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United States v. Yang

United States District Court, N.D. California, San Jose Division

November 1, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JENNIFER YANG and DANIEL WU, Defendants.

          ORDER DENYING MOTION TO DISMISS COUNTS TWO, THREE, FOUR, AND FIVE; MOTION TO DISMISS COUNTS SEVEN AND EIGHT RE: DKT. NOS. 163, 165, 182, 212

          LUCY H. KOH, UNITED STATES DISTRICT JUDGE

         Before the Court are Defendant Jennifer Yang's (“Yang”) motion to dismiss Count Two, Three, Four, and Five of the Superseding Indictment, ECF No. 163, and Yang's motion to dismiss Counts Seven and Eight of the Superseding Indictment, ECF No. 165. Having considered the filings of the parties, the relevant law, and the record in this case, the Court DENIES Yang's motion to dismiss Counts Two, Three, Four, and Five of the Superseding Indictment. The Court also DENIES Yang's motion to dismiss Counts Seven and Eight of the Superseding Indictment.

         I. BACKGROUND

         A. Factual Background

         The Court takes the following facts from the Superseding Indictment, as required on a motion to dismiss an indictment for failure to state an offense. United States v. Boren, 278 F.3d 911, 914 (9th Cir. 2002) (“On a motion to dismiss an indictment for failure to state an offense, the court must accept the truth of the allegations in the indictment in analyzing whether a cognizable offense has been charged.”).

         1. The EB-5 Visa Program

         The EB-5 visa program permits foreigners and their immediate family members to obtain a path to Lawful Permanent Residency (“LPR”) in the United States by investing $1, 000, 000 in a commercial enterprise. ECF No. 4 (“SI”) ¶ 9. The investment need only be $500, 000 if it is invested in certain geographic areas with low employment rates. Id. After two years in the EB-5 visa program, if the investor's commercial enterprise creates ten or more jobs, United States Citizen and Immigration Services (“USCIS”) will lift the restrictions on the investor's temporary residency status and grant the foreigner and her immediate family full LPR status. Id. ¶ 11.

         One way to participate in the EB-5 visa program is through the creation of New Commercial Enterprises (“NCE”), which is defined as an investment in a new or existing business that generates new jobs in the United States. Id. ¶ 12. USCIS permits multiple investors to invest in the same NCE for the purposes of the EB-5 visa program. Id. However, the job creation requirement remains the same for each investor. Id. Thus, if two individual investors opt to invest in the same NCE, a total of twenty jobs must be created in order to satisfy the EB-5 visa program's job creation requirement. Id.

         The first step to apply for an EB-5 visa is to submit a form I-526, Immigrant Petition by Alien Investor. Id. ¶ 13. The form I-526 requires the name and biographical data of the proposed investor; the name, address, and description of the investor's commercial enterprise; the date and amount of investment; and the investor's job title and duties. Id.

         The form I-526 also requires supporting documentation, such as evidence that the investor has, among other things, established a lawful business entity and invested, or is actively in the process of investing, the required capital. Id. ¶ 14. Additionally, the investor must provide evidence that the enterprise will create at least ten full-time positions, as defined by USCIS. Id. Finally, the investor must provide evidence that the investor will be engaged in the management of the commercial enterprise. Id. The form I-526 requires the investor to “certify, under penalty of perjury under the laws of the United States of America, that this petition and the evidence submitted with it is all true and correct.” Id. ¶ 15.

         Upon approval of the I-526 petition, the investor must then file a form I-485, Application for Conditional Permanent Residency Status. Id. ¶ 16. The form I-485 confers conditional permanent residency status to the investor, and this conditional permanent residency status lasts for two years. Id. Within 90 days of the second anniversary of the date that the investor received conditional permanent residency status, the investor must finally file a form I-829, Petition by Entrepreneur to Remove Conditions. Id.

         The form I-829 requests that USCIS grant LPR status to the investor. Id. Similar to the form I-526, the form I-829 requires the name and biographical data of the investor; the name of the investor's immediate family members that will receive LPR status; the date and amount of the investment; and the number of jobs created by the investor. Id.

         The form I-829 requires supporting documentation such as evidence that the commercial enterprise exists and was maintained through the period of the investor's conditional permanent residency status. Id. ¶ 17. The investor must also provide evidence of the number of the full-time employees of the commercial enterprise when the investment was first made, and the number of full-time employees of the commercial enterprise when the form I-829 was submitted. Id. This proof can consist of documents such as I-9s and W-2s. Id. The form I-829 is subject to the same penalty of perjury provision as the form I-526. Id. ¶ 18.

         2. The Alleged Schemes

         Yang was a resident of Palo Alto, California, and a licensed attorney since 2004. Id. ¶ 1. Daniel Wu (“Wu”) was a resident of Las Vegas, Nevada and before that, San Mateo, California. Id. ¶ 2. Yang and Wu were married in 1993 and lived as husband and wife until 1998. Id.

         Since approximately 2007, Yang held herself out as a legal specialist for individuals interested in applying to the EB-5 visa program. Id. ¶ 19. Yang founded, owned, and served as control person of Capital Law Group, LLP (“CLG”), a law firm located in Palo Alto, California. Id. ¶ 3. CLG represented individuals seeking benefits under the EB-5 visa program. Id.

         Yang and Wu possessed ultimate authority over four entities: (1) 1-855-Lawyers, Inc., (2) 81 Law, Inc., (3) 81 Doc, Inc., and (4) Searchcaser, Inc. Id. ¶ 20. Yang and Wu also controlled the bank accounts associated with these four entities. Id. Through their control of CLG and the four entities, Yang and Wu allegedly filed petitions connected to the EB-5 visa program for at least seven different investors. Id. ΒΆ 21. In exchange, Yang and Wu allegedly received at least $4, ...


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