Estimated reading time: 9 minute(s)
On September 21, 2020, a criminal complaint filed by the United States Attorney for the Eastern District in Federal Court against Baimadajie Angwang, a New York Police Department Officer and U.S. Army reservist, was unsealed. The criminal complaint alleges that Mr. Angwang worked for several years as an illegal agent of China, abusing his position to spy on ethnic Tibetans in the United States and to give his Chinese Government handlers insights into the workings of the NYPD. Mr. Angwang was also charged with committing wire fraud, making false statements, and obstructing an official proceeding. The disturbing charges were significant enough to merit a press release from the main U.S. Department of Justice as well as several news articles.
Focusing on Immigration References in the Complaint
Here at The New Leaf Journal, I have written several articles about the malign influence of the Chinese Communist Party. I have also written a couple of mostly unrelated articles on the subject of U.S. immigration law. For this post, I will bring these two interests together into one article, discussing a couple of interesting immigration issues alluded to in the U.S. Attorney’s criminal complaint against Mr. Angwang. You can read the entire criminal complaint here. I will reference specific page numbers of the complaint for the benefit of those of you who would like to follow along.
Before continuing, please note that I am only looking at various immigration issues referenced in the criminal complaint in brief. Some of the subjects discussed, such as asylum and naturalization, are the subject of many large text books.
How Did Mr. Angwang Initially Enter the United States?
Mr. Angwang is a 33-year old ethnic Tibetan native of China. Page 4 of the criminal complaint states that “Angwang initially traveled to the United States on a cultural exchange visa.”
There are two types of visa categories which encompass cultural exchange programs. Both of these visa categories are for “nonimmigrants,” meaning that beneficiaries of these visas are authorized to stay in the United States for purpose of engaging in, and completing, a cultural exchange program.
The Q-1 visa category allows foreign nationals to enter the United States to participate in certain internationally recognized cultural exchange programs. In order for a cultural exchange program to qualify for Q-1 purposes, the program must be approved by the Secretary of Homeland Security. The Q-1 category does allow for employment in the United states within the confines of the approved cultural exchange program. A foreign national may spend up to 15 months in the United States as a Q-1 cultural exchange visitor before departing, and he or she may not be approved for a subsequent Q-1 visa until one year has passed since the end of the prior program.
The J-1 nonimmigrant visa program is a broader category for exchange visitors, serving diverse purposes from the au pair program to graduate medical education or training. The J-1 category also allows for foreign nationals to enter the United States to engage in certain cultural exchange programs designated by the U.S. Department of State. Similarly to the Q-1 program, J-1 visitors are nonimmigrants who are permitted to remain in the United States for a specific period of time tied to the purpose of their program. Some categories of J-1 visitors are subject to a two-year home residency requirement after completing their programs, during which time they are not permitted to enter the United States.
The criminal complaint neither specifies under which visa Mr. Angwang initially entered the United States nor when he entered. My guess, however, is that the use of the specific term “cultural exchange visa” instead of the more generic “exchange visitor” suggests that Mr. Angwang had initially obtained a Q-1 visa.
Tracing Mr. Angwang’s Asylum Claim
Page 4 of the criminal complaint states that at some point after having initially entered the United States on a cultural exchange visa, he obtained a second unspecified nonimmigrant visa. According to the complaint, he overstayed this visa, meaning that he remained in the United States longer than he was permitted to under the terms of his visa. Overstaying a visa typically renders an alien removable under section 237(a)(1)(B) of the Immigration and Nationality Act, and subject to civil removal proceedings.
As we know, however, Mr. Angwang was not removed from the United States. The complaint explains that he “eventually sought asylum in the United States on the basis that he had allegedly been arrested and tortured in [China] partly [due] to his Tibetan ethnicity.” In order to qualify for asylum in the United States, an alien must establish that he or she was persecuted or has a well-founded fear of persecution based on one of five protected grounds set forth in section 101(a)(42)(A) of the Immigration and Nationality Act: race, religion, nationality, membership in a particular social group, or political opinion. Here, presumably, Mr. Angwang claimed that he had been persecuted in the past on the basis of his race, which generally encompasses ethnicity, but he may have also raised claims of persecution on the basis of religion and/or membership in a particular social group. In general, barring certain exceptions, Immigration and Nationality Act 208(a)(2)(B) requires an alien must apply for asylum within one year of his or her most recent entry into the United States – it is likely Mr. Angwang applied within the time limit. Finally, having been persecuted in the past gives rise to a rebuttable presumption that the applicant has a well-founded fear of future persecution on the same basis as the past persecution. 8 C.F.R. 1208.13(b)(1); Matter of D-I-M-, 24 I&N Dec. 448, 450 (BIA 2008). The Government may also seek to rebut the applicant’s fear of future persecution by showing that he or she could safely relocate internally within the country of intended removal.
In any event, it appears that Mr. Angwang’s asylum application was approved, putting him on the path to lawful permanent resident status and U.S. citizenship.
From Asylee to U.S. Citizen
Asylees may apply for “adjustment of status” after meeting several requirements. The effect of adjustment of status is that the alien’s status changes from that of an asylee to that of an alien lawfully admitted for permanent residence – colloquially known as a “Green Card holder.” In order to qualify for adjustment, Immigration and Nationality Act section 209(b) requires that the asylee affirmatively apply for adjustment, have been physically present in the United States for at least one year after having been granted asylum, continue to meet the statutory definition of a “refugee” set forth in section 101(a)(42)(A), not be “firmly resettled” in a third country, and be admissible to the United States.
