On June 13, 2019, the Second Circuit affirmed the gun possession conviction in US v. Balde.
The story of this case began in 2006, when Mr. Balde’s temporary permission to be in the United States legally was revoked while he was visiting his mother in Guinea during her final illness. He returned by way of JFK airport, where he was informed for the first time that his legal status had been cancelled. He was detained, and the government, alleging that he was inadmissible, initiated removal proceedings. Eventually he was ordered removed, but was then released while he challenged his removal.
To make a long story short, in 2015, over seven years after he received a final order of removal, Mr. Balde was involved in a fight in a Bronx delicatessen and allegedly pulled out a gun. He pleaded guilty to 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).
In the plea agreement, Mr. Balde was permitted to reserve the right to appeal the denial of his motion to dismiss the indictment. He argued that he was never “in” the US because he had been stopped at the border and ruled inadmissible. Thus, he had never entered the US for immigration purposes. In addition, even if he was “in” the US, he was here legally because the government had released him.
The Second Circuit found both arguments unavailing, in an opinion by Judge Lynch. The Court first held that the statute used “in” in its everyday meaning, not as a technical immigration term. Mr. Balde was clearly “in” the Bronx that day even if had never “entered” the US for immigration purposes. As to the second point, the Court ruled that the program under which Mr. Balde had requested release while challenging his removal order did not mitigate his unlawful status. Another form of release, which would mitigate his illegal status, was not what he applied for, and in any event there was no evidence he would have qualified for that program.