PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 09-4620

JOSUE OSMARO GARCIA-OCHOA,

a/k/a Josue O Garcia,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 09-4621

JOSUE OSMARO GARCIA-OCHOA,

a/k/a Josue O Garcia,

Defendant-Appellant. 

Appeals from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Robert G. Doumar, Senior District Judge.

(2:08-cr-00104-RGD-JEB-1; 2:08-cr-00153-RGD-JEB-1)

Argued: May 12, 2010

Decided: June 11, 2010

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.

COUNSEL

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.

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 defen2 UNITED STATES v. GARCIA-OCHOA
dant’s claim. We decline to render the I-9 Form a meaningless

exercise that allows applicants to check any immigrationstatus 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

UNITED STATES v. GARCIA-OCHOA 3
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.

4 UNITED STATES v. GARCIA-OCHOA
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 DisUNITED STATES v. GARCIA-OCHOA 5
trict 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

6 UNITED STATES v. GARCIA-OCHOA
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 defendant of three counts under 18 U.S.C. § 1001

and two counts under 18 U.S.C. § 1546(a). Id. The court sentenced him to six months’ imprisonment on each count to run

concurrently, three years’ supervised release, and a $100 special assessment on each count. The defendant now timely

appeals.

II.

On appeal, Garcia-Ochoa renews his argument that his misstatements were not material. Materiality is an essential element of the offenses under both 18 U.S.C. § 1001 and 18

U.S.C. § 1546(a). See United States v. Sarihifard, 155 F.3d

301, 306 (4th Cir. 1998). "The test of materiality is whether

the false statement has a natural tendency to influence agency

action or is capable of influencing agency action." United

States v. Norris, 749 F.2d 1116, 1122 (4th Cir. 1984); see

Kungys v. United States, 485 U.S. 759, 770 (1988). This test

applies in numerous contexts, including both §§ 1001 and

1546(a), to assess materiality whenever it is an element of a

statutory offense. See, e.g., United States ex rel. Berge v. Bd.

of Trs. of Univ. of Ala., 104 F.3d 1453, 1460 (4th Cir. 1997).

Our review of the district court’s finding of materiality is

necessarily limited. Materiality, as an element of a criminal

offense, is a question of fact (or at the very least, a mixed

question of law and fact) to be resolved by the fact finder,

which in the case of a bench trial is the federal district judge.

United States v. Gaudin, 515 U.S. 506, 511-12, 522 (1995);

United States v. David, 83 F.3d 638, 641 (4th Cir. 1996). Following a bench trial, we review the court’s factual findings

for clear error. Further, in assessing a challenge to the sufficiency of the evidence, we view the evidence in the light most

favorable to the government in order to decide whether "any

UNITED STATES v. GARCIA-OCHOA 7
rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt." Jackson v. Virginia,

443 U.S. 307, 319 (1979) (emphasis in original); see also

United States v. Jeffers, 570 F.3d 557, 565 (4th Cir. 2009).

Thus, the question before us on appeal is a narrow one:

whether the district court clearly erred in finding that the

defendant’s admitted misrepresentations of his immigration

status on I-9 Forms were capable of influencing agency

action. 

In this case, the district court did not err in finding materiality. The defendant’s misstatements were capable of influencing agency action in a number of ways, and by a number of

agencies. We highlight two such examples. 

A.

To begin, the defendant’s statements on his I-9 Forms were

capable of affecting the United States Immigration and Customs Enforcement insofar as ICE relies on I-9 Forms to monitor employers and employees for ongoing compliance with

immigration laws. ICE is an investigative agency within the

executive branch and under the supervision of the Department

of Homeland Security that is responsible for enforcing the

nation’s immigration laws. See United States v. Wu, 419 F.3d

142, 146 n.3 (2d Cir. 2005). As such, ICE’s role encompasses

enforcing the comprehensive statutory scheme, codified in 8

U.S.C. § 1324a and central to federal immigration policy,

which prohibits the employment of unauthorized aliens in the

United States. See Hoffman Plastic Compounds, Inc. v. NLRB,

535 U.S. 137, 147 (2002). 

ICE’s principal tool in ensuring compliance with this statutory regime is the employment verification system, of which

the I-9 Form is the backbone. See 8 U.S.C. § 1324a(b); see

also ICE Website, http://www.ice.gov/pi/worksite/index.htm.

