- The Washington Times - Friday, June 21, 2019

The Supreme Court has ruled that an immigrant living in the U.S. illegally who had a gun — a crime — can’t be prosecuted if he didn’t know he was in the country illegally.

In a 7-2 decision the justices said in a crime where the status of a person is the “crucial element” to the offense, the government must prove the person was aware of that. Otherwise, it might just be an innocent mistake. The ruling could affect thousands of previous convictions.

“Without knowledge of that status, the defendant may well lack the intent needed to make his behavior wrongful. His behavior may instead be an innocent mistake to which criminal sanctions normally do not attach,” Justice Stephen G. Breyer wrote in the majority opinion.

He said without the knowledge element, an immigrant “Dreamer” brought to the U.S. illegally as a child, whose parents never revealed his status to them, could face penalties.

The case before the justices involved Hamid Rehaif, a citizen of the United Arab Emirates who came to the U.S. on a student visa, but lost the visa when the school informed him he’d been “academically dismissed.”



Ten months later, he was found in possession of ammunition and admitted he had been to a firing range, where he rented weapons to shoot. That put him in violation of a federal ban on undocumented immigrants possessing guns or ammunition.

He wanted to argue as his defense that he wasn’t aware he’d lost status, so he didn’t knowingly violate the law. Lower courts rejected his effort, as had every previous court to look at the issue — “thousands of cases,” according to Justice Samuel A. Alito Jr.

He wrote a dissent joined by Justice Clarence Thomas that complained about the majority casually ditching that long line of legal reasoning.

He predicted it will be tougher to prosecute gun crimes for a host of situations — people with mental illnesses, convicted felons and stalkers, who are also banned from possession — if the government must prove they had knowledge of their status.

Justice Alito also said there will be a flood of litigation from people previously convicted who now want to go back and argue they didn’t know their status.

“A great many convictions will be subject to challenge, threatening the release or retrial of dangerous individuals whose cases fall outside the bounds of harmless-error review,” he wrote.

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