Argued: November 6, 2018
Balde, a citizen of Guinea, appeals his conviction of one
count of unlawful possession of a firearm by "an alien .
. . [who] is illegally or unlawfully in the United
States," in violation of 18 U.S.C. §§
922(g)(5)(A) and 924(a)(2). In a prior opinion, this Court
rejected Balde's arguments that, first, at the time he
possessed the firearm, he was not "in" the United
States because he had not "entered" the United
States as that term is defined for the purposes of
immigration law, and second, that even if he was
"in" the United States, he was not present
"illegally or unlawfully" because he had been
paroled. We affirmed the judgment of the district court.
now petitions for rehearing based on the Supreme Court's
recent opinion in Rehaif v. United States, 139 S.Ct.
2191, 2194 (2019), which held that in prosecutions pursuant
to 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2), the
government must prove that the defendant not only knowingly
possessed a firearm, but also knew that he or she was
unlawfully in the United States. We conclude that the
indictment's failure to allege explicitly that Balde knew
he was unlawfully in the United States was not a
jurisdictional defect. But, because Balde has demonstrated
plain error in the acceptance of his guilty plea, we GRANT
his petition for rehearing and WITHDRAW our prior opinion. We
reiterate our initial holdings, but VACATE Balde's
conviction and REMAND for further proceedings consistent with
Matthew B. Larsen, Federal Defenders of New York, New York,
NY, for Defendant-Appellant Souleymane Balde.
Tarlow, Assistant United States Attorney (Anna M. Skotko,
Kiersten Fletcher, on the brief), for Geoffrey S. Berman,
United States Attorney for the Southern District of New York,
New York, NY.
Before: Hall and Lynch, Circuit Judges, and Gardephe,
E. Lynch, Circuit Judge.
Balde pled guilty to unlawful possession of a firearm by
"an alien . . . [who] is illegally or unlawfully in the
United States," in violation of 18 U.S.C. §§
922(g)(5)(A) and 924(a)(2). We initially upheld his
conviction, rejecting Balde's invitation to interpret
"in" to mean "entered into" as the latter
term is used in immigration law, and concluding that, being
physically present in the United States without having been
paroled into the country or otherwise given a legal status,
Balde was properly considered to be "illegally or
unlawfully in the United States" within the meaning of
days after our opinion in this case, the Supreme Court
decided Rehaif v. United States, 139 S.Ct. 2191,
2194 (2019), holding that, to obtain a conviction pursuant to
18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2), the
government must prove that the defendant not only knowingly
possessed a firearm, but also knew that he or she was
"illegally or unlawfully in the United States" at
the time he or she possessed the firearm. Balde now petitions
for rehearing, arguing that his guilty plea was accepted in
error, because he was not advised of the additional knowledge
requirement announced in Rehaif, and the record does
not contain facts sufficient to satisfy that element of the
offense. He asserts that, whatever his legal status at the
time he possessed the firearm, he did not know at
that time that he was in the United States illegally, and
that he therefore is not guilty of violating 18 U.S.C. §
we conclude that Balde has demonstrated a reasonable
probability that he would not have pled guilty to violating
§ 922(g)(5)(A) as interpreted by the Supreme Court in
Rehaif, we GRANT Balde's petition and withdraw
our prior opinion. We reiterate that opinion's holdings,
but VACATE Balde's conviction and REMAND for further
proceedings consistent with this opinion.
Balde is a citizen of Guinea. He first arrived in the United
States as a child, without lawful immigration status. In May
2005, Balde sought to adjust his status to become a lawful
permanent resident, apparently pursuant to the terms of a
class action settlement agreement. To qualify for adjustment of
status, Balde had to be interviewed by the United States
Citizenship and Immigration Services ("USCIS"). His
interview was originally scheduled for December 1, 2005.
months after applying, however, Balde learned that his mother
was seriously ill and that unless he traveled to Guinea to
visit her soon, he risked missing his last chance to see her
alive. He asked his attorney to postpone the interview in
order for him to travel abroad. His lawyer told Balde that he
would contact USCIS to postpone the interview. The lawyer
wrote to USCIS, stating that Balde would be unable to attend
his interview due to unforeseen circumstances. Balde also
applied for advance parole, a status which allows a
noncitizen to travel abroad temporarily and return to the
United States without jeopardizing any existing legal status
or pending application for immigration relief. USCIS granted
advance parole, but did not act on the request to postpone
did not appear for his scheduled interview, although USCIS
had not granted an adjournment and despite the fact that he
did not leave the United States until several weeks after the
scheduled interview date. On January 27, 2006, while Balde
was out of the country, USCIS denied his application for
adjustment of status because he had missed his interview and
because it determined that the request for postponement
submitted by Balde's attorney did not demonstrate
sufficient reason to postpone it. The agency also revoked
Balde's advance parole.
mother died on January 28, 2006. On March 17, 2006, Balde
flew back to New York City and was stopped at John F. Kennedy
International Airport, where Customs and Border Protection
("CBP") agents informed him for the first time that
his advance parole had been revoked. CBP agents detained
Balde and initiated removal proceedings, charging him as
inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i)(I), which
applies to noncitizens seeking admission without a valid
visa, passport, or other suitable travel document. In due
course, an immigration judge issued an order of removal.
