The entry of a plea of no contest, which is the same as a plea of nolo contendere, satisfies one of the statutory elements of conviction for immigration purposes.[115]  It is indistinguishable from a plea of guilty in its effect in criminal or immigration court.  The same considerations apply to the entry of this plea that were described with respect to the entry of a plea of guilty.  See § 6.28, supra.

[115] INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).

POST CON RELIEF - PLEA - NO CONTEST - MOTION TO WITHDRAW - USE OF NO CONTEST PLEA AGAINST DEFENDANT IN CIVIL IMMIGRATION PROCEEDINGS
The difference between a plea of no contest, or nolo contendere, and a guilty plea is chiefly that the no contest plea may not be used against the defendant in civil proceedings, whereas the guilty plea can. There is no difference between the two pleas insofar as the criminal proceedings are concerned. Therefore, when a defendant is allowed to enter a no contest plea in criminal proceedings, s/he is typically informed that the plea may not be used against him or her in civil proceedings. Immigration proceedings are civil, not criminal, proceedings. In effect, the defendant is informed that the plea does not constitute an admission that may be used in civil immigration proceedings. If the plea is so used, in contradiction to the representation on which the plea was entered, the defendant can move to vacate the criminal conviction on the grounds that the plea was involuntary since it was based on a material misrepresentation as to its effects. In INS v. St. Cyr, 553 U.S. 289, 321-322 (2001), the Supreme Court acknowledged that a plea bargain involves benefits to the defendant, and held that Congress would not be presumed to have intended to deprive the defendant of a benefit (there, eligibility for INA 212(c) relief), on which s/he was entitled to rely at the time the plea was entered. It is fundamental that "a plea that is involuntary, unintelligent, or uninformed is an invalid plea." United States v. Garcia, 401 F.3d 1008 (9th Cir. 2005); citing, Brady v. United States, 397 U.S. 742, 748 (1969); see also, Fontaine v. United States, 411 U.S. 213 (1973); Boykin v. Alabama, 395 U.S. 238 (1969); McCarthy v. United States, 394 U.S. 459, 464-67 (1969). Thus a guilty plea that is obtained through "coercion, terror, inducements, [or] subtle or blatant threats" is involuntary and offensive to due process. Boykin, 395 U.S. at 243 [fn. omitted]; Machibroda v. United States, 368 U.S. 487 (1962); Sanchez v. United States, 50 F.3d 1448, 1454 (9th Cir. 1995). Even if a plea is entered with full knowledge of its direct consequences, it cannot stand if "induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutors business . . . . " Brady v. United States, 397 U.S. at 755 (1969) [citation omitted]. It is established in federal law that the immigration effect of a guilty plea is a "collateral" and not a "direct" consequence of the plea. United States v. Russell, 686 F.2d 35, 38-39 (D.C. Cir. 1982), and cases cited therein. Thus defense counsels failure to advise the defendant that he or she will be deported is not "ineffective assistance of counsel," and the trial courts failure to do so does not render a plea involuntary. United States v. Fry, 322 F.3d 1198, 1200 (9th Cir. 2003); United States v. Gonzalez, 202 F.3d 20, 25-28 (1st Cir. 2000). Yet, as the quoted passage in Brady suggests, and as the federal courts have consistently held over the last three decades, this distinction between "direct" and "collateral" consequences loses all significance when the defendants plea results from affirmative misadvice about its immigration or other effects. See, e.g., United States v. Del Rosario, 902 F.2d 55, 59 (D.C. Cir. 1990); United States v. George, 869 F.2d 333, 337 (7th Cir. 1989); United States v. Sanclemente-Bejarano, 861 F.2d 206, 211 (9th Cir. 1988); Carter v. McCarthy, 806 F.2d 1373, 1376 (9th Cir. 1986), cert. denied, 484 U.S. 870, (1987); United States v. Campbell, 778 F.2d 764, 768-769 (11th Cir. 1985); Downs-Morgan v. United States, 765 F.2d 1534, 1541 (11th Cir. 1985); Strader v. Garrison, 611 F.2d 61, 64 (4th Cir. 1979); United States v. Santelises, 509 F.2d 703, 703-704 (2d Cir. 1975); United States v. Briscoe, 432 F.2d 1351, 1353-1354 (D.C. Cir. 1970); United States v. Khalaf, 116 F.Supp.2d 210 (D. Mass. 1999); United States v. Corona- Maldonado, 46 F.Supp.2d 1171, 1173 (D. Kan 1999); United States v. Mora-Gomez, 875 F. Supp. 1208, 1212 (E.D. Va. 1995); United States v. Nagaro-Garbin, 653 F.Supp. 586, 590 (E.D. Mich 1987), affd, 831 F.2d 296 (6th Cir. 1987); see also, Holmes v. United States, 876 F.2d 1545, 1549, n.5 (11th Cir., 1989), and cases cited therein [discussing the effect of misinformation regarding the "collateral consequence" of parole eligibility on the voluntariness of a plea]. As those and other cases demonstrate, a plea that results from actual misinformation provided to the defendant about its effects is not knowing and voluntary, and cannot be given force.      Applying these principles, the federal courts have consistently voided guilty pleas entered - as this one was - on the basis of affirmative misadvice regarding considerations of consequence to the defendant. For example, in United States v. Toothman, 137 F.3d 1393 (9th Cir. 1998), the Ninth Circuit held that a plea induced by material misinformation from the prosecution, court, and defense counsel was involuntary. During his plea hearing, Mr. Toothman was advised by his counsel that the sentencing guidelines would fix his sentence at somewhere between 10 to 16 months, and both the governments attorney and the district judge confirmed that defendants understanding. Id. at 1395-97. The subsequent pre-sentence report, however, recommended 199 months. Id. at 1397. After the receipt of the pre-sentence report, the defendant moved to withdraw his guilty plea; however, the district court denied his motion and sentenced him to 109 months. Id. at 1397-98.      The Ninth Circuit determined that the defendant had been misinformed by the court, government counsel and his own counsel, and held that "[b]ecause of this misinformation, we do not believe Toothman was equipped intelligently to accept the plea offer made to him." Id. at 1400; quoting, United States v. Watley, 987 F.2d 841, 842 (D.C. Cir. 1993). The Court of Appeal accordingly found that the plea was involuntary. Id. at 1401.      Thanks to Don Chairez for the suggestion for this argument.

