In 2013, a United Arab Emirates citizen named Hamid Mohamed Ahmed Ali Rehaif was admitted to the United States through a student visa to attend the Florida Institute of Technology in Melbourne. He was academically dismissed from the institute in December 2014. Mr. Rehaif did not leave the U.S. within the thirty days necessary to avoid becoming an unauthorized immigrant.


On December 10, 2015, federal agents with the U.S. Immigration and Customs Enforcement’s Homeland Security Investigations and the F.B.I. arrested Rehaif at a Melbourne hotel where he had been living for two months. He was charged with being an “unlawful or illegal alien” in possession of a firearm and ammunition. He admitted to the federal agents that he had possessed several firearms but sold them.


On August 29, 2016, following a guilty jury verdict on May 16, Rehaif was sentenced to eighteen months in prison by a U.S. District Court in Orlando for possession of a firearm and ammunition by an unlawful alien. He was prosecuted under 18 U.S.C. § 922(g), which criminalizes the possession of a firearm under nine enumerated categories, including unauthorized immigrants; and § 924(a)(2), which subjects an offender to ten years in prison who “knowingly violates” § 922(g). The jury at Rehaif’s trial was instructed that the Government was not required to prove that he knew that he was unlawfully in the country. 


Rehaif v. U.S Heard by SCOTUS


In 2019, the U.S. Supreme Court agreed to hear Rehaif’s argument that the Government is required to prove in a § 922(g) and § 924(a)(2) prosecution that the defendant knew he possessed a firearm and that he fell into one of the nine prohibited categories outlined in § 922(g). 

Section 922(g) enumerates a long list of individuals prohibited from possessing firearms, including non-immigrant visa holders and felons


In a 7-2 decision handed down on June 21, 2019, the Supreme Court agreed with Rehaif’s argument, finding that in an unlawful immigrant gun possession case, the government “must not only prove that the immigrant knew he possessed a firearm but that he also knew he was in the U.S. unlawfully.”


In a Scotusblog published that same day, Evan Lee, Professor of Law Emeritus at the University of California, pointed out that Justice Alito issued a dissent, joined by Justice Thomas, that predicted a “flood of challenges” by felon-in-possession offenders. 


Justices Worried About Flood of Felon in Possession Cases


Alito pointed out that in 2017 alone, more than 6,000 felon-in-possession offenders were convicted and sentenced to an average of 64 months. He warned that many of these felon-in-possession inmates incarcerated in the U.S. Bureau of Prisons would file challenges to their convictions under 28 U.S.C. § 2255.


 “[T]hose within the statute of limitations will be entitled to relief if they can show that they are actually innocent of violating Section 922(g), which will be the case if they did not know that they fell into one of the categories of persons to whom the offense applies,” Alito wrote. “If a prisoner asserts that he lacked that knowledge and therefore was actually innocent, the district courts, in a great many cases, may be required to hold a hearing … and make a credibility determination as to the prisoner’s subjective mental state at the time of the crime.”


Daryon D. Kelly was in that group of felon-in-possession offenders who challenged their § 922(g) convictions in the wake of the Rehaif decision. The district court denied his 28 U.S.C. § 2255 motion to vacate his conviction and sentence. Kelly sought and secured review before the Fifth Circuit of Appeals.


On appeal, the Government, in a rare move, conceded that Rehaif established a “new rule of law” which should be applied retroactively to initial § 2255 motions. 


Fifth Circuit Agrees Government Must Prove Knowledge of Felony Status


On July 8, 2022, the Fifth Circuit agreed with the Government and Kelly’s argument that Rehaif had created a new right—the “defendant’s right to have the Government prove beyond a reasonable doubt that the defendant knew of his felony status when he possessed a firearm.” 


The Court pointed out that the rule of law in the Fifth Circuit, and every other federal circuit in the nation before Rehaif was that a defendant’s knowledge of their felon status was immaterial in § 922(g) prosecutions. The appeals emphatically said that Rehaif overruled that rule of law.


The Fifth Circuit in Kelly confined its ruling to initial § 2255 motions but left open the door for Rehaif to be applied retroactively in successive § 2255 motions. Retroactivity was one of the issues the appeals sent back to the district court for “further proceedings” consistent with its Kelly holding.


The question now is whether the Government will seek review before the Supreme Court in the Kelly case.


One thing is now certain: stare decisis is no longer sacrosanct with the Supreme Court. Given the Court’s new, conservative ideology, which is effectively under the sway of Justices Alito and Thomas, Justices Kavanaugh and Gorsuch, both of whom voted with the majority in Rehaif, it may be willing to limit the reach of the decision beyond the initial § 2255 motions. Justice Barrett could join these four justices to limit the reversal impact of Rehaif


It will be interesting to see how these Justices grapple with gun rights and Section 922(g). In the meantime, is urgent that criminal defense lawyers recognize this unresolved issue and advise clients convicted under 922(g) of their rights and the time limits of § 2255.