USA v. Pereira

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
v.
LUCAS THOMAS PEREIRA,
Defendant.
5:26-cr-00112 (BKS)
Appearances:
For the United States of America:
Kevin Cheung
Assistant United States Attorney
Office of the United States Attorney
15 Henry Street, Room 304
Binghamton, New York 13901
For Defendant Lucas Thomas Pereira:
Eric Schillinger
Federal Public Defender
Courtenay McKeon
Assistant Federal Public Defender
Office of the Federal Public Defender
4 Clinton Square, 3rd Floor
Syracuse, New York 13202
Hon. Brenda K. Sannes, Chief United States District Judge:
MEMORANDUM-DECISION AND ORDER
I. 	INTRODUCTION
On February 19, 2026, Defendant Lucas Thomas Pereira was charged in a criminal
complaint with eluding examination or inspection by immigration officers, in violation of 8
U.S.C. § 1325(a)(2). See United States v. Pereira, No. 26-mj-00039, Dkt. No. 1 (N.D.N.Y. Feb.
19, 2026). As Defendant was charged with a petty offense, the matter was presided over by
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United States Magistrate Judge Miroslav Lovric. Fed. R. Crim. P. 58. On February 20, 2026,
during an initial appearance, the Government moved for detention and Magistrate Judge Lovric
scheduled a detention hearing for February 25, 2026. Pereira, Dkt. No. 3. The detention hearing
was continued throughout the underlying proceedings. Id. Dkt. Nos. 9, 13. Defendant filed a
motion to dismiss the complaint on March 13, 2026. (Dkt. No. 14). The Government opposed the
motion. (Dkt. No. 17). On April 2, 2026, Magistrate Judge Lovric granted Defendant’s motion
to dismiss the criminal complaint as barred by the statute of limitations, entered Judgment
dismissing the criminal complaint, and declared the detention hearing moot. Id., Dkt. Nos. 18,
19; see also id. Minute Entry (Apr. 2, 2026). The Government appealed pursuant to Fed. R.
Crim. P. 58(g)(2). Id. Dkt. No. 20. Presently before the Court is the Government’s motion for an
immediate stay of Judgment and an order directing that Defendant remain in the custody of the
United States Marshals Service pending appeal. (Dkt. No. 2; Dkt. No. 2-2). Defendant opposes
the Government’s motion. (Dkt. No. 3). For the reasons that follow, the Government’s motion is
denied.
II. 	FACTS
According to the affidavit in support of the criminal complaint, on February 18, 2026,
Border Patrol Agents encountered Defendant during a traffic stop in Black River, New York,
“located approximately 35 driving miles from the U.S. Canadian border.” Pereira, Dkt. No. 1, at
2–3. Defendant admitted to the agents that he was a citizen of Brazil, that he did not have
permission to enter the United States, that he entered the United States “by crossing the southern
border in 2016 and was not inspected or examined by immigration officer.” Id. Dkt. No. 1, at 3.
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III. 	DISCUSSION
A. 	Legal Standard
In determining whether to exercise its discretion and stay the Judgment and Defendant’s
release, the Court considers: “(1) whether [the government] has made a strong showing that [it]
is likely to succeed on the merits; (2) whether [the government] will be irreparably injured absent
a stay; (3) whether issuance of the stay will substantially injure [the defendant] . . . .; and (4)
where the public interest lies.” Hassoun v. Searls, 968 F.3d 190, 195 (2d Cir. 2020) (quoting
Nken v. Holder, 556 U.S. 418, 434 (2009)).
B. 	Analysis
1. 	Likelihood of Success
Here, the Government has failed to show a likelihood of success on its argument that the
complaint charging Defendant with “elud[ing] examination or inspection by immigration
officers,” in violation of 8 U.S.C. § 1325(a)(2),1 based on his 2016 entry without examination or
inspection and “continued unlawful presence,” (Dkt. No. 2-1, at 3), is a continuing offense and is
not barred by the five-year statute of limitations. 18 U.S.C. § 3282(a). In support of its argument,
the Government cites United States v. Espinoza-Cabrera, 25-mj-0365 (GLF), Dkt. No. 17
(N.D.N.Y. Dec. 10, 2025). There, United States Magistrate Judge Gary L. Favro, rejected the
defendant’s statute of limitations argument, finding that § 1325(a)(2) is a continuing offense that
“occurs each and every day when a person who has entered the country illegally fails to submit
1 The statute provides in relevant part:
Any alien who (1) enters or attempts to enter the United States at any time or place other than as
designated by immigration officers, or (2) eludes examination or inspection by immigration officers,
or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading
representation or the willful concealment of a material fact, shall, [be guilty of such offense].