Balde appealed, first to the Board of Immigration Appeals
("BIA"), which dismissed the appeal, and then to
this Court, which granted a stay of removal pending decision.
his appeal was pending before this Court and his removal was
stayed, Balde sought supervised release from detention. The
United States Immigration and Customs Enforcement Agency
("ICE") agreed to grant such release, and notified
Balde that he would be released under the Intensive
Supervision Appearance Program ("ISAP"). First
implemented in 2003, ISAP offers an "alternative to
detention for final-order aliens" who are unable to be
removed, and provides for electronic monitoring and
supervision for program participants. See Nguyen v. B.I.
Inc., 435 F.Supp.2d 1109, 1112-13 (D. Or. 2006).
a remand from this Court on consent of the parties, the BIA
again denied relief to Balde on December 19, 2008. Balde did
not appeal that decision to this Court, and the order of
removal became final. Balde's Guinean passport expired
around that time, however, and the government was therefore
unable to effect his deportation. He remained at liberty,
under supervision. Immigration officials modified the terms
of that supervision in 2012. At no time, however, did Balde
hold a visa or other legal authorization to enter the United
States, and he remained subject to a final order of removal.
December 14, 2015 - seven years after his removal order
became final - Balde was involved in a fight in a Bronx
delicatessen. During the altercation, Balde pulled out a gun
and pointed it at others inside the deli. He then left the
premises but later drove back to the deli with another
individual and fired a single shot into the air out of the
passenger side window.
officers from the New York City Police Department responded
to the scene, witnesses identified the car from which the
shot had been fired as it pulled up to a nearby intersection.
Police officers pursued and stopped the vehicle. Balde got
out of the car from the front passenger seat, and was quickly
apprehended. A police search discovered four cartridges in
Balde's jacket pocket, and a revolver under the front
passenger seat where Balde had been sitting. Witnesses to the
deli altercation later identified Balde as the person who had
fired the gunshot.
jury indicted Balde on one count of possession of a firearm
in violation of 18 U.S.C. § 922(g)(5)(A). He moved to
dismiss the indictment. After the district court denied the
motion, he pled guilty pursuant to an agreement that
preserved his right to appeal the district court's denial
of his motion. The district court sentenced Balde to 23
months' imprisonment and two years of supervised release.
appealed that decision, arguing that he was not within the
category of persons, individuals "illegally or
unlawfully in the United States," who are prohibited
from possessing a firearm under 18 U.S.C. §
922(g)(5)(A). Agreeing with the district court's decision
concluding otherwise, we affirmed Balde's conviction.
time expired for Balde to seek rehearing, however, the
Supreme Court decided Rehaif v. United States, 139
S.Ct. 2191 (2019), holding that in prosecutions pursuant to
18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2) the
government must prove beyond a reasonable doubt that the
defendant knew not only that he possessed a firearm, but also
that he was unlawfully present in the United States. Because
the latter mens rea element had not previously been
recognized, the indictment of Balde did not expressly allege
it, Balde was not advised of it by the district court at the
time of his plea, and the district court did not identify a
factual basis for concluding that Balde had such knowledge.
now petitions the Court for rehearing, arguing that
Rehaif requires the dismissal of the charge against
him, or at least, in the alternative, vacatur of his guilty
U.S.C. § 922(g)(5)(A) prohibits "an alien . . .
illegally or unlawfully in the United States" from
possessing a firearm or ammunition. A separate provision, 18
U.S.C. § 924(a)(2), provides that "[w]hoever
knowingly violates [18 U.S.C. § 922(g)(5)(A)] shall be
fined . . ., imprisoned not more than 10 years, or
original brief on appeal, Balde argues that at the time of
the alleged conduct, he did not fall within the category of
persons prohibited by § 922(g)(5)(A) from possessing a
firearm for two related reasons: first, that under his
particular immigration circumstances he was not
"in" the United States within the meaning of the
statute when he possessed the firearm, and second, that even
if he was, he was not here "illegally or
unlawfully." In our original opinion, decided on June
13, 2019, we rejected both of Balde's arguments and
concluded that, given the particulars of his immigration
status, he was within the category of individuals prohibited
from possessing a firearm under 18 U.S.C. §
922(g)(5)(A). For the reasons set forth in that opinion,
and reiterated below, we adhere to those conclusions.
petition for rehearing, Balde adds new arguments not
addressed in his original appellate briefing or advanced in
the district court. Relying on the Supreme Court's
decision in Rehaif, he argues that his indictment
was defective in failing to allege explicitly that he knew
that he was illegally present in the United States, and that
this purported defect deprived the district court of
jurisdiction and requires dismissal of the indictment.
