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Justices Challenge Government Over Oft-Prosecuted Firearms Crime

April 23, 2019, 8:02 PM

Several justices seemed hostile to the government’s position that it doesn’t have to prove that a defendant knew their immigration status in order to be convicted of a federal firearms crime.

At issue is a law prohibiting an immigrant “illegally or unlawfully in the United States” from possessing a gun or ammunition. But the court’s decision could have implications for similar felon-in-possession convictions, which is one of the most prosecuted federal crimes out there, Justice Department lawyer Allon Kedem told the justices.

Kedem noted that every federal appellate court to have considered the issue in the context of immigration status has agreed that that the government only needs to prove that the immigrant knew they were in possession of the gun—it doesn’t also have to prove that the immigrant knew their immigration status.

Lead by the court’s newest members, several justices suggested that was deeply unfair.

Justice Neil Gorsuch emphasized that gun possession is not only generally innocent conduct in the U.S.—it’s also constitutionally protected.

Given that, a person who truly doesn’t know their immigration status isn’t blameworthy for possessing a gun, Justice Brett Kavanaugh said.

And yet the federal government would subject that person to the risk of 10 years in prison, he said.

Such a rule seems tremendously unfair in the context of dreamers, Justice Stephen Breyer said, referring to young individuals who were brought to the country illegally by their parents.

That, however, is not the vast majority of cases, Kedem said. And Congress is presumed to legislate to the haystack, not the needle, he said.

Kedem noted the court’s decision could call into question the thousands of felon-in-possession convictions that the government prosecutes each year by requiring the government to prove that the defendant knew that they were in fact a felon. Kedem later admitted that more than 90 percent of those prosecutions were done via plea agreements, making them harder to challenge.

Rosemary Cakmis, of the Federal Public Defenders Office in Orlando, Fla., represented the defendant Hamid Mohamed Ahmed Ali Rehaif, who spent 18 months in prison and was deported back to the United Arab Emirates after a visit to a shooting range. The government argues Rehaif’s student visa expired in 2015 after he was academically dismissed from Florida Institute of Technology.

The case is Rehaif v. United States, U.S., No. 18-966, argued 4/23/19.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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