On November 13, 2019, the Second Circuit (Hall, Lynch, Gardephe) issued a decision in United States v. Balde, vacating the defendant’s guilty plea for unlawful possession of a firearm by an alien who is in the United States illegally or unlawfully, in violation of 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2). The panel initially upheld Balde’s conviction on appeal, but eight days after the Court’s original decision, the United States Supreme Court decided Rehaif v. United States, 139 S. Ct. 2191 (2019), holding that a conviction under the relevant statutes required the government to prove that the defendant knew that he or she was in the country illegally at the time he or she possessed the firearm. Prior to Rehaif, every Circuit to consider the question held that the defendant’s knowledge of this fact was not an element. The Second Circuit then granted Balde’s petition for rehearing and concluded that the district court had committed plain error in failing to ensure that Balde was apprised of this knowledge requirement before pleading guilty (even though the district court had no reason at the time to think it was an element of the crime) and because the record did not contain facts sufficient to support a conclusion that Balde was aware that he was in the country illegally.


Balde is a citizen of Guinea who arrived in the United States as a child without lawful immigration status. In 2005, Balde sought to adjust his status pursuant to an amnesty program, which required him to be interviewed by the United States Citizenship and Immigration Services (USCIS). Upon learning that his mother was ill, Balde asked his lawyer to reschedule his interview so he could travel to Guinea to see her. Balde’s lawyer wrote to USCIS requesting a postponement of the interview and Balde applied for advance parole, a status which allows noncitizens to travel abroad temporarily without jeopardizing a pending immigration application.

USCIS granted Balde’s request for advance parole but did not act on his request to postpone his interview. Despite the fact that Balde did not travel abroad until several weeks after his scheduled interview, Balde missed the USCIS interview and, while he was out of the country, USCIS denied his application for adjustment of status and revoked his advance parole.

Upon returning to the United States in March 2006, Balde was stopped at John F. Kennedy International Airport and informed that his advance parole had been revoked. Customs and Border Protection (CBP) agents initiated removal proceedings, charging him as inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i)(I). An immigration judge later issued an order of removal. Balde appealed to the Board of Immigration Appeals (BIA), which dismissed the appeal, and then to the Second Circuit, which granted a stay of removal pending a decision.

While his appeal was pending, Balde sought supervised release from detention. The United States Immigration and Customs Enforcement Agency (ICE) agreed to grant such release under the Intensive Supervision Appearance Program (ISAP) in 2007. Following a remand to the BIA, which again denied Balde relief, Balde did not appeal and the order of removal became final. But because Balde’s Guinean passport expired around this time, the government was unable to remove him and he remained at liberty, under supervision and subject to a final order of removal

In December 2015, seven years after his removal order became final, Balde was arrested in connection with a fight at a Bronx delicatessen. Balde was charged with one count of possession of a firearm in violation of § 922(g)(5)(A), which prohibits possession of a firearm by “an alien . . . [who] is illegally or unlawfully in the United States.” Balde moved to dismiss the indictment, which the district court denied. Balde then pled guilty pursuant to an agreement that preserved his right to appeal the district court’s denial of his motion. Balde was sentenced to 23 months’ imprisonment and two years’ supervised release.

Balde appealed that decision, arguing that he was not “in” the United States for the purposes of § 922(g)(5)(A) and that, even if he was, he was not in the country “illegally or unlawfully.” In its original opinion, the Second Circuit rejected both arguments and affirmed Balde’s conviction. But eight days later, the Supreme Court decided Rehaif, holding that in prosecutions pursuant to §§ 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 this was the first time this mens rea element had been recognized as an element of the offense, the indictment charging Balde did not allege it, Balde was not advised of it at the time of his guilty plea, and the district court did not identify any factual basis for establishing it. Balde therefore petitioned for rehearing, arguing that Rehaif requires the dismissal of the charge against him or, at a minimum, vacatur of his guilty plea. The Second Circuit granted his petition for rehearing.

The Court of Appeals Vacates the Guilty Plea

Balde raised several arguments on appeal. Some related to the Rehaif issue, while others raised a substantive question of whether the particular facts of Balde’s immigration proceedings meant that he was not in the category of people to whom the firearms statute applied.

First, he raised the same arguments as he made in his prior appeal – that he was not “in” the United States within the meaning of the statute and that, even if he was, he was not here illegally. The Court again rejected both of those arguments. The panel concluded that the term “in” as used in § 922(g)(5)(A) clearly encompasses Balde’s physical presence within the United States. The Court rejected Balde’s attempt to recast the phrase “in” to mean that a defendant must have “entered the country as a matter of immigration law.” Balde argued that because he was placed in removal proceedings upon returning to the United States, he never technically “entered” the country and should be treated as though he was outside its borders. In rejecting this argument, the Court relied on the plain meaning of the word “in,” and noted that accepting Balde’s definition would alter the meaning of the statute by importing into the criminal code – a set of laws intended to be understood by any lay individual– a technical immigration provision, which Congress never expressed an intent to do.

