     08-0671-ag(L); 08-2372-ag(Con)
     Ditren v. Holder

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED
     AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1 AND
     FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT
     CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION
     MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: “(SUMMARY ORDER).”
     UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE
     WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV), THE
     PARTY CITING THE SUMMARY ORDER MUST FILE AND SERVE A COPY OF THAT SUMMARY ORDER TOGETHER
     WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED. IF NO COPY IS SERVED BY REASON OF THE
     AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT
     DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 3 rd day of December, two thousand nine.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                WILFRED FEINBERG,
 9                ROBERT A. KATZMANN,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       VIRGILIO DITREN,
14                Petitioner,
15
16                    -v.-                                        08-0671-ag(L)
17                                                                08-2372-ag(Con)
18
19       ERIC H. HOLDER, JR., * Attorney General
20       of the United States of America,
21                Respondent.
22       - - - - - - - - - - - - - - - - - - - -X


                *
               Pursuant to Federal Rule of Appellate Procedure
         43(c)(2), Attorney General Holder is automatically
         substituted for former Attorney General Michael Mukasey.

                                                  1
 1   APPEARING FOR PETITIONER:   ALISA WELLEK (Alina Das, Matthew
 2                               Davis, and Sara Johnson, on the
 3                               brief), Immigrant Rights Clinic,
 4                               New York, New York; GEORGE
 5                               TEREZAKIS, Mineola, New York.
 6
 7   APPEARING FOR RESPONDENT:   JAMES E. GRIMES (Tony West and
 8                               Linda Wernery, on the brief)
 9                               Office of Immigration
10                               Litigation, U.S. Department of
11                               Justice, Washington, D.C.
12
13   FOR AMICI CURIAE:           Daniel A. McLaughlin and Corban
14                               S. Rhodes, Sidley Austin LLP,
15                               New York, New York; Richard D.
16                               Willstatter, National
17                               Association of Criminal Defense
18                               Lawyers, New York State
19                               Association of Criminal Defense
20                               Lawyers, and Green &
21                               Willstatter, White Plains, New
22                               York, for amici curiae National
23                               Association of Criminal Defense
24                               Lawyers and New York State
25                               Association of Criminal Defense
26                               Lawyers, in support of
27                               Petitioner.
28
29        Petition for review of a final order of removal from
30   the Board of Immigration Appeals.
31
32        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
33   AND DECREED that the petition be GRANTED and the matter
34   REMANDED.
35
36        Virgilio Ditren petitions for review of a final order
37   of removal of the Board of Immigration Appeals (“BIA”).
38   Ditren and the government agree that the current BIA
39   opinions are insufficient as a matter of law. Ditren asks
40   us to terminate the proceedings against him; the government
41   seeks remand. We assume the parties’ familiarity with the
42   underlying facts, the procedural history, and the issues
43   presented for review.



                                  2
 1        The principal issue in this petition is whether the
 2   government has proven that Ditren was “convicted”--of the
 3   offense to which he pled guilty--within the meaning of
 4   section 1101(a)(48)(A) of the Immigration and Nationality
 5   Act (“INA”). See 8 U.S.C. § 1101(a)(48)(A). As this Court
 6   made clear in Puello v. Bureau of Citizenship & Immigration
 7   Servs., 511 F.3d 324, 328-29 (2d Cir. 2007), there are two
 8   “prongs” to the INA’s definition of “conviction,” either of
 9   which are sufficient to warrant removal.
10
11        A prong one conviction occurs when “a formal judgment
12   of guilt of the alien [has been] entered by a court.” 8
13   U.S.C. § 1101(a)(48). This, in turn, “refers to the date on
14   which judgment is entered on the docket, not the date on
15   which a court accepts a guilty plea.” Puello, 511 F.3d at
16   331. A prong two conviction occurs when: (1) “adjudication
17   of guilt has been withheld,” (2) “a judge or jury has found
18   the alien guilty or the alien has entered a plea of guilty
19   or nolo contendere or has admitted sufficient facts to
20   warrant a finding of guilt,” and (3) “the judge has ordered
21   some form of punishment, penalty, or restraint on the
22   alien’s liberty to be imposed.” 8 U.S.C. § 1101(a)(48)(A).
23
24   [1] It is clear that the record cannot support a prong one
25   conviction. The only relevant documents at issue are a
26   Certificate of Disposition Indictment (“CDI”), a Certificate
27   of Disposition Dismissal (“CDD”), and a letter from Judge
28   Gubbay of the New York Supreme Court. Although the BIA
29   declined to consider Judge Gubbay’s letter in its two
30   opinions, we conclude that even consideration of that letter
31   cannot prove a prong one conviction.
32
33   [2] As to prong two, we are unable to review with
34   confidence the BIA’s decision because, although the BIA
35   ostensibly declined to rely on Judge Gubbay’s letter, it
36   relied on information contained in that letter in its prong-
37   two analysis. We therefore remand this matter to the BIA
38   for it to answer some or all of the following:
39
40            •   Is Judge Gubbay’s letter admissible?
41            •   If so, does the combination of the CDI, the
42                CDD, and Judge Gubbay’s letter support a
43                finding of a prong two conviction?




                                  3
 1            •   If Judge Gubbay’s letter is not admissible, do
 2                the CDI and the CDD support a finding of a
 3                prong two conviction?
 4            •   In either event, was there a prong two
 5                conviction?
 6
 7   In answering this last question, the BIA will need to decide
 8   whether participation in drug treatment under threat of
 9   incarceration constitutes the imposition of a judicial
10   “order[] [of] some form of punishment, penalty, or restraint
11   on the alien’s liberty.” See 8 U.S.C. § 1101(a)(48). We
12   note that, at oral argument, counsel for petitioner
13   indicated that on remand a letter could be sent to the BIA
14   bringing to its attention the briefing of the amicus curiae.
15
16        Finding no merit in Ditren’s remaining arguments, we
17   hereby GRANT the petition and REMAND the matter to the BIA
18   for proceedings consistent with this order.
19
20
21                              FOR THE COURT:
22                              CATHERINE O’HAGAN WOLFE, CLERK
23
24                              By:___________________________




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