Criminal – Immigration – False Statement – U.S. Citizen

Deborah Elkins//June 15, 2010

Criminal – Immigration – False Statement – U.S. Citizen

Deborah Elkins//June 15, 2010

The 4th Circuit says a. defendant who admits lying about his immigration status on I-9 Employment Eligibility Verification Forms cannot overturn his conviction of making false declarations in violation of 18 U.S.C. §§ 1001 and 1546(a) by arguing that his misrepresentations were not “material” because he was nonetheless authorized to work in the U.S.

The district court rejected defendant’s claim and concluded the government proved materiality beyond a reasonable doubt. The court found defendant’s misstatements were material because they were capable of influencing agency action – affecting, for example, the Immigration and Custom Enforcement’s enforcement of immigration laws. We likewise reject defendant’s claim. We decline to render the I-9 Form a meaningless exercise that allows applicants to check any immigration-status box they wish.

Contrary to defendant’s view, his precise immigration status was relevant to ICE even though he happened to be, at the time he filled out the I-9 Forms, authorized to work in the U.S. This is because federal law, under 8 U.S.C. § 1324a(a)(1) & (2) explicitly makes it illegal not merely to hire unauthorized aliens but, more broadly, to employ them. The exact nature of defendant’s immigration status as a TPS alien was material because it signaled that his work authorization was inherently temporary – in need of periodic renewal and subject to termination.

Defendant’s misrepresentation is material for another reason: it actually affected the Navy’s action, causing it to issue him an access badge that it would not have issued had it known the truth about his immigrant and work authorization status. Actually influencing an agency to act is proof positive that a statement is capable of influencing an agency to act.

Conviction affirmed.

U.S. v. Garcia-Ochoa (Wilkinson, J.) No. 09-4620, June 11, 2010; USDC at Norfolk, Va. (Doumar) John C. Gardner for appellant; James A. Metcalfe, AUSA. VLW 010-2-112, 14 pp.

VLW 010-2-112


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