The Court also again rejected Balde’s argument that he was not in the United States “illegally or unlawfully,” because he had been effectively paroled into the country when he was released from detention in 2007. Balde’s argument on this point was a highly technical one. At the time he tried to reenter the country in March 2006, he no longer had legal status and he was treated as seeking admission into the United States. Therefore, he was to be detained pending a removal proceeding, pursuant to 8 U.S.C. § 1225(b)(2)(A). One way that a noncitizen seeking admission can obtain release during removal proceedings is to apply for parole, which the government can grant temporarily on a “case-by-case basis for urgent humanitarian reasons or significant public benefit.” 8 U.S.C. § 1182(d)(5)(A). A noncitizen who has been paroled is not considered to be in the country “illegally or unlawfully.”

If a noncitizen is determined to be inadmissible and a removal order is entered, the government must detain the individual during the “removal period,” the ninety-day period that, in this case, would begin the date the order of removal became final. If, at the end of that period, the person still has not been removed, he or she may be released subject to supervision. 8 U.S.C. § 1231(a)(3) and (6). Contrary to a noncitizen who has been paroled, an individual who has been ordered removed but who has been granted supervised release is not lawfully present in the United States – whether detained or at liberty pending the execution of the removal order, the person’s immigration status is unchanged and is considered unlawful.

The issue here was that the documentation suggested that ICE intended to release Balde in 2007 pursuant to § 1231(a)(6). But because the removal period had not even begun at that point in 2007 (because his appeal was still pending), Balde was not technically eligible for this kind of release from detention. He therefore argued that his release should be construed as “parole,” making his presence in the country lawful. The Second Circuit again rejected this argument, noting that nothing in the record indicated that Balde had applied for or been granted parole, and that a technical error with respect to Balde’s release would not convert it into a parole. Moreover, by the time of his arrest, the ninety-day removal period had long expired and his supervised release was within the authority granted by § 1231(a)(6). Therefore, the Second Circuit concluded again that Balde was in the United States at the time of his possession of a firearm and that his presence in the country was illegal or unlawful for the purposes of § 922(g)(5)(A).

The Court then turned to the new arguments that Balde raised in reliance on the Supreme Court’s decision in Rehaif that in a prosecution under §§ 922(g) and 924(a)(2), the government must prove that the defendant knew that he belonged to the “relevant category of persons barred from possessing a firearm” – here, a noncitizen in the United States unlawfully.

Balde first argued that the knowledge requirement articulated in Rehaif is an essential element of a prosecution under §§ 922(g)(5)(A) and 924(a)(2), and that the government’s failure to plead it meant that the indictment did not charge a federal crime and therefore the district court lacked jurisdiction over the prosecution. Federal courts, as courts of limited jurisdiction, have subject matter jurisdiction only where Congress has explicitly conferred it. Jurisdiction over federal criminal prosecutions is granted to federal courts pursuant to 18 U.S.C. § 3231, and jurisdiction is vested in the courts when a proper indictment is filed. Balde’s argument that the deficiency in the indictment stripped the district court of jurisdiction is significant because, generally, a defendant who has pled guilty waives all challenges to his conviction except those going to the court’s jurisdiction. See United States v. Yousef, 750 F.3d 254, 258 (2d Cir. 2014).

The Court, however, rejected Balde’s jurisdictional challenge. The Court noted that “the standard for the sufficiency of an indictment is not demanding,” and that where, as here, the indictment tracks the language of the criminal statute, the indictment adequately charges a federal crime. Even though the indictment did not include an allegation that Balde was aware that he was in the country unlawfully, neither did the statute itself and the Supreme Court nonetheless interpreted it as requiring such a state of mind.

Courts have frequently rejected similar arguments that the failure to include certain elements of an offense in an indictment deprived the district court of subject matter jurisdiction. For example, the Court noted, the failure to include drug quantities or the value of stolen property – even if the government would need to prove those elements beyond a reasonable doubt at trial – were considered non-jurisdictional errors. See e.g., United States v. Lee, 833 F.3d 56, 62-63 (2d Cir. 2016); United States v. Cotton, 533 U.S. 625, 631 (2002). Moreover, courts grappling with Rehaif have unanimously applied a plain error standard in addressing convictions obtained before that decision, rather than vacating the conviction and remanding with instructions to dismiss the indictment, as would have been the remedy if the defect were jurisdictional. Therefore, even if the failure to allege the specific mens rea required here might render an indictment defective, it would not deprive the district court of jurisdiction.

