USA v. Olivos-Mendez, et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION
UNITED STATES OF AMERICA §
§
v. § Criminal Action No. 7:25-CR-02461
§
YOLANDA OLIVOS-MENDEZ, §
et al. §
MEMORANDUM OPINION AND ORDER
Defendant Yolanda Olivos-Mendez is charged with employing aliens without
authorization to work in the United States at Trebol De Oro, a business in McAllen, Texas.
She is also charged with encouraging unauthorized aliens to enter the United States and
with conspiring to make one or more applications for admission into the United States
containing false statements. In addition, several unauthorized aliens that were employed
at the business—Pedro Luis Gonzalez Alvarez and Mildred Abigail Perez Guerrero—are
also charged with making one or more applications for admission into the United States
containing false statements.
Pending before the Court are Gonzalez Alvarez and Perez Guerrero’s Motions to
Dismiss Indictment, (Dkt. Nos. 57, 58). For the following reasons, the Court GRANTS
the Motions, (Dkt. Nos. 57, 58), and DISMISSES Counts 5–7 of the Indictment, (Dkt. No.
23).1
1 The Court notes that Defendant Olivos-Mendez did not file a Motion to Dismiss.
United States District Court
Southern District of Texas
ENTERED
February 25, 2026
Nathan Ochsner, Clerk
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I. BACKGROUND
On October 2, 2025, Unites States Homeland Security Investigations (“HSI”)
executed a search warrant at Trebol De Oro, a business in McAllen, Texas. (Dkt. No. 38
at 2). At that time, HSI identified five employees present at the business who lacked
authorization to work in the United States. (Dkt. No. 1 at 2).
HSI spoke with Olivos-Mendez, the owner of the business. (Id.). Olivos-Mendez
stated that she was aware that some of her employees working at Trebol De Oro lacked
authorization to work in the United States. (Id.). In addition, she also stated that the
business paid its employees who lacked work authorization in cash. (Id.). HSI also
interviewed Gonzalez Alvarez, who stated that he entered the United States on a B1/B2
tourist visa to shop for used clothes at Trebol De Oro. (Dkt. No. 38 at 2). Perez Guerrero
also spoke with HSI and stated that she entered the United States on a tourist visa to work
at Trebol De Oro. (Id.).
On October 3, 2025, the United States filed a criminal complaint against Olivos-
Mendez, (Dkt. No. 1), and bench warrants were later issued for Gonzalez Alvarez and
Perez Guerrero, (Dkt. Nos. 30, 31). On October 22, 2025, a grand jury returned an
indictment (“the Indictment”) charging Olivos-Mendez with four counts of encouraging
an unauthorized alien to enter the United States; one count of hiring or continuing to
employ unauthorized aliens; and one count of conspiring to knowingly make one or more
applications for admission into the United States containing false statements in violation
of 8 U.S.C. §§ 1324a(a)(1)(A)(iv), (a)(1)(A), (a)(2), (f)(1), and 18 U.S.C. § 371. (See generally
Dkt. No. 23). Gonzalez Alvarez and Perez Guerrero were also charged with making one
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or more applications for admission into the United States containing false statements and
with conspiring to do the same under 18 U.S.C. §§ 1546(a) and 371. (Id.).
Gonzalez Alvarez and Perez Guerrero filed Motions to Dismiss the Indictment
against them. (Dkt. Nos. 57, 58). The Government filed a global response addressing
each of the Motions. (Dkt. No. 66).
II. LEGAL STANDARD
“The purpose of an indictment is ‘to allege each essential element of the offense
charged so as to enable the accused to prepare his defense and to allow the accused to
involve the double jeopardy clause in any subsequent proceeding.’” United States v.
Lawrence, 727 F.3d 386, 397 (5th Cir. 2013) (quoting United States v. Cluck, 143 F.3d 174, 178
(5th Cir. 1998)). An indictment is sufficient if it “contains the elements of the offense
charged and fairly informs the defendant of the charge against which he must defend.”
