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                                                                       [PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                               No. 16-15860
                         ________________________

                 D. C. Docket No. 6:16-cr-00003-JA-DAB-1


UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                   versus


HAMID MOHAMED AHMED ALI REHAIF,

                                                           Defendant-Appellant.

                         ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________

                              (August 17, 2017)

Before ED CARNES, Chief Judge, WILLIAM PRYOR, and DUBINA, Circuit
Judges.


DUBINA, Circuit Judge:
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      Hamid Mohamed Ahmed Ali Rehaif (“Rehaif”), a citizen of the United Arab

Emirates, appeals his convictions for possessing a firearm and ammunition while

being illegally or unlawfully in the United States, in violation of 18 U.S.C. §§

922(g)(5)(A) and 924(a)(2). Rehaif argues that the district court erred by

instructing the jury that the government did not have to prove that he knew he was

in the United States unlawfully. Rehaif further argues that the district court abused

its discretion by failing to instruct the jury that an alien is not unlawfully in the

United States until the U.S. Citizenship and Immigration Services (“USCIS”) or an

immigration judge has declared him unlawfully present. After reviewing the

record, reading the parties’ briefs, and having the benefit of oral argument, we

affirm the convictions.

                                   I.     BACKGROUND

      The United States issued Rehaif an F-1 nonimmigrant student visa to study

mechanical engineering at the Florida Institute of Technology (“FIT”) on the

condition that he pursue a full course of study–except as otherwise authorized by a

“Designated School Official”–or engage in training following graduation. When

applying for his F-1 student visa, Rehaif signed a Certificate of Eligibility for

Nonimmigrant Student Status, certifying that he agreed to comply with the terms

and conditions of his admission and that he sought “to enter or remain in the




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United States temporarily, and solely for the purpose of pursuing a full course of

study.”

      After three semesters at FIT, Rehaif was academically dismissed on

December 17, 2014. One month later, on January 21, 2015, FIT sent Rehaif an

email stating that he had been academically dismissed and that his “immigration

status will be terminated on February 5, 2015, unless you transfer out before that

date, or you notify our office that you have already left the United States.” Rehaif

did not take any action. As such, according to the Department of Homeland

Security’s foreign student database, Rehaif’s status was officially terminated on

February 23, 2015.

      On December 2, 2015, Rehaif went to a shooting range. He purchased a box

of ammunition and rented a firearm for one hour. Videos from the shooting range

show Rehaif firing two different firearms. The firearms were manufactured in

Austria and then imported into the United States through Georgia. The

ammunition was manufactured in Idaho.

      Six days later, an employee at the Hilton Rialto Hotel in Melbourne, Florida,

called the police to report that a guest at the hotel–Rehaif–had been acting

suspiciously. Special Agent Tom Slone with the Federal Bureau of Investigation

went to the hotel to speak with Rehaif. Rehaif admitted, in an unrecorded

interview, that he had fired two firearms at the shooting range and that he was


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aware that his student visa was out of status because he was no longer enrolled in

school. Rehaif consented to a search of his hotel room, where the agents found the

remaining ammunition that he had purchased at the shooting range.

      A federal grand jury charged Rehaif with two counts of violating §

922(g)(5)(A). That statute provides that:

      (g) It shall be unlawful for any person —
      ...
              (5) who, being an alien —
                     (A) is illegally or unlawfully in the United States . . .
      to ship or transport in interstate or foreign commerce, or possess in or
      affecting commerce, any firearm or ammunition. . . .

18 U.S.C. § 922(g)(5)(A). Section 922(g) does not itself provide for any

punishment. That gap is filled by § 18 U.S.C. § 924(a)(2), which states that:

      Whoever knowingly violates subsection . . . (g) . . . of section 922
       shall be fined as provided in this title, imprisoned not more than 10
      years, or both.

18 U.S.C. § 924(a)(2).

      Before trial, both parties submitted proposed jury instructions to the district

court. During the charge conference, the government requested an instruction

stating that “[t]he United States is not required to prove that the defendant knew

that he was illegally or unlawfully in the United States.” Rehaif disagreed, arguing

that the United States had to prove both that he had knowingly possessed a firearm

and that he had known of his prohibited status–that he was illegally or unlawfully



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in the United States when he had possessed the firearm. The district court

overruled Rehaif’s objection.

