          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.




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