Id. When determining whether an indictment states an offense, “the court is required to
take the allegations of the indictment as true and to determine whether an offense has
been stated.” United States v. Fontenot, 665 F.3d 640, 644 (5th Cir. 2011) (quoting United
States v. Crow, 164 F.3d 229, 234 (5th Cir. 1999)). Federal Rule of Criminal Procedure
7(c)(1) states that an indictment “must be a plain, concise, and definite written statement
of the essential facts constituting the offense charged.” “An indictment is sufficient if it
(1) contains the elements of the offense charged and fairly informs a defendant of the
charge against him and (2) enables him to plead an acquittal or conviction in bar of future
prosecutions for the same offense.” United States v. Montemayor, 703 F.2d 109, 117 (5th
Cir. 1983).
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III. DISCUSSION
The Court considers Counts 5–7 of the Indictment which charge Defendants with
violating 18 U.S.C. § 1546(a) or for conspiring to do the same under 18 U.S.C. § 371, or
both. (Dkt. No. 47 at 6–9). To begin, the Court reviews the text of Section 1546(a).
A. STATUTORY INTERPRETATION
The relevant part of Section 1546(a), paragraph four, states:
Whoever knowingly makes under oath, or as permitted under
penalty of perjury under [28 U.S.C. § 1746], knowingly
subscribes as true, any false statement with respect to a
material fact in any application, affidavit, or other document
required by the immigration laws or regulations prescribed
thereunder, or knowingly presents any such application,
affidavit, or other document which contains any such false
statement or which fails to contain any reasonable basis in law
or fact [commits an offense.]
18 U.S.C. § 1546(a). As an initial matter, this language criminalizes two different
acts: (1) knowingly making false statements in an application, affidavit, or other
document, and (2) knowingly presenting any such application, affidavit, or other
document containing any such false statement. See United States v. Yong Ping Liu, 288
F.App’x 193, 199 (5th Cir. 2008) (“The visa fraud statute [18 U.S.C. § 1546(a) paragraph
four] requires a showing that the defendant ‘knowingly’ made or presented a ‘false
statement’ in an application, affidavit, or other document required by the immigration
laws.” (citing 18 U.S.C. § 1546(a)); see also United States v. Ashurov, 726 F.3d 395, 398 (3d
Cir. 2013). While the Government asserts that paragraph four is not limited to these
theories, (Dkt. No. 66 at 20), the Fifth Circuit’s criminal pattern jury instructions support
this understanding of Section 1546(a) by recommending alternative instructions
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depending on which theory is alleged in a complaint, see Fifth Circuit Pattern Jury
Instructions (Criminal) § 2.67C (2024).
1. Does the Presenting Clause Require Making a False Statement
Under Oath?
Under the plain text of the making clause, a defendant must make the alleged false
statement under oath (or under penalty of perjury). It is disputed, however, whether the
presenting clause also requires the false statement presented in an application, affidavit,
or other document to have been made under oath. (Dkt. No. 58 at 4–6);2 (Dkt. No. 66 at
10–14). The three circuits that have addressed this issue, the Second, Third, and Fourth,
have reached divergent conclusions. Compare United States v. Khalje, 658 F.2d 90, 92 (2d
Cir. 1981) (holding that false statements need not be made under oath to violate Section
1546(a)’s presenting clause); and United States v. Aborisade, 163 F.4th 856, 864–65 (4th Cir.
2026), petition for reh’g en banc filed, No. 24-4466 (4th Cir. Feb. 12, 2026) (same); with
Ashurov, 726 F.3d at 402 (holding that false statements must be made under oath to violate
Section 1546(a)’s presenting clause). The Court could find no Fifth Circuit precedent
addressing this issue.3
2 The Court cites only to Defendant Mildred Abigail Perez Guerrero’s Motion for
Defendants’ arguments related to Counts 5–7 because hers is the most detailed. Gonzalez
Alvarez’s brief contains the same material arguments.
3 One Fifth Circuit case, United States v. Ongaga, does state that making a false statement
under oath is an element of visa fraud under Section 1546(a). 820 F.3d 152, 164–65 (5th Cir. 2016).
However, the defendant there was charged under the making clause, not the presenting clause.
Id. Additionally, while the Fifth Circuit pattern jury instructions seem to imply an oath-taking
requirement for the presenting clause, see Fifth Circuit Pattern Jury Instructions (Criminal)
§ 2.67C (2024), those instructions are not binding law, see Vasquez v. Tristar Prods., Inc., No. 1:15-
CV-00108, 2017 WL 7038197, at *5 (S.D. Tex. June 6, 2017) (collecting cases).
