Criminal Intent Irrelevant in Illegal Alien Gun Prosecutions, Supreme Court Hears

April 24, 2019 Updated: April 24, 2019

WASHINGTON—A lawyer for the U.S. government told several skeptical Supreme Court justices that a defendant doesn’t have to be aware of his immigration status in order to be convicted of a federal firearms crime.

The case involves Hamid Mohamed Ahmed Ali Rehaif of the United Arab Emirates, whose student visa expired in 2015 after the Florida Institute of Technology dismissed him for poor academic performance. The government claims that in January 2015, the school notified Rehaif by email that his visa was soon to expire.

His visa was terminated on Feb. 23, 2015. No evidence was adduced at trial showing the government made any effort to advise Rehaif of his changed immigration status. Rehaif remained in the country and, on Dec. 2, 2015, went to a Melbourne, Florida, shooting range where he bought ammunition and rented two firearms for an hour of shooting. A few days later, he confirmed to an FBI investigator that he had fired guns and possessed ammunition, acts forbidden to those unlawfully present in the country.

Rehaif was indicted for possessing ammunition and firearms while illegally in the United States. At the trial, the jury was instructed that “the United States is not required to prove that the defendant knew that he was illegally or unlawfully in the United States.” The jury convicted Rehaif on two counts: one for possessing a firearm, and the other for possessing ammunition—both while lacking immigration status. He was sentenced to 18 months in prison, which he served, and then deported to the UAE.

Rehaif appealed his conviction, arguing the burden was on the government to prove he knew he was illegally in the United States when he possessed the firearm and the ammunition, and therefore, the instructions to the jury were improper. The 11th Circuit Court of Appeals upheld the conviction, finding that whether or not the defendant knew his immigration status wasn’t relevant.

Normally, a person cannot be convicted of a criminal offense without a showing of mens rea, or criminal intent.

That intent doesn’t matter when it comes to the immigration-status element of the federal firearms crime Rehaif was convicted of, Allon Kedem of the U.S. Solicitor General’s office told the court.

“Someone who is an alien has … an obligation, if they’re here in the United States, to know whether they’re here lawfully or unlawfully,” Kedem said.

The seemingly cavalier attitude towards this fundamental principle of criminal liability exhibited by Kedem and the two lower courts appeared to disturb the justices during oral arguments on April 23.

Both Justices Neil Gorsuch and Sonia Sotomayor, as well as Rehaif’s attorney, Rosemary Cakmis, said gun possession in itself is not only innocent conduct, but constitutionally protected.

“It only makes sense that a person should be required to know he fits within that [immigration] status before his firearm possession becomes illegal,” Cakmis, who works for the Federal Public Defenders Office in Orlando, Florida, told the justices.

Along the same lines, Justice Brett Kavanaugh said someone who doesn’t know his immigration status should not be held blameworthy for possessing a gun.

Gorsuch suggested the government disregarding the usual mens rea requirement found in criminal law could lead to unfair outcomes and that an alien could innocently be mistaken about his immigration status.

“Well, you’d agree, first of all, I think, that the immigration laws are kind of complex,” he told Kedem.

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