[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 1 3

- 1 1008 Non

- Argument Calendar

________________________

Agency No. A012

- 478

- 778
JUAN RAICEDO ACEBO

- LEYVA , a.k.a. Juan Acebo Leiva, Petitioner , v ersus
U.S. ATTORNEY GENERAL , Respondent
.

________________________ Petition for Review of a Decision of the Board of Immigration Appeals

________________________ (September 20, 2013) Before HULL, JORDAN and BLACK, Circuit Judges. PER CURIAM:

Case: 13-11008 Date Filed: 09/20/2013 Page: 1 of 62 Juan Raicedo Acebo

- Leyva , a native of Cuba, seeks review of th e Board of Immigration Appeals’ (BIA ) order dismissing his appeal of the Immigration Judge’s (IJ ) denial of his requests for a waiver of inadmissibility under former Immigration and Nationality Act ( INA ) § 212(c) , 8 U.S.C. § 1182(c), and deferral of removal under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degr adin g Treatment or Punishment (CAT )
. After review of the record and consideration of the parties’ briefs, we deny the petition in part and dismiss in part. Waiver of Inadmissi bility The BIA concluded Acebo

- Leyva was ineligible for a waiver of inadmissibilit y under former § 212(c) because his underlying aggravated felony convictions stemmed from a jury trial, rather than a guilty plea. Acebo

- Leyva argues he is eligible for a waiver of inadmissibility because a denial of his request based on the repeal of § 212(c) would have an impermissible retroactive effect. Acebo

- Leyva’s argument is foreclosed by binding precedent
. In INS v. St. Cyr , 533 U.S. 289 (2001) , the Supreme Court held t hat the repeal of INA § 212(c)

— which gave the Attorney General discretio n to waive the deportation of a lawful permanent resident who had lived in the United States continuously for seven years
— would result in an impermissible retroactive effect if applied to aliens whose convictions were obtained through plea agreements, and who would

Case: 13-11008 Date Filed: 09/20/2013 Page: 2 of 63 have otherwise been eligible for such relief when the y entered into their agreements
. St. Cyr , 533 U.S. at 325

- 26 . The Supreme Court emphasized that because St. Cyr, and ot her aliens like him, “almost certainly relied upon [the likelihood of receiving a waiver] in deciding whether to forgo their right to a trial,” the elimination of such relief had a n obvious and severe retroactive effect. Id. at 325 . I n Ferguson v. U.S. Att’y Gen. , 563 F.3d 1254, 1271 (11th Cir. 2009) , we declined to extend the Supreme Court’s decision in St. Cyr to aliens who were convicted by a jury following a trial . We explained the decision to go to trial did not satisfy the reliance requirement art iculat ed by the Supreme Court in St. Cyr
. Id. Ferguson is dispositive of Acebo

- Leyva’s claim for a waiver of inadmissibility
. Acebo

- Leyva was convicted by a jury of his underlying drug offense following his decision to proceed to trial. A lthough Acebo

- Leyva maintains Ferguson is incompatible with the Supreme Court’s more recent decision in Vartelas v. Holder , 132 S. Ct. 1479 (2012) , he is mistaken . In Vartelas , the Supreme Court considered whether 8 U.S.C. § 1101(a)(13)

— which was enacted in 1996 and p recluded foreign travel by lawfu l permanent residents who had been convicted of a crime of moral turpitude

— applied retroactively to a lawful permanent resident who sustained his conviction prior to the law’s effective date. See 132 S. Ct. at 1483. In hol ding that the statutory provision did not apply

Case: 13-11008 Date Filed: 09/20/2013 Page: 3 of 64 retroactively to Vartelas, the Court explained that the loss of the ability to travel abroad was a harsh penalty that indisputably ranked as a new disability to which Vartelas was not subject before the law’s enactment. Id. at 1487

- 88. Nothing in Vartelas undermines or calls into question the continuing validity of St. Cyr , and, by extension, Ferguson
. See Vartelas , 132 S. Ct. at 1491

- 92 (relying on St. Cyr ). Vartelas is another permutation of the Supreme Court’s retroactivity case law . By relying on Vartelas , Acebo

- Levya is attempting to

“ exclusively rely on othe r portions of the Supreme Court’ s retroactivity jurisprudence and pretend reliance is irrelevant. ” Ferguson , 563 F.3d at 1270 . But this he may not do. As we explained in Ferguson , “[t] he fact that it is possible to advance a retroactivity claim in some circumstances without a showing of reliance does not give us carte blanc he to discard the Supreme Court’ s pronouncements on th e matter. ” Id. While “[w] e recognize the Supreme Court has refused to adopt a rigid, single test for determining whether a statute has an i mpermissible retroactive effect,” we have already concluded it is “ more reasonable to focus on the reliance element s, as laid out in St. Cyr , than other elements of a retroactivity analysis, put forth in [other Supreme Court cases]
. ” Id. “ St. Cyr confronted the exact statutory provision at issue here

— § 212(c)

— and laid out a sensible framework for deciding whether [th e] repeal of § 212(c) relief has an impermissible retroactive effect. ” Id. at 1270

- 71. Consequently, “ the St. Cyr approach is entitled to more weight

Case: 13-11008 Date Filed: 09/20/2013 Page: 4 of 65 than a decision concerning the retroactivity analysis of a completely different statute. ” Id. at 1271. As such, we adhere to our binding precedent, as we must, and deny Acebo

- Leyva’s petition to the extent it challenges the denial of his application for a waiver of inadmissibility. Deferral of Removal The BIA concluded Acebo

- Leyva was not eligible for C AT relief because he failed to demonstrate it was more likely than not he would be tortured if returned to Cuba. Specifically, Acebo

- Leyva did not establish that the Cuban government was aware of his political dissidence or participation in the Bay of Pig s invasion in 1961. Acebo

- Leyva contends the BIA erred by focusing on the fact he was issued a safe conduct pass by the Cuban government in 1961, rather than analyzing whether the treatment of inmates in Cuban prisons amounts to torture. He maintains the BIA erroneously conflated the question of why he would be tortured with the torture itself
. Acebo

- Leyva’s arguments miss the mark. The BIA concluded Acebo

- Leyva failed to show it was more likely than not he would be tortured if returned to Cuba because the Cuban government likely did not know about his past actions, and thus would have no reason to target him . This was a threshold factual determination that rendered further analysis unnecessary . If the Cuban government is un aware of Acebo

- Leyva and his actions in 1961 , it is unlikely that he will be imprisoned and

Case: 13-11008 Date Filed: 09/20/2013 Page: 5 of 66 subjected to torture. We lack jurisdiction to review these factual findings
. See Singh v. U.S. Att’y Gen. , 561 F.3d 1275, 1280 (11th Cir. 2009) (“[W]e may not review the administrative fact findings of the IJ or the BIA as to the sufficiency of the alien’ s evidence and the likelihood that the alien will be tortured if returned to the country in question. ”). Thus, to the extent Acebo

- Leyva’s arguments amount to an assertion that he showed mor e likely than not he would be tortured if returned to Cuba, his petition for review is dismissed. See id. at 1281. PETITION DENIED IN PART AND DISMISSED IN PART . Case: 13-11008 Date Filed: 09/20/2013 Page: 6 of 6