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In Khalje, the Second Circuit held that a defendant who had “presented an
application for a visitor’s visa to the American Consulate in Montreal in which
he . . . falsely stated the purpose and length of his visit to the United States” violated
Section 1546(a) despite not making the statement under oath. 658 F.2d at 91. The
defendant argued that the “any such false statement” language in the presenting clause
referred not only to the “any false statement with respect to a material fact” language in
the making clause, but also the preceding oath-taking requirement. Id at 91–92. This
argument was rejected by the Second Circuit, however, which held that “the phrase ‘any
false statement’ in the presentment portion” referred only to “any false statement with
respect to a material fact.’” Id. According to the Second Circuit,
This construction carries out the apparent Congressional
purpose of penalizing both those who swear to materially
false statements in visa applications and those who present
materially false statements in such applications, whether or
not the latter swear to such statements. We can see no reason
why Congress would have prohibited presentment of
materially false statements only when such statements were
made under oath, either by the presenter or third party.
Id. The Fourth Circuit agreed with Khalje and held that “[t]he knowingly presents clause
achieves Congress’ intent to punish those who present false statements to the
government, whether those statements are sworn or not.” Aborisade, 163 F.4th at 865.
The Third Circuit disagreed with Khalje and held that the presenting clause
incorporated the oath-taking requirement. Ashurov, 726 F.3d at 401–402. In that case, a
defendant charged under paragraph four argued that because the alleged false statement
made in an I-20 Form submitted for an adjustment of his immigration status—false
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statements that his sponsoring school required him to pursue a “full course of study”—
were not made under oath, he could not be found guilty under the presenting clause. Id.
at 397. To resolve the issue, the Third Circuit undertook a statutory analysis that
considered several canons of statutory construction as well as Section 1546(a)’s structure,
history, and purpose. Id. at 398–402. Ultimately, the Third Circuit held that paragraph
four of Section 1546(a) was “needlessly convoluted” and created an ambiguity regarding
whether the presenting clause contained an oath-making requirement. Id. at 402. As a
result, it applied the rule of lenity and resolved the dispute in favor of the defendant,
concluding that the presenting clause required alleged false statements to have been
made under oath. Id. In reaching this conclusion, the Third Circuit rejected Khalje and
its analysis of the presenting clause because the Second Circuit failed to “tackle any of
the difficult interpretive hurdles” discussed in Ashurov. Id.
After careful consideration, the Court concludes that the presenting clause in
paragraph four of Section 1546(a) does not incorporate the oath-taking requirement
found in the making clause. Like the Third Circuit in Ashurov, the Court reaches its
conclusion after examining two textual canons of construction: the nearest-reasonable-
referent canon4 and the rule against surplusage.
Under the nearest-reasonable-referent canon, “[w]hen the syntax involves
something other than a parallel series of nouns or verbs, a prepositive or postpositive
4 Ashurov refers to the rule of the last antecedent instead of the nearest-reasonable-referent
canon, 726 F.3d at 398–99, however, this is a common misnomer according to Garner and Scalia,
see Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 152-53, 432
(2012).
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modifier normally applies only to the nearest reasonable referent.” Antonin Scalia &
Bryan Garner, Reading Law: The Interpretation of Legal Texts 152, 434 (2012). Applied
to Section 1546(a), the modifying phrase “any such false statement” in the presenting
clause would refer to the nearer “any false statement with respect to a material fact,”
rather than the farther “knowingly makes under oath.” This would indicate that the
presenting clause does not require a false statement knowingly presented to have been
made under oath. Such a reading would also be grammatically consistent because “the
words ‘under oath’ in the ‘making’ clause . . . characterize and qualify the action itself that
the statute punishes, ‘knowingly makes.’” Ashurov, 726 F.3d at 398. It does not qualify
the object of that clause, “any false statement with respect to a material fact.” See id. The
canon therefore leans in favor of the Government.
