Immigrant Unlikely to Reverse Guilty Plea

PHILADELPHIA (CN) - A foreign national who wants to withdraw his guilty plea to drug charges to avoid deportation failed to impress a panel with the 3rd Circuit on Wednesday.

Cosmo Fazio pleaded guilty to the drug charge in 2011 and was sentenced to deportation. In a subsequent attempt to withdraw that plea, Fazio said his lawyer had texted his wife and told her that "deportation would not be an issue."

The trial court itself had issued Fazio numerous warnings to the contrary, however, and a federal judge denied Fazio's request.

At an appellate hearing Wednesday, a three-judge panel seemed primed to affirm.

"All the holding cases say that deportation is a near certainty," Judge Thomas Ambro told Fazio's attorney, Mark Goldstein.

Though Fazio has lived in the United States since 1992 and raised a family here, Goldstein argued that Fazio did not fully understand the ramifications of the guilty plea as a nonnative English speaker.

The circuit must decide if Fazio distinguished his case from Padilla v. Kentucky, a U.S. Supreme Court decision that offers an exemption to the "practically inevitable" risk of deportation after a felony charge if an attorney gave constitutionally deficient representation.

In this case, the alleged advice from Fazio's attorney stands against otherwise clear statutory text.

Prosecutors note that Fazio received ample warnings at sentencing that his guilty plea could lead to his removal from the United States. At his hearing, he was asked if he recognized that "pleading guilty may have consequences with respect to his immigration status if he is not a citizen of the United States," to which he said he did.

Goldstein countered that "the court had said, no one can predict what will happen to your immigration status."

In shooting down Fazio's initial request, the District Court held that Padilla mandated only that an attorney acknowledge his client's "eligibility" for deportation and need not indicate its "absolute certainty."

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