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Conviction for possession of a gun by an illegal alien does not require the alien know his status is unlawful


In U.S. v. Ali Rehaif, the defendant, Rehaif, was a citizen of the United Arab Emirates who was convicted of possessing a firearm and ammunition while illegally or unlawfully in the United States. In his appeals he challenges the jury instruction given by the Florida district court regarding whether he had to know he was unlawfully in the United States.

Rehaif was initially issued a student visa to study mechanical engineering at the Florida Institute of Technology on the condition that he pursue a full course of study. He agreed to this condition upon receiving his student visa. After three semesters he was academically dismissed on December 7, 2014, and one month later on January 21, 2015, the school sent Rehaif an email stating that his immigration status will be terminated on February 5, 2015, unless he transfers out before that date or notifies the school office that he had left the United States. Rehaif did not take any action and on February 23, 2015, the Department of Homeland Security officially terminated his foreign student status.

On December 2, 2015, Rehaif went to a shooting range and purchased a box of ammunition and rented a firearm for one hour. The firearm was manufactured in Austria and imported into the U.S. through Georgia. The ammunition was manufactured in Idaho.

After a hotel employee reported to the police that a guest, Rehaif, was acting suspiciously, an FBI agent interviewed Rehaif who admitted that had fired two firearms at the shooting range and that he was aware that his student visa was out of status because he was no longer enrolled in school. After consenting to a search of his hotel room, the agents found the remaining ammunition that he had purchased at the shooting range.

He was charged with unlawfully possessing a firearm and ammunition as an illegal alien.  Under the statute it is unlawful for any alien who is unlawfully or illegally in the United States to possess a firearm or ammunition that had been transported across state lines. The penalty provision states that whoever knowingly violates this provision shall be imprisoned not more than 10 years.

In his appeal from federal conviction in Florida, Rehaif claims that his criminal defense lawyer’s proposed instruction given at his federal criminal trial was correct because it required the Government to show that he was aware that he was illegally in the United States. He challenged the district court’s jury instruction as incorrect because it instructed the jury that the government need not prove that he knew he was in the United States illegally or unlawfully. The Government argued that the knowingly term of the statute does not apply to his status in the United States, only that he have knowledge he was in possession of the gun and the ammunition. The court of appeals found the Government’s position was supported by the law and there was no mens rea requirement with respect to his status in the United States. The Government was not required to prove that the defendant know that he was illegally or unlawfully in the United States.

As for the point that an alien becomes illegally or unlawfully in the United States for the purpose of this statute, the court rejected Rehaif’s argument that an alien does no become illegal until he has been adjudicated as such ban USCIS official or an immigration judge.


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