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

1 08-0671-ag(L); 08-2372-ag(Con) Ditren v. Holder



### UNITE D STATES C OURT OF AP PEALS FOR T HE SE COND CIRCU IT



## SUM MARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED A F T E R 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 OTH E R PA P E R I N 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 day of December, two thousand nine. rd 5 6 PRESENT: DENNIS JACOBS, 7 Chief Judge, 8 WILFRED FEINBERG, 9 ROBERT A. KATZMANN, 10 Circuit Judges. 11 12 - - - - - - - - - - - - - - - - - - - -X VIRGILIO DITREN, 13 Petitioner, 14 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 - - - - - - - - - - - - - - - - - - - -X2

APPEARING FOR PETITIONER: ALISA WELLEK (Alina Das, Matthew 1 2 Davis, and Sara Johnson, on the 3 brief), Immigrant Rights Clinic, 4 New York, New York; GEORGE TEREZAKIS, Mineola, New York. 5 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 ass umeth e p art ies ’ f ami lia rit y w ithth e 42 und erl yin g f act s, thepr oce dur al his tor y, andth e i ssu es 43 pre sen tedfo r r evi ew.3 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 Pue llov. Bu rea u o f C iti zen shi p & Immig rat ion 7 Ser vs. , 5 11 F.3 d 3 24, 32 8-2 9 ( 2d Cir . 2 007 ), the re aretw o 8 “pr ong s” to theINA’s de fin iti on of “co nvi cti on, ” e ith er of 9 whi ch aresu ffi cie nt to war ran t r emo val

. 10 11 A p ron g o ne con vic tio n o ccu rs whe n “ a f ormal judgme nt 12 of gui lt of theal ien[h as bee n] ent ere d b y aco urt .” 8 13 U.S .C. § 110 1(a )(4 8). T his , i n t urn , “ ref ers toth e d ateon 14 whi ch judgme nt is ent ere d o n t he doc ket , n ot theda te on 15 whi ch a c our t a cce pts a gui ltypl ea. ” Pue llo , 5 11 F.3 d a t 16 331

. A pro ng twoco nvi cti on occ urs wh en: (1 ) “ adj udi cat ion 17 of gui lt has be en wit hhe ld, ” ( 2) “a judge or jur y h as fou nd 18 theal iengu ilt y o r t he ali en has en ter ed a p leaofgu ilt y 19 or nol o c ont end ereorha s a dmi tte d s uff ici entfa cts to 20 war ran t afi ndi ng of gui lt, ” a nd (3) “t he judge has or der ed 21 some f ormofpu nis hme nt, pe nal ty, orre str ain t o n t he 22 ali en’ s l ibe rtytobeimpos ed. ” 8 U .S. C. § 1 101 (a) (48 )(A ). 23 24 [1] It is cle ar tha t t he rec ordca nno t s upp orta pro ng one 25 con vic tio n. 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 prong37 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?4 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:___________________________