Turning to the rule against surplusage, the Court is unconvinced, unlike the Third
Circuit, that it militates against the conclusion reached via the nearest-reasonable-referent
canon. The surplusage rule states that “[a] statute should be construed so that effect is
given to all its provisions, so that no part will be inoperative or superfluous, void or
insignificant.” Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 294 (5th Cir. 2020) (quoting
Corley v. United States, 556 U.S. 303, 314, 129 S. Ct. 1558, 1566, 173 L.Ed.2d 443 (2009)).
Ashurov held that a reading of Section 1546(a) that does not apply the oath-taking
requirement to the presenting clause would render that requirement “superfluous”
because an individual that makes a false statement and then presents that statement
would always be prosecuted under the less-restrictive presenting clause. 726 F.3d at 399–
400. True, the oath-taking requirement would be irrelevant to a presenter in that
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circumstance (they could be prosecuted for knowingly presenting a false statement
regardless of whether it was made under oath), however, Ashurov’s conclusion fails to
adequately consider that paragraph four also covers instances in which a different
individual from the one making the false statement presents it. See, e.g., Yong Ping Liu,
288 F.App’x at 195 (affirming the 1546(a) conviction of a defendant that knowingly
presented a false statement in a visa application made by another individual to U.S.
Citizen and Immigration Services). In such a situation, the oath-taking requirement
would not be inoperable surplusage; the maker of the false statement could only be
charged if they made the false statement under oath and could not be charged otherwise.
The fact that part of a statute may be inoperable in some applications does not mean that
part is surplusage when there are other applications in which it is operable. The rule
against surplusage therefore also supports the Government’s interpretation of paragraph
four.
The structure of Section 1546(a) likewise supports the Government’s
interpretation. Section 1546(a) as a whole criminalizes visa fraud. 18 U.S.C. § 1546(a)
(titled “Fraud and misuse of visas, permits, and other documents”); Yong Ping Liu, 288
F.App’x at 197 n.2 (labelling Section 1546(a) as “the visa fraud statute”). Applying the
oath-taking requirement only to the making clause is consistent with Section 1546(a)’s
structure because doing so would allow the statute to more effectively criminalize
fraudulent visa acts than if the requirement also applied to the presenting clause.
Paragraph four penalizes both those who swear to materially false statements in visa
applications and those who present materially false statements in those applications,
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regardless of whether the latter swear to such statements. “[T]he law does not generally
punish people for lying unless they expressly acknowledge a legal duty not to do so.”
Ashurov, 726 F.3d at 400. Therefore, as the Courts in Khalje and Aborisade argued, it is
consistent for an individual to only be punished for making a false statement when made
under oath. Khalje, 658 F.2d at 91; Aborisade, 163 F.4th at 865. It is also consistent for an
individual who knowingly presents a false statement to be punished regardless of whether
the false statement was made under oath. Khalje, 658 F.2d at 91; Aborisade, 163 F.4th at
865. Such an individual is not guilty of unsworn lying, but of a fraudulent action that
relies on that unsworn lie. The Court’s reading of paragraph four gives effect to this
understanding. The Court therefore concludes that the presenting clause in paragraph
four of Section 1546(a) does not contain an oath-taking requirement.
2. Does Paragraph Four of Section 1546(a) Require a False Statement
to be Made in a Written Document?
The next dispute regarding paragraph four’s meaning is whether the term
“application” in “application, affidavit, or other document” refers to a written document
or a physical attempt to enter into the United States. Defendants assert that the term
refers only to written documents and not an “application for admission” as used in other
statutes such as 8 U.S.C. § 1101(a)(4) and 8 C.F.R. § 214.1(a)(3)(i). (See, e.g., Dkt. No. 58 at
6–13). The Government argues the opposite. (See Dkt. No. 66 at 2–7). To support their
argument, Defendants cite to United States v. Jabateh, another Third Circuit case holding
that “application” in Section 1546(a) does not refer to oral statements, only to written
documents. 974 F.3d. 281, 295 (3d. Cir. 2020); (Dkt. No. 58 at 6–8).
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The Court finds this case to be persuasive authority that “application” in
paragraph four refers only to written documents. Undertaking an extensive statutory
construction analysis, Jabateh begins by acknowledging that the definition of
“application” when Section 1546(a) was originally drafted generally included making a
request both orally and by writing. Id. at 292–93. Despite this, paragraph four narrowed
this definition by including the term within a three-item series: “application, affidavit, or
other document.” Id. at 293 (“Congress’s use of the phrase ‘or other document’ then
modifies both ‘application’ and ‘affidavit’ to make them similar in scope, as ‘[w]ords in a
list are generally known by the company they keep.’” (quoting Logan v. United States, 552
U.S. 23, 31, 128 S.Ct. 475, 482, 169 L.Ed.2d 432 (2007))).
