Aybar-Alejo v. INS ( 2000 )

United States Court of Appeals
For the First Circuit
Nos. 97-1583
98-2021
ANTONIA TRINIDAD AYBAR-ALEJO,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
APPEAL FROM THE BOARD OF IMMIGRATION APPEALS
Before
Boudin and Lipez, Circuit Judges,
and Casellas, District Judge.*
Randy Olen, Esq. for petitioner.
Lorri Shealy Unumb, with whom David W. Ogden, Acting
Assistant Attorney General, Richard M. Evans, Assistant
Director, and John L. Davis, Attorney, Office of Immigration
Litigation, U.S. Department of Justice, Civil Division, were on
brief for respondent.
November 1, 2000
________________
*Of the District of Puerto Rico, sitting by designation.
LIPEZ, Circuit Judge. During a cocaine-trafficking
investigation in 1990, the police conducted a search of Antonia-
Aybar-Alejo's residence, where they found a .38 caliber
derringer pistol loaded with two live rounds of ammunition. She
was charged with possession of a firearm by an alien under Rhode
Island law. Alejo pled nolo contendre to the firearms charge in
1992; a second charge for cocaine possession was dismissed.
Petitioner was placed into deportation proceedings on
November 10, 1992. The Immigration Judge found Alejo deportable
under Section 241(a)(2)(C) of the Immigration and Nationality
Act (INA) due to her conviction for firearm possession.
Subsequently, the Board of Immigration Appeals (BIA) dismissed
Alejo's appeal, finding that she had been convicted of
possession of a firearm and was not eligible for suspension of
deportation.
Alejo was convicted under R.I.G.L. § 11-47-7, which
states the following:
No unnaturalized foreign born person who entered the
United States in violation of the laws of the United
States or, having legally entered the United States in
a lawful manner but now remains in the United States
in violation of the laws of the United States, shall
purchase, own, carry, transport, or have in his or her
possession or under his or her control any firearm.
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(Emphasis added.)
Petitioner argues that either possession or control of the
firearm is a possible offense under the Rhode Island statute,
and that conviction for control of the firearm would not make
her deportable. We hold that "control" of the firearm under the
Rhode Island law constitutes constructive possession of a
firearm and, thus, a violation of federal immigration law.
Given Alejo's conviction of a deportable offense, we have no
jurisdiction to review her petition. Accordingly, we must
dismiss it.
I.
Possession of a Firearm under the INA
We must first ascertain whether the INA intends a
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distinction between possession and control of a firearm.1
Section 241(a)(2)(C) of the Act specifies:
Certain firearm offenses. Any alien who at
any time after admission is convicted under
any law of purchasing, selling, offering for
sale, exchanging, using, owning, possessing,
or carrying, or of attempting or conspiring
to purchase, sell, offer for sale, exchange,
use, own, possess, or carry, any weapon,
part, or accessory which is a firearm or
destructive device (as defined in section
921(a) of title 18, United States Code) in
violation of any law is deportable.
8 U.S.C. § 1227(a)(2)(C).
Although we have not found cases addressing the meaning
of "possession" under this provision, we have found cases
dealing with firearm possession under other federal laws. Those
cases make clear that possession means both actual and
1
Appellate review of deportation determinations is curtailed
by Section 440(a) of the Antiterrorism and Effective Death
Penalty Act of 1996, Pub.L.No. 104-132, 110 Stat. 1214, 1277
("AEDPA") (enacted April 24, 1996), and subsequently by Section
309(c)(4)(G) of the Illegal Immigrant Reform and Immigrant
Responsibility Act of 1996, Pub.L.No. 104-208, 110 Stat. 3009("IIRIRA")(enacted September 30, 1996). Because Alejo was in
