Immigrant in possession of a gun? A visa’s label “H-1B” is not a fact that makes it a nonimmigrant.

The panel amended a per curiam opinion filed July 19, 2021; filed an amended per curiam opinion affirming the defendant’s conviction for violating 18 U.S.C. § 922(g)(5) by possessing a firearm while being an alien who had been admitted to the United States under a non-immigrant visa; denied a petition for panel rehearing; and denied on behalf of the court a petition for rehearing en banc.

In the amended opinion, the panel held that after Rehaif v. United States, 139 S. Ct. 2191 (2019), the government must—in order to gain a conviction under § 922(g)(5)(B)— prove a defendant knew he was admitted into the country under a “nonimmigrant visa” as defined by § 922(g). The panel explained that under this statutory scheme, the government must show that the defendant knew his particular visa was “nonimmigrant”—knowledge that can be established by demonstrating the defendant knew that his visa was classified as a “nonimmigrant visa,” or by showing he knew his visa possessed the components that constitute a nonimmigrant visa. Contrary to the government’s position, the panel wrote that establishing that the defendant knew his visa was called an “H-1B visa” is not enough.

Reviewing for plain error the district court’s erroneous jury instructions that permitted a conviction without a finding that the defendant was aware of anything about his visa status, the panel held that the error did not affect the defendant’s substantial rights because the record overwhelmingly indicates that the defendant knew he had a nonimmigrant visa.

Concurring, Judge Silver wrote separately to explain her position that § 922(g)(5)(B) and Rehaif required the government to prove the second of the two knowledge types identified in the per curiam opinion.

Concurring in part and dissenting in part, Judge Bumatay wrote that the defendant has established a reasonable probability that the outcome of his trial would be different if the jury were properly instructed, and that the panel should therefore return the determination of the defendant’s guilt to the jury.

Full case here: UNITED STATES V. GEAR,

Anton Vialtsin, Esq.
LAWSTACHE™ LAW FIRM | Criminal Defense and Business Law
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