Unlike the refugee category, which is similar to asylum in purpose but operates under different rules and procedures, an asylee is not required to apply for adjustment of status in order to retain asylee status. Under current interpretations, if an alien successfully adjusts her status from that of asylee to that of an alien lawfully admitted for permanent residence, the alien’s asylum status and the special protections that inhere are terminated, and the alien is subsequently treated as a permanent resident. Matter of N-A-I-, 27 I&N Dec. 72 (BIA 2017).
A lawful permanent resident may begin the naturalization process to obtain U.S. citizenship after having been a permanent resident for at least five years prior to the application (shorter durations are allowed in limited cases). The applicant must establish that he or she was an alien of “good moral character” for the statutory period, and meet several other requirements relating to presence and residence in the United States. The naturalization rules are beyond the scope of this humble article, but you can find a good overview of the process and its rules in volume 12 of the United States Citizenship and Immigration Services Policy Manual.
The criminal complaint suggests that Mr. Angwang charted a course from nonimmigrant to asylee to permanent resident to naturalized U.S. citizen.
Is Denaturalization Possible in this Case?
In rare cases, a naturalized U.S. citizen may be subjected to “denaturalization,” that is, the loss of U.S. citizenship. If a naturalized citizen is denaturalized, his or her status reverts to that of an alien lawfully admitted for permanent residence, and he or she may subsequently be subject to civil immigration proceedings and removal from the United States. Do note that the two denaturalization provisions apply only to naturalized citizens.
A naturalized citizen may be charged with violating the Federal criminal statute found at 18 U.S.C. 1425, which outlines the provision for criminal denaturalization. 18 U.S.C. 1425(a) criminalizes knowingly procuring naturalization in violation of the law. Under section 340(e) of the Immigration and Nationality Act, the district court judge who enters the conviction for knowingly procuring naturalization in violation of the law “shall thereupon revoke, set aside, and declare void the final order admitting such person to citizenship, and shall declare the certificate of naturalization of such person to be canceled.”
There is also a procedure for “civil denaturalization,” that is, denaturalization that is not tied to a criminal proceeding. Under section 340(a) of the Immigration and Nationality Act, a U.S. Attorney may bring a civil case in Federal district court “for the purpose of revoking and setting aside the order admitting [a naturalized citizen] to citizenship and canceling the certificate of naturalization on the ground that such order and certificate of naturalization were illegally procured or were procured by concealment of a material fact or by willful misrepresentation…” Unlike civil removal proceedings, which take place in immigration courts operating under the Department of Justice, civil denaturalization proceedings take place in Federal court, which is part of the judicial branch, and denaturalization can only be ordered by a Federal judge.
At the moment, no denaturalization charges, criminal or civil, have been brought against Mr. Angwang. Furthermore, in light of the fact that Mr. Angwang faces up to 55 years in prison if he is convicted on all of the counts against him, denaturalization is likely not on the top of the list of his concerns at the moment. Given the nature of the charges against him, however, it is certainly possible that Mr. Angwang could subsequently face denaturalization proceedings for statements he made in procuring his naturalization. For example, page 21 of the criminal complaint alleges that both of Mr. Angwang’s parents live in China and are members of the Chinese Communist Party, and that his brother, who also lives in China, was involved in Mr. Angwang’s commission of wire fraud. Pages 22 and 23 list several false statements that Ms. Angwang is alleged to have made in order to obtain a mid-level security clearance from the U.S. Army.
It is certainly no stretch to imagine that, if the allegations in the complaint are proven to be true, that Mr. Angwang made similar fabrications or misrepresentations in his various immigration applications. According to CNBC, the U.S. Attorney suggested as much in a memo arguing that Mr. Angwang should be held without bond. The detention memo noted that Mr. Angwang had traveled to and from China on multiple occasions subsequent to his asylum claim and being naturalized, and argued that “[t]hese are not the actions of an individual who fears torture or persecution at the hands of the PRC, thus showing that his U.S. citizenship was secured through false pretenses.”
Traveling to a country from which one claims or claimed a fear of persecution is not, by itself, proof that one lied in claiming persecution. However, in the ordinary case, an individual repeatedly traveling to a country where he or she claimed a fear of persecution raises serious questions about the veracity of the initial claim. These questions are more pressing when there is evidence indicating that the individual is working for the very authorities that he claimed were his persecutors.
Whether he Mr. Angwang is ultimately subject to denaturalization will depend on facts outside the immediate scope of the criminal complaint.
This article focused on some of the less troubling aspects of the charges against Mr. Angwang. If the charges are proven to be true, which seems quite possible in light of the substantial evidence gathered by the U.S. Attorney in Manhattan, that will mean that an NYPD officer and a U.S. Army reservist was acting as an agent of one of the world’s most nefarious regimes. Furthermore, insofar as he is alleged to have been informing against fellow Tibetans living in the United States, he would have been abusing his position as a trusted NYPD officer to help the Chinese Government target individuals in the United States on the basis of ethnicity. The level of betrayal described in the complaint is breathtaking in the worst way, and likely explains why the Police Union declined to represent Mr. Angwang in his forthcoming criminal matters.
Furthermore, if the charges are proven, officials at the Department of Homeland Security should carefully reassess how Mr. Angwang’s application for asylum was approved in the first place, in light of the fact that subsequent events and his family’s connections to the Chinese Communist Party would seem to call his claims of ethnic persecution into serious question. Allowing actors such as the Chinese Government, foreign terrorist organizations, and drug cartels operating south of our border to abuse our very generous asylum system in order to damage this country is something that cannot be allowed to stand.