The Second Circuit next addressed Balde’s final argument that his plea was not knowing and voluntary because he was not informed that the government would be required to prove that he knew he was illegally or unlawfully in the United States at the time he possessed the firearm. Furthermore, he argued, the record failed to establish the factual basis for the knowledge requirement, all in violation of Federal Rule of Criminal Procedure 11. Balde contended that these errors were plain and warranted reversal.

The government argued that Balde had waived any non-jurisdictional errors other than his appeal of the motion the district court denied. The Second Circuit rejected this argument, noting well-established precedent that an appeal waiver in a plea agreement “does not bar challenges to the process leading to the plea,” including an argument that the district court failed to comply with Rule 11. See United States v. Lloyd, 901 F.3d 111, 118 (2d Cir. 2018).

That said, because the claim was not raised before the district court, it is subject to a plain error standard of review. Under the plain error standard, an appellant must demonstrate that (i) there was an error; (ii) the error was plain, (iii) the error affected the appellant’s substantial rights; and (iv) the error seriously affects the fairness, integrity or public reputation of judicial proceedings. In the context of guilty pleas, the defendant must establish that the violation affected substantial rights and that there is a reasonable probability that, but for the error, he would not have entered the plea.

Federal Rule of Criminal Procedure 11 requires the district court, at the time of the plea, to “inform the defendant of, and determine that the defendant understands . . . the nature of each charge to which the defendant is pleading.” Fed. R. Crim. P. 11(b)(1)(G). Rule 11 also requires that prior to entering judgment, the district court determine that there is a factual basis in the record for the guilty plea. Fed. R. Crim. P. 11(b)(3).

There was no dispute that at the time of the plea, Balde was not informed – because it was not then the law – that the government would be required to prove that he knew he was in the country illegally or unlawfully. Moreover, nothing in the record would establish that Balde was aware of his illegal immigration status at the time that he possessed the firearm, and the district court did not assert that it had drawn any such conclusion based on the record. And even though at the time Balde entered his plea the law did not require that he be aware of his immigration status, the judicial interpretation of a statute establishes what a statute meant both after and before the decision, meaning that in evaluating Balde’s claim of error the Court must look to the law as expressed by the Supreme Court in Rehaif.

Therefore, with respect to the first prong of the plain error analysis, the Court concluded that the district court had committed error in connection with the plea proceedings. Moreover, the Court found that the error was plain because at the time of the appeal, Rehaif providing binding Supreme Court precedent requiring the government to establish that the defendant knew that he was in the country illegally or unlawfully.

With respect to the third prong, the Court found that the error affected Balde’s substantial rights because there was a “reasonable probability” that but for that error, Balde may not have pled guilty. The nature of Balde’s immigration status at the time that he was arrested was complicated and an issue Balde vigorously contested. Balde insisted that he believed he had been paroled at the time of his release and therefore had lawful status. There were sufficient facts in the record to establish a reasonable probability that Balde would not have pled guilty had he known that the government would have to prove beyond a reasonable doubt that he knew he was in the country illegally or unlawfully.

Finally, the Court easily concluded that a failure to correct the error would “seriously affect[] the fairness, integrity or public reputation of judicial proceedings,” given the real possibility that Balde was allowed to plead guilty to an offense he did not commit. The Court therefore vacated Balde’s conviction and remanded to the district court for further proceedings.


As with the Court’s recent decision in United States v. Murphy, we are again reminded of the seriousness with which courts treat the strictures of Rule 11. Although guilty pleas will be disturbed by appellate courts infrequently, the premise of a knowing and voluntary plea is that the defendant is apprised of the essential elements of the offense to which he or she is pleading guilty. One could easily imagine a situation in which this particular change in the law does not upset a conviction because evidence that the defendant knew he or she was in the country illegally can be readily located in the record. Here, however, the Court was presented with a situation in which the defendant’s immigration status was a contentious and complex legal issue, and where the only evidence in the record on Balde’s mens rea suggested that he believed he had lawful status at the time of his arrest. Under these circumstances, the Court concluded that it would be an injustice to allow the original guilty plea to stand.

It is also interesting to consider the impact of Rehaif in pending appeals. There may be other appeals in which the defendant’s status—illegal presence in the United States or status as a person with a prior felony—may be obvious to the defendant from the facts presented, and in those cases, the defendant may find it difficult to prove plain error. There also may be cases in which the defendant has stipulated to the necessary facts (such as at a felon-in-possession trial) and therefore may have waived the right to present an argument under Rehaif. Whatever the particular circumstances, every defendant whose Section 922(g) proceeding remains alive should be making some variant of a Rehaif argument. Some such appeals, like Balde’s, will no doubt be successful. In addition, given the suggestion in Justice Alito’s dissent that this decision applies to defendants whose convictions are final and no longer on direct appeal, we should expect to see many Rehaif arguments presented over the next year.