BIA

RECORD OF CONVICTION - ALFORD PLEA - PROSECUTION STATEMENT OF FACTS AS FACTUAL BASIS DOES NOT CONSTITUTE PART OF RECORD OF CONVICTION WHERE DEFENDANT DOES NOT ADMIT THEIR TRUTH
Matter of Dennis, A041-468-793 (BIA Aug. 25, 2008) (unpublished) ("BIA affirms the decision of an Immigration Judge holding that a recitation of facts by a criminal prosecutor during a plea hearing cannot be considered as part of the modified categorical approach if the defendant pleads guilty under the Alford doctrine and thus does not confirm the truthfulness of the facts during the plea hearing."), siting North Carolina v. Alford, 400 U.S. 25 (1970). http://bibdaily.com/pdfs/BIAu%208-25-08%20Dennis.pdf

Fourth Circuit

NATURE OF CONVICTION " RECORD OF CONVICTION " ALFORD PLEA FACTS DO NOT FORM PART OF RECORD OF CONVICTION
Salem v. Holder, ___ F.3d ___, ___, 2011 WL 1998330 (4th Cir. May 24, 2011) (Review of the record is restricted even further when ascertaining the nature of a conviction secured by Alford plea.), following United States v. Alston, 611 F.3d 219, 226 (4th Cir. July 2, 2010) ([A] prosecutors proffer of the factual basis for an Alford plea does not satisfy the requirements of the modified categorical approach.).

