537 F. App'x 875
11th Cir.2013Background
- Acebo-Leyva, a Cuban native, seeks review of BIA and IJ denial of a §212(c) waiver and CAT deferral of removal.
- BIA denied waiver of inadmissibility because his underlying drug convictions stemmed from a jury trial, not a guilty plea.
- Acebo-Leyva argues repeal of §212(c) would have impermissible retroactive effect and should grant relief.
- Supreme Court precedent in St. Cyr governs retroactivity for §212(c) relief and prohibits applying repeal to cases based on plea.
- Ferguson resolves the retroactivity issue for jury-trial convictions and governs this case despite later Vartelas decisions.
- BIA denied CAT relief because it found no likelihood of torture if returned, based on Cuban government awareness of his actions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Acebo-Leyva is eligible for a §212(c) waiver despite a jury conviction. | Acebo-Leyva argues retroactivity bars denial. | BIA/agency relies on St. Cyr and Ferguson to deny relief. | Denied: St. Cyr/Ferguson control; waiver denied. |
| Whether retroactivity principles preclude denying §212(c) relief for jury-convicted aliens. | Reliance on plea-based relief makes repeal retroactive harm. | Ferguson controls; reliance elements satisfied. | Denied: retroactivity resolved against Acebo-Leyva. |
| Whether the CAT denial was proper given torture likelihood analysis. | BIA should assess torture likelihood irrespective of past Cuban actions. | BIA factual determination—government awareness threshold—not met. | Dismissed for lack of jurisdiction over factual findings; no likelihood shown. |
Key Cases Cited
- INS v. St. Cyr, 533 U.S. 289 (Supreme Court 2001) (retroactivity of §212(c) denial depends on reliance and safeguards)
- Ferguson v. U.S. Att’y Gen., 563 F.3d 1254 (11th Cir. 2009) (controls retroactivity in jury-convicted cases regarding §212(c))
- Vartelas v. Holder, 132 S. Ct. 1479 (Supreme Court 2012) (retroactivity framework; relied on for distinction but not to overturn St. Cyr/ Ferguson)
- Singh v. U.S. Att’y Gen., 561 F.3d 1275 (11th Cir. 2009) (review of factual determinations for likelihood of torture limited)