Opinion
Nos. 08-0671-ag (L), 08-2372-ag (Con).
December 3, 2009.
Petition for review of a final order of removal from the Board of Immigration Appeals.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the petition be GRANTED and the matter REMANDED.
Alisa Wellek (Alina Das, Matthew Davis, and Sara Johnson, on the brief), Immigrant Rights Clinic, New York, New York; George Terezakis, Mineola, NY, for Petitioner.
James E. Grimes (Tony West and Linda Wernery, on the brief) Office of Immigration Litigation, U.S. Department of Justice, Washington, D.C., for Respondent.
Daniel A. McLaughlin and Corban S. Rhodes, Sidley Austin LLP, New York, New York; Richard D. Willstatter, National Association of Criminal Defense Lawyers, New York State Association of Criminal Defense Lawyers, and Green Willstatter, White Plains, New York, for amici curiae National Association of Criminal Defense Lawyers and New York State Association of Criminal Defense Lawyers, in support of Petitioner, for Amici Curiae.
PRESENT: DENNIS JACOBS, Chief Judge, and WILFRED FEINBERG and ROBERT A. KATZMANN, Circuit Judges.
SUMMARY ORDER
Virgilio Ditren petitions for review of a final order of removal of the Board of Immigration Appeals ("BIA"). Ditren and the government agree that the current BIA opinions are insufficient as a matter of law. Ditren asks us to terminate the proceedings against him; the government seeks remand. We assume the parties' familiarity with the underlying facts, the procedural history, and the issues presented for review.
The principal issue in this petition is whether the government has proven that Ditren was "convicted" — of the offense to which he pled guilty — within the meaning of section 1101(a)(48)(A) of the Immigration and Nationality Act ("INA"). See 8 U.S.C. § 1101(a)(48)(A). As this Court made clear in Puello v. Bureau of Citizenship Immigration Servs., 511 F.3d 324, 328-29 (2d Cir. 2007), there are two "prongs" to the INA's definition of "conviction," either of which are sufficient to warrant removal.
A prong one conviction occurs when "a formal judgment of guilt of the alien [has been] entered by a court." 8 U.S.C. § 1101(a)(48). This, in turn, "refers to the date on which judgment is entered on the docket, not the date on which a court accepts a guilty plea." Puello, 511 F.3d at 331. A prong two conviction occurs when: (1) "adjudication of guilt has been withheld," (2) "a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt," and (3) "the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed." 8 U.S.C. § 1101(a) (4 8)(A).
It is clear that the record cannot support a prong one conviction. The only relevant documents at issue are a Certificate of Disposition Indictment ("CDI"), a Certificate of Disposition Dismissal ("CDD"), and a letter from Judge Gubbay of the New York Supreme Court. Although the BIA declined to consider Judge Gubbay's letter in its two opinions, we conclude that even consideration of that letter cannot prove a prong one conviction.
As to prong two, we are unable to review with confidence the BIA's decision because, although the BIA ostensibly declined to rely on Judge Gubbay's letter, it relied on information contained in that letter in its prong-two analysis. We therefore remand this matter to the BIA for it to answer some or all of the following:
• Is Judge Gubbay's letter admissible?
• If so, does the combination of the CDI, the CDD, and Judge Gubbay's letter support a finding of a prong two conviction?
• If Judge Gubbay's letter is not admissible, do the CDI and the CDD support a finding of a prong two conviction?
• In either event, was there a prong two conviction?
In answering this last question, the BIA will need to decide whether participation in drug treatment under threat of incarceration constitutes the imposition of a judicial "order[] [of] some form of punishment, penalty, or restraint on the alienjs liberty." See 8 U.S.C. § 1101(a)(48). We note that, at oral argument, counsel for petitioner indicated that on remand a letter could be sent to the BIA bringing to its attention the briefing of the amicus curiae.
Finding no merit in Ditren's remaining arguments, we hereby GRANT the petition and REMAND the matter to the BIA for proceedings consistent with this order.