A falsehood is material if it has a natural tendency to influence the decisions of the decision maker. Kungys v. United States, 485 U.S. 759, 772, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988); see also United States v. Wu, 419 F.3d 142, 144 (2d Cir. 2005). We review a finding of materiality for clear error.

C.A. 2d Cir. Certiorari denied. Reported below: 419 F. 3d 142.

Because constitutional avoidance is "a means of giving effect to congressional intent," Clark v. Martinez, 543 U.S. at 382, 125 S.Ct. 716, it assumes priority over the rule of lenity, which applies in defendant's favor "only if, after seizing everything from which aid can be derived, we can make no more than a guess as to what Congress intended," Reno v. Koray, 515 U.S. 50, 65, 115 S.Ct. 2021, 132 L.Ed.2d 46 (1995) (citation and internal quotation marks omitted); see also United States v. Van Buren, 599 F.3d 170, 174 (2d Cir. 2010) ("[T]he Supreme Court has reserved lenity for those situations in which a reasonable doubt persists about a statute's intended scope even after resort to the language and structure, legislative history, and motivating policies of the statute." (internal quotation marks omitted; emphasis in original)); United States v. Wu, 419 F.3d 142, 147 (2d Cir. 2005) ("The doctrine of lenity is one of last resort." (internal quotation marks omitted)).

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, 122 S.Ct. 1275, 152 L.Ed.2d 271 (2002).

Pursuant to the Homeland Security Act of 2002, Pub.L. 107-296, § 441, 116 Stat. 2135, 2193 (codified at 6 U.S.C. §§ 202(3), 251), the INS was dissolved and responsibility for enforcing federal immigration laws passed to the Bureau of Immigration and Customs Enforcement. See United States v. Shitian Wu 419 F.3d 142, 146 n. 3 (2d Cir. 2005). Nevertheless, because the removal proceedings here at issue commenced under INS authority, on this petition for review we reference only that agency as the authority for the challenged government action.

That Act dissolved the INS and transferred responsibility for enforcing immigration laws to the newly created Bureau of Immigration and Customs Enforcement ("ICE") within the new Department of Homeland Security. See United States v. Shitian Wu, 419 F.3d 142, 146 n. 3 (2d Cir. 2005). Even though the relevant documents in this case were submitted after the transfer from INS to ICE was effected, the NTA continued to refer to the charging agency as the INS.

The Court reasoned that "[w]hile we have before us here a statute revoking citizenship rather than imposing criminal fine or imprisonment, neither the evident objective sought to be achieved by the materiality requirement, nor the gravity of the consequences that follow from its being met, is so different as to justify adoption of a different standard." Kungys, 485 U.S. at 770, 108 S.Ct. 1537; see also United States v. An Antique Platter of Gold, 184 F.3d 131, 136 (2d Cir. 1999), cert. denied sub nom. Steinhardt v. United States, 528 U.S. 1136, 120 S.Ct. 978, 145 L.Ed.2d 929 (2000); United States v. Wu, 419 F.3d 142, 144 (2d Cir. 2005). "Denaturalization proceeding" refers to an action brought by the government in federal district court charging that an individual unlawfully became a naturalized citizen through the concealment of a material fact or by willful misrepresentation. See, e.g., United States v. Oddo, 314 F.2d 115, 116 (2d Cir.), cert. denied, 375 U.S. 833, 84 S.Ct. 50, 11 L.Ed.2d 63 (1963).

To the contrary, although only the Eighth and Ninth Circuits have expressly adopted the rule, numerous other courts have applied or implicitly adopted the rule. See, e.g., United States v. Wu, 419 F.3d 142, 147 (2d Cir. 2005) (noting Second Circuit's "implicit endorsement" of Olsowy); United States v. Long, No. 1:06CR00028, 2007 WL 218592, at *4 (W.D. Va. Jan. 29, 2007) (vacating perjury conviction as multiplicitous under unitary harm rule); United States v. Cisneros, 26 F. Supp. 2d 24, 44 (D.D.C. 1998) (citing Olsowy and Salas-Camacho approvingly); cf. United States v. Anderson-Bagshaw, 509 Fed. App'x 396, 412 (6th Cir. 2012) (noting that Sixth Circuit has not expressly adopted the unitary harm rule and declining to decide whether to adopt it because the rule was inapplicable to the facts presented). Notably, at least two district courts in the First Circuit have relied on this jurisprudence.

A falsehood is "material" if it "has a natural tendency to influence the decisions of the decision maker." United States v. Wu, 419 F.3d 142, 144 (2d Cir. 2005). "[T]he proper context in which to assess the materiality of a falsehood under 18 U.S.C. § 1546(a) is the entire immigration process directed at an ultimate result that defendant sought when asserting the falsehood."

Guilty knowledge is frequently incapable of direct proof and can be established only by circumstantial evidence. United States v. Wu, 119 F. App'x 364, 365 (2d Cir. 2005); see also United States v. Gaskin, 364 F.3d 438, 460-61 (2d Cir. 2004). Petitioner alleges there was insufficient evidence to convict him of conspiracy to transport an illegal alien and the substantive offense of transporting an illegal alien.