Foreign Law Translation Services

Illinois Court Holds That Father Cannot Rely on
Foreign Law to Revoke “Unconditional Gift”
Given to Son to Pursue EB-5 Visa under
Immigration and Nationality Act

Simplified Chinese to English Translations of EB-5 Immigrant Investor Documents

We’ve blogged before about legal translation services for the EB-5 Visa program and its requirements regarding foreign investor’s ability to seek residency in the United States. Recently, the Appellate Court of Illinois had the opportunity to examine an interesting lawsuit involving this program.

Under the Immigration and Nationality Act, foreign nationals entering the United States may obtain immigrant status by making financial investments in U.S. businesses. Under 8 C.F.R. Section 204.6, a foreign national must invest at least $500,000 “in a targeted employment area within the United States” in order to be considered for an EB-5 immigrant investor visa. Foreign nationals must also demonstrate that they invested their own money obtained through lawful means.

In Pengbo Fu v. Yongxiao Fu, a father gave his son a sum of money so that the son could pursue an EB-5 Visa and immigrate to the United States. The father and son were citizens of the People’s Republic of China (“PRC”) at the time and the agreement was made in China and written in Simplified Chinese. In the agreement, the father agreed to make a “free and unconditional gift” of $590,000 so his son would be able to invest in a U.S. business to obtain immigrant status in the U.S.

The son made a few investments in various projects, none of which resulted in the son obtaining an EB-5 Visa. The first investment did not pan out because the SEC determined that the project was fraudulent. The son told his father that he would find another project to invest in. The son’s second investment was in a manufacturing and retail facility in Chicago, but the U.S. declined to grant EB-5 approval for this project.

The son’s money remained in an escrow account for this investment. Several years later, the son signed an agreement to invest $500,000 in another EB-5 project to develop an apartment complex in New York. When the son tried to withdraw the money from his previous investment for use in the New York project, the bank in Chicago refused because the father had notified the bank that the funds belonged to him. The Chicago bank refused to release the funds because of the alleged dispute.

Mandarin to English Certified Translations of PRC’s Laws for Use in U.S. Courts

On May 17, 2016, father filed a petition in a Shanghai court in the People’s Republic of China (“PRC”) seeking to have the gift agreement revoked. Three days later, the father also filed a lawsuit in the Circuit Court of Cook County, Illinois seeking to have his gift revoked and to recover $500,000 from the escrow account. Shortly thereafter, the Shanghai court ordered that the funds in the escrow account be frozen.
In the complaint the father filed in the Circuit Court of Cook County, the father alleged that he “has never relinquished rights over the EB-5 Money pursuant to the laws of the [PRC]” and argued that his son breached their agreement by not obtaining the EB-5 Visa. Attached to the father’s complaint was an English translation of the father and son’s original agreement written in Simplified Chinese as well as Mandarin to English translations of the documents the father filed with the Shanghai court in which the father alleged that the son was violating the Marriage Law of the PRC by failing to support his parents.

The son filed a motion to dismiss the complaint on the grounds that the complaint failed to adequately plead PRC law and failed to state a claim under Illinois law. The son further alleged that he was, in fact, in compliance with the agreement. In response, the father argued that whether the defendant was pursing another EB-5 visa was irrelevant because under contract law of the PRC, a gift agreement is considered to be a contract that may be revoked in certain circumstances, such as when the recipient is obligated to provide for the donor but fails to do so or inflicts serious harm or infringes on the rights of the donor or donor’s relatives. The father claimed that the son had harmed him by becoming estranged from him. The father attached English translations of the PRC’s contract law and Marriage Law in support of his opposition to the son’s motion to dismiss his lawsuit.

The trial court subsequently dismissed the father’s complaint on the grounds that the plaintiff had not provided any evidence to support his interpretation of PRC law. The court also explained that it could not take judicial notice of a foreign country’s law; a plaintiff is required to plead and prove a foreign law just as he would any other fact. The court further noted that it would not have an issue applying the express language of PRC contract and marriage law as it was written, but found the father’s interpretation of those laws to be “oppressive, immoral, and impolitic.” The father appealed.

The appellate court affirmed the circuit court’s judgment in favor of the son. The appellate court held that under Illinois law, a plaintiff cannot revoke a “free and unconditional gift.” The court further held that the father had failed to properly plead PRC law; thus, the court was unable to apply this foreign law to the facts of this case. The court explained that although the father had submitted English translations of PRC laws, the father had failed to provide any support for his interpretation of PRC law or otherwise demonstrate that his interpretation was correct. The court rejected the father’s argument that he could represent that the gift to his son was “unconditional” for purposes of helping his son obtain an EB-5 Visa, and then later revoke the gift under PRC law. The court explained that if the “plaintiff is allowed to claim he can revoke his unconditional gift to defendant, plaintiff’s interpretation of PRC law would work a deception on the U.S. Government because plaintiff gave the gift for defendant to qualify for an EB-5 visa.” The court further stated that it “will not participate in this deception by ordering revocation of the gift.” The court also noted that “Illinois courts may enforce foreign law, but if entertaining a foreign cause is contrary to the public policy of the forum, its courts may bar enforcement of the foreign remedy.”

The case is Fu v. Fu, 2017 Il.. App. 1st 162958 decided by the Appellate Court of Illinois, First Judicial District, Fourth Division on June 29, 2017.

Contact our certified document translation company to request notarized translations from and into Simplified Chinese, Traditional Chinese, Portuguese, Spanish, French, German, Korean, Japanese, Arabic, Dutch, and other foreign languages.

This legal document translation blog article should not be construed as legal advice. You should always consult an attorney regarding your specific legal needs.

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