       The government also requested an instruction stating that “[t]he alien’s

presence becomes unlawful upon the date of the status violation.” Rehaif, on the

other hand, proposed an instruction stating that “[a] person admitted to the United

States on a student visa does not become unlawfully present until an Immigration

Officer or an Immigration Judge determines that [he] ha[s] violated [his] student

status.” The district court gave an instruction closer to the government’s request,

telling the jury that “[a]n alien illegally or unlawfully in the United States is an

alien whose presence within the United States is forbidden or not authorized by

law.” Rehaif then perfected this appeal, challenging the district court’s jury

instructions with respect to the “knowingly” requirement and the “illegal or

unlawful” requirement, as well as the constitutionality of §922. 1

                                 II.     STANDARD OF REVIEW

       This court will review the district court’s jury instructions “de novo to

determine whether they misstate the law or mislead the jury to the prejudice of the

objecting party.” United States v. James, 642 F.3d 1333, 1337 (11th Cir. 2011)

(quotation omitted).

       1
          Rehaif argues that 18 U.S.C. § 922(g) is unconstitutional, both facially and as applied,
because it has too attenuated a connection to interstate commerce. This argument is foreclosed
by circuit precedent. See United States v. Wright, 607 F.3d 708, 715-16 (11th Cir. 2010); United
States v. Scott, 263 F.3d 1270, 1271-74 (11th Cir. 2001).

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                                    III.   ANALYSIS

      On appeal, Rehaif challenges the district court’s jury instructions regarding

the “knowingly” requirement and the “illegal or unlawful” requirement.

      With respect to the “knowingly” requirement, Rehaif argues that the district

court erred by instructing the jury that the government need not prove that he knew

he was in the United States illegally or unlawfully, because the phrase “knowingly

violates,” in 18 U.S.C. § 924(a)(2), modifies § 922(g) to require proof that the

defendant knew at the time that he possessed the firearm that he was in the United

States illegally or unlawfully. Rehaif further argues that, although several courts

have ruled that knowledge of one’s status as a convicted felon is not necessary for

a conviction under § 922(g)(1), the question of whether knowledge is necessary for

a conviction under § 922(g)(5)(A) is not settled. As such, Rehaif argues, the

district court’s jury instruction misstated the law and eviscerated his planned

defense that he did not know he was in the United States illegally or unlawfully.

      The government argues that a violation of § 922(g) only requires that the

defendant knowingly possessed a firearm, not that the defendant had knowledge of

his status, and that nothing in the statute indicates that § 922(g)(5)(A) has a

different mens rea requirement. For support, the government points to the fact that

no circuit has required proof of the defendant’s knowledge of his prohibited status

under any subsection of § 922(g). The government also argues that § 922(g)


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consolidates previously separate sections that did not contain mens rea provisions

but that had been interpreted to require knowledge of the firearm possession, and

that Congress did not intend to expand the mens rea requirement when it

consolidated the statutes.

      With respect to the “illegal or unlawful” requirement, Rehaif argues that

federal immigration law defines “unlawful presence” as presence in the United

States after the expiration of the period of stay authorized by the Attorney General.

This definition, he argues, supports his position that a person is not unlawfully in

the United States until a USCIS official or an immigration judge declares him to be

so. Additionally, Rehaif argues that both his position and the government’s

position have a basis in case law or statute and that the ambiguity in the statute

requires the application of the rule of lenity.

      The government responds that, although this court has not addressed this

issue, five other circuits have held that an alien who is permitted to remain in the

United States only for the duration of his status becomes illegally or unlawfully in

the United States under § 922(g)(5)(A) upon the violation of his status. Therefore,

Rehaif became unlawfully in the United States the moment he failed to comply

with the conditions of his F-1 visa. The government also argues that the case

Rehaif cites to support his position does not state that an alien only becomes

illegally or unlawfully present when a USCIS officer or immigration judge


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determines that he has violated his status. Moreover, the government argues that

because the statute is not grievously ambiguous, the rule of lenity does not apply.

      In short, we are left with two questions: (1) what does “knowingly” modify;

and (2) what does “illegally or unlawfully” mean? Each argument will be

addressed in turn.

   A. “Knowingly”

      Under 18 U.S.C. § 922(g), persons falling within particular categories are

prohibited from possessing any firearm or ammunition that has been transported in

interstate commerce. To successfully prosecute a defendant under § 922(g), the

government must prove three elements: (1) the defendant falls within one of the

categories listed in the § 922(g) subdivisions (“the status element”); (2) the

defendant possessed a firearm (“the possession element”); and (3) that the

possession was “in or affecting [interstate or foreign] commerce.” See 18 U.S.C. §

922(g). By its own terms, § 922(g) does not have a mens rea requirement; instead,

the applicable mens rea is set out by § 924(a)(2), which provides that “[w]hoever

knowingly violates subsection . . . (g) . . . of section 922 shall be fined as provided

in this title, imprisoned not more than 10 years, or both.” 18 U.S.C. § 924(a)(2). It

is undisputed that the mens rea requirement applies to the possession element–that

Rehaif “knowingly possessed” the firearm. See United States v. Winchester, 916

F.2d 601, 604 (11th Cir. 1990). At issue is whether the “knowingly” requirement


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also applies to the status element–that Rehaif knows he is an alien “illegally or

unlawfully in the United States.” 18 U.S.C. § 922(g)(5)(A).

