Aybar-Alejo v. INS

• Court: Court of Appeals for the First Circuit
• Decided: November 1, 2000
• Docket: 97-1583
• Status: Published

Opinion

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.

-2- (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

-3- 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).

-4- 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

-5- 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).

-6- 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

-7- 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.

-8-