12-3670

Roig v. Holder

BIA

Straus, IJ

A018 607 424

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

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At a stated term of the United States Court of Appeals for

the Second Circuit, held at the Thurgood Marshall United States

Courthouse, 40 Foley Square, in the City of New York, on the 17th 

day of September, two thousand fourteen.

PRESENT:

ROBERT D. SACK,

GERARD E. LYNCH,

Circuit Judges,

VERNON S. BRODERICK,

District Judge.*

______________________________________

PEDRO RAFAEL ROIG, AKA PETER ROIG,

Petitioner, 

 v. 12-3670 

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL,

Respondent.

______________________________________

FOR PETITIONER: Steven Wizner, Supervising Attorney;

Diana R. Blank, Of Counsel; Emily Rock

and Alaina Varvaloucas, Law Student

Interns; Jerome N. Frank Legal Services

Organization, New Haven, Connecticut.

*Judge Vernon S. Broderick, of the United States District

Court for the Southern District of New York, sitting by

designation.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney

General; Eric W. Marsteller, Senior

Litigation Counsel; Jane T. Schaffner,

Trial Attorney, Office of Immigration

Litigation, Civil Division, United

States Department of Justice,

Washington, D.C.

UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review is

DENIED.

Pedro Rafael Roig, also known as Peter Roig, a native and

citizen of Cuba, seeks review of an August 16, 2012, decision of

the BIA affirming the February 16, 2012, decision by an

Immigration Judge (“IJ”) denying deferral of removal under the

Convention Against Torture (“CAT”). We assume the parties’

familiarity with the underlying facts and procedural history of

the case.

We generally lack jurisdiction to review the removal order

of an alien who, like Roig, was found removable by reason of

having committed an aggravated felony. 8 U.S.C.

§§ 1227(a)(2)(A)(iii); 1252(a)(2)(C). To the extent our

jurisdiction to review the denial of deferral of removal under

the CAT is unresolved, see De La Rosa v. Holder, 598 F.3d 103,

107 (2d Cir. 2010), we may assume jurisdiction and deny a

petition on the merits where, as here, the agency denied

petitioner’s claim and his underlying challenges to that decision

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are without merit. Abimbola v. Ashcroft, 378 F.3d 173, 180 (2d

Cir. 2004). 

Contrary to Roig’s argument, the IJ explicitly considered

the separate and cumulative effect of Roig’s personal

circumstances on the likelihood that he will be arrested and

tortured in Cuba. The IJ considered whether Cuban authorities

were likely to arrest Roig because of his homosexuality,

disabilities, or criminal history. The IJ also considered Roig’s

claim that guards and other prisoners would target him based on

sexual orientation and pleas for scarce medical resources. The IJ

did so without conflating those claims with Roig’s separate

argument that a lack of medical care might amount to torture.

In assessing those claims, the IJ reasonably found the

likelihood of his arrest to be speculative. The evidence

provided by an academic expert witness regarding the treatment of

gay men in Cuba was outdated, from the 1960s and 1970s. The

witness also testified to anecdotal evidence of recent arrests of

homosexual men, and Roig corroborated that testimony with

articles indicating that Cuban police continued to fine men who

congregated in alleged “homosexual meetings,” or who engaged in

public demonstrations. The IJ, however, reasonably found it

speculative that Roig would be arrested because these arrests

were isolated. The record contained evidence, on which the IJ

was entitled to rely, that the Cuban government has become less

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intolerant of homosexuals, including evidence that former

President Fidel Castro publicly accepted responsibility for past

mistreatment of gay men; that the Cuban legislature passed and

has begun developing laws assuring equal rights for homosexuals

and has committed Cuba as a signatory to the United Nations

Declaration on Sexual Orientation and Gender Identity; and that

Castro’s daughter leads a movement promoting gay rights, which

has included the celebration of an International Day Against

Homophobia in Havana. We need not, and do not, conclude that

Cuba fully respects the equal rights of sexual minorities; we

hold only that the agency’s conclusion that it is not more likely

than not that Roig will be arrested on the basis of sexuality is

supported by substantial evidence in the record, the weight of

which is for the agency to determine. See Jian Xing Huang v.

U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (per curiam) (holding

that a fear is merely speculative and not objectively reasonable

absent support in the record). 

Similarly, the IJ reasonably found that Roig’s fear of being

arrested for social dangerousness due to his criminal history,

lack of family ties, and inability to work were unsupported by

the record. Cuban law permits the preemptive detention of

individuals deemed likely to commit a crime - so-called “socially

dangerous” individuals - and has enforced it against political

dissidents and individuals who work in the private sector. 

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However, Roig testified that he was not politically active in the

United States, and the IJ reasonably found speculative Roig’s

assertion that he would be unable to find employment with the

Cuban government based on his physical disability. And there is

no evidence in the record that people with disabilities are

routinely arrested as “socially dangerous.”1

Finally, as we read the record, the IJ did not fail to

understand that Roig’s claim was based on a combination of

factors. In evaluating the claim, the agency necessarily

considered the likelihood that each of the factors relied on

would lead to Roig’s arrest, and concluded that none of them,

individually or in combination, made it more likely than not that

Roig would be arrested, and therefore exposed to prison

mistreatment that allegedly could be considered tantamount to

torture. 

1 Roig also offered testimony that many individuals

deported to Cuba after coming to the United States in the

Mariel boatlift were imprisoned in Cuba upon arrival. 

See Matter of Barrera, 19 I. & N. Dec. 837 (B.I.A. 1989). 

The IJ declined to rely on this testimony to find that

Roig would be interrogated, screened and subject to

imprisonment based on his criminal history in the United

States, noting the absence of any evidence in the record

that this practice continued in the present. That

factual finding was not unreasonable. We note, however,

that Cuba is apparently not accepting deportees from the

United States at this time. We cannot predict whether

such practices will be adopted in the future if and when

Cuba resumes accepting deportees. We express no view as

to whether Roig would be able to reopen his case before

the agency based on evidence regarding the prevailing

circumstances when his removal becomes possible. See 8

C.F.R. §§ 1003.2(c)(3)(ii), 1003.23(b)(4)(i).

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Because Roig’s claim was predicated on his likely arrest

once returned to Cuba, and because the IJ reasonably found that

the evidence did not demonstrate that he would likely be

detained, we need not address the remainder of Roig’s arguments. 

 For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, the stay of removal

that the Court previously granted is VACATED.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk

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