Under the employment verification system, applicants for

employment in the United States must complete an I-9 Form,

8 UNITED STATES v. GARCIA-OCHOA
in which they provide basic identifying information and assert

their immigration status, and must supplement the form with

documentation evidencing their claimed identity and immigration status. While ICE relies heavily on employers to verify applicants’ employment eligibility, employers in turn

depend on applicants to furnish them with true and complete

information on I-9 Forms. 

In this sense, the smooth functioning of the entire employment verification system hinges crucially on the honesty of

employment applicants; by falsifying I-9 Forms, applicants

compromise ICE’s ability to effectively enforce the statutory

prohibition on employing unauthorized aliens. As the First

Circuit noted, the prohibition on false statements in 18 U.S.C.

§ 1001 is "intended to promote the smooth functioning of

government agencies and the expeditious processing of the

government’s business by ensuring that those who deal with

the government furnish information on which the government

confidently may rely." United States v. Arcadipane, 41 F.3d

1, 4 (1st Cir. 1994); accord United States v. Tobon-Builes,

706 F.2d 1092, 1096 (11th Cir. 1983); Ogden v. United

States, 303 F.2d 724, 742 (9th Cir. 1962). 

The defendant suggests, however, that the I-9 Form is incapable of influencing government action because it is submitted in the first instance to private employers. This view is

mistaken. The cooperative public-private nature of the

employment verification program does not somehow remove

it from the purview of 18 U.S.C. §§ 1001 or 1546(a). To the

contrary, where Congress has specifically provided for agency

access to I-9 Forms, see 8 U.S.C. § 1324a(b)(3), the fact that

an agency may not avail itself of the opportunity to review

each and every I-9 Form in no way lessens the form’s significance. Agencies do not forfeit their power to act merely

because they entrust private entities to assist their enforcement efforts in the first instance. 

The defendant is also wrong to contend that his repeated

misrepresentations were incapable of undermining agency

UNITED STATES v. GARCIA-OCHOA 9
action here simply because he was work eligible. 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 United States.

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. As the Supreme

Court has emphasized, "if an employer unknowingly hires an

unauthorized alien, or if the alien becomes unauthorized while

employed, the employer is compelled to discharge the worker

upon discovery of the worker’s undocumented status." Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 148

(2002) (citing 8 U.S.C. § 1324a(a)(2)). 

Accordingly, the exact nature of the 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. If and when the

defendant’s status as a TPS alien expired or was revoked, he

would cease to be eligible for employment. And at that point,

ICE would indisputably be capable of acting to prevent his

continued employment in the United States—for example by

bringing charges against his employer if it did not terminate

him. See 8 U.S.C. § 1324a(a)(6)(C), (e), & (f). It is undisputed

that ICE has statutory authority to access the I-9 Form. See 8

U.S.C. § 1324a(b)(3). By concealing his true immigration status, the defendant inhibited ICE in its task of ensuring that all

employees in the United States are authorized to work, not

only at the moment they are hired but at all times thereafter.

The very format of the I-9 Form itself confirms this view.

After all, the form does not simply ask: "Do you have work

authorization right now?" Instead, it asks a more nuanced

question that recognizes the importance of the exact immigration status that allows an applicant to work in the United

States. Specifically, the I-9 Form distinguishes between three

types of applicants, all of whom are employment eligible:

U.S. citizens or nationals; lawful permanent residents; and

10 UNITED STATES v. GARCIA-OCHOA
aliens with temporary authorization. If an applicant selects the

third option, the form further prompts him to disclose the

expiration date of his temporary work authorization. 

In this instance, the inclusion of the question is evidence

that its answer is material. Since Congress specifically

required job applicants to disclose their immigration statuses,

and the I-9 Form provided by DHS requires them to specifically reveal if they are an "alien authorized to work [for a limited amount of time]," it follows that a false reporting of

information deemed important by the legislature and executive cannot lightly be deemed unimportant by the courts.

Indeed, the I-9 Form’s question about immigration status constitutes the bulk of the form’s substance, with the remaining

portions requesting the applicant’s name, address, date of

birth, and social security number. The fact that the form

requires applicants to respond under penalty of perjury and

under the threat of criminal liability is further evidence that

the inquiries therein are neither inconsequential nor superfluous. 

