8.134 FRAUD—FALSE STATEMENT ON IMMIGRATION DOCUMENT (18 U.S.C. § 1546(a))
The defendant is charged in [Count _______ of] the indictment with a false statement on an immigration document in violation of Section 1546(a) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant [made] [subscribed as true] a false statement;
Second, the defendant acted with knowledge that the statement was untrue;
Third, the statement was material to the activities or decisions of the [specify immigration agency]; that is, it had a natural tendency to influence, or was capable of influencing, the agency’s decisions or activities;
Fourth, the statement was made under [oath] [penalty of perjury]; and
Fifth, the statement was made on an [application] [affidavit] [other document] required by immigration laws or regulations.
Use this instruction in connection with crimes charged under 18 U.S.C. § 1546(a), fourth paragraph.
The term "oath" as used in Section 1546 should be construed the same as "oath" as used in the perjury statute, 18 U.S.C. § 1621, United States v. Chu, 5 F.3d 1244, 1247 (9th Cir. 1993).
Materiality is a requirement of visa fraud under subsection (a) and presents a mixed question of fact and law to be decided by the jury. United States v. Matsumaru, 244 F.3d 1092, 1101 (9th Cir. 2001). The common law test for materiality in the false statement statutes, as reflected in the third element of this instruction, is the preferred formulation. United States v. Peterson, 538 F.3d 1064, 1072 (9th Cir.2008). A statement need not have actually influenced the agency decision in order to meet the materiality requirement. Matsumaru, 244 F.3dat1101 (citing United States v. Serv. Deli, Inc., 151 F.3d 938, 941 (9th Cir. 1998)).