Ditren v. Holder, Nos. 08-0671-ag(L), 08-2372-ag(Con) (2d Cir. Dec. 3, 2009). [Non-Precedent Decision]

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. 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. 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.

Where the only relevant documents at issue are a Certificate of Disposition Indictment (“CDI”), a Certificate of Disposition Dismissal (“CDD”), and a letter from a Judge of the New York Supreme Court, this court concludes that the record cannot support a prong one conviction.

Where the BIA relied on information contained in a letter from a Judge of the New York Supreme Court in its prong-two analysis to determine whether there is a conviction for removal purposes, this court is unable to review the BIA’s decision and must remand the matter for the BIA to answer the following questions: (1) Is the NYS Supreme Court judge’s letter admissible? (2) If so, does the combination of the Certificate of Disposition Indictment (CDI), the Certificate of Disposition Dismissal (CDD), and Judge’s letter support a finding of a prong two conviction? (3) If the Judge’s letter is not admissible, do the CDI and the CDD support a finding of a prong two conviction? (4)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 alien’s liberty. This court therefore grants the petition and remands the matter to the BIA for proceedings consistent with this order.