Alternatively, he contends that the failure of the district
court to advise him that such knowledge was an element of the
charged offense, and the absence of evidence establishing a
factual basis for finding that he had such knowledge,
invalidates his guilty plea.
reasons stated below, we reject the first
argument. Because we agree with the second, however,
we grant the petition for rehearing, withdraw our previous
opinion, vacate the judgment of conviction, and remand the
case for further proceedings consistent with this opinion.
"In the United States"
first argues that the prohibition of firearms possession in
§ 922(g)(5)(A) is not triggered by mere physical
presence within the territory of the United States, but
instead requires that a "defendant must have
'entered' the country as a matter of immigration
law." Appellant's Br. at 17. For the technical
purposes of immigration law, Balde notes, he was prevented
from "entering" the United States when he returned
in March 2006 and was placed in removal proceedings, and he
should therefore be treated as if he were still at the border
seeking admission. Because he has never technically
"entered" the United States, Balde argues, he was
not "in" the United States within the meaning of 18
U.S.C. § 922(g)(5)(A) at the time of the conduct charged
in the indictment.
most matters of statutory interpretation, we start with the
text of the statute. "Statutory analysis necessarily
begins with the plain meaning of a law's text and, absent
ambiguity, will generally end there." Dobrova v.
Holder, 607 F.3d 297, 301 (2d Cir. 2010) (internal
quotation marks and alterations omitted). "In conducting
such an analysis, we review the statutory text, considering
the ordinary or natural meaning of the words chosen by
Congress, as well as the placement and purpose of those words
in the statutory scheme." Id. (internal
quotation marks omitted).
plain meaning here is clear. "In" is an ordinary,
familiar English word, with a well understood meaning. Its
principal definition in the Oxford English Dictionary is
"[w]ithin the limits or bounds of, within (any place or
thing)." In, Oxford English Dictionary (2d ed.
1989); see also Taniguchi v. Kan.Pac. Saipan, Ltd.,
566 U.S. 560, 566-67 (2012) (relying on dictionary
definitions to aid in interpreting statutory text). Someone
arriving to meet a friend might call to say that she was
"in the lobby;" she might tell her friend over
dinner that she was "in Texas last weekend." It
would be clear to the friend in both cases that the speaker
meant that she was physically present in those locations at
the time she indicated she was "in" them. The plain
meaning of the statute reflects that ordinary meaning: a
person, citizen or noncitizen, is "in" the United
States when he or she is present within its geographic
borders. The text is therefore "absent ambiguity"
and our analysis presumptively ends there. Dobrova,
607 F.3d at 301.
Balde's argument would invert the normal plain meaning
rule of statutory interpretation by substituting a technical
term-of-art meaning for the ordinary plain meaning of a
straightforward English word. "In" is not a
technical term with a special meaning in immigration law. In
order to adopt Balde's interpretation, we would have to
replace the plain meaning of the statutory phrase "is
. . . in the United States" with the
specialized technical meaning of the different phrase
"has entered the United States," thus
substituting "a specific legal term" within
immigration law for the simple words chosen by Congress.
See United States v. Lopez-Perera, 438 F.3d 932, 935
(9th Cir. 2006).
decline to do so for four reasons. First, that is simply not
the language that Congress chose. The statute uses the
ordinary word "in," not the more technical term
substituting "has entered" for "is in"
would change the meaning of the statute, even with respect to
one who unquestionably had "entered" the United
States in the technical immigration sense of the word. The
language defining the crime refers to a noncitizen who
"is illegally or unlawfully in the United States."
A noncitizen who enters the United States with a visa and
overstays the term of that visa is clearly in the
United States illegally but, at least if his decision to stay
was made after his arrival, it would not be correct to say
that he had entered the United States illegally.
we are interpreting a section of the criminal code that
prohibits gun possession by various categories of person, not
an immigration provision. Criminal laws are ordinarily
written to be understood by the non-specialist individuals
who are subject to the law or who serve as law enforcement
officers, prosecutors, and jurors, not to be given arcane
hidden meanings identifiable only by immigration lawyers -
and even by them only by identifying a "ghost"
technical term supposedly lurking behind the actual,
non-technical words used in the statute. See, e.g.,
Mitsui & Co. v. Am. Exp. Lines, Inc., 636 F.2d
807, 814 (2d Cir. 1981) ("Legislation when not expressed
in technical terms is addressed to the common run of men and
is therefore to be understood according to the sense of the
thing, as the ordinary man has a right to rely on ordinary
words addressed to him.") (citations and ...