Warrants a Dismissal of this Ill-Conceived Indictment."  

"There is dissension in the FBI’s own ranks," the trial brief started.  It cited that the government intentionally did not comply with the discovery order for the trial and highlighted that "... just days ago, a heavily redacted report dated for release four months ago, on April 1, 2021, which the government did not disclose to this Court when it ruled on Dr. Tang’s Motion to Dismiss."  Exhibit A shows a FBI Background Note dated April 1, which includes a statement that investigations and expert interviews "suggest that the visa application form (DS-160) potentially lacks clarity when it comes to declaring one's military service or affiliation."

DOJ motioned to dismiss Dr. Juan Tang’s case four days before the trial was to start on July 26, 2021.

On July 12, 2021, a partially redacted draft FBI report appeared as part of an exhibit in a non-motion response filed in the case of Lei Guan.

The 28-page exhibit includes a draft white paper that provides assessments on seven cases under the "China Initiative," including the five that were dismissed.  The draft paper states that targeting of the researcher and students "likely had minimal, short-term positive impact on the technology transfer threat from PRC students, scholars, and researchers."  In addition, "[o]nly two of the arrests has a nexus to technology transfer violations, ... and none included charges related to other counterintelligence concerns." 

The operation "likely contributed to the deterioration of the FBI's delicate yet valuable relationship with some US universities by not exercising more caution before approaching PRC students."  Although there was strong advice against investigating and arresting students and researchers with the operation, "several FBI field offices proceeded with visa fraud charges for individuals who met the criteria but did not meet the threshold for a high-priority technology transfer threat."

"It is in the best national security interest of the FBI to strategically identify, target, and mitigate PRC technology transfer threats while also preserving educational opportunities in the United States for PRC students who do not pose a threat," said an unredacted portion of the FBI report.  A footnote also stated that "the FBI does not consider clinical medicine an area of concern for PRC technology transfer."

According to the exhibit, a FBI Supervisory Intelligence Analyst drafted the report as a response to a February 2021 award nomination.  She was originally included as part of the award nomination but disagreed about the "high impact" the award's nomination claimed to have made.  She did not think the arrest of the PLA students met the threshold for high impact at that time, as she assessed at an early stage the impact was minimal.  The draft was a way for her to dispute the information contained in the awards packet.  She removed herself from the award nomination.

In December 2020, John Demers, former head of the China Initiative at DOJ, and William Evanina, former chief of the counterintelligence branch at ODNI, attributed without supporting facts and evidence that more than 1,000 Chinese researchers from affiliated with China's People's Liberation Army fled the U.S. after the FBI conducted interviews in more than 20 cities and the State Department closed China’s Houston consulate in July 2020.

Some of the visa fraud prosecutions were based on photos of the individuals in uniform.  However, wearing a uniform does not always imply military service.  

There are two non-armed branches in the uniformed services of the United States, including the Public Health Service which is a part of the Department of Health and Human Services and the National Oceanic and Atmospheric Administration Commissioned Officer Corps which is part of the Department of Commerce.