We must decline therefore the defendant’s invitation to

eviscerate the importance of the I-9 Form’s main inquiry by

overturning the district court’s finding of materiality. As the

district court summarized: 

In essence, the Defendant argues this: a false statement on the I-9 Form cannot be material if the applicant is authorized to work in the United States. And

the logical conclusion of this argument requires this

Court to believe that the I-9 Form, issued by the

Department of Homeland Security, is of no legal

consequence. If we were to accept the Defendant’s

argument as true, then it would make the Defendant’s oath on the I-9 Form completely unnecessary.

This cannot be. The I-9 Form is not a useless piece

of paper with a useless statement on it.

UNITED STATES v. GARCIA-OCHOA 11
United States v. Garcia-Ochoa, 2009 WL 331282, at *6 (E.D.

Va. Feb. 9, 2009). 

B.

Garcia-Ochoa’s misrepresentation on his I-9 Form to Heard

Concrete is material for an additional reason: it actually

affected the Navy’s action, causing it to issue him an access

badge that it would not have issued him had it known the truth

about his immigration and work authorization status. While

the test for materiality demands only that a misstatement be

capable of influencing agency action, see Kungys v. United

States, 485 U.S. 759, 770-71 (1988); United States v. Arch

Trading Co., 987 F.2d 1087, 1095 (4th Cir. 1993), that test is

unquestionably satisfied when, as here, the defendant’s falsehoods did in fact influence agency action. Actually influencing an agency to act is proof positive that a statement is

capable of influencing an agency to act.

As the district court noted, several witnesses testified at

trial that "certain portions of Naval bases are highly sensitive"

areas that prohibit unauthorized persons from gaining access

— "regardless of their legal status within this country."

United States v. Garcia-Ochoa, 2009 WL 331282, at *3 (E.D.

Va. Feb. 9, 2009). The Deputy Director for Regional Security

of the U.S. Navy testified, for example, that "there are restrictions as to where a non-U.S. citizen can work," such as "[o]n

the ships, the combat information centers, any of the ships

that have nuclear reactors, those areas, the munitions area, the

munitions command—they’re not allowed to work in any of

those areas." 

Because these off-limits locales are, according to testimony, "highly sensitive" and contain "critical infrastructure,"

the Navy considers access by unauthorized individuals a

potential security threat. As ICE explains, "[u]nauthorized

workers employed at sensitive sites and critical infrastructure

facilities—such as airports, seaports, nuclear plants, chemical

12 UNITED STATES v. GARCIA-OCHOA
plants and defense facilities—pose serious homeland security

threats." Workforce Enforcement Advisory, http://

www.ice.gov/pi/worksite/index.htm. In order to protect these

vulnerable portions of naval bases, the Department of the

Navy screens all persons prior to granting them clearance. 

Here, however, the defendant thwarted the Navy’s screening process by misrepresenting his immigration status on his

Form I-9. By checking the box on the I-9 Form marking himself as a "U.S. citizen or national," especially in combination

with his statement on the "special jobs questionnaire" that he

was born in Texas, the defendant thoroughly confounded

Heard Concrete, leading it to believe that he was a nativeborn U.S. citizen. In turn, Heard Concrete conveyed the

defendant’s falsehoods to the Navy for purposes of determining the defendant’s access to its military installations. As the

superintendent for Heard Concrete testified, "if [I] knew that

[the defendant] was lying about his status . . . I certainly

wouldn’t send him to the U.S. Government for an ID card."

It is uncontested that the Navy relied on the defendant’s

misstatements, as conveyed to it by Heard Concrete, in issuing him an access badge allowing him unrestricted access to

all naval bases throughout the mid-Atlantic region. It is also

undisputed that if the Navy had known that the defendant was

a TPS alien, his badge would have noted limitations on his

access. Fortunately, the defendant’s deceit was discovered

before he began working on any naval bases, but a Navy official testified that if he had performed work, he likely would

have done so in those areas where access is limited to U.S.

citizens, given that the defendant’s employer is a concrete

company and that a number of the restricted areas contained

concrete. When misstatements on a Form I-9 influence the

federal government to act in a way that compromises the

safety of military personnel, not to mention the general public, those statements are material. 

UNITED STATES v. GARCIA-OCHOA 13
III.

Appellant asks us to hold that false claims of citizenship in

the United States of America make no difference. But they do.

The judgment is

AFFIRMED.

14 UNITED STATES v. GARCIA-OCHOA