      As Rehaif points out, the strongest argument in favor of requiring proof of

mens rea with respect to the status element is laid out in then-Judge, now Justice

Gorsuch’s concurrence in United States v. Games-Perez. 667 F.3d 1136, 1142

(10th Cir. 2012) (Gorsuch, J., concurring in judgment). Acknowledging that prior

precedent dictated that the mens rea requirement does not apply to the status

element, then-Judge Gorsuch concluded that the plain language of the statute

compelled the opposite conclusion. Id. (“[Prior precedent] reads the word

“knowingly” as leapfrogging over the very first § 922(g) element and touching

down only at the second. This interpretation defies linguistic sense—and not a

little grammatical gravity.”). In drawing such a conclusion, then-Judge Gorsuch

noted that, “Congress gave us three elements in a particular order. And it makes

no sense to read the word “knowingly” as so modest that it might blush in the face

of the very first element only to regain its composure and reappear at the second.”

Id. at 1144. He also pointed out that “[t]he Supreme Court has long held that

courts should presum[e] a mens rea requirement attaches to each of the statutory

elements that criminalize otherwise innocent conduct.” Id. at 1145 (quotations

omitted) (alteration in original).




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       While then-Judge Gorsuch opined that § 922(g) “is a perfectly clear law as it

is written, plain in its terms, straightforward in its application,” id., there is

evidence to suggest otherwise. The fact that § 924(a)(2) only punishes defendants

who “knowingly violate” § 922(g) begs the question “what does it mean to

knowingly violate the statute?” Does the statute proscribe merely conduct, or both

conduct and the surrounding circumstances that make the conduct a federal crime?

See United States v. Langley, 62 F.3d 602, 613 (4th Cir. 1995) (en banc) (Phillips,

J., concurring in part and dissenting in part) cert. denied, 516 U.S. 1083, 116 S. Ct.

797 (1996). While the defendant’s status might be inextricably tied to the

violation, the actual violation occurs when the defendant knowingly possesses a

firearm.

       Moreover, although the Supreme Court has instructed us to presume a mens

rea requirement attaches to statutory elements that criminalize innocent conduct,

see United States v. X-Citement Video, Inc., 513 U.S. 64, 72, 115 S. Ct. 464, 469

(1994), the status element of § 922(g) does not involve innocent conduct. Indeed,

the only innocent conduct that § 922(g) does criminalize is the possession of a gun,

and the mens rea requirement attaches to the possession element. At most, then-

Judge Gorsuch’s concurrence serves to illustrate that the language of § 922 and §

924(a)(2) is not “perfectly clear,” and that other tools of interpretation must be




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employed to ascertain whether a mens rea requirement attaches to the status

element.

       In United States v. Jackson, we resolved the issue of whether “knowingly”

applies to the status element of § 922(g).2 120 F.3d 1226 (11th Cir. 1997).

Jackson involved § 922(g)(1), which is identical to § 922(g)(5)(A), except that it

proscribes gun possession by felons, as opposed to possession by those illegally or

unlawfully in this country. Compare 18 U.S.C. § 922(g)(1), with § 922(g)(5)(A).

Much like Rehaif, the defendant in Jackson argued that “the district court

erroneously instructed the jury that it was not necessary for [him] to know that he

had been convicted of a felony” to find him guilty of violating § 922(g)(1).

Jackson, 120 F.3d at 1229. Relying on cases from the Fourth and Fifth Circuits,

this court held that the government need not prove that the defendant knew of his

prohibited status. See id. (citing Langley, 62 F.3d at 604-606 (majority opinion);

United States v. Dancy, 861 F.2d 77, 81 (5th Cir.1988)).

       Additionally, there is a longstanding uniform body of precedent holding that

the government does not have to satisfy a mens rea requirement with respect to the

status element. No court of appeals has required proof of the defendant’s


       2
          This court has not specifically addressed the illegal-alien prohibited status of §
922(g)(5)(A), but we have recognized that “each subdivision of subsection (g) differs only in its
requirement that the offender have a certain “status under the law.” Winchester, 916 F.2d at 605
(quotations omitted). Not only would it be bizarre for two § 922(g) subdivisions to have
different mens rea requirements, but also, there is nothing in the text or history of § 922 to
support such deviation.