This definitional narrowing is further evidenced by the section title of the law as
originally drafted in 1924 (“Offenses in Connection with Documents”) and the updated
title after the statute was amended in 1952 (“Fraud and misuse of visas, permits, and
other entry documents”). Id. at 293, 295–96. Moreover, examination of the original 1924
statute reveals that other uses of “application” refer specifically to written forms. Id. at
293–94 (noting that a different section of the statute requiring that “[e]very immigrant
applying for an immigration visa shall make an application therefor in duplicate” makes
it unlikely that “application” in paragraph four “mean[s] anything besides written
forms”).5
5 The Third Circuit also noted that “the focus of the visa process [when the statute was
passed] was the information in the application, supported by accompanying
documentation. . . . And it was a false statement within that ‘application, affidavit, or other
[required] document’ that could trigger criminal penalty.” Id. at 294 (emphasis in original).
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The Government attempts to rebut Jabateh by pointing out that the Third Circuit
case concerned “oral statements made in an interview with U.S. officials as part of an
application for permanent residency” and not “an alien applying for admission at a port
of entry” as in this case. (Dkt. No. 66 at 3–5). Instead, the Government argues that United
States v. Carrillo-Colmenero, a Fifth Circuit case, is binding authority that “by its express
terms [Section] 1546 applies to a person who attempts to be admitted to the United
States . . . and is not limited to persons applying for entry-type documents.” 523 F.2d
1279, 1283 (5th Cir. 1975); (Dkt. No. 66 at 2–3, 17–18). The Court is not persuaded.
First, Carrillo-Colmenero is not binding on this question. That case analyzed
paragraph three of Section 1546(a), which criminalizes impersonating another when
applying for admission into the United States, and held that it is not limited only to cases
where a person impersonates another when applying for entry-type documents. Carrillo-
Colmenero, 523 F.2d at 1283. The Fifth Circuit did not decide the meaning of “application”
in paragraph four, and the Court is unable to find any case from this circuit that does so.
Given the above analysis of paragraph four, the Court rejects the argument that
“applying” as used in paragraph three and “application” as used in paragraph four carry
identical meanings.6
6 Much of the Government’s Response on this point consists of atextual appeals to cases
and other immigration-related statutes that describe aliens attempting to enter the United States
as “applicants for admission” to prove that federal immigration law considers presenting oneself
at a port of entry as constituting an application for admission. (See Dkt. No. 66 at 2–10 (further
arguing that this understanding of U.S. immigration law means that Defendants violated Section
1546(a) by presenting a tourist visa in their “application for admission” at a port of entry despite
intending to violate the terms of that visa by working in the United States)). These arguments
fail to provide a valid textual rebuttal to the conclusion that the specific use of “application” in
(continue)
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Second, the Government’s attempt to rebut Jabateh relies on a distinction without
a difference. It is true that the criminal act here is different than the one in Jabateh.
However, the Third Circuit’s analysis of “application” in paragraph four is a
determination of “the ordinary and best reading of § 1546(a).” Jabateh, 974 F.3d at 287.
This analysis was not dependent on the specific factual circumstances of that case, but on
paragraph four’s “ordinary meaning . . . at the time Congress enacted the statute.” Id. at
292 (quoting Wis. Cent. Ltd. v. United States, 585 U.S. 274, 277, 138 S.Ct. 2067, 2070, 201
L.Ed.2d 490 (2018)). The Court therefore finds no issue in relying on Jabateh’s meticulous
statutory analysis or in holding that “application” in paragraph four refers to written
documents such as visa applications.
