U.S.A v. Garcia-ochoa

• Decision Date: 11 June 2010
• Docket Number: No. 09-4620,09-4621.,09-4620
• Citation: 607 F.3d 371
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Josue Osmaro GARCIA-OCHOA, a/k/a Josue O. Garcia, Defendant-Appellant.United States of America, Plaintiff-Appellee,v.Josue Osmaro Garcia-Ochoa, a/k/a Josue O. Garcia, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

607 F.3d 371

UNITED STATES of America, Plaintiff-Appellee,

v.Josue Osmaro GARCIA-OCHOA, a/k/a Josue O. Garcia, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.Josue Osmaro Garcia-Ochoa, a/k/a Josue O. Garcia, Defendant-Appellant.

Nos. 09-4620, 09-4621.

United States Court of Appeals, Fourth Circuit.

Argued May 12, 2010.

Decided June 11, 2010.

ARGUED: John Christian Gardner, Gardner & Mendoza, PC, Virginia Beach, Virginia, for Appellant. James Ashford Metcalfe, Office of the United States Attorney, Norfolk, Virginia, for Appellee. ON BRIEF: Neil H. MacBride, United States Attorney, Alexandria, Virginia, for Appellee.

Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge KING and Senior Judge HAMILTON joined.

OPINION

WILKINSON, Circuit Judge:

Following a bench trial, Josue Osmaro Garcia-Ochoa was found guilty under 18 U.S.C. §§ 1001 and 1546(a) for falsely declaring, on several occasions, that he was a “citizen or national of the United States” or a “lawful permanent resident” on I-9 Employment Eligibility Verification Forms. Although the defendant admits to misrepresenting his immigration status in seeking employment, he challenges the sufficiency of the evidence to sustain his convictions, arguing that his misrepresentations were not material because he was nonetheless authorized to work in the United States.

The district court rejected the defendant's claim and concluded that the government had proven materiality beyond a reasonable doubt. Specifically, the court found that the 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. On appeal, we likewise reject the 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.

I.

A.

The following facts are those presented at trial and are not in dispute. The defendant, Josue Osmaro Garcia-Ochoa, was born in San Salvador, El Salvador in 1975. He entered the United States in 1998 and subsequently obtained Temporary Protected Status (“TPS”) with authorization to work in the United States. TPS is an immigration benefit granted by the Secretary of Homeland Security to citizens of designated countries suffering specified hardships, such as El Salvador after its 2001 earthquake. TPS is a temporary status, subject to expiration or termination; TPS beneficiaries may lose their status, along with their work authorization, either if they fail to renew it periodically (approximately every six to eighteen months) or if the Secretary of Homeland Security revokes their country's designation.

As a TPS beneficiary, the defendant was considered an alien with temporary work authorization. He was neither a U.S. citizen nor a lawful permanent resident. Since the appeal of this case, the defendant has lost his status as a TPS alien, and a deportation proceeding is currently pending in the Executive Office of Immigration Review. It is uncontested, however, that when the defendant was applying for jobs, he was a TPS alien in the United States legally and with authorization to work.

On three separate occasions in applying for employment, the defendant made false statements regarding his immigration status on I-9 Employment Eligibility Verification Forms. These forms are prepared by the Department of Homeland Security to satisfy federal statutory requirements and must be completed by all applicants for employment in the United States. See 8 U.S.C. § 1324a(b). The I-9 Form requires applicants to check one of three boxes, attesting under penalty of perjury that they are either a “citizen or national of the United States,” or a “lawful permanent resident” (and if so, supplying their alien identification number), or an “alien authorized to work until ____” (and if so, providing the expiration date of their work authorization). The I-9 Form further warns applicants, in bold lettering, that “federal law provides for imprisonment and/or fines for false statements ... in connection with the completion of this form.”

In January 2006, the defendant applied for a job with Century Concrete in Virginia Beach, Virginia. In doing so, he filled out the requisite I-9 Form, checking the box to assert that he was a “citizen or national of the United States.” On Century Concrete's separate application form, the defendant incorrectly listed his birthplace as Houston, Texas. Century Concrete hired the defendant but terminated him after a few months due to bad performance.

