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.[137]  See § 7.18, supra.  It is nearly indistinguishable from a plea of guilty in its effect in criminal or immigration court. [138]  The same considerations apply to the entry of this plea that were described with respect to the entry of a plea of guilty.  See § 8.57, supra.

 

                The only possible exception to this statement is that “the nolo plea may not be used against the defendant as an admission in a subsequent civil suit for the same act, and the defendant is not estopped from later denying the facts on which the criminal charge was based.  Thus, the primary utility of this plea for the defendant is that it insulates him from automatic civil liability for the same or related wrong.” [139]  This advice to the defendant may lead to a post-conviction claim of affirmative misadvice, because the defendant may construe this to mean that a nolo contendere plea may not be used against him or her in civil immigration proceedings, and if this is prejudicial to the defendant’s decision to enter the plea, the defendant may have grounds to vacate the no contest plea.  The Ninth Circuit has held that a plea of no contest does not establish the fact of the conduct described in the conviction, because the defendant is not admitting that conduct, but merely declining to contest it.[140]  Therefore, immigration counsel can argue that while a conviction based on a no contest plea creates a conviction of a certain offense, it does not establish that the defendant in fact committed that offense.  Certain immigration consequences depend upon proof that the noncitizen “committed” an offense.  For example, the petty offense exception to inadmissibility on account of a conviction of a crime of moral turpitude is not available to one who in fact committed a second CMT offense.  At least in the Ninth Circuit, a no contest plea to a second CMT offense would not disqualify the applicant for admission to the United States from eligibility for the petty offense exception because the no contest plea does not establish s/he committed the second offense.

 

                Whether a plea is guilty or no contest is theoretically independent of the question whether the defendant is overtly maintaining innocence.  It is thus possible to enter a no contest plea, but actually admit factual guilt in the plea colloquy or on a plea form.  It is unusual, however, because the normal reason for entry of a no contest plea is the defendant’s reluctance to admit guilt.  If the defendant enters a no contest plea, but admits factual guilt, the no contest plea itself might not establish the commission of the offense, but the defendant’s admission of factual guilt could be used for that purpose, which would nullify the immigration benefits of entry of a no contest plea.  A defendant can also enter a guilty plea either (a) with, or (b) without a factual admission of guilt.  See § 8.59, infra.

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

[138] G. Herman, Plea Bargaining § 10:06 (2d ed. 2004).

[139] G. Herman, Plea Bargaining § 10:06, p. 172 (2d ed. 2004)(footnotes omitted), citing Bell v. Commissioner, 320 F.2d 953 (8th Cir. 1963); Duffy v.Cuyler, 581 F.2d 1059 (3d Cir. 1978); Ranke v. United States, 873 F.2d 1033, 1037 n.7 (7th Cir. 1989).

[140] United States v. Nguyen, 465 F.3d 1128 (9th Cir. Oct. 18, 2006)(federal conviction under 8 U.S.C. § 1253(b) for willful failure to comply with a term of release under supervision -- which required that he not “commit any crimes” -- is reversed where misdemeanor nolo contendere convictions were legally insufficient to support his conviction, because a nolo contendere plea is not an admission of guilt to the underlying crime, a conviction based on such a plea does not prove that he “commit[ted] any crimes.”and the convictions should not have been admitted under Federal Rules of Evidence 410, 803(22), or 803(8) for the purpose of proving that he actually committed the underlying crimes charged).

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.).

Ninth Circuit

NATURE OF CONVICTION - CATEGORICAL ANALYSIS - MODIFIED CATEGORICAL ANALYSIS - PEOPLE V. WEST PLEA DOES NOT ESTABLISH ADMISSION OF FACTS
Fregozo v. Holder, 576 F.3d 1030 (9th Cir. Aug. 12, 2009) ("a defendants nolo contendere plea pursuant to People v. West, 91 Cal. Rptr. 385 (Cal. 1970), does not establish factual guilt, and therefore, 'unless the record of the plea proceeding reflects that the defendant admitted to facts, a West plea, without more, does not establish the factual predicate to support a determination that the conviction was generic."), citing United States v. Vidal, 504 F.3d 1072, 1089 (9th Cir. 2007) (en banc).

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.