B. APPLICATION
Having determined the meaning of Section 1546(a)’s paragraph four, the Court
next addresses whether the Indictment against Defendants alleges a criminal act in
violation of that statute. Counts 6–7 allege that Defendants Ganzalez Alvarez and Perez
Guerrero “did knowingly make one or more applications for admissions into the United
States containing a false statement or failing to contain any reasonable basis in law or in
fact, by presenting [their] B1/B2 visa[s], in violation of . . . Section 1546(a).” (Dkt. No. 23
at 2–5). Count 5 also charges those Defendants (plus Olivos-Mendez) with conspiring to
do the same in violation of 18 U.S.C. § 371. (Id. at 2–5).
the three-item series in paragraph four, in context, refers to written documents. The Government
provides no justification for why Section 1546(a) should be interpreted in a way that defies the
original meaning of the statute. Its arguments are thus unconvincing.
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Defendants argue that these Counts charge them under the presenting clause of
paragraph four for using their B1/B2 tourist visas to enter the United States (or for
conspiring with other Defendants to do so) for the unlawful purpose of working after
gaining admission. (Dkt. No. 66 at 13–15, 16–20). This charge fails to state an offense
under Section 1546(a), according to them, because it does not assert (1) that they
presented a false statement that was made under oath, and (2) that the false statement
was made in a written application. (Id.). Further, they claim that “Federal law does not
make it a crime for an alien to work without authorization.” (Id. at 14, 19 (quoting Kan.
v. Garcia, 589 U.S. 191, 196, 140 S.Ct. 791, 798, 206 L.Ed.2d 146 (2020))).
The Government responds by arguing that the Indictment sufficiently alleges
violations of Section 1546(a) because Defendants allegedly presented (or conspired to
present) false statements of their intent to abide by the terms of their B1/B2 visas when
they applied for admission to the United States at a port of entry. (See generally Dkt. No.
66 (“[T]he Defendant alien’s [criminal] acts in question are their applications for
admission made by presenting their B1/B2 visas to an electronic reader at the port of
entry, which populated an electronic application form in CBP systems with, inter alia, the
Defendant alien’s intent to abide by the terms and conditions of those visas.”)). Further,
the Government asserts that it is immaterial that the Indictment does not allege that the
false statements were not made under oath, as that is not a requirement under paragraph
four. (Id. at 10–14).
To begin, the Indictment conflates the making and presenting clauses by alleging
that Defendants “did knowingly make one or more applications for admission into the
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United States containing a false statement.” (Dkt. No. 23 at 2–5 (emphasis added)). While
the verb used for the criminal act is “make,” in truth, the Indictment seems to allege that
Defendants’ crime was their presenting an application for admission. The making clause
criminalizes the making of a false statement, not an application. Conversely, it is the
presenting clause that criminalizes the presenting of an application. This would indicate
that the Indictment charges Defendants under the presenting clause, not the making
clause. Therefore, based on the above statutory interpretation, Defendants can be validly
charged under paragraph four only if the Indictment alleges that they knowingly
presented (or conspired to present) an application, affidavit, or other written document
containing a false statement with respect to a material fact. Further, because the
allegations arise from the presenting clause, it is immaterial whether the false statement
was made under oath or penalty of perjury. Regardless, the Indictment fails to state an
offense under paragraph four.7
The “applications” that were allegedly presented were not written documents. As
the Government admits in its Response, the supposed applications under paragraph four
that Defendants “presented” were their attempts to enter the United States by scanning
their visas at a port of entry. (Dkt. No. 66 at 4). A physical attempt to enter the United
States is not a written “application” under paragraph four. While it is possible that the
B1/B2 visas Defendants presented could qualify as an “application . . . or other document
7 The Indictment would still fail to state an offense even if it alleged a violation of Section
1546(a)’s making clause. As discussed above, supra (III)(A)(1), that clause requires the relevant
false statement to have been made under oath or penalty of perjury. Counts 5–7 do not allege
this essential element, and thus, are inadequate.
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required by the immigration laws or regulations,” this does not rescue the Indictment.
Defendants are not charged with presenting visas that contain a false statement, they are
charged with physically presenting themselves as applicants for admission with visas
whose use carried with them an implied understanding that Defendants would abide by
their terms (including that Defendants were barred from working in the United States).