deportation proceedings prior to April 1, 1997, this action is
governed by the transitional rules of section 309(c)(4) of the
IIRIRA, which apply to judicial review of deportation orders
entered on or after October 31, 1996. These rules state: "there
shall be no appeal permitted in the case of an alien who
is...deportable by reason of having committed a criminal offense
covered in section...241(a)(2)(A)(iii), (B), (C), or (D) of the
[INA]." IIRIRA § 309(c)(4)(G). We may determine whether Alejo
was convicted of a crime encompassed by this section. If we
find that petitioner was in fact convicted of such an offense,
we must dismiss for lack of jurisdiction. See Maghsoudi v. INS,
181 F.3d 8, 12 (1999).
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constructive possession, with the latter involving the concept
of control. "[W]hile actual possession involves physical
contact or like
intimate association with the object possessed, constructive
possession may be shown by evidence of an exercise of indirect
dominion or control, either personally or through others, over
objects not touched or otherwise directly controlled." Russell
G. Donaldson, What Constitutes Actual or Constructive Possession
of Unregistered or Otherwise Prohibited Firearm in Violation of
26 U.S.C.A. § 5861, 133 A.L.R. Fed. 347 (2000). See United
States v. Hernandez, 995 F.2d 307, 313 (1st Cir. 1993)(affirming
conviction under 18 U.S.C. § 922(g)(1) for possession that was
constructive when firearm was on the person of a co-
conspirator); United States v. Smith, 930 F.2d 1081, 1086 (5th
Cir. 1991)(finding control and dominion over firearm or premises
to qualify as possession in violation of 26 U.S.C. § 5861 and 18
U.S.C. § 922(g)(1)); United States v. Diecidue, 603 F.2d 535,
564 (5th Cir. 1979); United States v. Wells, 721 F.2d 1160, 1162
(8th Cir. 1983); United States v. Barron-Rivera, 922 F.2d 549,
552 (9th Cir. 1991)("The requisite showing of possession may be
made by proof of actual or constructive possession," under 18
U.S.C. § 922(g)(1) and (5)); United States v. Hernandez, 913
F.2d 1506, 1514 (10th Cir. 1990)("An alien may possess a firearm
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for purposes of § 922 through actual or constructive
possession.").2 Indeed, we have stated, "Constructive
possession, however, is possession." United States v. Rogers, 41
F.3d 25, 29 (1st Cir. 1994)(commenting on violation of 18 U.S.C.
§ 922(g)(1), convicted felon in possession of a firearm). See
also United States v. Maldonado, 23 F.3d 4, 6 (1st Cir. 1994),
cert. denied, 115 S. Ct. 451 (1994); United States v. Lamare,
711 F.2d 3, 5-6 (1st Cir. 1983). Furthermore, "constructive
possession...may be inferred from a defendant's dominion and
control." United States v. Echeverri, 982 F.2d 675, 678 (1st
Cir. 1993). See also Maldonado, at 7.
Although we are bound to construe ambiguity in favor
of the alien where it occurs, see Costello v. INS, 376 U.S. 120,
128 (1964); Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948);
Pacheco v. INS, 546 F.2d 448, 449 (1st Cir. 1976), cert. denied,
430 U.S. 985 (1977)(acknowledging principle), we discern no
ambiguity in the meaning of "possessing" or "possess" in section
241(a)(2)(c). Those words include constructive possession,
which means the exercise of dominion or control over the
firearm.
2Like conclusions have been reached in cases involving
possession of marijuana, cocaine and other contraband. See,
e.g., United States v. Williams-Hendricks, 805 F.2d 496, 500
(5th Cir. 1986)(regarding violation of 21 U.S.C. § 952(a),
importation of controlled substance or narcotic drug).
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II.
The State Law Conviction
As noted, Alejo argues that the separate references to
possession and control in the Rhode Island statute mean that
conviction for control of a firearm cannot mean conviction for
possession of a firearm. See supra. We disagree. The statute
simply describes both actual possession, "in his or her
possession", and constructive possession, "under his or her
control."
We find confirmation for this view in decisions of the
Rhode Island Supreme Court. "Possession of an object can be
either actual or constructive. Constructive possession of an
object occurs when an individual exercises dominion and control
over such object even though it is not within his immediate
physical possession." State v. Jenison, 442 A.2d 866, 875 (R.I.
1982)(involving conviction under R.I.G.L. § 12-12-1.7 for
possession of a controlled substance with intent to deliver).
See also State v. Reyes, 671 A.2d 1236, 1238 (R.I. 1996)(finding
constructive possession to be the same as possession for
purposes of conviction under R.I.G.L. § 11-47-8, which involves
any firearm "in his or her possession or under his or her
control"). Rhode Island law embraces the familiar principle
that constructive possession, meaning dominion and control over
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an item, is tantamount to actual possession. Accordingly,
Alejo's conviction for possession of a firearm by an alien under
R.I.G.L. § 11-47-7 means that she was convicted of possessing a
firearm within the meaning of section 241(a)(2)(c) of the INA,
and she is therefore deportable.
III.
Conclusion
Alejo's record of conviction is for a firearm offense
governed by the INA. We have no further authority to review the
decision of the BIA. We dismiss for lack of jurisdiction.
Petition dismissed.
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