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

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 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

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
2

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.
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 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 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:___________________________