The text of the presenting clause does not criminalize this conduct. The Court cannot
enlarge paragraph four’s scope by holding otherwise. See Jabateh, 974 F.3d at 292 (“After
all, only the words on the page constitute the law adopted by Congress and approved by
the President. If judges could add to, remodel, update, or detract from old statutory terms
inspired only by extratextual sources and our own imaginations, we would risk
amending statutes outside the legislative process.” (quoting Bostock v. Clayton Cnty., 590
U.S. 644, 654–665, 140 S.Ct. 1731, 1738, 207 L.Ed.2d 218 (2020)).8
As a result, there must be some other written document containing a false
statement that Defendants presented for Counts 5–7 to be valid. The Government claims
that Defendants did present a written application containing a false statement because
the CBP system auto-populated an electronic application form when Defendants scanned
their visas at the port of entry. (Dkt. No. 66 at 4). This electronic application included a
8 The presenting clause also criminalizes presenting an application “which fails to contain
any reasonable basis in law or fact.” 18 U.S.C. § 1546(a). However, the Indictment still fails to
state an offense under this language because it does not allege that Defendants obtained their
visas through fraud or that the visas were otherwise invalid or lacking a basis in law or fact.
According to the Government, it was Defendants’ attempt to physically enter the United States
that lacked a basis in law or fact, not Defendants’ applications for the visas themselves. (See
generally Dkt. No. 66).
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statement that Defendants intended to abide by the terms of their visas. (Id.). The Court
is unconvinced, however, that such electronic forms were presented as understood in
Section 1546(a).
Defendants themselves did not present these forms; they were automatically
created by the CBP system. Defendants’ only role in their creation was the scanning of
their visas, which did not contain the alleged false statement at issue. The commonly
understood definition of “present” at the time the presenting clause was added to Section
1546(a) in 1952 meant “to give or offer.” H.W. Fowler & F.G. Fowler, The Concise Oxford
Dictionary of Current English 650–51 (7th ed. 1919) (defining “present” as meaning to
“offer,” “suggest,” “bring formally under notice,” or “submit”); N. Webster, An
American Dictionary of the English Language 636 (New York, White & Sheffield 1841)
(defining “present” as meaning “to give” and “to exhibit to view or notice”); see also
Black’s Law Dictionary 934 (2d ed. 1910) (defining “present” in the law of negotiable
instruments as “to tender or offer”). Defendants did not give or submit the electronic
forms to CBP when they applied for admission. As the Government admits in its
Response, Defendants are charged because they “present[ed] their B1/B2 visas.” (Dkt.
No. 66 at 4). The Indictment does not allege—and the Government does not assert—that
Defendants approached a port of entry to apply for admission and offered, submitted, or
gave any other written documents that contained a statement that they intended to abide
by the terms of their visas.
Moreover, it is less than clear that Defendants knowingly presented these electronic
forms under the Government’s theory when Defendants were not the ones that filled
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them out. The above-mentioned definitions would suggest that presenting, as
understood in 1952, is a conscious or purposeful act. The Indictment does not allege that
Defendants were aware that such a form would be auto-populated by a computer system
when they scanned their visas or that they were aware that the form contained a
statement that they agreed to abide by the terms of their visas. Of course, Defendants
likely had an understanding that it would be unlawful not to abide by these terms, but
that is not the same as affirmatively stating that they would not do so. Without an
allegation that Defendants presented a written document containing a false statement
when they approached a port of entry to apply for admission, the Indictment fails to
allege a violation of Section 1546(a)’s paragraph four.9 The Court therefore concludes
that Counts 5–7 must be dismissed for failure to state an offense.
IV. CONCLUSION
For the above reasons, the Court GRANTS the Motions to Dismiss. (Dkt. Nos. 57,
58). Counts 5–7 are DISMISSED.
It is SO ORDERED.
9 The fact that the Indictment cites Section 1546(a) is not enough to state an offense. United
States v. Conley, 349 F.3d 837, 840 n.2 (5th Cir. 2003) (“[A] statutory citation, standing alone, cannot
substitute for including an element of the crime in an indictment.” (quoting United States v.
Cabrera-Teran, 168 F.3d 141, 147 (5th Cir. 1999))). The facts alleged in Counts 5–7 do not constitute
a violation of Section 1546(a), and therefore, those Counts fail to allege an essential element of the
offense.
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Signed on February 25, 2026.
___________________________________
DREW B. TIPTON
UNITED STATES DISTRICT JUDGE
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