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knowledge of his prohibited status under any subsection of § 922(g). 3 Moreover,

despite ample opportunity to do so, Congress has never revisited the issue.4 “The

long time failure of Congress to alter [the law] after it had been judicially

construed, and the enactment by Congress of legislation which implicitly

recognizes the judicial construction as effective, is persuasive of legislative

recognition that the judicial construction is the correct one.” Apex Hosiery Co. v.

Leader, 310 U.S. 469, 488, 60 S. Ct. 982, 989 (1940); see also Kimble v. Marvel

Entm’t, LLC, 135 S. Ct. 2401, 2409-10 (2015) (“All our interpretive decisions, in

whatever way reasoned, effectively become part of the statutory scheme, subject

(just like the rest) to congressional change. Absent special justification, they are

balls tossed into Congress’s court, for acceptance or not as that branch elects. . . .

       3
          See United States v. Smith, 940 F.2d 710, 713-14 (1st Cir. 1991) (felony conviction, §
922(g)(1)); United States v. Huet, 665 F.3d 588, 596 (3d Cir. 2012) (same); Langley, 62 F.3d at
606 (same); United States v. Butler, 637 F.3d 519, 524-25 (5th Cir. 2011) (dishonorable
discharge, § 922(g)(6)); United States v. Olender, 338 F.3d 629, 637 (6th Cir. 2003) (felony
conviction, § 922(g)(1)); United States v. Stein, 712 F.3d 1038, 1041 (7th Cir. 2013)
(misdemeanor domestic violence conviction, § 922(g)(9)); United States v. Kind, 194 F.3d 900,
907 (8th Cir. 1999) (felony conviction, § 922(g)(1)); United States v. Kafka, 222 F.3d 1129,
1131 (9th Cir. 2000) (domestic violence restraining order, § 922(g)(8)); United States v. Games-
Perez, 667 F.3d 1136, 1140 (10th Cir. 2012) (majority opinion) (felony conviction, § 922(g)(1));
United States v. Bryant, 523 F.3d 349, 354 (D.C. Cir. 2008) (same).
        4
          As the Fourth Circuit explained in Langley, “[t]he predecessor statutes to § 922(g)(1)
contained no mens rea requirement. However, cases interpreting these predecessor statutes made
clear that these statutes required proof of a mens rea element and were not strict liability
offenses; that is, courts required proof that ‘the defendant knowingly received, transported, or
possessed a firearm,’ but, at the same time, recognized that ‘the defendant's knowledge of the
weapon's interstate nexus or of his felon status was irrelevant.’ ” 62 F.3d at 604 (citing Dancy,
861 F.2d at 81). We presume that when Congress enacted the Firearms Owners’ Protection Act
of 1986, establishing § 922(g), and its subsequent amendments, it was aware of this history. See
White v. Mercury Marine, Div. of Brunswick, Inc., 129 F.3d 1428, 1434 (11th Cir. 1997)
(“Congress is assumed to act with the knowledge of existing law and interpretations when it
passes new legislation.”).

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Congress’s continual reworking of the patent laws . . . further supports leaving the

decision in place.”).

      Although it may seem that failing to require proof that the defendant had the

requisite knowledge with respect to the status element is at odds with the

traditional rule that the government must prove mens rea for each substantive

element of the crime, upon closer inspection, even at common law and early

American law, the government did not have the burden of proving that the

defendant knew a specific fact or detail about himself. Two examples illustrate

this point: statutory rape and bigamy. In the instance of statutory rape, while there

may be issues of proof with respect to the victim’s age, the government does not

have to prove that the defendant knew he was the age of majority. See, e.g., State

v. Running, 208 N.W. 231, 233-34 (N.D. 1926) (requiring that the government

prove the defendant’s age–but not that he knew his age–to establish the degree of

statutory rape); Hall v. State, 58 N.W. 929, 930 (Neb. 1894) (requiring that an

information charging statutory rape charge that the defendant was over 18, but not

that he knew he was over 18). Similarly, with respect to bigamy, the government

does not have to prove that the defendant knew he was married. See G.A. Endlich,

The Doctrine of Mens Rea, 13 CRIM. L. MAG. 831, 841-42 (1891). In short, even




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traditional crimes have never required the defendant’s knowledge of the status

element. 5

      Finally, as the Fourth Circuit held in Langley,

      Our conclusion that Congress did not intend, through [Firearms Owners’
      Protection Act of 1986] to place the additional evidentiary burdens on the
      government suggested by Langley is supported by several other
      considerations. First, it is highly unlikely that Congress intended to make it
      easier for felons to avoid prosecution by permitting them to claim that they
      were unaware of their felony status and/or the firearm’s interstate nexus.
      Second, in light of Congress’ repeated efforts to fight violent crime and the
      commission of drug offenses, it is unlikely that Congress intended to make
      the application of the enhancement provision contained in § 924(e)(1) more
      difficult to apply.