8 U.S.C. § 1325(a).
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to inspection or examination by immigration officials.” Id. Dkt. No. 17, at 2. Although Espinoza-
Cabrera supports the Government’s interpretation of Section 1325(a)(2) as a continuing offense,
because the decision itself cites no case law and the existing authority on the issue holds
otherwise, the Court does not find it persuasive. Indeed, the Fourth and Ninth Circuit have issued
rulings that reject or largely undermine the Government’s arguments. In United States v. Cavillo-
Rojas, 510 F. App’x 238, 249 (4th Cir. 2013), the Fourth Circuit vacated the defendant’s
conviction as barred by the statute of limitations. See id. (holding that “a § 1325(a) offense is
completed at the time of the defendant’s illegal entry, and the statute of limitations begins
running at that point”). And in United States v. Rincon-Jimenez, 595 F.2d 1192, 1193 (9th Cir.
1979), the Ninth Circuit rejected the argument that 8 U.S.C. § 1352(a)(2) is a “continuing
offense” that tolls the statute of limitations “so long as [the defendant] remains in this country.”
See also United States v. Corrales-Vazquez, 931 F.3d 944, 948, 954 (9th Cir. 2019) (holding
“that to ‘elude[ ] examination or inspection by immigration officers’ in violation of § 1325(a)(2),
the alien’s conduct must occur at a designated port of entry that is open for inspection and
examination” and rejecting the government’s argument that such violation occurs “even if the
alien crosses miles away from any place where those processes occur” (quoting 8 U.S.C. §
1325(a)(2)).
As to the Government’s argument that this rase raises a serious legal question, the only
cases it cites are the defendants’ appeals to the district court in Espinoza-Cabrera. (Dkt. No. 2-1,
at 6 (citing Case Nos. 26-cr-061 (AMN); 26-cr-062 (AMN)). Moreover, the Government’s
argument is undermined by the caselaw on this issue, which seems to conform to the
interpretations of the Fourth and Ninth Circuits. See, e.g., United States v. Vega, No. 25-mj-
00399, 2025 WL 3558747, at *1, 2025 U.S. Dist. LEXIS 257273, at *3 (D. Me. Dec. 12, 2025)
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(rejecting the government’s argument “that the obligation to submit to inspection and
examination is ongoing and, therefore, the violation of § 1325(a)(2) continues each moment a
noncitizen remains in the country without submitting to inspection and examination”); United
States v. Cuadra Soto, No. 25-mj-3267, 2026 WL 123220, at *7, 2026 U.S. Dist. LEXIS 8740, at
*17 (D. Neb. Jan. 16, 2026) (finding 8 U.S.C. § 1325(a) does “not support finding an alien is
subject to an ongoing, continuing obligation to report for immigration inspection pursuant to
section 1325 after they illegally enter the country”).
2. 	Irreparable Harm
The Government asserts it will be irreparably harmed because the defendant will likely
be released from criminal custody to ICE and likely be deported before the appeal can be
adjudicated “effectively avoiding any punishment for his crime.” (Dkt. No. 2-1, at 3). The
Government also argues that there is a serious risk that Defendant would flee if released. (Dkt.
No. 2-1, at 7). In support of its assertion of per se irreparable harm, the Government cites a civil
immigration case from the Western District of Texas, (Dkt. No. 2-1, at 7 (citing United States v.
Texas, 557 F. Supp. 3d 810, 821 (W.D. Tex. 2021)), but no other caselaw. And, as set forth
above, the Government has not provided any persuasive caselaw in support of its position that
eluding inspection in violation of 8 U.S.C. § 1325(a)(2) is a continuing offense. Thus, the Court
concludes it has not shown irreparable harm.
3. 	Injury to Defendant
The Government asserts any harm to Defendant “will be minor” because he will be
released to ICE custody pursuant to a detainer and therefore will “not be at his liberty” in any
event. (Dkt. No. 2-1, at 7). Again, the Government cites no caselaw that would support the
proposition that any harm under these circumstances may be characterized as “minor.”
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4. 	Public Interest
As to the fourth factor, the Government contends that because it would be irreparably
harmed (second factor), the public interest “necessarily weighs in favor of a stay.” (Dkt. No. 2-1,
at 7). However, as the Government has not established irreparable harm, has not cited any other
basis for finding the public interest would support a stay in this case, it fails to satisfy the fourth
factor. See, e.g,, In re All Funds in Accts. in Names Registry Pub., Inc., 58 F.3d 855, 856 (2d Cir.
1995) (“The government’s papers offer little in the way of a coherent explanation for what is at
best a borderline prosecution. Given the absence of such an explanation and the substantial
chance of even a lack of probable cause, we view the public interest as weighing against the
government.”).
Accordingly, having considered the relevant factors and having concluded that the
Government has failed to show that any of the four factors weigh in favor of a stay, the Court, in
its discretion, denies the Government’s motion for a stay.
IV. 	CONCLUSION
For these reasons, it is hereby
ORDERED that the Government’s motion for a stay (Dkt. No. 2) is DENIED; and it is
further
ORDERED that the Government shall file a brief in support of its appeal by April 24,
2026, that Defendant shall file any brief in opposition by May 8, 2026, and any reply shall be
filed by May 15, 2026.
IT IS SO ORDERED.
Dated: April 3, 2026
Syracuse, New York
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