Criminal Defense of Immigrants


§ 7.18 b. Plea of Guilty or No Contest

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In the alternative, the statutory definition of conviction can be satisfied by a plea of guilty or no contest. [28]  A plea of guilty entered without any factual admission of guilt in order to avoid risk of greater punishment, known as an Alford plea,[29] also constitutes a guilty plea for purposes of establishing a conviction for immigration purposes.[30]


No other plea meets the statutory requirements of a plea.  For example, a plea of not guilty by reason of insanity does not meet the statutory definition, unless it qualifies under the “admission of sufficient facts” alternative.  See § 7.19, infra.[31]

[28] INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), as enacted by IIRAIRA § 322(a)(1).  See Canada v. Gonzales, 448 F.3d 560 (2d Cir. May 18, 2006) (Connecticut nolo contendere plea results in conviction under INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A) for removal purposes); Quireshi v. INS, 519 F.2d 1174 (5th Cir. 1975); Ruis-Rubio v. INS, 380 F.2d 29 (9th Cir.), cert. denied, 389 U.S. 944 (1967); Matter of Logan, 17 I. & N. Dec. 367 (BIA 1980); Matter of Rodriguez, 14 I. & N. Dec. 706 (BIA 1974); Matter of Fortis, 14 I. & N. Dec. 576 (BIA 1974); Matter of W, 5 I. & N. Dec. 759 (BIA 1954)(plea of nolo contendere is an admission of guilt and in effect a plea of guilty to establish a conviction).

[29] North Carolina v. Alford, 400 U.S. 25, 31 (1971).

[30] See, e.g., Burrell v. United States, 384 F.3d 22 (2d Cir. 2004) (criminal judgment based on an Alford plea constitutes a conviction); Abimbola v. Ashcroft, 378 F.3d 173, 181 (2d Cir. 2004) (Alford plea held equivalent to plea of guilty for purposes of creating a conviction for immigration purposes).

[31] A verdict of “guilty but mentally ill” has been held to constitute a “conviction” for purposes of defining grounds of removal.  Salim v. Reno, No. Civ. A. 2000-CV-4603 (E.D.Pa. 2001) (unpublished).



Ninth Circuit

United States v. Vidal, 504 F.3d 1072, 1087-1088 (9th Cir. Oct. 10, 2007) ("The California Supreme Court subsequently characterized a People v. West plea as a plea of nolo contendere that does not establish factual guilt. See In re Alvernaz, 2 Cal.4th 924, 8 Cal.Rptr.2d 713, 830 P.2d 747, 752 (1992) (describing a People v. West plea as a "plea of nolo contendere, not admitting a factual basis for the plea"); see also United States v. Nguyen, 465 F.3d 1128, 1130 (9th Cir.2006) ("[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)). By entering a West plea a defendant "[does] not admit the specific details about his conduct on the ... counts[to which] he pled guilty." Carty v. Nelson, 426 F.3d 1064, 1068 (9th Cir.2005) (citing In re Alvernaz, 2 Cal.4th 924, 8 Cal.Rptr.2d 713, 830 P.2d 747); see also West, 91 Cal.Rptr. 385, 477 P.2d at 420 (explaining that by entering a plea agreement a defendant "demonstrates that he ... is prepared to admit each of [the offense]'s elements" but not factual guilt). As a result, unless the record of the plea proceeding reflects that the defendant admitted to facts, a West plea, without more, does not establish the requisite factual predicate to support a sentence enhancement.").
United States v. Vidal, 504 F.3d 1072, 1087-1088 (9th Cir. Oct. 10, 2007) ("Moreover, in the context of a People v. West plea, "[a] court is not limited to accepting a guilty plea only to the offense charged but can accept a guilty plea to any reasonably related lesser offense." People v. Tuggle, 232 Cal.App.3d 147, 283 Cal.Rptr. 422, 426 n. 10 (Ct.App.1991) (rejecting reliance on the fact that the offense was charged in the conjunctive because the prosecutor could have amended the information before the plea) (citing West, 91 Cal.Rptr. 385, 477 P.2d at 419-20), overruled on other grounds by People v. Jenkins, 10 Cal.4th 234, 40 Cal.Rptr.2d 903, 893 P.2d 1224 (1995). The prosecution need not have formally amended the two counts in order for Vidal to have pled guilty to conduct other than that alleged in the Complaint. See People v. Sandoval, 140 Cal.App.4th 111, 43 Cal.Rptr.3d 911, 926 (Ct.App.2006) (explaining that under California's informal amendment doctrine no "talismanic significance [attaches] to the existence of a written information" and that "a defendant's conduct may effect an informal amendment of an information without the People having formally filed a written amendment to the information").


Entry of a plea under North Carolina v. Alford, does not alter the immigration nature of the conviction, but it might make it easier for the court and prosecution to avoid insisting on making a record of the factual basis for the plea that would expand the nature of the conviction sufficiently to trigger a ground of deportation. Since an Alford plea is entered without any factual admission of guilt, the court and prosecution may allow entry of the plea without establishing any factual basis for the plea. If the court still wishes to establish a factual basis, it might be more inclined to accept defense counsel's specific disclaimer, "We are not admitting the truth of the facts contained in the police report, but simply allowing the court to review it to determine whether the prosecution could present some evidence of every element of the offense." This disclaimer should be sufficient to take the police report factual basis out of the record of conviction, since the defendant is expressly not admitting the truth of the facts contained therein.