Id. at 606 (footnote omitted).

      Textual support, prior precedent, congressional acquiescence, and analogous

common law all support the conclusion that there is no mens rea requirement with

respect to the status element of § 922(g). Therefore, we conclude that the district

court did not err when it gave the jury instruction stating that “[t]he government is

not required to prove that the defendant knew that he was illegally or unlawfully in

the United States.”

   B. “Illegally or unlawfully”

      While this court has never addressed at what point an alien becomes illegally

or unlawfully in the United States for purposes of § 922(g)(5)(A), Rehaif’s



      5
          Of course, there could be a mistake of fact defense–but such defense is not alleged here.

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argument that an alien does not become illegal until he has been adjudicated as

such by an USCIS official or an immigration judge fails for four reasons.

      First, the district court’s instruction– that “[a]n alien illegally or unlawfully

in the United States is an alien whose presence within the United States is

forbidden or not authorized by law”–is more consistent with the plain text of §

922(g)(5)(A). See Unlawful, Black’s Law Dictionary (10th ed. 2014) (defining

“unlawful” as “[n]ot authorized by law”).

      Second, as the Tenth Circuit explained in United States v. Atandi, “Congress

has proven quite capable of demonstrating the circumstances in which it intended

federal firearms disabilities to hinge upon the result of an adjudication.” 376 F.3d

1186 (10th Cir. 2004). Other § 922(g) subdivisions refer to, for example, a person

“who is subject to a court order[ed]” restraining order, or to a person “who has

been convicted in any court of a misdemeanor crime of domestic violence.” 18

U.S.C. § 922(g)(8)–(9); Atandi, 376 F.3d at 1188. If Congress had intended for §

922(g)(5)(A) to depend on a decisionmaker’s adjudication, it would have so stated.

Atandi, 376 F.3d at 1188 (citing Russello v. United States, 464 U.S. 16, 23, 104 S.

Ct. 296, 300 (1983)).

      Third, the Immigration and Nationality Act’s (“INA”) definition of

“unlawful” is consistent with the district court’s instruction. The INA prohibits the

admission of aliens who have been unlawfully present in the United States for


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certain periods of time. INA § 212(a)(9)(B)(i)(I), 8 U.S.C. § 1182(a)(9)(B)(i)(I).

The INA states that “[f]or purposes of this paragraph, an alien is deemed to be

unlawfully present in the United States if the alien is present in the United States

after the expiration of the period of stay authorized by the Attorney General. . . .”

INA § 212(a)(9)(B)(ii), 8 U.S.C. § 1182(a)(9)(B)(ii) (emphasis added). As such, a

student admitted under an F-1 visa is unlawfully present if he remains in the

United States after he is no longer enrolled as a full-time student. See 8 C.F.R. §

214.2(f)(5)(i) (defining duration of status as “the time during which an F-1 student

is pursuing a full course of study at an educational institution approved by the

[USCIS] for attendance by foreign students, or engaging in authorized practical

training following completion of studies.”); see also 27 C.F.R. § 478.11 (defining

unlawful as “any alien . . . [w]ho is a nonimmigrant and whose authorized period

of stay has expired or who has violated the terms of the nonimmigrant category in

which he or she was admitted.”).

      Finally, the rule of lenity does not apply because § 922(g)(5)(A)’s plain text

is not ambiguous. See Johnson v. U.S., 529 U.S. 694, 713 n.13, 120 S. Ct. 1795,

1807 n.13 (2000) (“Lenity applies only when the equipoise of competing reasons

cannot otherwise be resolved”). Furthermore, even if we found § 922(g)(5)(A)

ambiguous, the ambiguity is resolved by the definition provided by 27 C.F.R. §

478.11, which was promulgated in 1997. See 62 Fed. Reg. 34,634, 34,639 (June


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27, 1997). The rule of lenity is not applicable where a longstanding, unambiguous

regulation gives potential offenders fair notice of what is proscribed. See Babbitt

v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 704 n.18, 115 S.

Ct. 2407, 2416 n.18 (1995).

      Therefore, we conclude the district court did not err when it instructed the

jury that “[a]n alien illegally or unlawfully in the United States is an alien whose

presence within the United States is forbidden or not authorized by law.”

                                  IV.    CONCLUSION

   For the aforementioned reasons, we affirm Rehaif’s convictions.

   AFFIRMED.




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