In June 2006, the defendant applied for a job with S.B. Ballard Construction Company, also in Virginia Beach, Virginia. On his I-9 Form for S.B. Ballard, the defendant falsely claimed that he was a “lawful permanent resident” and provided his alien number. In a separate job application form, he properly informed S.B. Ballard that he was born in El Salvador. S.B. Ballard hired the defendant but removed him from the employment roster a few months later when he failed to show for work.

In August 2006, the defendant applied for employment with Heard Concrete Construction in Chesapeake, Virginia. Again, he completed an I-9 Form, in which he falsely declared that he was a “citizen or national of the United States.” He also filled out a separate “special jobs questionnaire,” in which he falsely stated he was born in Houston, Texas. Heard Concrete hired the defendant.

Not long thereafter, Heard received a contract to perform concrete construction work at the Norfolk Naval Base. This type of work was not out of the ordinary for Heard, which often works on military bases and other government facilities where access depends, in part, on an employee's immigration status. Federal agents testified that some portions of naval bases, for example, are “highly sensitive” and contain “critical infrastructure,” such that non-citizens, regardless of work authorization status, are denied access. Because of these rules, Heard Concrete's employees must be screened to ensure that no unauthorized persons are performing work on off-limits areas of government property. Based on the defendant's misstatements, however, Heard mistakenly believed the defendant was a U.S. citizen born in the United States. Heard passed along that information to the Navy, which relied on it to grant the defendant complete access to its naval bases throughout the mid-Atlantic region. The defendant was issued an access badge that was colored green to indicate broad access. The badge further noted his permission to enter “All Region Bases” and did not contain the normal notation for foreign-born persons next to “Naturalization/Visa.”

B.

Gradually, the defendant's misrepresentations began to unravel and an investigation by special agents within the Department of State, Immigration and Customs Enforcement, and the Naval Criminal Investigation Services revealed that the defendant was, contrary to what he told employers, a TPS alien born abroad. Consequently, in 2008, the United States brought criminal charges in two separate cases that have since been consolidated. Among the charges are those relevant to this appeal: making false statements to the executive branch of the federal government in violation of 18 U.S.C. § 1001 and making false statements in immigration documents in violation of 18 U.S.C. § 1546(a).

After the defendant waived his right to a jury trial, the consolidated cases proceeded to a bench trial in the Eastern District of Virginia. At the close of the government's case, the defendant moved for judgment of acquittal on the basis of insufficient evidence, arguing that his misstatements were not material. In the defendant's view, the sole purpose of the I-9 Form is to verify that an applicant is authorized to work in the United States, and misstatements of immigration status are therefore material only when they disguise an applicant's lack of work authorization. Because the defendant was work eligible, and further because employers are legally prohibited from discriminating against work-eligible applicants on the basis of their immigration status, the defendant argued that the precise details of his immigration status were irrelevant and hence immaterial.

The district court squarely rejected this claim, finding that the government had proven beyond a reasonable doubt each element of the crimes, including that of materiality. United States v. Garcia-Ochoa, 2009 WL 331282, at *6, 11 (E.D.Va. Feb.9, 2009). While the court acknowledged that employers could not deny the defendant employment simply because he was a TPS alien, it nonetheless found that his misstatements satisfied the test for materiality, because “the I-9 Form provides information capable of influencing governmental and executive agency action.” Id. at *5-6.

In so finding, the court noted that employers are required to retain I-9 Forms for several years after hiring an individual, and that during this time, the I-9 Forms are readily available for review by government officials from several federal agencies. Id. at *6; see 8 U.S.C. § 1324a(b)(3). The court found that federal agencies rely on the information contained in the I-9 Forms in policing both employers and employees and therefore need that information to be thorough and accurate. Id. at *6, 11. In this regard, the court cited the testimony of a Special Agent for Immigration and Customs Enforcement (“ICE”), who reported that “the I-9 Form is frequently used for investigative purposes in pursuing illegal aliens in this country.” Id. at *6. Accordingly, lest “law enforcement and other governmental agencies be deprived of an important investigatory tool,” the court refused to deem the I-9 Form's question about immigration status “inconsequential” and “unnecessary.” Id. at *6, 11. Ultimately, the district court convicted the...