DC Circuit

CATEGORICAL ANLAYSIS - MINIMUM CONDUCT - PLEA OF NO CONTEST
United States v. Ventura, 565 F.3d 870 (D.C. Cir. May 15, 2009) ("In Virginia, a defendant who pleads nolo contendere admits only the truth of the charge-that is, the crime charged in the indictment. See Commonwealth v. Jackson, 499 S.E.2d 276, 278 (Va. 1998) ("[B]y entering a plea of nolo contendere, the defendant implies a confession ... of the truth of the charge .... " (first omission in original)). Thus Ventura was necessarily convicted of any facts charged in the Virginia indictment. But that indictment charged only that Ventura abducted the victim with the intent to deprive her of personal liberty. Like the abduction statute itself, that description embraces conduct that does not amount to generic kidnapping.").

The Court stated:

Ventura's nolo plea admitted nothing about the narrower description of the crime offered by the Commonwealth at the plea colloquy. Rather, his counsel confirmed that by pleading nolo contendere Ventura signaled only that he was "not contesting the charge." Tr. of Plea Colloquy at 16, Hernandez-Chacon, No. 98623. And the judge found Ventura "guilty as charged in the indictment." Id. at 17 (emphasis added). At no point did Ventura, his counsel, or the judge confirm the truth of the facts as stated by the Commonwealth in its proffer. The judge was not required to accept those facts to convict Ventura. Indeed, the judge might have inferred that Ventura was pleading nolo contendere because he had violated the abduction statute but had not done all that the government alleged.

(Id. at ___.)

Other

PRATICE ADVISORY " CONVICTION " PLEA OF NO CONTEST CREATES CONVICTION FOR IMMIGRATION PURPOSES, EVEN THOUGH THERE IS NO EXPRESS ADMISSION OF GUILT
A plea of no contest, or nolo contendere, is when a defendant does not expressly admit his guilt, but nonetheless waives his right to a trial and authorizes the court for purposes of the case to treat him as if he were guilty. North Carolina v. Alford, 400 U.S. 25, 35 (1970). A plea of no contest followed by any limitation on the clients freedom is a conviction for immigration purposes. INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A). The BIA initially addressed the issue in Matter of C (1953), see: https://casetext.com/case/in-the-matter-of-c-47. In its analysis the Board reasoned that "Technically, a plea of nolo contendere does not admit the allegations of the charge, but merely says that defendant does not choose to defend. The Board continued: For instance, it is best not to enter a plea of guilty but rather to enter a plea of nolo contendere if a client is likely to be sued in a civil action or a civil action is pending as a result of his/her alleged criminal conduct. In such instances, it may be advisable that client enter a plea of no contest rather than a plea of guilty. In others, the discovery or the States case may be very weak or the record of conviction is sloppy, or in other proceedings, such as probation revocation proceedings, it may be advisable not to enter a plea of guilty, but rather proceed with a plea of Nolo Contendere. In United States v. Nguyen, 465 F.3d 1128 (9th Cir. Oct. 18, 2006), the court held: [A] plea of nolo contendere ... is, first and foremost, not an admission of factual guilt. It merely allows the defendant so pleading to waive a trial and to authorize the court to treat him as if he were guilty. (Citation omitted.). Thus, some may argue that in the context of determining whether a noncitizen on supervised release from immigration detention had violated the term of the release requiring that he not commit any crimes, the Ninth Circuit has held that a plea of no contest in criminal proceedings is insufficient evidence to show that the noncitizen has committed a crime, since a nolo contendere plea is not an admission of guilt to the underlying crime. Applied in this context, counsel could argue that a no contest plea cannot be used to establish that a noncitizen has committed a crime, because even though there is a conviction, a no contest plea gives no proof that the offense of conviction was committed by the defendant. Granted, other evidence, however, could be used to prove the conduct. Thanks to Ray Borloutchi.