Criminal Defense of Immigrants

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).